Karnataka High Court
J. Sudhakar Shenoy vs Mrs. Vrinda Shenoy And Another on 12 September, 2000
Equivalent citations: AIR2001KANT1, II(2001)DMC210, ILR2000KAR4624, 2001(2)KARLJ438, AIR 2001 KARNATAKA 1, 2000 AIR - KANT. H. C. R. 161, (2000) ILR (KANT) 4624, (2001) 2 DMC 210, (2001) 2 HINDULR 416, (2001) 2 KANT LJ 438, (2001) 1 MARRILJ 444, (2001) 2 ICC 80, (2001) 1 CIVLJ 789
JUDGMENT T.N. Vallinayagam, J.
1.This appeal is preferred by the husband against the decree dismissing his application for dissolution of his marriage under Section 13(1) (i-a) and (iii) of the Hindu Marriage Act in M.C. No. 36 of 1990 on the file of the Principal Civil Judge and Chief Judicial Magistrate, Bangalore.
2. According to the appellant the marriage between him and the first respondent took place on 25-12-1977 at Cannanore as per the custom of Gowda Saraswatha community. The second respondent is the father of the first respondent and it is claimed that the second respondent suppressed the fact that the first respondent is of unsound mind and suffering from mental disorder. The second respondent is said to have played fraud upon the appellant and has performed the marriage. It is further alleged that even on the date of the marriage, the first respondent-wife after garlanding of the bridegroom and the function was going on, forcibly cut and removed the bridal garland which she was wearing and threw it away. It is further claimed that on the night when the husband and wife were in Mangalore in the house of the appellant, the first respondent abused the appellant that he had married her only to destroy her. The appellant learnt that the first respondent had been undergoing treatment for mental disability. Even prior to the marriage, she was admitted to the hospital at Cannanore and she was treated by a Psychiatrist. The first respondent was residing with her parents for more than three years and prior to that also she used to stay with her parents. The further allegation is that whenever she stayed with the appellant, she made his life miserable and also life of the other members of the family by abusing them and quarrelling with them. The wife even tried to commit suicide more than twice. She used to beat their son and she was not treating him properly. There was no motherly love and affection. The first respondent was admitted to KMC Hospital at Manipal and Father Muller's Hospital at Kankanady for treatment for mental disorder. Ultimately, it is alleged that the first respondent has been suffering from schizophrenia and she is having increasing imbalance and mental disorder and that it is impossible for the appellant to live with her. It was further alleged that she was not even fulfilling her marital obligations, by refusing sexual intercourse with the appellant and treated him with cruelty. For more than ten years, the appellant could not have sexual intercourse with her. Due to her mental disorder, they cannot live together happily.
3. These allegations are resisted by the respondent-wife contending that she was not mentally unsound. Before marriage the appellant and his brother had ascertained her background and health and then only the marriage took place. The wife was asked to go to Mangalore for being seen by the elder brother of the appellant and his wife. Fourteen years after the marriage and living together for such a long time and after giving birth to the child, the husband has come up with this false contention. The question of fraud and suppression of any fact does not arise. Sometimes she had to be treated for quietening her mental tension and the tension brought by the husband. The wife is physically fit and the divorce proceedings have been started after such a long lapse of married life at the instigation of the wife of the elder brother of the appellant. The appellant has set up a separate house; there was no matrimonial bickerings between the appellant and the first respondent. The appellant did not heed to such reasonable request of the first respondent. Thus, the first respondent resisted and dismissal of the petition was sought for.
4. The Trial Court on the question of mental make up of the wife held that the husband has failed to prove his contention. This conclusion arrived at after considering the evidence of P.W. 1-Dr. S.S. Raju and another Doctor K.S. Shetty and the petitioner himself has been examined as P.W. 3. The wife examined herself as R.W. 1. Several documents Exs. P. 1 to P. 17 were filed by the husband and the first respondent-wife did not file any documents.
