Mohan Rao vs S. Meena Kumari

Shivakant Prasad, J.—1. This appeal is directed against the judgment and decree dated 31st March, 2014 passed by the Additional District Judge, Andaman and Nicobar Islands in Matrimonial Suit No. 24 of 2010 disallowing the application under section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 and allowing the application filed by the respondent for restitution of conjugal rights.

The chronological events leading to the instant appeal is that the appellant filed a suit for divorce under section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955 for dissolution of marriage by a decree of divorce contending inter alia that the marriage between the appellant and the respondent was solemnized on 21.03.2008 at Panighat Village, South Andaman as per Hindu rites and customs and marriage was consummated between them on 28.03.2008 and 29.03.2008 but after consummation within a day or two it appeared to the appellant that the behavior of the respondent was not normal. The appellant informed the matter to her parents and as per advise of her parents, he gave some medicine to his wife. On 31.03.2008 the appellant took his wife to her parental house and on 11.04.2008 the appellant brought the his wife back to his house but finding no change in her behavior the appellant''s father made a complaint to the village Panchayat and in Panchayat the uncle of the respondent admitted that she was ailing from psychiatric problem and Panchayat asked the respondent to go for a mutual divorce since the mental condition of the respondent was not good to which the parents of the respondent did not agree. Subsequently, the appellant come to know that the respondent had met with a road accident while the respondent was travelling in a scooter in which she sustained head injury resulting in her psychiatric problem. Further the case of the appellant is that since 16.04.2008 he is residing separately from his wife and that relationship as husband and wife is irrevocable.

The respondent entered appearance by filing a written objection denying all material allegations made in the petition and contended, inter alia, that since the day of marriage, her in-law used to inflict mental torture upon her for dowry and attempt was to get her separated from her husband. The respondent has urged that she is all along ready and willing to reside with her husband and is not willing to break the marital tie. As such, she sent a legal notice to the appellant for restitution of conjugal rights. Accordingly, the respondent prayed for dismissal of the suit for divorce with cost and further prayed for a decree for restitution of conjugal rights which she claimed by filing a counter claim under section 9 of the Hindu Marriage Act, 1955. It is admitted fact that the marriage between appellant and the respondent was solemnized and consummated. It is the contention of the respondent that she was subjected to mental torture for bringing sufficient dowry by her in-laws and she informed the same to her husband but he paid no heed and has withdrawn from the society of the respondent without any reasonable excuse. Accordingly, she prayed for decree of restitution of conjugal rights by way of counter-claim.

The counter claim was contested by the appellant by filing a written objection contending, inter alia, that at no point of time, the respondent has discharged her duty as wife and that her behavior was not normal and the allegation of dowry is absolutely bogus and soon after a month of marriage, they are residing separately. It is specific contention of the appellant that his wife is suffering from mental disorder and under such condition it is not possible for him to live with her. It is also contended that the appellant is ready to give back those articles which were given to him at the time of marriage whenever the respondent asks for. It is pointed out that the fact of her mental disorder was concealed by the respondent and her family members at the time of marriage which caused immense mental agony to the appellant and there is no scope for re-union by way of restitution of conjugal rights. Accordingly, the appellant prayed for dismissal of the counter claim filed by the respondent.

It is axiomatic from the judgment impugned that as many as eight issues were framed on the basis of the pleading of the parties to the suit and the moot issue pertains to allegation of practicing cruelty on the appellant by suppression of fact that the respondent was suffering from mental disorder.

After taking evidence of both the parties, the learned Additional District Judge held that the appellant had failed to prove the grounds of desertion and mental cruelty meted out to him. It is argued by Mr. Gopala Binnu Kumar, learned counsel for the appellant that there is no justifiable conduct on the part of the respondent to live with her in future. But, the learned Judge on marshalling the facts on evidence came to a finding that no witness has stated anything that due to abnormal behaviour of the respondent, the appellant is not in a position to continue with the marital tie with the respondent.

Mr. Kumar, has also taken us through the averments made in various paragraphs of the pleadings between the parties and contended that his case for divorce was dismissed by the learned Judge without appraising the evidence of the family members which are sufficient to prove the ground of cruelty for divorce. The appellant has all along maintained his stand that the respondent is ailing from mental disorder which fact was concealed by the respondent and her family members at the time of marriage causing immense mental agony to the appellant that it is practically impossible for the appellant to reside with the respondent and finding no alternative, he placed the matter before the panchayat who advised the appellant for mutual divorce to which respondent did not agree.

Such a step before panchayat for mutual divorce is unheard of in law as the panchayat cannot sit over the issues between the parties by usurping the role of judiciary.

Admittedly, marriage was solemnized on 28.03.2008 and it was consummated on 29.03.2008 and that the respondent stayed until 04.04.2008 in her matrimonial home with the appellant and on 04.04.2008, being the Telugu New Year Day, as per ritual, the respondent has to go to paternal home for ceremonial function and she stayed there till 10.04.2008 and on 11.04.2008, the appellant along with his parents came to the parental house of the respondent and took her back to her matrimonial home.

