Karnataka High Court
Smt B Radhalakshmi vs Sri B T Jagath Prakash on 6 June, 2022
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.10460 OF 2012 (MC)
BETWEEN:
SMT B RADHALAKSHMI
D/O L.T. BHEEMAPPA
AGED ABOUT 33 YEARS
R/AT NO.21, HOUSING BOARD COLONY
CHALLAKERE TOWN
TUMKUR DISTRICT
... APPELLANT
(BY SRI. S.NAGARAJA, ADVOCATE)
AND:
SRI B T JAGATH PRAKASH
S/O THIPPESWAMY
AGED ABOUT 36 YEARS
R/AT GAYATHRI NILAYA
VITTAL NAGAR,
VENKATESHAPPA BADAVANE
CHALLAKERE TOWN
NOW RESIDING AT
GUNDLUPET
CHAMARAJA NAGARA DISTRICT
...RESPONDENT
(BY SRI. SUHAS GOWDA M, ADVOCATE FOR
SRI. MUNIYAPPA, ADVOCATE)
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THIS MFA IS FILED UNDER SECTION 28(1) OF THE HINDU
MARRIAGE ACT, 1955 PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE PASSED BY THE COURT OF THE SENIOR CIVIL
JUDGE, AT CHALLAKERE DATED 05.09.2012 IN M.C.NO.33/2010
AND DISMISS THE PETITION OF THE PETITIONER FOR DECREE
OF DIVORCE AND PASS SUCH OTHER ORDERS THAT THIS
HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND
CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 28(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for short) , arises from the judgment and decree dated 05.09.2012, by which the marriage solemnized between the parties has been dissolved by a decree of divorce under Section 13(1) (iii) of the Act.
2. For the sake of convenience the parties are referred to by their rank before the Family Court.
3. The facts giving rise to the filing of this appeal briefly stated are that the marriage between the parties took place on 28.04.2000 at Vasavi Kalyana Mantapa, Challakere. After the marriage, respondent joined the matrimonial home. The petitioner as well as his mother noticed that the respondent 3 lacked maturity of mind and was acting like a child in the matrimonial home. After one month of the marriage, the respondent was taken to her parental house and thereafter again respondent joined the matrimonial home at Gundlupet. The respondent refused cohabitation and used to threaten the petitioner. It is the case of the petitioner that the respondent left the matrimonial home and has deserted him.
4. The petitioner thereupon filed an appeal seeking dissolution of marriage. This Court by an order dated 20.08.2010 dismissed the appeal filed by the petitioner with liberty to file a fresh petition.
5. Thereafter, the petitioner/husband filed a petition on 22.11.2010 seeking dissolution of marriage on the ground of cruelty, desertion as well as on the ground that the respondent wife suffers from mental disorder, which is incurable in nature.
6. The respondent in the statement of objections admitted that the marriage between the parties was solemnized on 28.04.2000. However, it was pleaded that husband used to pick up quarrel with the wife during her stay in the matrimonial 4 home. It was pleaded that the earlier petition filed by the husband was dismissed. It was also pleaded that the wife never visited her parental house and she was subjected to ill treatment in her matrimonial home. It was pleaded that there is no cause of action, for the husband to file the petition and the same is liable to be dismissed.
7. The Family Court on the basis of the pleadings of the parties, framed issues. The husband examined himself as PW-1 and examined Dr.Suresh Bada Math as PW-2 and got marked Ex.P1 to 3. Ex.P3 is the medical certificate issued by PW-2 - Dr.Suresh Bada Math.
8. In rebuttal, the wife examined herself as RW-1 and got marked one document as Ex.R1.
9. The Family Court on the basis of evidence on record inter-alia held that the husband has not been able to prove the plea of cruelty and desertion. However, the Family Court has held that from the evidence of PW-1 as well as the medical certificate at Ex.P3 issued by PW-2, it is evident that the wife suffered from mental retardation. Accordingly, the marriage 5 between the parties was dissolved on the ground that the wife suffers from mental infirmity of incurable nature. In the aforesaid factual background, this appeal has been filed.
10. Learned counsel for the appellant submitted that the wife had examined herself in the Court and was subjected to cross-examine by the other side which in itself indicates that the appellant does not suffer from any mental illness. Therefore, the finding recorded by the trial Court that the wife suffers from mental infirmity which is of incurable nature cannot be sustained. In support of the aforesaid submission reliance has been placed on the decision of Hon'ble Supreme Court in Kollam Chandra Shekar Vs. Kollam Padma Latha1.
11. On the other hand the learned counsel for the respondent has supported the judgment and decree passed by the trial Court.
12. We have considered the submissions made on both sides and perused the record.
13. Section 13(1)(iii) of the Hindu Marriage Act, 1955 reads as under:
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(2014) 1 SCC 225 6
13.Divorce:- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:-
(i) xxx (i-a) xxx (i-b) xxx (ii) xxx
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation - In this clause:-
(a) the expression "mental disorder" means mental illness arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or 7
14. In the instance case, in order to prove that the wife suffers from mental infirmity, which is incurable in nature, the husband has examined Dr.Suresh Bada Math as PW-2, who is expert witness and the aforesaid witness has stated that he has examined the wife and she suffers from mild mental retardation. The relevant extract of the finding viz., medical certificate issued by PW-2 at Ex.P3 reads as under:
"FINDINGS:
On BKT, patient obtained an oval intelligence Quotient (1Q) of 57. Her prorated 1Q was 54, indicating mild of mental retardation. Her Mental age on the test was found to be 6 years, 10 years with a Basal Age of 5 years Terminal Age of 9 years. Her profile across various domains assessed on test was as follows:
Area Mental Age
Language 5 years
Meaningful Memory 7 years
Nonmeaningful Memory 8 years
Conceptual 7 years
Nonverbal Reasoning 6 years
Verbal Less than 12
Numerical 8 years
Visuomotor 5 years
Social intelligence 8 years
Summary:
Patient was co-operative for testing. On BKT, her prorated 1Q was 54, indicating mild mental retardation."8
15. If the report is read unanimously with the evidence of PW-2 Dr.Suresh Bada Math, it is evident that the wife suffers from mental retardation, which is incurable in nature. It is pertinent to note that the wife has not led any evidence in rebuttal on the issue of her being of sound mind. The Family Court is required to return a finding on the said issue on the basis of preponderance of the probabilities. The Family Court on the basis of meticulous appreciation of evidence on record has held that the wife suffers from mental disorder of incurable in nature.
16. So far reliance placed on by the learned counsel for the appellant in Kollam Chandra Sekhar's case referred to supra is concerned, it is suffice to say that the aforesaid decision is not applicable to the facts of the case on hand as in the said decision it was held that the disease of the spouse was of curable nature which in the instant case as per the evidence of PW-2 - Dr.Suresh Bada Math is not.
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17. The aforesaid findings does not call for any interference in this appeal. For the aforementioned reasons, we do not find any merit in the appeal and the same is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE RR