Punjab-Haryana High Court
Asha Rani vs Raj Kumar on 24 March, 1994
Equivalent citations: (1994)108PLR142
Author: H.S. Bedi
Bench: S.P. Kurdukar, H.S. Bedi
ORDER H.S. Bedi, J.
1.The present appeal has been filed at the instance of the wife Asha Rani against the judgment of a Single Judge of this Court dated July 20, 1984 allowing the application of the respondent husband and granting a decree of divorce to him, on the grounds set out in Section 13(1)(iii) of the Hindu Marriage Act, 1955, on the ground that she was of incurably unsound mind.
2. The facts relevant for the disposal of the appeal are given hereunden:-
The marriage between the parties herein was solemnised on August 19, 1975 at Ambala City, according to Hindu rites and a female child was born to them, who died soon after birth. It appears that the parties cohabited till 1978 but thereafter, the appellant seems to have developed some mental illness. The respondent-husband tried to secure treatment for her at medical College, Rohtak and the Mental Hospital, Amritsar, but she could not be cured and was ultimately admitted to Pinghalwara Hospital at Jalandhar on December 23, 1978 and abandoned by the husband, who thereafter applied for divorce as stated.
The appellant wife in her written statement filed through her father and guardian, denied the allegations made by the husband including the averments that she had been treated for mental illness in any hospital or institution. It was also averred that it was the husband and his brother, who had ill-treated her, both physically and mentally and in addition to other- incidents had murdered her sister who had been married to the respondents brother. It was also stated that, she had suffered all the illtreatment silently and remained a devoted wife despite being abandoned and admitted in the Pinghalwara Hospital at Jalandhar against her wishes and without the knowledge of her relatives.
3. On these pleadings, the parties went to trial on the following issues;-
1) Whether the respondent is suffering from unsoundness of mind as alleged by the petitioner? OPP
2) Whether the petitioner has been cruel to the respondent?
3) Relief;
4. The matrimonial Court found on Issue No.1 after a minute appreciation of the evidence that the wife did suffer from mental retardation of a kind that would make it difficult to live with her, but on Issue No.2 held that the husband was guilty of having treated her with cruelty and it was this treatment that had caused her mental illness and as provided in Section 13(1)(ia) of the Hindu Marriage Act, (hereinafter called 'the Act') the husband could not take advantage of his own wrong and was therefore, not entitled to a decree of divorce, on these findings, the application was dismissed.
5. In the first appeal filed by the husband before this Court, the learned Single Judge, confirmed the finding of the trial Court on Issue No. 1, but reversed the finding on Issue No. 2. The marriage was, accordingly, dissolved by a decree of divorce. Hence, the appeal at the instance of the wife.
6. Mr. Amarjit Markan, learned counsel appearing for the appellant-wife has argued that two facts have to be pleaded and proved before a decree of divorce can be granted on the grounds set out in Section 13(1)(iii) of the Act and they are (i) that the respondent was of unsound mind and (2) that the applicant cannot reasonably be expected on account of that unsoundness of mind to live with the respondent and in the absence of such pleadings or proof the petition was liable to be dismissed. In support of this assertion, he has relied upon Smt. Rita Roy v. Sitesh Chandra Bhadra Roy, A.I.R 1982 Cal. 138. This argument of the appellant's counsel has been controverted by Mr. Vikas Sun, learned counsel appearing for the respondent by drawing our attention to Sub- section (2) of Section 20 of the Act, which states that the statements contained in a petition made under the Act, can at the hearing of the case, be referred to as evidence. Further explaining this matter, he has urged that even assuming that in the course of his evidence recorded in the trial court, the husband bad not stated specially that that it was not possible for him to live with his wife on account of her mental condition but in the petition filed, this fact was dearly mentioned in paragraph 6 in the following words:-
"In the circumstances, the petitioner cannot live with the respondent Now there are no chances of respondent being cured from the mental disease "and this averment could thus be read in evidence.