It is contended by the Mr. Krishna Rao, learned advocate appearing for the respondent that the appellant has taken the shelter of various types of allegations to justify his wrong and to get separated from the respondent and trying to get her separated from him since the family of the respondent failed to meet the demands of the appellant''s family.

The respondent was all along present in the Court during hearing and we have tried our level best to effect re-conciliation between them but the appellant appears to be obstinate and adamant on the point that the respondent is suffering from mental disorder and it would be dangerous for him to live with her, and that such fact was not disclosed at the time of marriage.

Now, let us appraise the evidence on record to find, if at all, the appellant has proved the said facts.

We have gone through the evidence of Dr. Sunil Kumar, as Senior Psychiatrist who deposed as PW-4 to prove that S. Meena Kumari was suffering from unsoundness of mind who was treated by him on 07.07.2006 at G.B. Pant Hospital, Port Blair. Dr. Kumar has brought the register pertaining to the psychiatric patients treated at G.B. Pant Hospital maintained from 02.01.2006 to 31.12.2007 and Serial No. 7617 dated 07.07.2007 in the register mentions the name of the respondent. PW-4 has produced the register pertaining to treatment marked as Exhibit -2 and Exhibit-3 and according him, she was discharged on 22.07.2006 and again admitted on 14.08.2006 and discharged on 14.09.2006 as per the said register. But, Dr. Kumar could not say that the patient S. Meena Kumari was at all treated by him on 14.09.2006. Therefore, doctor has no specific knowledge about her treatment as he could not say as to whether she was suffering from incurable disease. He could not also say whether the patient is still under treatment and he has stated in unequivocal term that she was in good mental health. Thus the appellant has failed to prove the mental disorder of the respondent by production of treatment sheet although Mr. Kumar, adverting to the remark in the register submitted that the respondent was suffering from acute psychosis. This remark in the register cannot be taken as sacrosanct as a conclusive proof of the fact that the respondent was suffering from unsoundness of mind in view of the doctor''s evidence that she was in good mental health in absence of any evidence to the contrary.

We have found the respondent to be very responsive and in her sound health of mind and there is no element of any sort of pyschosis or mental disorder as alleged by the appellant. That apart, during the cross-examination, Bhim Rao, PW-5 a neighbor of the appellant has candidly stated that that he has not produced any document to show that Meena Kumari was a mental patient. He has never seen Meena Kumari admitted in hospital during the last five years. Ergo, the submission on the part of the appellant that his wife is a person with unsoundness of mind and such facts have been suppressed by the respondent at the time of marriage has no leg to stand.

Although the appellant has taken the ground of mental cruelty having suffered due to suppression of his wife''s mental illness before the marriage nevertheless such contention cannot be accepted by the Court as a ground of cruelty. In our considered view, in the facts of the case, suppression of any fact which may conjure the mind of the appellant may be a ground for nullity of marriage but that cannot be taken as ground for divorce where the marriage has been admittedly solemnized and consummated.

Mr. Kumar, learned counsel for the appellant refers to a decision in the case of V. Bhagat v. Mrs. D. Bhagat reported in , [1994] 1 SCC 337 in which the fact of the case was that the husband sued for divorce on the ground that the wife is guilty of adulterous course of life. The wife not only denied the allegation but she attributed the allegation to lack of mental equilibrium of the husband. The husband then amended his petition and alleged a new ground for divorce viz., mental cruelty. According to him, the allegations made in the written statement per se constitute cruelty which entitled him straightway to a divorce without going into the original allegation of adultery.

We have respectfully gone through the decision wherein the Hon''ble Apex Court observed in paragraphs 16 and 17 thus:

"16. If so, the question arises what kind of cruel treatment does clause (ia) contemplate? In particular, what is the kind of mental cruelty that is required to be established? While answering these questions, it must be kept in mind that the cruelty mentioned in clause (ia) is a ground now for divorce as well as for judicial separation u/s. 10. Another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act, even after the 1976 (Amendment) Act, does not permit dissolution of marriage on that ground. This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by S.13(ia).

Mental cruelty in S.13(a)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be on such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is an allegations, regard must also be had to the context in which they were made."

We are of the considered view that there is no straight jacket formula to construe the case of mental cruelty which cannot be and has not been defined in general term except the definition as embodied under section 498A I.P.C. Having considered the facts and circumstances of this case, in our opinion, the ratio of decision is not apposite to the facts of the instant case and is quite distinguishable.

Mr. Kumar, has further fortified his argument with an authority in a case of Vijay Kumar Ramchandra Bhate v. Neela Ramchandra Bhate reported in , (2003) 3 Supreme 6 in which case the petition for dissolution of marriage was filed by the wife on the ground of cruelty. The petition was decreed by the Trial Court considering the allegations made by husband branding her an unchaste woman keeping illicit relations in written statement though subsequently withdrawn by amendment. The decree was confirmed in appeal. In appeal, whether averments, accusations and character assassination of wife by the appellant in a written statement constitute mental cruelty for sustaining claim for divorce. It was answered in affirmative by the Apex court to this that the subsequent amendment and deletion of accusations would not absolve husband in the case. It was observed thus -

"The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court."