5. The Trial Court found that the evidence of P.W. 1 was to the effect that the wife improved satisfactorily after treatment and this factum has been confirmed by P.W. 2 who also treated her for symptoms of schizophrenia. According to P.W. 2, she became normal. So holding that the respondent after treatment has completely recovered from the ailment and it cannot be said that the appellant cannot be reasonably expected to be cured, the Trial Court dismissed the allegations of the husband against the wife. On the question of cruelty inflicted upon the husband, the Trial Court found that mere quarrelling and causing any embarrassment are the common factors in family life and that may not be taken serious cognizance of, It may be due to such illness, for some time, the respondent might not have discharged the marital obligation and that itself is not material to hold that the respondent has treated the petitioner with cruelty. Ultimately, the petition was dismissed.
6. Mr. K. Giridhar appearing for the appellant submitted that the first respondent is suffering from mental disorder, namely, schizophrenia to such an extent it is not reasonably expected from the respondent. The lower Court erred in holding that the mental disorder is curable which is contrary to the records. Ex. P. 4 is the patient's medical record; Exs. P. 3, P. 14 to P. 17 are the letters and if read with the evidence of P.Ws. 1 and 2 it must have convinced the Court that the wife is suffering from incurable disease. It was further submitted that the lower Court has lost sight of the fact that the appellant had left the respondent at the parental house in the year 1984 and he could not live with her. It is contended that it was in her parental house, the first respondent was examined by the doctor at Manipal on the recommendation of one Ekanath Shenoy. The letters written by the Doctor will show that the Doctor had treated her for years, but absolutely there was no improvement. The family life is ruined because of her abnormal behaviour. This fact has been completely ignored by the Trial Court and held that the mental disorder will be curable. Even after the treatment at Manipal Hospital, the first respondent's condition has become worsened and the first respondent again was treated at Kankanady Hospital for nearly a month, but because of the treatment only the respondent had improved. This led to the lower Court to hold that the mental disorder is curable without considering the fact that it may recur again if the respondent does not take medicine. Exs. P. 14 to P. 17 conclusively prove that the respondent is so adamant that she refuses to take medicine and hence finding that the mental disorder is not serious, is not correct. The conclusion of the Trial Court that after treatment the respondent has completely recovered from the mental illness, is without any basis. The appellant had left the respondent in her parental house and there was neither protest nor a demand from the parents to take her back to his house, instead they treated her for her illness at Manipal and Kankanady. The father-in-law of the second respondent even wrote a letter to the appellant that it was not possible for him to send to the parents house unless she became fit to live along with him. This important piece of evidence has been completely ignored by the lower Court. The finding that the degree of proof required for granting a decree of divorce is not available is contrary to the evidence available on record. The preponderous of probabilities must have been considered by the Court below. The first respondent has examined herself as a witness and the finding that she was able to speak about her health condition and consequently she is not such a serious patient is baseless. In lucid intervals the first respondent is able to speak after taking medicine but it does not mean that the appellant has to suffer on account of her illness during other period. The doctor who has examined her has stated that the symptoms of mental disorder is a very serious one and only if proper medicines are given, the patient may recover but the disease cannot be cured. The appellant used to send money to the first respondent for her treatment till today and this fact is not denied by the respondent and therefore it must be held that the first respondent has not recovered beyond illness at all.
7. On the other hand, the Counsel for the respondent submitted that the attempt to get divorce is only the ambition of the appellant to marry again and everything is due to the brother and brother's wife and that is the root cause of the trouble. According to him, there was no proof available or adduced by the husband to substantiate his theory of attack of schizophrenia on the wife. Consequently, he prayed for dismissal of the appeal.
8. We have considered the submissions made by the respective Counsel.
9. The point for determination in the appeal is:
"Whether the appellant is entitled to have the relief of dissolution of the marriage on the ground alleged?"
10. The marriage took place in 1977 and the petition was filed in 1990, after a period of nearly 13 years. It is not in dispute that a son was born from the wedlock. He is now aged about 11 years and the name of the child is "Sudheer Shenoy" and is studying in 6th standard. The allegation in paragraph 3 of the petition is that her mental disorder was suppressed and a fraud was played upon him at the time of the marriage.
