Jai Shankar Pathak vs Anshu Bala

Per Sujit Narayan Prasad, J.

The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the order/judgment dated 07.09.2024 and decree signed on 20.09.2024 passed by the learned Principal Judge, Family Court, Chatra in Original Suit No. 79 of 2021, whereby and whereunder, the learned court has dismissed the aforesaid suit filed under Section 13(1) (i-a) & (iii) of the Hindu Marriage Act, 1955 for dissolution of marriage with the respondent-wife.

The brief facts of the case as per the original matrimonial suit needs to be referred herein which is as under:-

In pursuance of notice by the learned Family Court, the respondent-wife appeared on 06.01.2022 through video conferencing. However, in tune with the provisions of Family Court Act, to explore the possibilities of an amicable solution between the parties to this matrimonial discord, the Court took endeavor to bring about reconciliation between the parties and also referred their dispute to the Mediation Centre, Chatra in accordance with law, but the reconciliation and the mediation yielded no positive result.

Respondent-wife filed her written statement contending therein that the petition filed by appellant is not maintainable and liable to be dismissed, because the same is based on false and concocted story. Respondent has denied all the averment of the petition regarding her abnormal behaviour and she has stoutly denied that she had stubborn, egoistic, erratic and cruel attitude and further that she had shown ever disregard towards the appellant and his family members. Admitting the content of para 1, she has mentioned that her marriage was performed with appellant on 31.01.2016 and out of the said wedlock, a son was born on 31.12.2016. She has further mentioned that her husband is doing work in CISF. Denying the contents of other paragraphs of petition, she has mentioned that after marriage the appellant and his family members subjected her to cruelty for the demand of Rs.5,00,000/- and when the demand was not fulfilled, she was tortured and she was falsely alleged that she used to sell the items of the house. She has been falsely alleged that she used to run and laugh in the room without any reason. Denying the contents of Para 2(b), she has submitted that the maternal uncle of the father of appellant namely Sridhar Pandey is her co-villager and he played important role in performance of the marriage of the parties, so the allegation that any fact was concealed is totally false. She has further submitted that she used to respect her elders in her Sasural and she was always properly dressed in her Sasural and she never behaved abnormally. All the allegation in this regard are totally false and fabricated. She has denied all the allegation mentioned in different paras of the petition and has submitted that she was brought to Kota, where appellant tortured her physically and mentally. Appellant has falsely alleged that she was not properly dressed while traveling in train and was not normal. The allegation that her behaviour was not normal, is totally false rather all these allegations have been made when the demand of Rs. 5 Lakh was not fulfilled. She was blessed with a son on 13.12.2016 and she has been taking care of her son properly and presently she is living in her Naihar along with her son. Denying the allegation that she was laughing at the time of death of her brother, she has submitted that all the allegation alleged against her that she was abnormal and her mental condition was not good is totally false and fabricated. She has no mental illness rather a false prescription has been filed by the appellant that she is suffering from schizophrenia. She has further mentioned that considering the allegation of the appellant, she was sent to RINPAS, Kanke, Ranchi by this Court for her medical examination by constituting a Medical Board, where it was found that there is nothing abnormal in her behaviour. She has further mentioned that all the allegation regarding her abnormal behaviour is false and baseless rather the respondent was subjected to cruelty and torture for the demand of five lakh rupees and on 26.11.2021 she was driven out from her matrimonial house along with her son after snatching her entire clothes and ornaments and she was forcibly sent to her Naihar with a threatening that they would not keep her until the demand is fulfilled and thus since 26.11.2021 she has been living in her Naihar and in the meantime appellant never came to see her and had never given any monetary support. She is always ready to live with appellant and to lead her conjugal life. She always respected her husband and his family members, but it is the appellant who had driven her from her matrimonial house and filed this case on the basis of false and concocted story.

The learned Family Judge based upon the aforesaid pleadings framed altogether seven issues which are as follows:

The evidences have been made on behalf of both the parties. Thereafter, the judgment has been passed dismissing the suit by holding that the appellant has not been able to prove his case against the defendant even to the extent of preponderance of probabilities, which is the subject matter of the present appeal.

It has been contended on behalf of the appellant/husband that the factual aspect which was available before the learned court supported by the evidences adduced on behalf of the appellant/husband has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law.

The ground has been taken that the learned court has failed to take into consideration that the respondent is suffering from mental disorder, i.e., Schizophrenia and she used to behave abnormally on various occasions which is a kind of mental cruelty which has been taken into consideration.