7. We have heard the learned counsel but find no merit in the stand of the appellant. It would be apparent from a reading of Sub-section (2) of Section 20 that a pleading can be read as in the present proceedings and apart from this, we find from the evidence adduced by the parties that the conduct of the appellant as would be explained later on in the course of judgment, was of such a kind, as would make it impossible for a husband to live with her and merely because tins fact had not been stated by the husband in the course of his oral evidence, the matter could not be ignored so as to deny the husband his petition.
8. It was next urged by Mr. Markan, learned counsel for the appellant that there was no definite evidence to show that the appellant-wife was, in fact, suffering from some incurable mental sickness and in the absence of such evidence, a decree for divorce was not liable to be granted. It would be noticed that the matrimonial Court as also the learned Single Judge have recorded a concurrent finding of fact against the appellant on this point after considering the entire evidence on record. We have nevertheless gone through the evidence very carefully and find that there is a great deal of oral as well as documentary evidence to indicate that the appellate was in fact, suffering from unsoundness of mind. It is virtually the admitted case of the parties that the appellant had been treated for mental sickness in Rohtak, Amritsar and also in the Pinghalwara Hospital at Jalandhar and die documents produced are Ex. P-l on out door slip and Ex. P.l/A giving a detailed history of the patient recorded by PW-2 Dr. Madhu Nag-pal, of the Amritsar Hospital. Dr. Madnu Nagpal aforesaid who was the Medical Officer in the Medical College, Anuitsar, also stated in the course of her evidence that the attention of the wife was ill sustained, she tatted in apadietic tones, her orientation was poor, she has no in sight and she could not even count money. The statement of the doctor has been supported by the evidence of the witnesses produced by the appellant herself i.e. Yogender Kumar RW-3 and Mulakh Raj RW-4 and also Brij Lal her father who admitted that the appellant had been admitted for psychiatric treatment. It has also come in evidence that behaviour of the appellant was totally erratic as she would urinate in public and would stone passersby and often left her home without reason. It also needs to be highlighted that the appellant did not appear as her own witness and despite a direction by the trial court that she should present herself for medical examination by a competent doctor so that the correct position could be ascertained, did not appear before the doctor. The trial Court was, in our opinion, correct in drawing an inference against her and to record a finding with regard to her mental condition. We are, therefore, of the view that on a reading of the evidence in its totality, it is apparent that (the conduct of) the appellant (depicted her) was suffering from unsoundness of mind and we affirm the finding of the Courts below on this aspect.
9. The learned counsel for the appellant has finally urged that as the mental condition of the appellant was occasioned by cruelty meted, out to her by the respondent, he could not be allowed to take advantage of his own wrong and be granted a decree of divorce. This argument has been considered by the learned Single Judge and we find no reason to differ with the reasons recorded by him. The circumstances that had been taken by the trial Court to record its findings on this issue were that the husband had extorted a divorce deed Ex-R1 from the appellant, demanded money from her parents, did not care to inform her parents about her sickness and that the death of the sister of the appellant who had been married to a brother of the respondent, might have strained the relations between the parties and these matters cumulatively amounted to cruelty. The findings recorded by the trial Court are however, to our way of thinking merely conjectural. It has been admitted by the witnesses that there was no positive demand for money made by the respondent and even the finding recorded by the trial Court on this aspect, is not firm or conclusive. We are further, of the view that even assuming that the husband had not informed the parents of the appellant about her condition or her treatment at various hospitals that, by itself would, not constitute cruelty. Furthermore, it has come in evidence that the sister of the appellant who it stated to have been murdered by her husband had in fact, died in the P.G.J. on account of typhoid and as such the allegations of the appellant on this aspect too have been totally negatived.
10. For the reason recorded above, we find no merit in this appeal and dismiss the same with no order as to costs.
11. The appellant had also filed Civil Misc. Application No. 2321 of 1984 under Section 24 of the Hindu Marriage Act, claiming that the respondent be directed to pay her Rs. 500/- per month as maintenance from the date of filing of the application till the decision of the appeal and Rs. 1000/- as litigation expenses.
12. We have heard the teamed counsel on the merits of this application as well and order that the appellant would be entitled to claim maintenance at the rate of Rs. 200/- per month from the date of filing of the application and also a sum of Rs. 500/- as litigation expenses in the present appeal.