11. The allegation is not even denied in the objection statement filed by the wife. But also it is unbelievable that the husband must wait for 13 years to discover such mental disorder on the part of his wife. If really the behaviour of the bride was so bad as to tear off the bridal garland on the marriage dais itself, then the further conduct of the marriage would have been a problem. In the evidence of P.W. 3 the husband would say that on the nuptial day the wife drank the entire milk without offering a portion thereof and she did not come to touch his body. That was natural for any lady on the first night. However, the fact remains that subsequently there was no problem and the boy was born within two years of the marriage. The evidence of P.W. 3 discloses that only from 1984 the wife was living in her parents' house. The further evidence was that the wife was refusing to take food. She used to mix the turmeric powder to a cup of water and pasting on the face and she was in the habit of drinking the water which contained turmeric powder.
She was applying castor-oil to her hair and was in the habit of taking bath two times a day. This cannot be said to be the result of the mental disorder.
12. Another allegation in the evidence was that the wife attempted to commit suicide thrice, but he did not elaborate as to how it happened and why it happened in the chief examination. There is difference in the years given in the deposition. The husband would claim that since December 1978, there was no sexual relationship between himself and the first respondent. But on the other hand, he would say that she was in her parents house only from 1984. It was not his case between 1978 and 1984 when the wife was in the house of the appellant, there was no cohabitation. Though the husband denied that due to ill-advise of his brother's wife, he had filed the petition, that appears to be the root of the whole trouble. In the cross-examination, the husband would say "when I saw the first respondent in the Hotel Venkatesh at Mangalore, I have not suspected about her mental ailment. My marriage with the first respondent is an arranged marriage. Both of us has consented for the said marriage. Having satisfied about her physical appearance, I gave consent for the marriage". In paragraph 12 of the cross-examination, the husband would say "I came to know about the mental disease of the first respondent within one year of our marriage. Immediately after I came to know about the mental ailment of the first respondent. I have not taken any advise from any Advocate". In para 14, the husband would say "I came to know about the pregnancy of the first respondent when she was two months pregnant. The first respondent gave birth to Sudheer in the normal course of delivery after completion of nine months. I have not pressurised the first respondent to have sexual intercourse during her pregnancy". He denied the suggestion "it is not true to say that the first respondent co-operated with me in sexual relations whenever requested by me, when it was physically possible". He would admit that "by nature I may be short temper man". Again he denied the suggestion "it is not true to say that I have enjoyed the first respondent bodily against her unmindful of her feelings. It is not true to say that on account of dissatisfaction sexual relationship with the first respondent, I made her to stay in her parents' house". This evidence of P.W. 3 does not come to prove his allegation. The Trial Court rightly came to the conclusion "when the case is viewed in this manner, the evidence on record is not at all sufficient to come to the conclusion that the petitioner cannot be reasonably be expected to live with the respondent". The evidence of R.W. 1-the wife not only provides answer to the question raised by the respondent but also proves that she is a lady behaving normally. R.W. 1 in her evidence would say;
"My husband has not ill-treated me, but I was ill-treated by the elder brother of the petitioner and his wife. The treatment at Kankanady Hospital and K.M.C., Manipal was the work of my husband's elder brother. I was feeding breast milk for my son when he was young i.e., when he was a baby. I gave breast milk to my son for about four months. I brought up my son as a loving mother.
I will live happily with my husband if he sets up a separate house without his brother and his brother's wife".
"I know the contents of the petition filed by the petitioner in this case. In the petition, the petitioner has stated that I am a unsound woman. I knew the contents of objections filed by me. My parents' house is situated in a place called Tayyil in Cannanore. Prior to my marriage in our house at Tayyil, myself, my father, my mother resided. I have passed IX Standard. As I grew up I have not gone to X Standard. My elder sister studied up to SSLC. Two years prior to my marriage my elder sister's marriage was performed.
