Punjab-Haryana High Court
Smt. Devi Sharma vs Chander Mohan Sharma on 14 May, 2003
Equivalent citations: AIR2003P&H327, AIR 2003 PUNJAB AND HARYANA 327, (2004) 1 MARRILJ 385, (2003) 2 HINDULR 259, (2003) 3 RECCIVR 706, (2004) 1 CURLJ(CCR) 76
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. Wife-Devi Sharma has filed the present appeal challenging the judgment dated October 13, 2001 passed by the learned Additional District Judge, Sonepat whereby her marriage with Chander Mohan Sharma-husband has been ordered to be dissolved by a decree of divorce.
2. Husband-Chander Mohan Sharma has also filed Cross-objections No. 12-C II of 2002 challenging the findings of the learned Additional District Judge on Issue Nos. 1 and 2 whereby it has been held that the marriage between the parties was not voidable and also that the wife had not treated the husband With degree of cruelty as would entitle him to get the marriage dissolved.
3. Vide the present order, I shall dispose of the main appeal FAO No. 208-M of 2001 filed by the appellant-wife Devi Sharma as well as the Cross-objections No. 12-C II of 2002 filed by husband-Chander Mohan Sharma.
4. The facts :
Chander Mohan Sharma was married with Devi Sharma on January 23, 1998 at Sonepat as per Hindu rites and ceremonies (hereinafter for the sake of convenience, the parties would be referred to as the 'husband' and 'wife', respectively). No child was born out of the wedlock.
5. The husband has claimed that at the time when the marriage ceremony was going on and steps around the holy fire (pheras) were being undertaken by them, then the wife became unconscious and only four pheras could be performed. He has alleged in this manner Saptapadi was not complete and, therefore, the essential marriage ceremonies, having not been completed, the marriage between the parties was null and void and not binding upon them. He has claimed that he was not aware of the aforesaid infirmity and the legal requirement of a valid marriage but had come to know of the same when he contacted his counsel. Accordingly, he filed a petition on May 4, 1999, under Section 12 of the Hindu Marriage Act (hereinafter referred to as the "Act") for declaring the marriage between the parties as null and void. Additionally, the husband also filed the aforesaid petition under Section 13(1)(ia) and (iii) of the Act. He sought divorce from the wife.
6. The husband has stated that he was working in the Ministry of External Affairs, Government of India. The father of the wife was also serving in the aforesaid Ministry and contacted the husband through his seniors and proposed the marriage of his daughter (Devi Sharma) with Chander Mohan Sharma (the husband). The husband claims that he had not known Devi Sharma prior to the said proposal. He consented to the proposal. He did not know any thing about her. The parties were formally engaged. It is claimed that even after the engagement, the husband was not allowed to see the wife alone. He has further claimed that in fact when the respondent-wife fell down at the time of the pheras, it was told that she had gone out for 'mehandi' and had been attacked by bhoot-pret (ill souls). He remained silent at that time. No ceremonies were performed after the pheras as the wife was not feeling well and everything was done in a hurried manner. At the house of the husband also, the ceremonies could not be performed as the wife was about to fall. The Doctor was called but by the time the Doctor reached, she was alright.
7. The husband further claimed that he and his family members noticed that the food habits of the wife were not like a normal educated person. She used to spoil all her clothes while taking the meals, however, she used to eat the entire food if not taken by the petitioner initially. He further claimed that during her short stay with the husband, she became unconscious many times. When he brought the aforesaid matter to the notice of the parents of the wife, then he was told that she had fallen ill prior to the marriage and was being treated by a Doctor who was known tp them.
8. The husband goes on to say that the brother of the wife took her to her parental house after about 15 days of the marriage. She received some treatment at that place. After about 3-4 days he went to enquire about the health of the wife and her family members asked him to take her along because she was perfectly alright after the treatment. However, the husband claims that the wife was behaving strangely and started shouting. She used to tell different stories with regard to her strange behaviour to different people. It is claimed that sometime the behaviour of the wife became childish and sometimes she started threatening. On one occasion she even asked the husband to commit suicide so that she could get a job in his place in the Ministry. The husband claims that in fact this behaviour of the wife was causing him lot of agony.
9. It is further claimed by the husband that in the month of July, 1998, the Government proposed to post him to Surinam on deputation. When the wife came to know about the said fact, then she apologised for her behaviour and started residing with him. Even during the said stay with the husband, she never applied 'bindia', 'mangalsuta', 'sindur' etc. She had already left all her jewellery with her parents. Her behaviour at that time was also not normal. On September 9. 1998, the husband took the wife to Surinam. Since they had lived separately for the first time, after marriage at Surinam, there he came to know that the wife was not knowing how to cook. She used to cook in the dirty utensils. She used to prefer to eat snacks lying at the house and the husband used to cook for both of them. Sometimes he had to go to the office without meals and sometimes he had to sleep with empty stomach in the night.