Learned counsel for the appellant/husband, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from perversity, as such, not sustainable in the eyes of law.

None is present to represent the respondent-wife.

This Court has heard the learned counsel for the parties and gone through the finding recorded by the learned Family Judge in the impugned judgment.

The case has been heard at length. The admitted fact herein is that the suit for dissolution of marriage had been filed by filing an application under Section 13(1)(i-a) & (iii) of the Hindu Marriage Act, 1955 and accordingly, issues have been framed by the learned Family Court wherein primarily issue nos.3, 4 & 5 pertains to whether the marriage of the appellant/appellant and respondent-wife is fit to be dissolved on the ground of cruelty; whether the action of the respondent-wife has been abnormal and she is incurably of unsound mind or has been suffering from mental disorder as alleged in plaint and; whether the petitioner was kept in dark and was not disclosed regarding the alleged fact of unsound mind of respondent.

The learned Family Judge has considered the evidence adduced by the party and this Court in order to appreciate the aforesaid rival submission before entering into the legality and propriety of the impugned judgment needs to discuss herein the relevant part of the evidences adduced on behalf of the appellant-husband wherein the element of cruelty and the ground of unsoundness of mind of the respondent-wife has been taken.

During the trial, the appellant-husband has exhibited some documents which are being referred as under for ready reference:

Now adverting to the factual aspect of the case.

It is evident that the evidences have been led on behalf of both the parties before the Family Court. For better appreciation, the evidences led on behalf of the appellant/husband are being referred as under:

The evidences led on behalf of the respondent/wife are being referred as under:

The learned Family Judge has appreciated the evidences led on behalf of the parties as also the submission made in the pleading, i.e., plaint and written statement, and on consideration of the aforesaid, has dismissed the suit filed under Section 13(1)(i-a) & (iii) of the Hindu Marriage Act, 1955 by the appellant against the respondent for dissolution of marriage on the ground of cruelty and insanity.

The learned counsel for the appellant/husband has argued that the evidence led before the learned Family Court has not properly been considered and as such, the judgment suffers from perversity, hence, not sustainable in the eyes of law.

This Court while appreciating the argument advanced on behalf of the parties on the issue of perversity needs to refer herein the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under:

In the background of aforesaid factual aspect this Court is adverting to appreciate the issue of cruelty.

The “cruelty” has been interpreted by the Hon’ble Apex Court in the case of Dr. N.G. Dastane vs. Mrs. S. Dastana, (1975) 2 SCC 326 wherein it has been laid down that the Court has to enquire, as to whether, the conduct charge as cruelty, is of such a character, as to cause in the mind of the petitioner, a reasonable apprehension that, it will be harmful or injurious for him to live with the respondent.

This Court deems it fit and proper to take into consideration the meaning of ‘cruelty’ as has been held by the Hon’ble Apex Court in Shobha Rani v. Madhukar Reddi, (1988)1 SCC 105 wherein the wife alleged that the husband and his parents demanded dowry. The Hon’ble Apex Court emphasized that “cruelty” can have no fixed definition.

According to the Hon’ble Apex Court, “cruelty” is the “conduct in relation to or in respect of matrimonial conduct in respect of matrimonial obligations”. It is the conduct which adversely affects the spouse. Such cruelty can be either “mental” or “physical”, intentional or unintentional. For example, unintentionally waking your spouse up in the middle of the night may be mental cruelty; intention is not an essential element of cruelty but it may be present. Physical cruelty is less ambiguous and more “a question of fact and degree.”

The Hon’ble Apex Court has further observed therein that while dealing with such complaints of cruelty it is important for the court to not search for a standard in life, since cruelty in one case may not be cruelty in another case. What must be considered include the kind of life the parties are used to, “their economic and social conditions”, and the “culture and human values to which they attach importance.”

The nature of allegations need not only be illegal conduct such as asking for dowry. Making allegations against the spouse in the written statement filed before the court in judicial proceedings may also be held to constitute cruelty.

In V. Bhagat vs. D. Bhagat (Mrs.), (1994)1 SCC 337, the wife alleged in her written statement that her husband was suffering from “mental problems and paranoid disorder”. The wife’s lawyer also levelled allegations of “lunacy” and “insanity” against the husband and his family while he was conducting a cross-examination. The Hon’ble Apex Court held these allegations against the husband to constitute “cruelty”.

In Vijaykumar Ramchandra Bhate v. Neela Vijay Kumar Bhate, (2003)6 SCC 334 the Hon’ble Apex Court has observed by taking into consideration the allegations levelled by the husband in his written statement that his wife was “unchaste” and had indecent familiarity with a person outside wedlock and that his wife was having an extramarital affair. These allegations, given the context of an educated Indian woman, were held to constitute “cruelty” itself.

