Madras High Court
Rajalingam vs Manikanda Padayachi on 5 August, 2019
Author: T.Raja
Bench: T.Raja
C.M.S.A.No.18 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.08.2019
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
C.M.S.A.No.18 of 2006
Rajalingam ... Petitioner
-vs-
1. Manikanda Padayachi
2. P. Saroja
3. Senthilkumari .... Respondents
Civil Miscellaneous Second Appeal filed under Section 28 of
the Hindu Marriage Act read with Section 100 of Code of Civil
Procedure Code to set aside the fair and decreetal order dated
28.11.2005 passed in CMA No.78 of 2003 on the file of Principal
District Judge, Cuddalore reversing the fair and decreetal order dated
24.07.2003 passed in HMOP No.73 of 1998 on the file of Subordinate
Judge, Vridhachalam.
For Petitioner :: Mr.R. Muralidharan
For Respondents:: Mr.D. Baskar
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C.M.S.A.No.18 of 2006
JUDGMENT
This Civil Miscellaneous Second Appeal is filed by the husband viz. Mr.Rajalingam, H/o Mrs.Senthilkumari, aggrieved by the fair and decreetal order passed by the learned Principal District Judge, Cuddalore in CMA No.78 of 2003 dated 28.11.2005, reversing the fair and decreetal passed by the learned Subordinate Judge, Vridhachalam in HMOP No.73 of 1998 dated 24.07.2003, granting divorce.
2. Learned counsel appearing for the appellant/husband, assailing the impugned fair and decreetal order passed by the learned Principal District Judge, Cuddalore in CMA No.78 of 2003 and the conclusion arrived by the learned Principal District Judge, Cuddalore, argued that when it is a clear and apparent case of mental illness viz., Schizophrenia, suffering by the appellant's wife and that was established beyond all doubts with speaking evidences adduced by the son of both the appellant and his wife Mrs.Senthilkumari, that the wife always used to beat up the appellant/husband due to mental illness and whenever food was served to the respondent, without eating the 2/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 food served the third respondent/wife of the appellant used to go to dog's kettle to have food from dog's plates. That was also clearly demonstrated by the evidence of their son, that clearly shows that the respondent/wife of the appellant was suffering from grave illness Schizophrenia. When P.W.3/Pondy Durai, the first son of both the appellant and the third respondent, came to witness box, answered all the questions and told that his mother was suffering from mental illnes and she used to beat up his father for no reason and refused to have food from the clean plates and used to take only from the dog's plates, kept outside the house, the grave illness of the respondent was established.
3. The trial Court accepted the son's evidence and ordered dissolution of marriage on the ground that the appellant was able to establish that his wife was suffering from grave mental illness Schizophrenia. Even P.W.4/Dr.John Norman also came to witness box and deposed that the appellant's wife Mrs.Senthilkumari was having mental illness and suffering from Schizophrenia for the last ten years and in support of the same, he has produced the case details and the 3/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 discharge summary, issued by the JIPMER Hospital, Puducherry.
4. JIPMER Puducherry is one of the reputed Institutions in the country, such a reputed hospital has diagnosed that the appellant's wife Mrs.Senthil Kumari was crying all the time and also self smiling which are the symptoms of the mental illness. Moreover, not doing any house work and also not taking care of the children also further supported the case of the appellant whereas the learned appellate court erroneously forgot to consider the same.
5. The learned counsel for the appellant/husband submitted that the appellant/husband filed a petition in H.M.O.P.No.73 of 1998 before the learned Principal Subordinate Judge, Vridhachalam for dissolution of marriage under Section 13(3) of Hindu Marriage Act and established that the third respondent/wife used to leave the house at odd hours and stay away from the home continuously for several days due to the mental illness and it could not be cured inspite of medical treatment given to her. Besides the respondents 1 and 2/brother and mother of the third respondent were not able to produce the wife of 4/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 the appellant even before the trial Court, knowing fully well that production of Mrs.Senthil Kumari before the trial Court would clearly prove the case of the appellant/husband that Mrs.Senthil Kumari was suffering from grave mental illness and when the trial was taken up before the trial Court, for the reasons best known to them, they have kept Mrs.Senthil Kumari out of Court's sight. Therefore, the trial Court has come to the conclusion that non-appearance of the wife of the appellant has proved beyond all reasonable doubt that she was not even able to appear before the Court. Finally, accepting the supporting evidence, adduced by P.W.3/Pandy Durai, the first son of the appellant and the third respondent, who spoke about the unnatural conduct of his mother/Mrs.Senthil Kumari that she was all the time crying; smiling herself and taking food only from the dog's plate, kept outside the house, the trial Court had come to the conclusion that it is a fit case for divorce and allowed H.M.O.P.No.73 of 1998, filed by the appellant/husband under Section 13(3) of Hindu Marriage Act.