10. The husband further claimed that on September 18, 1998 just after 10 days of their stay at Surinam, the husband received a telephonic message from one Mrs. Shankar that the wife had come to her house and that the husband should talk to her. On enquiry he came to know that the distance between his house and that of Mrs. Shankar was about two kilometres. The wife told him on the telephone that three 'Negroes' have burgled their house. They had also kidnapped her but left her on the way. The husband requested the Ambassador for the help who sent some persons with him. When they reached the house along with the wife, the glass-panes were found broken and the entire house ransacked but the main door was closed. The husband claims that later on the wife admitted that she had created that scene. The husband has complained that he suffered a lot due to this behaviour of the wife.
11. On September 25, 1998, the couple was to participate in an official function. The husband instructed the wife to get ready and after sometime he found that she was trying to climb the windows. On his stopping, she became unconscious and told her that she was not well and was having a feeling of 'nausea'. When she was taken to an open place then she felt comfortable. She tore her clothes, and was about to fall. The husband changed her clothes and took her to the hospital. She also put off the clothes in the presence of the hospital staff. The Doctor in the hospital told him that it was a case of mental disorder. The wife was given an injection for sleep and some medicines. When she woke up, the wife was not remembering anything. She was subsequently taken to a Psychiatrist as advised by the Doctor. The Doctor also told him that the problem was not new and she must had suffered attacks previously also. Ultimately, she was admitted in the hospital on October 5, 1998 but she insisted on her discharge. As per her assurance, she was given a chance to stay with the husband on October 22, 1998. However, there was no improvement in her habits.
12. The husband has further claimed that as the things became worse he requested his employer for some remedial action or to send her back. On February 12, 1989, he was informed that they have been called back. They returned to India. On return, she left for her parental house from the airport itself. The husband has stated that the parents of the wife were aware of her mental problem but they concealed this fact from him and as such played a fraud.
13. On these averments, the husband has approached this Court on the ground that living with the wife was dangerous to his life and the acts of the wife amount to such cruelty as per which he was entitled to seek divorce also.
14. Upon notice of the petition filed by the husband, respondent-wife put in appearance. A detailed written statement has been filed by her. All the material averments made by the husband have been Controverted.
15. The wife specifically asserts that, the marriage ceremony between the husband and wife was complete in all respects as per Hindu rites and rituals. It is stated by her that as per custom 'pheras' were completed and she had never become unconscious at that time. All the ceremonies were duly performed. She came with a plea that actually the husband and his family members were not happy with the dowry brought by her. According to her, the dowry which she had brought was much below their expectations. They started harassing and giving beatings to her and pressurising her for bringing more dowry. Ultimately, when the things became unbearable then she took out the proceedings under Sections 406, 498-A etc. of the Indian Penal Code against the husband, his mother and brother. The wife further asserts that both of them had known each other prior to the marriage as well because the husband was a colleague of her father. They had been talking even prior to the engagement. She claims that she was not illiterate as alleged by the husband but was in fact educated upto M.A. B.Ed. They had been talking very frankly with each other prior to the marriage as well. She denies completely that she was ever unwell. In fact the story of ill-souls etc. is introduced by the husband merely with a view to cover up his own ill-treatment. She maintains that in fact the father of the wife had been requesting the husband and his family members not to harass her for not bringing sufficient dowry but the things did not improve. Her father was even forced to make a complaint in this regard to the higher authorities. The wife has claimed that it was only as a counterblast to the said complaint made by her father that the present petition has been filed by the husband. She further claims that the behaviour of the husband with her was never normal at any stage. She has specifically denied that her family members at any stage, misbehaved with the husband or that at any stage she or her family members had asked the husband to commit suicide.
16. The wife has further maintained that the complaints, if any, made by the husband to the departmental authorities were in fact made by him only with a view to create evidence in his own favour. She was always behaving like a faithful and dutiful wife. She specifically denies that any such incident as alleged by the husband had ever taken place at Surinam. Further, she specifically denies the factum of her ever suffering from any mental illness or disorder. She claims that she was treated with cruelty by the husband and his family members.