Mary Kutti is our neighbourer in Tayyil. Mary Kutti knows our family affairs. Ekanath Shenoy who is a Doctor is my relative. I had junior and senior uncle at Tayyil. Prior to my marriage I was visiting the house of my junior uncle, senior uncle and Mary Kutti during festival occasions. I have not taken any medicine from Dr. Ekanath Shenoy prior to my marriage as I was alright I have not taken any medicine. After marriage till today my health condition is alright.
I was marriage on 25-12-1977. Betrothal ceremony was performed in the house of petitioner. Betrothal means fixing marriage. For betrothal ceremony my father, Gopi, myself and Meenakka were present from our side. As I was in a room I do not know what were the ceremonies were performed in Betrothal function".
12-A. The marriage ceremony was spoken to in detail and her evidence worthwhile repeating as to how she speaks about the marriage:
"Our marriage was performed in a Kalyana Mantap of Venkatramana temple. The Kalyana Mantap called as Sukruthindra Kalyana Mantap. After breakfast Uddinamuthurtha was performed. There afterward Kanyadan function was performed. Puja for Kalasa was performed. There afterwards flowers were distributed. Scented water was sprinkled. Dhara Muhurtha was performed by tying tali to me by the petitioner. There afterwards the saree brought by the petitioner's side was given to me and the ornaments brought by the petitioner's side was given to me; I was taken in a room, a saree was worn by me. Wife of elder brother of petitioner asked me to wear ornaments. Accordingly I worn those ornaments. In the beginning I was satisfied with the conduct of the petitioner. I have not made any galata on the date of marriage. I sat calmly in the marriage. But I found that my husband shed tears by remembering his mother. On the date of marriage after the marriage, we came to Mangalore from Cannanore. I was happy on the first night of my marriage. On that night the wife of elder brother of petitioner gave sweet and banana and asked both of us to eat. I gave sweet and banana to my husband at the first instance. Petitioner had not made any galata on the first night of our marriage. On the next day we returned to Tayyil. My husband had not complained against me before my father when he went to Tayyil. In our community the rich people invite the guest to feed new couple who are their relatives. We were not invited by any of our relatives for Outhana'".
13. Such elaborate discussion of the marriage and her vivid narration of the marriage discloses that she is a woman of normal senses and good behaviour and conduct. Her further evidence regarding her alleged admission in the hospital, which is extracted below, clearly goes to show her behaviour as an ordinary woman is unaffected by any disease whatsoever.
"I was not admitted in any of the hospital at Cannanore. There is no hospital called as Mopens Hospital in our place. My husband left me in my parents' house about 7-8 years ago. I had received letter from the petitioner about 4 or 5 years ago while I was in Cannanore. I have received money order from the petitioner in my name till last month. But one or 2 month the petitioner has sent money to me to the address of my father. I have replied one or two times to the petitioner for his letters. J. Sumana Shenoy is the wife of the elder brother of my husband. Ashwatha Shenoy is the son of elder brother of petitioner. After the marriage I lived in the house of my husband for about 8 years. I know the other relatives of petitioner in Mangalore. I had gone to the houses of relatives of my husband in Mangalore along with my husband. I have visited the houses of Gulabi, a aunt of my husband, Kesari, elder sister of my husband. There are relatives of my husband in Bombay, but we have not gone there. There are relatives of my husband at Panemangalore we have visited those houses. The younger sister of my husband is in Bombay not the elder sister as suggested. My husband has got only one sister".