The Hon’ble Apex Court in Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, has been pleased to observe that while judging whether the conduct is cruel or not, what has to be seen is whether that conduct, which is sustained over a period of time, renders the life of the spouse so miserable as to make it unreasonable to make one live with the other. The conduct may take the form of abusive or humiliating treatment, causing mental pain and anguish, torturing the spouse, etc. The conduct complained of must be “grave” and “weighty” and trivial irritations and normal wear and tear of marriage would not constitute mental cruelty as a ground for divorce.

The Hon’ble Apex Court in the case of Vidhya Viswanathan v. Kartik Balakrishnan, (2014) 15 SCC 21 has specifically held that cruelty is to be determined on whole facts of the case and the matrimonial relations between the spouses and the word ‘cruelty’ has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other.

Before entering into the issue of cruelty, it needs to refer herein that it is settled position that a proceeding under Hindu Marriage act is not criminal proceeding where proof beyond reasonable doubt is required rather “preponderance of probability” is enough.

Here, in the present case, it is admitted fact that the marriage of the appellant with respondent was solemnized on 31.01.2016 according to Hindu rites and custom. It is also admitted fact that after marriage respondent came to the house of the appellant and both parties cohabited and lived their conjugal life and out of the said wedlock, the parties were blessed with a son namely Arnav Kumar. It is also admitted fact that both parties had met with each other prior to the marriage. The appellant has admitted that the maternal uncle of his father namely Sridhar Pandey is the co-villager of respondent and said Sridhar Pandey was the mediator of the marriage of the parties. The father of the appellant namely Pramod Kumar Pathak has taken oath as P.W.-4 and he has admitted that he has been going to the house of his maternal uncle Sridhar Pandey at village Pandeydih since his childhood and in that course, he had gone several times to the house of the respondent prior to the marriage of his son. He has also admitted that he had seen the respondent from her childhood. The appellant has also admitted that his father used to go to the house of his maternal uncle at Pandeydih where his Sasural is situated.

Thus, the learned court, on consideration of the aforesaid fact has opined that the respondent was not a stranger and unknown to the family of the appellant rather the evidences clearly reveal that both parties knew each other before their marriage and hence the allegation of the appellant that the so called abnormal behaviour and illness of respondent was concealed, does not appear to be true.

It is apparent from the impugned judgment/order that the learned court on perusal of the pleading and evidences, has taken note that the appellant has alleged that from the very beginning the behaviour of respondent was strange and she used to laugh without any reason and she used to come outside of the house without proper dress and her behaviour was extremely abnormal and embarrassing, but admittedly after the marriage, respondent lived with the appellant and both the parties cohabited and led their conjugal life and out of the said wedlock, respondent was blessed with a son on 31.12.2016 and is presently living with his mother.

It has further been taken note that neither the appellant nor his father has ever told that respondent had ever abused and misbehaved them. There is no allegation that respondent had ever used force or had assaulted the appellant or his family members. The appellant and his witnesses have nowhere stated that the respondent had ever injured herself or had attempted to commit suicide. No specific instance of cruelty with sufficient particularity the time and place of the acts alleged have been witnessed by any person rather general and vague allegation has been made against her. Thus, it appears that no cogent and reliable material has been brought on record regarding the cruelty committed by the respondent.

This Court, based upon the aforesaid discussions on the issue of cruelty, is of considered view that the issue of cruelty as has been alleged by the appellant-husband against his wife could not be proved because no concrete evidence to that effect has been produced by the appellant.

So far as the issue of mental illness is concerned it is evident from the impugned order that the learned Family Court has categorically held that no cogent evidence has been adduced by the appellant-husband in order to prove the mental illness of respondent-wife and therefore the Family Court has also decided this issue against the appellant/husband.

In the aforesaid context, it needs to refer herein Section 13(1) (iii) of the Act 1955 which reads as under:

The aforesaid provision shows that there are two separate grounds in the provision viz. (a) incurable unsound mind; and, (b) respondent spouse has been suffering continuously or intermittently from mental disorder and the disorder is of such kind and of such extent that the petitioner cannot reasonably be expected to live with the respondent.

From the wording of the aforesaid provision, it can be said that the mental condition like incurable unsound mind mentioned in the first part or the mental disorder mentioned in the second part needs to be proved by expert evidence and that evidence needs to satisfy the Court that such mental condition exists.