17. The trial Court framed the following issues:
1. Whether Saptapadi was not performed as per Hindu Marriage Act/Custom and the marriage between the parties to the petition is voidable? OPP
2. If issue No. 1 is not proved, whether the respondent has treated the petitioner with such degree of cruelty that the marriage deserves to be dissolved under Section 13 of the Act? OPP
3. Whether the respondent has been incurably of unsound mind/mental disorder of such a kind and to such an extent that she cannot reasonably be expected to live with the petitioner? OPP
4. Whether the petition is not maintainable as alleged? OPR
5. Relief.
18. In support of his averments, the husband examined Dr. S. C. Bhargava, Associate Professor, Department of Psychiatry, PGIMS, Rohtak as P.W. 2, Atul Aggarwal Assistant in the Ministry of External Affairs, Delhi as P.W. 3, Ramesh Kumar, Photographer as P.W. 4 and the petitioner appeared himself in support of his case as P.W. 1.
19. On the other hand, the wife appeared as her own witness as R.W. 1 and examined her mother Bharpai as R.W. 2.
20. The trial Judge on the appreciation of the evidence on the record answered issue No. 1 against the husband. It was held that the marriage had been performed in accordance with law and it could, not have been declared void on that count. With regard to issue No. 2 also, the learned trial Judge held that the husband had failed to prove that he was ever treated by the wife with cruelty. Accordingly, the said issue was also answered against the husband. However, with regard to issue No. 3, the learned trial Judge held that the wife was proved to be a patient of schizophrenia. On that basis it was held by the learned. Additional District Judge that since she was suffering from schizophrenia and the said disease was; such a disease which was incurable, therefore, it is difficult for the husband to live with such a spouse and, therefore, on that basis the marriage between the parties was dissolved on the ground mentioned under Section 13(1)(iii) of the Act.
21. Now the wife has filed the present appeal challenging the decree of divorce passed by the learned trial Judge. The husband has filed the cross-objections challenging the findings on issues No. 1 and 2 against him.
22. At this stage, it may be relevant to notice that during the course of proceedings of the present appeal, a Civil Miscellaneous Application No. 10210-CII of 2002 was filed by the wife under Order 26, Rule 10(A) read with Section 151 of the Code of Civil Procedure. She had prayed that since the marriage between the parties had been dissolved only on account of the fact that she was found to be suffering from a mental disorder, namely schizophrenia, therefore, she be got examined from medical experts of either All India Institute of Medical Sciences at New Delhi or Post-Graduate Institute of Medical Education and Research (PGI), Chandigarh. A notice of the aforesaid application was issued by this Court to the learned counsel appearing for the husband. Shri Kamal Sharma, the learned counsel appearing for the husband accepted the notice and specifically stated that the respondent-husband had no objection to the prayer made in the application being accepted. Accordingly, vide order dated January 22, 2003, the Director PGI, Chandigarh was requested to constitute a Medical Board of experts to examine the appellant-wife with regard to her alleged mental disorder/disease. The Board so constituted was required to carry out extensive examination and report as to whether the wife was suffering from any such disease or whether in the opinion of the Board it was not expected of her husband to live with her.
23. Through a communication dated March 17, 2003 addressed to the Assistant Registrar (Civil) of this Court, Dr. Savita Malhotra, Professor, Department of Psychiatry, Post-Graduate Institute of Medical Education and Research, Chandigarh sent a report of the examination conducted by the Medical Board on Mr. Devi Sharma. The aforesaid report was taken on record as Ex. CX along with the aforesaid communication forwarding the said report, which was taken on the record as Ex. CX/1. At this stage, it may be relevant to reproduce the aforesaid medical assessment report submitted by the Medical Board of PGI, Chandigarh as follows :
"Ms. Devi Sharma was examined in Psy-chiatry Outpatient Department of PGI on 28-2-03 vide Psychiatry No. 58739 CR No. 131143. Psychometric evaluation was done on 28-2-03 and 4-3-03 vide No. 131/03. Information about her present and past health and behaviour was obtained from herself, her father Mr. L. S. Sharma and mother Mrs. Bharpai Sharma. Mr. Devi Sharma was examined by the Medical Board on 4-3-03."
On the basis of the available Information, examination and Investigation finding, Ms. Devi Sharma does not show any evidence of mental illness at present.
The Board is of the opinion that she is not suffering from any mental illness.
Sd/- Sd/- Sd/- (Dr. Savita (Dr. Archana (Dr. Ashok) Malhotra) Sood)
24. I have heard Shri B. L. Gulati, the learned counsel appearing for the appellant-wife and Shri Kanwaljit Singh the learned counsel appearing for the respondent at some considerable length and with their able assistance have also gone through the record of the case.
