Raj Kumar Pal vs State Of U.P. & Anr.
2017 Latest Caselaw 3229 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

								      Court No. 17
 
 										AFR
 

 
Case :- FIRST APPEAL No. - 114 of 2017
 

 
Appellant :- Raj Kumar Pal
 
Respondent :- State Of U.P. & Anr.
 
Counsel for Appellant :- Vijay Kumar
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rang Nath Pandey,J.

Heard learned Counsel for the appellant.

Raj Kumar Pal-appellant has preferred the instant First Appeal, under Section-19 of the Family Courts Act, against the judgment and order dated 25.05.2017 passed by learned Additional District Judge/ Family Judge (Fast Track Court-2), Sultanpur in Regular Suit/ Case No.191 of 2012 (Raj Kumar Pal Vs. Smt. Urmila), whereby suit for divorce filed by the appellant under Section 13 of the Hindu Marriage Act has been dismissed on the ground that the appellant (husband) has failed to establish that Smt. Urmila-respondent ( wife) is suffering with with mental illness or any other ground for divorce.

We have examined the submission of learned Counsel for the appellant and perused the record.

It is said that the marriage of the appellant with Smt. Urmila was solemnized on 05.06.2006 as per Hindu rites and rituals and after ''Bidai', she stayed for two or three days at her in-law's house. In February, 2007, 'Gauna' ceremony took place and the respondent came to her in-laws house and stayed for about 15-20 days. When the respondent came after ''Gauna' ceremony, the appellant found that she used to play with fire-ball and used filthy languages to elders. Gradually, the mental illness of the wife increased. On query, the parents of the respondent informed to the appellant that respondent is suffering with some madness and soon she will be fine with the treatment. Later on, the appellant took his wife to Chandigarh for treatment at Nehru Post Graduate Institute of Medical Sciences for mental illness but the condition of the respondent did not improve. Thereafter, the father of the respondent took her to his house in May, 2010 for treatment and on repeated request, when the respondent was not allowed to join her husband, the appellant had to file a suit on 01.07.2011 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, which was finally disposed of on 14.12.2011 in view of the compromise and the respondent started living as his wife. However, the appellant did not find any change in her behaviour, In these circumstances, the divorce petition under Section 13 of the Hindu Marriage Act was filed by the appellant alleging therein that his wife is 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.

Learned counsel appearing for the appellant assailing the impugned order contended that the documentary evidence produced by the petitioner coupled with the evidence of the doctor, who treated the respondent, clearly establishes the unsound mind of the respondent and therefore, the order passed by the trial Court dismissing the petition for divorce requires to be interfered with.

The divorce petition was seriously contested by the respondent and it is said that the appellant and his family members were demanding Motorcycle and Television and on account of non-fulfillment of demands, she was not only tortured physically but also mentally. The appellant and his brother Kalpnath filed their affidavits in support of their stand.

At the very out, we would like to quote that under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly.

The learned trial court while examining the record found that nothing has been mentioned in the petition filed by the appellant for restitution of conjugal rights about the madness or abnormal behaviour of the respondent. The trial court found that there are material contradictions in the facts narrated in the divorce petition and those mentioned in the petition for restitution of conjugal rights. The trial court also recorded that the appellant in support of the contention of providing medical treatment has filed the medical prescription of the Postgraduate Institute of Medical Education and Research, Chandigarh, which was a FAX copy. At the time of cross-examination, the appellant-PW-1 ( wrongly mentioned as DW-1 in the judgment) has himself admitted that he is not able to read the medical prescription because the contents having erased. The appellant in his cross-examination has stated that he possessed the prescriptions of treatment but failed to produce the same before the court below.

The trial court also examined the statement of the appellant with respect to playing of the respondent with fire balls and found that they were living in a thatched house (''Chhapper' ) and if the respondent was playing with fire-ball then there was every possibility of house being caught by fire. The trial court also found that the appellant failed to prove the mental illness of the respondent either by documentary evidence or by oral evidence and decided the Issue no.1 against the appellant.

Section 13(1)(iii) of the Act, provides for a ground of divorce when the respondent suffers from incurably 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. Therefore, it is clear that mere unsound mind is not a ground for divorce. It should be incurably unsound mind. Similarly, if a person is suffering from a mental disorder, that by itself is not a ground for divorce. The mental disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation to the said proviso explains the meaning of mental disorder. The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder of disability of mind and includes schizophrenia.

Merely branding a spouse as a schizophrenic is not sufficient. The degree of mental disorder of the spouse must be proved to be such that other spouse cannot reasonably be expected to live with him or her. In other words, it must be such that the petitioning spouse cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. In the case of Kollam Chandra Sekhar v. Kollam Padma Latha, (2014) 1 SCC 225, the Apex Court ob served that if mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would, indeed, survive in law.

At this juncture, it would be relevant to point out that Apex Court in the case of RAM NARAIN GUPTA vs RAMESWARI GUPTA reported in 1988 AIR 2260 has observed as under:

"10. The context in which 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 decree of the 'mental- disorder'. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the order. All mental abnormalities are not recognized 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."

In the light of the aforesaid law declared by the Apex Court and the statutory provisions, the learned Judge of the Court below on proper appreciation of the evidence on record, rightly held that the appellant has not made out a ground for divorce.

We do not see any ground to interfere with the well considered order of the Court below. Accordingly, appeal is dismissed.

Order Date :- 16.8.2017

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