Kerala High Court
Dona T. George vs Dona T. George on 12 November, 2019
Author: T.V.Anilkumar
Bench: A.M.Shaffique, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941
Mat.Appeal.No.318 OF 2013
AGAINST THE ORDER DATED 21-11-2012 IN OP NO.1268/2008 OF FAMILY
COURT,ERNAKULAM
APPELLANT/ RESPONDENT IN O.P.NO.1268/2008:
DONA T. GEORGE,
AGED 41 YEARS,
D/O THAMPI GEORGE, RESIDING AT 6A, MANGALAM TOWERS,
VENNALA P.O., VYTTILA, KOCHI-682 028, REP. BY HER
BROTHER AND NEXT FRIEND HARD T GEORGE
BY ADVS.SRI.GEO PAUL
SRI.S.ASHOK KUMAR.
SMT.P.M.HRIDYA
SMT.JINU TREESA JOSE
SRI.C.R.PRAMOD
SRI.SANU MATHEW
RESPONDENT/ PETITIONER IN O.P.NO.1268/2008
MATHEWS PURACKAL,
AGED 43 YEARS,
S/O FR. MATHEWS, RESIDING AT DEEPANJALI APARTMENT,
BEJAI, MANGALORE, PIN:575 004.
BY ADV. SRI.MVS.NAMBOOTHIRY
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
04-11-2019, THE COURT ON 12-11-2019 DELIVERED THE FOLLOWING:
M.A. No.318/2013
-:2:-
Dated this the 12th day of November, 2019
J U D G M E N T
T.V.ANILKUMAR J.
The wife before the Family Court, Ernakulam in O.P.No.1268 of 2008 is the appellant. She challenges the order passed by the Family Court, dissolving her marriage with the respondent/husband.
2. The appellant was married to respondent on 06.01.1992 in accordance with the Christian religious rites and customs. A girl child born to the spouses was studying in 6th standard on the date of institution of the original petition.
3. The contention of the respondent in O.P.No.1268 of 2008 is that immediately after the marriage, he noticed the appellant to be suffering from some sort of mental disease and behaving in abnormal manner towards him and the family members. She was for that reason treated in Mental Hospital, Vishranthi Centre in Mundkapadam Mandiram Hospital, Manganam, Kottayam. It was only then he learned that she was suffering from Paranoid Schizophrenia and it started even before marriage for which she had been treated in General Hospital, Rourkela, where her father was employed. Though the respondent found it very difficult to lead a M.A. No.318/2013 -:3:- normal matrimonial life with her, he hoped that she would soon recover from the illness and accordingly, he took her to Tamil Nadu, where he was employed in Naiveli Lignite Corporation and the spouses and child lived there till 1995. Thereafter, they came to Doha and after living there till 2000, they lastly came down to Mangalore. In all these places, she was treated for Paranoid Schizoprenia. It is also his contention that she treated him with cruelty throughout and it has not been possible for him to lead a normal life with her. She failed to discharge her duties as a wife and take care of own child. She was often indifferent to him and others and was unreasonably suspicious of him. In 2005, he made his intention very clear with her father that he could no longer lead a matrimonial life with her and therefore, he needed to dissolve the marriage. Her father agreed and since then, the appellant has been staying with her father.
4. He contends that the minor girl child has been looked after by him all these years and she is still with him. Alleging the grounds of cruelty and also that the appellant has been suffering from mental disorder, the respondent filed the present original petition under Section 10(1)(iii)&(x) of the Indian Divorce Act, M.A. No.318/2013 -:4:- 1869(for short 'the Act'). Alternatively, he also sought for a declaration that the marriage with the appellant was null and void, since she was suffering from mental disease at the time of marriage.
5. The respondent denied all the allegations made against her and contended that she is a normal person ably leading a normal matrimonial life with the appellant. She has never failed in her matrimonial duties for any reason and she had been taking care of the child very well. But, the child was removed from her custody under false pretext that she was suffering from some mental illness. She contended that it was the respondent, who treated her with cruelty, which included physical harassments also. He used to pick up quarrels with her unreasonably and treated her like a slave denying rest in her life. She was forced to work all the time even when she was physically ill and further, he had misappropriated her gold and valuables also. Her negligible behavioural problems were exaggerated and presented before the Doctors as acts amounting to mental illness and accordingly, medical records were manipulated. She denied the allegation that she was suffering from Paranoid Schizophrenia and the marriage to be null and void for the alleged reason. The M.A. No.318/2013 -:5:- allegations of cruelty were also denied.
6. The court below examined the respondent as PW.1 and his father as PW2. Among Exts.A1 to A11 marked, except Ext.A1 marriage certificate, all other documents are medical records produced for proving treatments received by the appellant in different hospitals in connection with her mental illness. On the side of appellant, she did not mount the box; but she examined her own brother, who is her guardian, as RW.1.
7. On a consideration of the entire materials on record, the court below held that the marriage was not null and void and rejected the claim for declaration. It, however, held that the medical records sufficiently proved the appellant to be a Paranoid schizophrenia patient and her ill was started even prior to the date of marriage. It also found that her conduct and behaviour in matrimonial life amounted to acts of cruelty and accepting both the grounds urged under Section 10(1)(iii)&(x) of the Act, the respondent was granted an order dissolving marriage between spouses.