25. As far as the findings recorded by the learned trial Judge on issue No. 3 with regard to the mental disorder/sickness of the wife is concerned, the findings with regard to the wife suffering from schizophrenia/mental disorder are based upon the statement of P.W. 2 Dr. S. C. Bhargava, Associate Professor, Department of Psychiatry, PGIMS, Rohtak and the medical record of the wife Ex. PB and Ex. PE. There is no other evidence led by the respondent in this regard. Accordingly it becomes necessary to refer to the aforesaid statement and the said record Ex. PB and Ex. PE in detail.
26. Dr. S. C. Bhargava P.W. 2 has stated that he had examined Devi wife of Chander Mohan on November 15, 1999 and at that time she was diagnosed as suffering from schizophrenia. The aforesaid diagnosis was based on the findings of loosening of association and inappropriate attack. She was subsequently examined on November 22, 1999 and was stated to have shown some Improvement. However, the aforesaid with ness has specifically admitted that as per record there was no further follow up of the above-stated patient subsequently. On the first visit she was accompanied by her mother. The Doctor has also produced the copy of her medical record Ex. PB. A perusal of the entire statement of the aforesaid witness does not show that the patient (wife) was ever subjected to any extensive tests or that the aforesaid diagnosis was based upon any past history. During cross-examination the doctor has stated that a person cannot bear this problem due to mental torture and harassment unless the patient had not the propensity to develop the problem.
27. Even the perusal of the medical record Ex. PB does not show that any test whatsoever was ever conducted on Smt. Devi, the present appellant to diagnose that she was suffering from any mental disorder or schizophrenia. In fact the perusal of the aforesaid record itself shows that on November 29, 1999, when the patient had visited the Doctor then her condition was found as improved.
28. The husband felt satisfied with the production of aforesaid record and examined no other expert witness. The averments made by him in the divorce petition with regard to medical treatment of the wife at Surinam were not formally proved. Although some communications and documents such as Ex. PC, Ex. PD and the medical report of some Government Psychiatric Clinic Ex. PE were produced on the record but the said reports were never supported by any medical evidence. The report Ex. PE shown to have been prepared by one Dr. E. E. Bergen, Psychiatrist recorded the following conclusion :
"We see a young woman who travelled with her husband from India to Surinam. From the little information given, it seems as though the patient was already acting 'strange' in India. That kind of behaviour can be classified as a depression with psychotic characteristics, coupled to a childish manner of dealing with and solving problems. There still needs to be investigated what is precisely the level of the patient's ability to think and to do an E.E.C. test. There are also problems in the relationship."
29. Coupled with the aforesaid evidence, the medical assessment report submitted by the Medical Board of PGI of Chandigarh Ex. CX assumes a great importance. The wife Devi Sharma was examined by the Medical Board on February 28, 2003 and again on March 4, 2003. Her psychiatric evaluation was done by the Medical Board and it was on that basis that the Board had opined that Ms. Devi Sharma does not show any evidence of mental illness at present. It was further opined that "the Board is of the opinion that she is not suffering from any mental Illness." '
30. In view of the positive finding recorded in Ex. CX by the Expert Medical Board and even the conclusion in the report of the Government Psychiatric Clinic at Surinam, it is apparent that there was no evidence that the wife was at any time or has been incurably of unsound mind or had been suffering from such mental disorder of such a kind or to such a extent that the husband could not reasonably be expected to live with her.
31. In fact the appellant-wife appeared as her own witness also. She was subjected to a very lengthy cross-examination. In fact for the purpose of cross-examination, the appellant-wife was asked to appear on different dates. Originally her statement was recorded on March 21, 2001. A part of the cross-examination was also conducted on that date. However, cross-examination was not completed. She was further cross-examined on April 9, 2001. On that date also her cross-examination was not completed. She was further cross-examined on April 26, 2001. The perusal of the statement of the appellant-wife Devi Sharma during her lengthy cross-examination does not show at all that she was ever suffering from any mental disorder or that she had at any stage been not understanding the various questions put to her. In fact while appearing her own witness in her statement-in-chief as well as in her cross-examination also, the appellant-wife had been quite consistent with the stand taken by her in her pleadings and has provided the Court with the minutest details of the maltreatment suffered by her at the hands of the husband and his family members. She has detailed out the treatment meted to her by the husband while at Surinam. She has further stated that while at Surinam, the husband was giving her some intoxicants and drugs.
32. The detailed examination of the entire evidence led by the parties on this issue leaves no manner of doubt that the husband has utterly failed to prove that the wife was incurably suffering from unsoundness of mind or that she has been or was suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the husband could not reasonably be expected to live with the wife.