It would be profitable to reproduce the observations made in the paragraphs 5 and 6 of the cited decision which read thus:

"5. In Dr. N.G. Dastane v. Mrs. S. Dastane (, AIR 1975 SC 1534), this Court observed that normally the burden lies on the petitioner to establish his or her plea that the respondent had meted out cruelty to the petitioner and that the standard of proof required in matrimonial cases under the Act is not to establish the charge of cruelty beyond reasonable doubt but merely one of weighing the various probabilities to find out whether the preponderance is in favour of the existence of the said fact alleged. As to what is the nature of cruelty that is necessary to be substantiated also, it has been pointed out that unlike the requirement under English law which must be of such a character as to cause danger to life, limb or health so as to give rise to a reasonable apprehension of such a danger, the courts under the Act in question has to only see whether the petitioner proved that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in mind that it will be harmful or injurious to live together, keeping into consideration the resultant possibilities of harm and injury to health reputation, the working-career or the like.

In V. Bhagat v. D. Bhagat (Mrs.) , (1994)1 SCC 337, it was observed that mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other and the parties cannot reasonably also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged party. That was a case wherein the husband filed a petition against the wife for divorce on the ground of adultery. In the written statement filed by the wife in the said proceedings, she alleged that the husband was "suffering from mental hallucination that his was a "morbid mind.... for which he needs expert psychiatric treatment", and that he was "suffering from paranoid disorder" etc., and that during cross-examination several questions were put to him that the petitioner and several members of his family including his grandfather were lunatics and that the streak of insanity was running in the entire family. It is in the said context this Court though held the allegations leveled against the wife were not proved the counter allegations made by the wife against the husband certainly constituted mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife thereafter. The husband, it was also held, would be justified to say that it is not possible for him to live with the wife. In rejecting the stand of the wife that she wants to live with her husband, this Court observed that she was deliberately feigning a posture, wholly unnatural and beyond comprehension of a reasonable person and held that in such circumstances the obvious conclusion has to be that she has resolved to live in agony only to make life a miserable hell for the husband, as well."

We have respectfully considered the principles laid in the above cited decision but in so far as facts and circumstances of the instant case is concerned, it stands on a different footing and is quite distinguishable from the cited decision inasmuch as, the appellant has failed to bring home the proof to show that the respondent was/is suffering from unsoundness of mind. The averments made by the respondent wife in her counterclaim do not constitute mental cruelty as no such allegation has been made against the appellant. It is a sheer wishful thinking on the part of husband appellant.

Bearing in mind the principle laid in the case of Konkona Rani Das v. Samir Kumar Das reported in (1996) 2 Cal.LT (SC) 42 where the Apex Court observed that the cruelty must be of such nature that normal living may not be possible, we do not find such circumstances in the given facts of the case.

As regards desertion, the learned Trial Judge has rightly observed that desertion has been defined as willful, deliberate withdrawal from the matrimonial society with an intention of not residing in future but in the instant case the appellant and his parents left the respondent at her parental house. Therefore, it cannot be said that she left her husband having an intention to desert him or to break the material tie.

Mr. Kumar, has relied on a decision in the case of Dr. (Mrs.) Malathi Ravi, M.D v. Dr. B.V. Ravi, B.D reported in , (2014) 7 SCC 640 which related to grant of divorce on the ground of desertion wherein it has been held that essential length of period of desertion being a continuous period of not less than two years immediately preceding the presentation of the petition must be proved.

We respectfully agree with the principle governing ground of desertion but the facts and circumstances of the above cited decision is not well nigh within the facts and circumstances of the instant case inasmuch as the fact remains that the appellant had called the panchayat and prayed for mutual divorce on 16.04.2008 and he was not interested in re-union right from the beginning.

Therefore, we countenance to the finding of the learned Judge that the appellant has neither proved the ground of cruelty on account of wife''s alleged abnormal behavior nor that of desertion by dismissing the appellant''s prayer for a decree of divorce and by decreeing the suit of the wife respondent for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.

In the context of what has been discussed above, we have bestowed anxious and careful thought over all aspect of the matter and have reached to the clear conclusion that applying standard of proof, the appellant husband has failed to make a case for decree of divorce and further we find that considering the readiness and willingness of the respondent to restitute her conjugal life the learned trial court has rightly granted a decree for restitution of conjugal rights as against the appellant.

Thus, we hold that the judgment impugned is not devoid of any merit and does not warrant interference into the finding of the learned Trial Judge.

Accordingly, both appeals being FAT No. 001 of 2014 and FAT No. 002 of 2014 are dismissed, however, without any order as costs.

Urgent certified copy of this order be supplied to the learned counsel appearing for the respective party on completion of usual formalities.

Ashoke Kumar Dasadhikari, J.—I agree.