8. We heard the counsel appearing on both sides.
9. Refusal of the court below to declare the marriage of appellant as null and void on the ground of mental illness at the time of marriage is not under M.A. No.318/2013 -:6:- challenge at the instance of the respondent. In the absence of respondent's appeal, correctness of that finding is not germane for consideration. The sole challenge is raised by appellant only and it concerns the correctness of the order of the court below granting dissolution of marriage accepting grounds of cruelty and incurable mental illness urged by the respondent.
10. It was contended by the learned counsel for the appellant relying on Section 10(1)(iii) of the Act that in order to grant a divorce under the said ground, the appellant should be shown to be incurably of unsound mind for a continuous period of not less than two years, immediately preceding the presentation of the petition; but there is no convincing evidence on record to prove that the appellant has been suffering from any mental disease of incurable nature.
11. Ext.A3 certificate issued by a senior Psychiatrist of General Hospital, Rourkela shows that the appellant had been treated for mental disease in the month of September,1989, and prior to her marriage. Exts.A4 and A5 medical records also prove that she was treated in the Department of Psychiatry of Vishranthi Centre in Kottayam for the succeeding years since 1994 to 1996. Ext.A2 certificate issued from National M.A. No.318/2013 -:7:- Institute of Mental Health & Neuro Sciences, Bangalore shows that she was treated for Paranoid Schizophrenia for a month, since 23.06.2000. Exts.A6 to A8 are also medical records pertaining to her illness issued from the very same hospital in 2000. Ext.A10 is a medical certificate issued from Hamad Medical Corporation in Doha, where the spouses lived before they came to Bangalore in connection with the employment of the respondent.
12. The medical records brought forth in evidence clearly show that appellant has been suffering from mental illness and her contrary contention denying the illness cannot be accepted as true.
Nonetheless, there is nothing on record to prove that the appellant has been incurably of unsound mind as required to be proved by Section 10(1)(iii) of the Act. The essential ingredient to be proved for securing an order of dissolution of marriage under the above clause is that the mental illness shall be of such a nature that it is incurable. No medical opinion of a medical expert is coming forth in this case to establish that the illness which the appellant is suffering from, is incurable. The Doctors who treated appellant were not examined. Further, nowhere in the pleadings also, there M.A. No.318/2013 -:8:- is any definite allegation that the mental disease attributed to the appellant was incurable. On the other hand, Ext.A7 certificate issued from the National Institute of Mental Health & Neuro Sciences, Bangalore only shows that her condition had started improving and a better condition could be maintained provided; she was administered medicine regularly and without any break. When these aspects are taken into consideration, it is not possible to hold that appellant was suffering from such a kind of mental illness as incapable of being cured and a valid ground for dissolution of marriage was made out. Therefore, disagreeing with the view taken by the court below, we hold that the respondent failed to establish ground under Section 10(1)(iii) of the Act for passing an order of dissolution. The impugned order passed by the Family Court on 21.11.2012, therefore, requires to be interfered with in this respect.
13. The next ground taken up by the respondent for dissolution of marriage is cruelty and this was accepted by the court below on evidence.
14. Under Section 10(1)(x) of the Act, the cruelty to be established must be such a conduct of spouse as to cause reasonable apprehension in the mind of the petitioning spouse that it would be harmful or injurious M.A. No.318/2013 -:9:- for him/her to live with the other. It is very relevant to note in this context that the appellant failed to mount the box and give evidence in person. She adduced entire evidence through her brother, who is her guardian. On the other hand, the respondent/husband examined himself before the court and also his father as PWs.1 and 2 respectively.
15. We went through the testimonies of all the witnesses on record. The respondent said that right from the marriage, he has been trying hard to adjust him with the appellant. On account of her mental ailment, he was always to care of her and quite naturally he was confined to home and prevented from mingling with associates and participating in social functions. He was doomed to lead a secluded life all through out. He did not get love or affection from the appellant and that was also the case with the minor child. He said that the appellant always suspected him without any foundation and showed indifference not only to him; but also to all. She avoided to mingle with respondent and others did not show any interest in the affairs of the daughter.
16. Her conduct when taken as a whole in the light of the evidence on record is of such a nature that no M.A. No.318/2013 -:10:- man in the place of respondent would ever choose to lead a marital life with her. She failed to perform the essential matrimonial duties of a wife. It remains to be a fact that the girl child was taken care of by the respondent right from her birth and it is also an admitted fact that the daughter is still with the respondent. The appellant is staying with her parents since 2005 right before the institution of the original petition. It is a matter of concern having regard to the evidence of mental illness proved in case that the appellant has not been able to lead a normal life with the respondent. Her inability to look after the child is a conduct which should be taken serious note of.
17. RW.2/the father of the respondent spoke to the general behaviour and conduct of the daughter-in-law. Looking at the entire circumstances of the case as well as the proved conduct of the appellant, irresistible conclusion that emerges is that it is not possible for the respondent to lead a normal life with the appellant. The respondent has sufficiently expressed his apprehension that his continued life with the appellant would only place him in an atmosphere deprived of mental peace. The court below also came to the same conclusion and we also do not find any reason to disagree with the M.A. No.318/2013 -:11:- view taken in this respect.
18. It is a fact that the spouses have separated since 2005 and they have not been able to unite and lead a normal matrimonial life all these years. There is every reason, therefore, to assume that their matrimonial relationship is emotionally dead. For all these reasons together, we do not find any reason to interfere with the finding of the court below and the consequential order of granting dissolution of marriage.
In the result, the appeal fails and it is dismissed. Parties should suffer their respective costs.
All pending interlocutory applications will stand closed.
Sd/-
A.M.SHAFFIQUE,JUDGE Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy//
P.A.To Judge