33. Accordingly, I have no hesitation in reversing the findings recorded by the learned trial Judge on issue No. 3.
34. This brings me to the cross objections filed by the respondent-husband with regard to the findings recorded by the learned trial Judge on issues Nos. 1 and 2.
35. The husband has pleaded that the marriage ceremonies between the parties were not completed inasmuch as during the course of Saptapadi, the wife fell unconscious and the pheras could not be completed. According to the husband, the marriage ceremonies having not been duly performed, the same could not be treated a legal marriage and, therefore, was liable to be treated as null and void under Section 12 of the Act.
36. I have given my thoughtful consideration to the aforesaid plea and have also perused the evidence led by the parties in this regard.
37. First of all it may be relevant to notice that the factum of the aforesaid Saptapadi having not been completed have been specifically denied by the appellant-wife in her written statement. She has categorically stated that at the time of Pheras as per custom seven pheras were completed by the parties, She has further stated that the story regarding the wife becoming unconscious was totally false, wrong and fictitious.
38. The husband felt satisfied by supporting the aforesaid plea by his bald state ment alone. No further evidence was led by him in this regard. None of his relations ever chose to support.
39. On the other hand, the wife appeared as her own witness RW-1. During her cross-examination she denied the suggestions that she had fell unconscious during the Pheras. She had specifically stated that there were four 'Pheras' and three 'vachans' (promises). To a specific Court question she replied that as per their custom at the time of 'vachans' the pair do not take round of the fire. Accordingly it was stated by her that the parties took only four rounds around the fire as per the custom.
40. Thus, it is apparent that the plea raised by the respondent-husband (cross-objector) to get the marriage annulled under Section 12 of the Act is merely an after -thought with a view to seek annulment of the marriage. It may not be out of place to notice here that the parties were married on January 23, 1998. The present petition came to be filed only on May 4, 1999. When no grievance with regard to the nullity of the marriage was made by the husband for a period of nearly one and half years then he could not be heard to make a case of annulment after living with the wife for such a long time. Apparently, if the marriage between the parties was null and void; having not been performed according to the customary rites, the husband would have made a complaint in this regard on the very first day itself and would not have lived with the wife for such a long time. Accordingly, I do not find any merit in the aforesaid plea raised by the husband-objector and as such affirm the findings recorded by the learned trial Judge on issue No. 1.
41. Coming to the issue No. 2, with regard to the alleged cruelty by the wife against the husband, again the pleadings of the parties, especially the plea raised by the appellant-wife in the written statement and the statement made by her in Court as RW-1, and her lengthy cross-examination, leave no manner of doubt that it could not be suggested that she was treating the husband with any such behaviour which could be termed as cruel towards him. On the other hand, she has pointed out that it was the husband and his family members who were treating the wife with cruelty of bringing insufficient dowry. It may not be out of place to notice here that the wife had even resorted to criminal proceedings under Sections 406 and 498-A of the Indian Penal Code. She had specifically made a complaint with regard to maltreatment meted out to her on account of insufficient dowry. She has also stated that even her father had made a complaint to the departmental authorities with regard to the ill- treatmentmeted out to her by the husband and his family members.
42. The case of the wife is further supported by the statement of her mother Bharpai RW-2. Her mother has also categorically stated that they had given sufficient dowry at the time of marriage which was even beyond their reach. However, later on the husband and his family members, were not happy and they started demanding a car. The wife (their daughter) made a complaint in this regard. However, they advised her that everything would be alright after sometime. The misbehaviour of the husband with the wife was even complained against by the wife to her parents on her return from Surinam. This fact had also been detailed out by her mother RW-2.
43. There is nothing on the record that it was the wife who had at any time been behaving in such a manner which could be termed as a cruel behaviour or that it could be said that she had treated the husband with any cruelty. The bald statement of the husband cannot be treated to be sufficient evidence for that purpose. In fact, his statement is just a self-serving statement. Accordingly, I have no hesitation in affirming the findings recorded by the learned trial Judge on issue No. 2 as well.
44. As a result of my above discussion, I allow the present appeal and set aside the judgment dated October 13, 2001 passed by the learned Additional District Judge, Sonepat whereby the marriage between the parties has been dissolved. However, I dismiss the cross-objections filed by the respondent-husband also being without any merit. Accordingly, the petition filed by the respondent-husband under Sections 12 and 13(1)(ia)(iii) of the Act is dismissed.
45. There shall be no order as to costs. Order accordingly.