6. Aggrieved by the judgment and decree, the brother and 5/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 mother of the appellant's wife filed appeal in CMA No.78 of 2003 on the following grounds:
(i) The order of the trial Court is against Law and weight of evidence and probabilities of the case and therefore it is liable to be set aside;
(ii) The trial Court failed to appreciate the oral and documentary evidence property;
(iii) The trial Court erred in holding that the wife has been suffering from unsound mind;
(iv) The trial Court erred in relying upon the oral testimony of P.W.4 and other witnesses.
7. When a common and acceptable witness viz., P.W.3/son of both the appellant and the third respondent appeared before the trial 6/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 Court and clearly deposed that his mother was suffering from grave mental illness and she is crying all the times; self smiling; disappearing from house during night hours and they found it difficult to trace her and was always beating up his father/appellant due to her mental illness, the learned counsel for the appellant/husband submitted that the first appellate court, without even accepting the medical certificates, discharge certificate issued by JIPMER Hospital, Puducherry, saying that Mrs.Senthil Kumari was taking treatment for mental illness and also various mental problems, ought not to have reversed the findings rendered by the trial Court, citing one reason that the mental illness was not established and that there was no medical evidence to show that the appellant/husband cannot live with wife. Therefore, the impugned judgment and decree passed by the first appellate court, reversing judgment is liable to be set aside.
8. The learned counsel for the respondent/wife submitted that the conduct of the appellant/husband in not paying the monthly maintenance of Rs.3,000/- from March 1998 clearly shows that they have not come to this Court with clean hands. When the child 7/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 witness/P.W.3 examined before the trial Court, it was accepted blindly and the same cannot be believed without any good reason by the learned appellate court and therefore, there is nothing wrong in reversing the judgment and wrongly granting divorce to the appellant/husband. When the wife is suffering from illness, the husband is morally and legally bound to take care of her. When the appellant was unable to establish his case that due to illness he was not able to live with his wife/third respondent, the appellate court has rightly come to the conclusion and set aside the fair and decreetal order of the trial court reminding the responsibility of a husband to take care of a weak wife, that cannot be found fault with.
9. Heard both sides and perused the materials available on record.
10. The evidence of P.W.3/Pandy Durai, son of both the appellant and third respondent needs to be extracted hereunder:
“ vd; je;ij bgah; uh$yp';fk;/ kDjhuh;/ jhapd;8/19
http://www.judis.nic.in C.M.S.A.No.18 of 2006 bgah; bre;jpy;Fkhhp (3tJ vjph;kDjhuh;) ehd;
uh$Jiu. jpUK:h;j;jp. uh$huhkd; vd;w 4
Fkhuh;fs;; vd; je;ijf;F/ ehd; bea;ntyp
brtd;j; nl gs;spapy; 4-tJ gof;fpnwd;/
uh$Jiu d& gs;spapy; 3k; tFg;g[ gof;fpnwd;/
jk;gp jpUK:h;j;jp d& gs;spapy; a{.nf.$p gof;fpwhd;/ filrp jk;gp uh$huhkd; ntW xU gs;spapy;
vy;.nf.$p gof;fpwhd;/ eh';fs; ehy;tUk;
v';fSila jfg;gdhUila jha; tPl;oy; ,Ue;J
gs;spf;F brd;W goj;J tUfpnwhk;/ ghl;o tPL
fhg;ghd;Fsj;jp;y cs;sJ/ vd; mg;ghtpd;mk;khjhd;
v';fis guhkhpj;J tUfpwhh;/ vd; jhahh;
jd;Dila jha; ,Ue;J tUfpwhh;/ Rkhh; 4 khj
fhykhf vd; jhahh; mtUila jha; tPl;oy;
,Ue;J tUfpwhh;/ je;ijaplk; jha; rz;il
nghl;Lf; bfhz;L fle;j 4 khj fhykhf jd;