14. In facing on daily routine how she found it difficult to get along with her husband's brother's wife is spoken to by her in the following words:
"My husband is a businessman. Normally my husband leaves the house before 9 A.M. for his business. There was a separate room for us in the house of my husband. Both myself and Sumana Shenoy was preparing coffee for the morning time. Petitioner used to come to the house for lunch if he found time. I used to supply food to my husband, Sometimes Sumana used to supply lunch for my husband. During right both myself and Sumana used to serve food to my husband. Sometimes I used to serve, sometimes Sumana used to serve food. I never asked to Sumana to serve food to my husband. When Sumana was serving food to my husband I was feeling that I have to serve food to my husband. While Sumana was serving food to my husband I never objected as she is older to me. So far I was not put in difficulty by my husband. As there was no quarrel between myself and my husband till the year 1982 I say that my married life was happy till the year 1982. In the year 1982 one day I was serving food to the son of Sumana. At that time Sumana abused me. Her husband tried to beat me. I had informed this matter to my husband. I was asked by my husband to keep quiet when his elders said anything. Even thereafterwards one or two times the similar incident had occurred. On those occasions I informed my husband about the things happened in the house. I have informed this matter to my Advocate while drafting the objections. I was not angry for the incident happened by Sumana and her husband against me as they are elders to me. It is not true to say that Sumana was looking after me as elder lady very well".
15. The reason for her husband getting angry is also spoken to by her and she was sorry that she was left in her parents' house by the husband. This is what she speaks-
"I gave birth to a son on 10-6-1979. A cradle ceremony was performed in the house of my husband. Normally the first delivery has to be done in the parents' house of wife. As my parents were poor my first delivery had in my husband's house. My father is a petty businessman dealing in cashew shell oil. I have got cousin, but no elder brothers. I have got one younger brother, who is now in chamber. Today, my father is also present in the Court. My younger brother who is now present before Court (chamber) is working in Canara Bank, Mangalore.
While I was in my husband's house about a year back I prepared a food article out of horsegram. As there were unexpected guests in the house that item was not sufficient for my husband. Hence he took me to my parents' house and he left there.
The shop of my husband will be closed on Sunday. The above incident was happened on Sunday. For the above said reason only the petitioner took me to my parents' house and left me there.
After my husband left me in my parents' bouse about 8 years back my younger brother had not brought me to Mangalore for treatment in any hospital. We had gone to Udupi as our mother was ill. Myself and my mother gone to Udupi. I have not taken any treatment in Udupi. While I was in Cannanore, Sumana and the sister of petitioner had not taken me to any hospital for treatment. My husband's brother was addressing me as a mad person, likewise the relatives of my husband at home was telling me that I am suffering from mental disease. While I was in my husband's house I was taken to Dr. Arun Rao by Sumana, her husband and the sister of my husband. While I was in my husband's house I was visiting my parents' house with the permission of my husband. My husband had not stayed during night in my father's house. When I was in the house of my husband he looked me with love and affection".
16. Her answer about the birth of her son and feeding him and also the birth of a child of Suman is found in the following words, as spoken to by her in her evidence, only goes to prove that she is an ordinary woman without any infliction of any disease whatsoever-
"It is not true to say that my son was looked after by Sumana since from the day of his birth. I stopped breast feeding while my son was 4 months old. I was feeding Farex and other milk through bottle. When my son was aged about 4 months Sumana had no children. Two years after my delivery Sumana delivered a child, It is not true to say that I have not taken care of my son since from birth. It is not true to say that I have not fed my child with breast milk or with bottle milk. It is not true to say that Sumana had taken care of my child",
17. There appears to be some misunderstanding between the wife and the brother of the husband and the brother's wife. That is also vividly described by her in paragraph 21 of the deposition in the following words:
"Except the medicine administered forcibly on me by the elder brother of the petitioner and his wife I have not taken any medicine. I have informed the administer of medicine forcibly by the brother of petitioner and Sumana to my husband. While I was in Cannanore Sumana and brother of petitioner took me to Kankanady and Manipal Hospital. Sumana and her husband had come to Cannanore for about two times after my husband left in Cannanore. Before coming to Cannanore they have not written me any letter when I was taken to kankanady and Manipal Hospital by Sumana and her husband, nay father and my brother accompanied us. On examination Doctors of Kankanady told that I am alright, I should be taken to my husband's house. In Manipal they have managed everything with the help of Kuthakka and others, with convenience of Doctor Ekanath Shenoy. Dr. Ekanath Shenoy had not accompanied us to Manipal from Cannanore. It can made out the plot prepared by them from their talks. The medicines referred in the letters written by my father was given to me on the pretext that I am suffering from unsoundness of mind. My father had not written any letter to my husband asking him to send money for my treatment. Formerly my husband used to sent Rs. 300/- per month. Now he is sending Rs. 400/- per month".