From the wording of the provision, it can be said that the second part of the provision has wide scope. For this part, it is not necessary that mental disorder is incurable. However, the mental disorder must be of such kind and extent that the Court needs to be satisfied that it is not advisable to ask the petitioner to live with the respondent. The scope shows that there is no limit to the kind of mental disorder as no specific kind is mentioned. However, the term “has been suffering” shows that the period of illness must not be too short or the petition should not be based on one or two instances showing such mental disorder.

The term “intermittently” cannot be misread in this provision to infer that the mental illness returns after the treatment within few days. The term “extent” is also important and on that also the Court needs to be satisfied to come to the conclusion that the petitioner cannot be reasonably expected to live with the husband.

Thus, it is evident that the relief is discretionary and while using discretion, the Court is expected to keep in mind the aforesaid things as mentioned above. Further, the burden to prove mental disorder mentioned as second part of the aforesaid provision or the burden to prove incurable unsound mind lies on the party who seeks to use the ground.

It needs to refer herein that Psychiatrist is an expert but in view of provision of section 45 of the Evidence Act, it is up to the Court to either rely on the opinion or to refuse to do so. Further, he being a witness, his credibility can be impeached like the credibility of any other witnesses and his veracity can be tested as provided in section 146 and other provisions of Evidence Act. As psychiatrist is expected to give evidence on the basis of the examination of the patient done by him, the symptoms noted by him, the treatment and the follow up treatment given by him and the record created by him needs to be considered both for corroboration and contradiction purpose. In such a case the evidence of other witnesses or the circumstances which relates to the behaviour of the respondent can be considered by the Court as that can help strengthening the opinion or create probability that the opinion has no justification and it is weak.

The Hon’ble Apex Court in the case of Kollam Chandra Sekhar v. Kollam Padma Latha, (2014) 1 SCC 225 has categorically observed that the ideas of unsoundness of ‘mind’ and ‘mental disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ‘mental disorder’. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law. For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:

The Hon’ble Apex Court in the aforesaid judgment has categorically held that marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case, the respondent was unwell and was taking treatment for the same. The illness had its fair share of problems. Can this be a reason for the appellant to abandon her and seek dissolution of marriage.

Thus, the Hon’ble Apex Court cautioned that Section 13(1)(iii) of the Act does not make a mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of marriage.

Now adverting fact of the instant case regarding the issue of mental illness/disorder.

The appellant has mainly focused on the allegation that the respondent was abnormal from very beginning and the father of respondent did not get her treated and the appellant and his father got the respondent treated by the consultant psychiatric Ratnendra Kumar of Ranchi and Dr. M. Jalil who has submitted his report that respondent is mentally retarded with schizophrenic type of mental disorder and the said psychological testing report has been marked as Ext. 1. The appellant has mainly focused that the abnormal, impulsive and aggressive behaviour of respondent, caused cruelty to him and it was not possible for him to live with her. The respondent has strongly denied that she has any such type of mental illness and it has been submitted on behalf of respondent that she has never shown disregard to appellant and his family members and no specific instance of disrespect by the respondent has been shown by appellant rather she was subjected to torture and the said report has been obtained by the appellant and his father deliberately in order to get rid of her.

It has further been taken note that, as had been submitted on behalf of respondent that on the allegation of mental illness of respondent, the Predecessor Court sent the respondent to RINPAS, Ranchi for her examination by the Medical Board and in the presence of both the parties, the Medical Board examined her and found no such mental disorder in the respondent and the real fact is that respondent has no such illness and she has always been ready to live with the appellant but she was subjected to cruelty for the demand of dowry of Rs. 5,00,000/-.