bgw;nwhh; tPl;oy; ,Ue;J tUfpwhh;/ vd; jha;f;F
igj;jpak;/ vd; jha; mof;fo rz;il
nghlkhl;lhh; vg;nghjhtJ xUKiw rz;il
nghLthh;/ jhahh; tPl;oy; j';fpapUg;gJ ,y;iy/
nuhoy; jk; ,c&;lk; nghy; miye;J jphpe;J
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C.M.S.A.No.18 of 2006
gpr;ir vLj;J rhg;gpLthh;/ v';fSf;F vd; jhahh;
rikj;J nghLtJ fpilahJ/ rikf;ff;
bfhLf;Fk; mhprpia mth;fis tUj;J
rhg;gpgLthh;/ Mf;fp itj;jpUf;Fk; kz;bzz;bza;
Cw;wp tpLthh;/ eha;f;fhf nghl;Ls;s rhg;ghl;il
vd; jhahh; vLj;J rhg;gpLthh;/ vd; jhia
jpUk;g miHj;J tu brd;w vd; je;ijia vd;
jhapy; cs;s kzpfz;ld; vd;gth; fhypy; F:L
itj;J vd; jfg;gdhiu tpul;o tpl;lhh;/ vd;
jhapd; jhahh; eh';fs; gof;Fk; gs;spapy; te;J.
gs;spf;Tlj;jpy; nrh;eJ
; gof;ff;TlhJ vd;W
kpul;odhh;/ vd; je;ij vg;nghJk; vd; jhahiu
moj;jJ fpilahJ. Vd; jhahh;jhd; vd;
mg;ghit moj;Js;shh;/
ehy;;tUk; gof;f itg;gJ vd; jfg;gdhUk;.
mtuJ Flk;gj;jpdUk;/ jhia tptfhuj;J bra;a ntz;o/ vd; je;ij tHf;F nghl;Ls;sjhy; rhl;rp brhy;fpnwd;.
11. Both the appellant and his wife Mrs.Senthil Kumari /third respondent herein got married on 21.06.1981 at Chinnakappankulam. After the birth of the first child, the appellant came to know that his 10/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 wife/third respondent was suffering from mental disorder and without disclosing it, the marriage was solemnized. The appellant came to know that the third respondent was treated in JIPMER Hospital, and at Cuddalore Hospital and she was suffering from catatonic schizophrenia. She used to leave the house at odd hours and stay away from the home continuously for several days as a result, the treatment also could not be continued for mental illness, consequently the same could not be cured inspite of medical treatment given to her and there was no response to the request of the appellant seeking help from the respondents 1 and 2, brother and mother of the third respondent. The respondents 1 and 2 are also not taking care of the third respondent, therefore, the appellant issued legal notice to the respondents 1 and 2 bringing to their notice the unsoundness mind of the third respondent and the fraud played by them on him in having the marriage solemnized without disclosing her mental condition. On receipt of legal notice, the respondents 1 and 2 gave belated reply with false allegations. When the doctors evidences are sufficient, the appellant filed a petition in HMOP No.73 of 1998.
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12. A counter affidavit was filed by the respondents stating that the third respondent did not suffer from any mental disorder at the time of marriage and the appellant ill-treated the third respondent cruelly by demanding dowry and due to his ill-treatment the third respondent was suffering from stroke and for which she was taken to JIPMER Hospital by the respondents 1 and 2 and treatment was given to her. Since the second respondent refused to give their second daughter to the appellant, he had driven out the third respondent out of the matrimonial house.
13. The trial Court took up the matter for trial. P.W.3/Pandy Durai, the first son of both the appellant and the third respondent appeared and placed the correct facts before the trial Court that his mother Mrs.Senthil Kumari was having mental illness and due to her illness she was all the time crying, self smiling for no reason and used to disappear from home. P.W.3 further deposed that on many occasions, the third respondent used to beat up his father because of mental illness. P.W.3 further deposed that his mother/third 12/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 respondent used to take food only from the dog's plate, which is kept outside the house and not from the clean plate, given by the appellant.