18. Even on the date of the examination, when her father had come to Court, she told as to how she used to cook to the satisfaction of her husband-
"Today my father came to the Court. When I was in my husband's house, I prepared dishes out of fish, namely fish curry, curry out of vegetable and cereals. Everyday, I used to prepare 2 or 3 types of dishes. This was prepared for all the members of the family. When I was in my husband's house, he has not called me at any time as insane. My husband asked me to take tablets. Sometimes he gave me tablets. I do not know for what purpose he gave me those tablets. He has given such tablets to me only one time and he asked me to take the tablets. Sometimes, I took the tablets. Thereafterwards I threw it away. The brother of petitioner and brother's wife forcibly administered the medicine most probably in the year 1982".
19. On her treatment at Manipal Hospital, this is what she speaks:
"When I was taken to Manipal Hospital, I do not remember that I told to the said doctor about the sleepless nights. I have not informed to the said doctor about continuous secretion of breast milk since 5 years. Witness volunteers that sometimes I had secretions of breast milk frequently. I do not remember whether I have informed that I was not happy in the house. My younger brother was present when I was taken to hospital at Manipal. I do not know whether my younger brother informed to the doctor at Manipal that I had made up my mind to commit suicide and I had no knowledge about the happening of the surroundings. I do not know what my brother had told to the doctor as I had no knowledge in Kannada language. On that day, my younger brother talked with doctor in Kannada. That younger brother who came to Manipal is now before me in the chamber. I do not know where the Kankanady Hospital is situated. I do not know which is the Kankanady Hospital referred to in my examination-in-chief".
20. On the question of having cohabitation, this is what she says:
"He has not forced me at any time for sexual intercourse".
21. The wife had a suspicion about the Christian lady whom she strongly spoke about in the following words in the evidence:
"I advised a Christian not to visit the shop of my husband, when I found that Christian lady visiting frequently my husband's shop. That Christian lady came to our house. Again I say that Christian girl has not gone to the shop of my husband. It is true petitioner came slightly upset when I advised that Christian lady not to meet the petitioner".
22. The evidence so vividly given by the wife, which is extracted above, only indicates that the husband's allegation of the mental disorder or mental upset of the first respondent is neither believable nor acceptable. The evidence is so coherent, so sensible and the answers are given, up to the question and such a lady speaks so much in a Court of law during the examination which went on for 11-6-1993, 28-8-1993 and 10-9-1993. It is not the test that was done on one day. The finding rendered by the Trial Court regarding the failure of the husband to prove his allegation of mental disorder of the wife is to be upheld in the light of the evidence available and the deposition given by the wife in the Court as extracted supra. Even the exhibits do not indicate that the alleged illness of the wife did make a ground for divorce as is sought by the husband. The complaint of the wife was that she was having sleepless nights, she is withdrawing from the society, she had headache she imagines somebody had done black-magic on her, she suspects food as poison and an attempt is made to kill her. It is also seen from the report Ex. P. 2 that "at times she regrets for her behaviour saying that I should not be looking at mirror. It does not look nice, I should not have got angry".
23. It is also seen that "informant reports that there was some adjustment problem between couples as well as between her in-laws. Husband was not unhappy after the marriage as she was poor and she is supposed to have wept during the marriage, because she did not smile and talked the people. During first night, she is supposed to have quarrelled and shouted at her husband. On the mood, the doctor finds that there was no extremeness. Reliance was sought to be placed upon Exs. P. 3 and P, 4-certificates issued by Dr. Raju to Dr. Ekanath, which disclosed that she is complained of paranoid schizophrenia with depression. This was in 1986. Though according to Dr. Ekanath, there was no improvement. The doctor however adds "from some centres she is sent back stating that she has no illness at all". Another aspect to be noted in the exhibits is that on 8-6-1990 the husband appears to have gone to the hospital.