It has also been taken note in the impugned judgment that the appellant has filed some medical prescription of the respondent of the year 2018 including the psychological testing report of Dr. M. Jalil, the mental disease specialist, which has been marked as Ext. 1. The said Dr. M. Jalil has also been produced by the appellant who has taken oath as P.W.-5 and he has stated that after examination he found that Anshu Bala is mentally retarded with schizophrenic type of mental disorder, but on perusal of the prescription and report submitted on behalf of the appellant, it transpires that the doctors have nowhere reported and mentioned any certificate that the illness of respondent is not curable rather the said Dr. M. Jalil has reported in his psychological testing report that "there was no any fundamental disturbance in her process of attention and concentration," Although he has mentioned her intellectual development is below average but has further reported "that there was no any convincing evidence of defective visual motor coordination. Rorschach protocol reveal some mild perceptual abnormality". Thus, the report of the doctor itself shows that there is some mild abnormality and the doctor himself has not mentioned in clear words that she is suffering from schizophrenia. Moreover, after filing of the case on the ground of unsoundness mind of respondent, the Predecessor Court issued Letter of request to the Director, RINPAS, Kanke, Ranchi for constitution of a Medical Board for examination of respondent Anshu Bala and thereafter the respondent was sent before the Medical Board and admittedly in the presence of both the parties, the Medical Board examined the respondent and submitted its report to the Family Court through the Letter No. 1146 dated 10.05.2022 of the Director, RINPAS, Kanke, Ranchi, which have been marked in this case as Ext. C & C/1. The Medical Board which comprised two psychiatrist doctors and one medical superintendent, has given its report and from perusal of the report, it transpires that the Medical Board after examination of the mental status of respondent Anshu Bala has concluded that “no abnormal psychopathology could be elicited, hence on the basis of clinical history, mental status examination and psychological evaluation, Smt. Anshu Bala does not appear to have any psychiatric illness", thus, the said report of Medical Board clearly reveals, that the respondent does not have any psychiatric illness.

It has further been taken note in the impugned judgment that although, the appellant had filed an objection against the said report at much belated stage mentioning that without examination of Anshu Bala, the said report was submitted by the Medical Board and the said report was prepared by the doctor under the influence of Anshu Bala, but it has been observed that the objection raised on behalf of appellant has no leg to stand as the appellant and his father have admitted that by the order of the Court, Anshu Bala was sent before the Medical Board, RINPAS for her examination and in presence of both the parties, the respondent Anshu Bala was examined by the Medical Board, RINPAS.

In view of the above, it has been observed that the report was submitted much earlier and the said report was seen by the predecessor court and had been attached with the record visible to both the parties. So, the plea that the appellant had no knowledge earlier about the said report and the said report was prepared by Medical Board without examination of Anshu Bala and under her influence, is not tenable at all. Further, the appellant has never prayed before the Court to call for any member of Medical Board for his cross-examination in order to question the said report regarding the nature and illness of the respondent and in want of the said prayer, the medical report prepared by the said Medical Board of RINPAS, Ranchi after examination of Anshu Bala in presence of both the parties, is said to be a significant document which clearly negates the allegation of the appellant.

It is also apparent that after marriage, both parties cohabited and out of the said conjugal relation, a son was born on 31.12.2016 namely Arnav Kumar and the respondent had been taking care of her son at her parental house. Admittedly, the appellant has admitted in his evidence that he has not been paying any rupee to his wife and child for their maintenance and admittedly the respondent has filed a case of maintenance against her husband. The appellant has also admitted that prior to the birth of his son, he did not get the respondent treated by any of the specialist. Further, although he has stated that he wanted to continue the treatment of the respondent but her father had taken her away, but at the same time there is no material on record that he had ever attempted to bring back his wife and son in order to restore his matrimonial life rather his wife-respondent has pleaded and submitted that she has always been ready to live with her husband-appellant and under compulsion she has filed the case of maintenance.

It has also been taken note that the respondent Anshu Bala has filed her written statement and at the trial she has been cross-examined at length and during her cross-examination she has answered in a very natural, proper and balanced manner considering all the questions put to her and further the record shows that she has been taking care of her son at her parental house and there is no evidence that she was not able to discharge her matrimonial obligation.

Thus, on perusal of the entire evidences, the learned court has come to the conclusion that the appellant had not brought sufficient material to prove that the respondent has treated him with cruelty and she has been incurable of unsound mind or has been suffering to such mental order of such a kind that the appellant cannot reasonably be expected to live with her. Therefore, the said issue has also been decided against the appellant along with the issue of cruelty.

This Court, on consideration of the finding arrived at by the learned Family Judge and based upon the aforesaid discussion, is of the view that the judgment and decree passed by the learned Family Judge is not coming under the fold of perversity, since, the conscious consideration has been made of the evidences, both ocular and documentary, as would be evident from the impugned judgment.

Accordingly, the order/judgment dated 07.09.2024 and decree signed on 20.09.2024 passed by the learned Principal Judge, Family Court, Chatra in Original Suit No. 79 of 2021, whereby and whereunder, the learned court has dismissed the original suit filed under Section 13(1)(ia) & (iii) of the Hindu Marriage Act, 1955 for dissolution of marriage with the respondent-wife, warrants no interference.

Accordingly, the instant appeal fails and is dismissed.

Pending interlocutory application(s), if any, also stands disposed of.

I agree (Sujit Narayan Prasad, J.)