14. The trial Court, considering the evidences adduced by P.W.4/Dr.John Norman recorded the findings given by P.W.4 as hereunder:
“20 years old married house wife c. month old child from LSES brought c insidious insert and progressive deteriation of loss of speech output and appetite, self care and care of family and household work. Patient used to say “Someone will take away my child”, “I am scared” but not take care of child and instead hit i and lift if up with one hand etc., Often crying to self, biting self, , smiling to self, wandering tendency + suicidal ideation + no attempt has not received any signs for same. NG past/family to similar episode O/e unkept mute keep standing head, bowed down mood flat to depressed.
Diagnosis: Not answering any question.13/19
http://www.judis.nic.in C.M.S.A.No.18 of 2006 CVS/RS/CVS/A NAD ?Ac.psychosis ?Catetonic Schizophrenia Management Plan:
Hospitalization – Admission/OD Treatment.
In the discharge slip, P.W.4, doctor stated as follows:
“Admitted on 11.12.93. Discharged on 20.1.1994. Diagnosis & Findings. Catetonic Schizophrenia. C/o fear fullness that some body will take my child but does not take care of child. Not doing any house work, crying spells, self smile, loss of appetite, sleep, speech out in put loss of. No family history and similar dis-order.”
15. In the light of the evidences given by son and supported by the Doctor's evidence, the trial Court has rightly come to the conclusion that the third respondent/wife of the appellant was suffering from grave mental illness and without disclosing the same it appears that she was married to the appellant, of course, the appellant was managing with all problems as mentioned above, when she was disappearing from the appellant's house during midnight and 14/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 used to stay away and after she coming home, she used to beat up the appellant showing the light of her mental illness. Besides the appellant was not able to get any co-operation from the respondents 1 and 2. No records were produced thereon. Therefore, the appellant/husband filed a petition in H.M.O.P.No.73 of 1998 before the learned Principal Sub Judge, Vridhachalam under Section 13(3) of Hindu Marriages Act.
16. The acceptable evidences given by the common witness, son of both the appellant and the third respondent, supported by P.W.4/doctor read with medical evidence, issued by JIPMER Hospital, Puducherry clearly shows that the trial court was right in allowing the petition filed by the appellant granting divorce, whereas, for no reason, the learned appellate court has interfered without any good reason, therefore I am of the view that the impugned decreetal order is liable to be set aside, for, the appellate court failed to see the plight of the husband who has been all days beaten up by the mentally sick wife. If a wife in a family falls mentally ill and consequently becomes incorrigible, all in the family will suffer 15/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 nightmare always. The other partner has to manage the children, family, in addition to eke out the livelihood to fee all in the family including taking care of the ill minded. Besides, other spouse and all family members would be deprived of the love and affection.
17. Coming to the payment of maintenance, the learned counsel for the respondents states that after the order passed by the trial Court, the appellant was paying Rs.3,000/- per month as monthly maintenance to the third respondent till March 2009 and thereafter, the appellant refused to pay .
18. The arrears of maintenance from April 2009 to till date comes to Rs.3,60,000/-. Therefore, this Court directs the appellant to pay a sum of Rs.5,50,000/- as permanent alimony to the third respondent.
19. The learned counsel for the appellant seeks three months time to make the entire payment.
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20. The appellant/husband is directed to deposit a sum of Rs.5,50,000/-(Rupees five lakhs fifty thousand only) to the credit of HMOP No.73 of 1998 on the file of Principal Subordinate Court, Vridhachalam within a period of two months from the date of receipt of a copy of this order. Needless to mention that this amount may be withdrawn by the 3rd respondent.
21. In the result, the appeal is allowed and the fair and decreetal order passed by the learned Principal District Judge, Cuddalore in CMA No.78 of 2003 dated 28.11.2005 is set aside and the fair and decreetal order passed by the learned Subordinate Judge, Vridhachalam in HMOP No.73 of 1998 dated 24.07.2003 is confirmed. No costs.
05.08.2019 sr Speaking Order/Non-speaking Order Index:yes/no 17/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 To
1. The Principal District Judge, Cuddalore
2. The Subordinate Judge, Vridhachalam.
18/19 http://www.judis.nic.in C.M.S.A.No.18 of 2006 T.RAJA, J.
sr C.M.A.SA.No.18 of 2006 05.08.2019 19/19 http://www.judis.nic.in