24. The last straw on the camel's back appears to be at the end of the report in Ex. P. 3 which is clear at page 894 of the paper book which is to the following effect:
"17-2-1992 Pt. or husband has not come.
Pt. cousin sister reported.
Reports that in May 1991 divorce was obtained through the Court - Comprise and the patient was granted a maintenance sum and the custody of the 12 year old son was given to the husband.
Pt. is said to be very much disturbed now and is undergoing treatment at NIMHANS and the treating psychiatrist have asked to get a letter regarding the details of previous treatment here".
25. If any ordinary lady hears about such false news, certainly she will get mad. When the petition was dismissed by the Trial Court on 17-9-1994 only, in 1992 informing the wife that the divorce has been granted and custody of the child was given to the husband, certainly would upset any ordinary human being and especially a woman. Probably these are the attempts made by the husband to spoil the wife and make her mentally upset by giving such false news. This only indicates the husband's anxiety to somehow get an order of divorce by hook and crook by painting the wife with dark picture and charging her with such false news. Thus it is seen that it is the husband who has been inflicting the cruelty on the wife making her unhappy at times and the plea of mental disorder or schizophrenia are not made out on facts and the evidence rendered by the Court below has to be confirmed and the same is hereby confirmed.
26. The learned Counsel for the appellant placed relied upon the dictum of this Court in Krishna Bhat v Srimathi, is as follows:
"The question to be considered in the appeal is whether the appellant has established the ingredients of Section 13 of the Hindu Marriage Act. To succeed in such a case the applying spouse should establish that the respondent is of incurably unsound mind or the applicant may lead such evidence as to show that the respondent suffers from mental disorder of a kind continuously or intermittently which establishes that the appellant cannot be reasonably expected to live with the respondent. From the wordings of the section it admits of no doubt that burden of proving of existence of sufficient degree of unsoundness of mind is entirely on the appellant. The standard of proof in such case is very high. Depending on the social set up of the parties and surroundings in which the parties live, the allegations can also be established by preponderance of evidence. In all such cases, the Court has to be satisfied regarding the allegation made and that it is not made recklessly. If on the basis of the cumulative effect of the evidence tendered, the Court comes to the conclusion that the respondent suffers from a "mental disorder" of such a kind and to such an extent that the petitioner cannot be reasonably be expected to live with the respondent, then a decree for divorce can be granted. In other words, besides the respondent being afflicted with a "mental disorder" the applying spouse has also to establish the requirement of the section that the said affliction is to such an extent that it generates a reasonable apprehension in the mind of the petitioner that the petitioner cannot live with the respondent. By means of explanation added to Section 13(1)(iii) of the Act "mental disorder" has been defined to mean any mental disorder including schizophrenia".
27. In that case the grievance was that the wife had behaved in cruel manner and attempted to run away from the house; the wife came out of the house ill-dressed and ultimately the Bench held that the woman from respectable family will not behave in such a fashion and basing their reliance on the doctors evidence which proved that the wife was having mental disorder or mentally upset, granted the decree for divorce. But those facts do not apply to the case on hand and the decision referred to above also will have no application to the case on hand. It was also brought to the notice of this Court the dictum in Gnanambal v G.R. Selvaraj, wherein it was observed as follows:
"Three essential things should be established by the party seeking divorce under Section 13(1)(i) of the Hindu Marriage Act and they are (1) that the other party to the marriage is of unsound mind; (2) that the unsoundness of mind is incurable; and (3) that the incurable unsound mind was there for a period of not less than three years immediately preceding the presentation of the petition for divorce.
