Chattisgarh High Court
Abhishek Lal vs Smt. Minakshi Filomin on 1 July, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 224 of 2018
Abhishek Lal S/o Late Vijay Maithyuj Aged About 27 Years R/o
Sangam Nagar, Belaakachhar, Balko Nagar, Tahsil And
District- Korba, Chhattisgarh.
---- Appellant
Versus
Smt. Minakshi Filomin W/o Abhishek Lal Aged About 31 Years
R/o Qr. No. 219, Svrup Cinema Ke Pichhe, Ward No. 25, Durg,
Tahsil District- Durg, Chhattisgarh.
---- Respondent
For Appellant : Shri Vikash Pandey, Adv.
For Respondent : No representation is made.
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board by Goutam Bhaduri, J.
01/07/2022
Heard.
1. No representation on behalf of the respondent being made
despite repeated calls.
2. The present appeal has been filed against the judgment and
decree dated 30.06.2018 passed by the Judge Family Court,
Korba, District - Korba (C.G.), in Civil Suit No. 54A/2018,
whereby an application filed under Section 18 of Indian
Divorce Act, 1869 to declare the marriage null and void was
dismissed. The present appeal is by the husband against the
dismissal of the petition.
3. As per the pleading of the husband, the parties to the
litigation profess the christian religion and they are residing in
India. It was pleaded that on 28.12.2016, the appellant was
married to respondent at Menonight Church, Durg, according
to the christian rituals knowing the fact that respondent-wife
is deaf. After solemnization of marriage, the husband came
back with the respondent-wife to Korba and followed the
different rituals of their community. Subsequently, with the
passage of time, the behavior of respondent-wife was getting
abnormal and despite sufficient period of marriage, no
physical relation was allowed by the respondent-wife. It was
further pleaded that she used to take medicine and being
asked, she replied in part that the said medicine is for
headache and abdomen ache. The appellant-husband further
pleaded that he tried to console and make the wife
understand about the relationship between the husband and
wife but she never reciprocated it and days went on passing
by without any improvement in behaviour and the wife used
to consume the medicine. The different incidents have been
narrated in the petition and an incident of 20.03.2018 states
that at 12.00 O'clock, the respondent-wife, all of a sudden,
got-up, closed the door and started going out, whereupon the
husband having doubt knocked the door forcefully then the
wife came and opened the door and started going to toilet
frequently. This behaviour of wife raised doubt in the mind of
the appellant-husband and these facts were disclosed to his
family members. Thereafter, he was sanguine of the fact that
the wife is suffering with mental infirmity and was lunatic
even at the time of marriage. The wife eventually left the
company of the husband and it was specifically pleaded by
the husband that the wife being the lunatic and of unsound
mind, never allowed him to establish physical relation.
Consequently, the marriage was a nullity and the same be
declared accordingly.
4. Perusal of the record of the Family Court would show that the
wife was proceeded ex-parte. In the petition and in para 32
of the affidavit filed by the appellant, it has been specifically
pleaded that respondent-wife is a lunatic and because of her
mental sickness she is unable to develop/establish physical
relation, as such, the marriage be declared as nullity. For sake
of brevity, the relevant paras 32 and 33 of the affidavit of
appellant are reproduced herein below:-
32- ;g fd vukosfndk us Loa; dks vkosnd ls fookg fnukad ls
ysdj vkt i;Zar nSfgd laca/k LFkkfir ugha fd;k gS vkSj vkosnd
ds iz;kl djus ij vkRegR;k djus dh /kedh nh gSA vukosfndk
dk mDr d`R; Hkh vkosnd ds izfr dzwjrk dk ifjpk;d gSA
vukosfndk ds ikxy o ekufld fLFkfr vkSj 'kkjhfjd laca/k
LFkkfir u gksus ds dkj.k budh oSokfgd fLFkfr 'kwU; gSA
33- ;g fd] vkosnd ds laxe uxj] csykdNkj] ckydksuxj]
rglhy o ftyk & dksjok (N-x-) esa fuokl fd;s tkus ls bl
ekuuh; U;k;ky; dks lquokbZ dk {ks=kf/kdkj izkIr gSA
5. Section 2 (l) of the Mental Health Act, 1987 defines the
"mentally ill person" as a person who is in need of treatment
by reason of any mental disorder other than mental
retardation. According to the pleading of the
plaintiff/appellant himself, the respondent-wife is said to be
lunatic and even if the pleadings are considered in a liberal
view or it is considered that she is suffering from low
intellectual cogent, there would be no gainsaying to infer that
she would be capable to defend herself. The appellant-
husband has also pleaded the hearing impairment of
respondent-wife, as such, the cumulative reading of pleading
itself would show that the respondent-wife appears to be
incapable of protecting her interest in the litigation while
suing or being sued on account of suffering from any mental
infirmity.
6. The husband knowing all the facts about the state of mind of
the respondent-wife, filed a petition claiming decree of nullity
of marriage. It was solely based on Section 19 (3) of the
Divorce Act, 1989, which gives power to the either party to
claim a decree of nullity when either party is lunatic or
unsound mind at the time of marriage. The pleading and the
evidence of the appellant-husband maintained the stand that
from the date of marriage itself i.e. 28.12.2016, the
respondent-wife showed unnatural and abnormal behaviour
and, according to the appellant-husband, she was a lunatic
and continues as such without improvement.
7. At this stage, we are not deliberating upon to go into the
inferiority of the unsoundness of the respondent-wife and
confined our finding exclusively on the basis of the pleadings
of the appellant-husband.
8. Order 32, Rule 15 of C.P.C. governs the suit by or against
person with mental incapacity and reads as under:-
[15. Rules 1 to 14 (except rule 2-A) to
apply to persons of unsound mind-
Rules 1 to 14 (except rule 2-A) shall so, far
as may be, apply to persons adjudged,
before or during the pendency of the suit, to
be of unsound mind and shall also apply to
persons who, though not so adjudged, are
found by the court on inquiry, to be
incapable, by reason of any mental
infirmity, of protecting their interests when
suing or being sued.
1 Subs. By Act 104 of 1976, Sec, 79, (w.e.f. 1-2-1977).
9. Order 32, Rule 15 of C.P.C. refers to appointment of guardian
which has a reference to Rule 1 to 14 of Order 32. The Rule is
applied to a person who are found to be incapable of
protecting their own interest by reason of mental infirmity
and mental retardness. The mental infirmity cannot be
viewed in a narrow scale and when we bring the lens back to
the pleading made by the appellant-husband, it would show
with the narration pleaded and the evidence adduced, an
inference can be drawn that the respondent-wife, on account
of infirmity, was incapable of protecting her own interest
even in her matrimonial life. Applying the aforesaid
principles, when the wife herself was made a sole respondent
without being represented by a next friend, the suit itself
could not be tenable. When the appellant pleads that wife
was lunatic & continues so till filing of petition for nullity it
can not be presumed that she would be capable of defend
herself. Necessarily, in the cases of like nature the defendant-
respondent is required to be represented by next friend.
10. The appeal being devoid of such mandatory requirement is
liable to be dismissed and is accordingly dismissed. Decree
be drawn accordingly.
Sd/- Sd/-
(Goutam Bhaduri) (Rajani Dubey)
Judge Judge
H.L. Sahu