The Supreme Court has consistently taken the view that the standard of proof in a matrimonial cause in India is proof beyond reasonable doubt. It would therefore follow that the burden lies upon the person seeking divorce under Section 12(1)(iii) of the Act to establish beyond reasonable doubt that the other party to the marriage was incurably of unsound mind for a continuous period of not less than 3 years immediately prior to the presentation of the petition.
In the present case the appellant (wife) has been suffering from Paranoid Schizophrenia (nature of the disease fully discussed in the judgment) from 1961 and is not completely cured even now. She is lacking in volition and spontaneity. There has been deterioration and loss of her personality. She is incapable of meeting the normal incidents and problem of married life. She is demented and suffering from the residual scars of the mind due to the mental illness, even though she might have shown some improvement off and on as a result of treatment. She is lacking in activity and awareness and her memory has become poor, without reasonable prospect of restoration to its normal condition. She requires sympathetic supervision and care. There may be occasional lucid intervals but that is not sufficient to hold that here is a prospect of her return to normal life. Even if the condition obtaining during lucid intervals continues without break, which is not likely, it would enable the appellant to live only half life. Under the circumstances, both the Courts below were right in holding that the appellant has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition".
28. Even this case is on a different set of facts and it is not applicable to the facts in the present case. The dictum of the Punjab and Haryana High Court in Tarlochan Singh v Jit Kaur, was relied upon which is to the following effect:
"Schizophrenia (mental disorder in which the patient behaves in abnormal manner such as running out of house, tearing clothes, sleeplessness at night, singing songs and crying and laughing without reason or cause at all odd hours etc.) is curable only in rare cases and medical authorities rate the chances of its recurrence rather high. After the marriage the wife lived with the husband for a short period during which she was found to be suffering from schizophrenia. In such a case it is difficult to visualise an atmosphere of conjugal bliss so necessary to ensure continual sound mental state of the wife. Even if the wife remains in sound mental state the husband would always be under the apprehension of the wife suffering a relapse. In such a situation it would not be reasonable to expect the husband to live with his wife and lead a normal life. Moreover, since the fact of the wife being a patient of schizophrenia was not disclosed to the husband before the marriage that would amount to matrimonial fraud. Therefore, in view of all the circumstances, the husband was entitled to a decree for divorce if not annulment of marriage".
Here again the certificate given by the doctor was to the effect that "the wife was always quarrelsome for the last 11/2 months, sleeping less, gets up at night and drinks milk or works and eats; eating more; talking to self; spontaneously laughs and rarely weeps; abusing others; throws the utensils after drinking water or milk in it". Such a conduct is not available to be proved by the husband in this case. To explain the delay in filing the application for divorce, the learned Counsel for the appellant relied upon the dictum of Punjab and Haryana High Court, Barbara Singh v Sudarshan Kaur, which is to the following effect:
The learned Counsel for the respondent has contended that the petition of the appellant is liable to be dismissed under Section 23 of the Hindu Marriage Act (hereinafter the Act), inasmuch as the respondent was living separately from the appellant since 1969 and the petition was filed in 1976. I see no force in this contention. The respondent had been taken by her father from Bassi Pathana to Delhi for her treatment of mental ailment in, April 1969. The relations between the parties were otherwise cordial. The respondent was admittedly got treated by Dr. Vidya Sagar and may be by some other doctors as well. The appellant hoped that the condition of the respondent would improve. As it did not, he filed a petition for divorce in 1976. Under these circumstances, the appellant cannot be held to have caused unnecessary or improper delay in filing the petition for divorce".
The facts of the aforesaid case that there was evidence to prove that the wife had strangulated her mother-in-law and gave her beating. She also gave beating to her own mother and father. She once attempted to bum herself in the bedroom of her house by sprinkling kerosene oil on her. But such is not the case here on record. Consequently, the authorities relied upon has no relevance nor any application to the facts of the present case.
29. In the result, we hold that there is no merit in the appeal and thus confirming the decree of dismissal of the M.C. No. 36 of 1990 by the Family Court, the appeal is also dismissed. In the circumstances, there will he no order as to costs.