Sudhir Singhal vs Neeta Singhal
2000 Latest Caselaw 180 Del

ORDER

M.K. Sharma, J.

1. The appellant herein filed a petition seeking for dissolution of his marriage with the respondent on the grounds of cruelty and mental disorder. It was alleged in the petition that the respondent after the solemnisation of marriage treated the petitioner with cruelty and that the respondent had been suffering from mental disorder of such a kind and to such an extent that she could not be reasonable expected to live with the petitioner.

2. The parties got married on 2.5.1982 at Delhi according to Hindu rites and ceremonies. Both the parties were divorcees at the time of their marriage. However, there is no child of the parties either from the present marriage or from the previous marriage. After marriage, the parties lived at Chandausi, District Moradabad, U.P., and the said divorce petition was originally filed in the Court of Civil Judge, Moradabad, U.P. in April, 1989. Under the orders of the Supreme Court, the case was transferred to the Courts at Delhi.

3. After the case was transferred to the Courts at Delhi, the respondent filed a written statement on 14.8.1992 controverting all the allegations levelled against her by her husband. She pleaded that she never behaved in the manner alleged. She also took up a defense that the appellant was a known case of alcoholism and had shattered the marital life of the parties. She also alleged that she was dealt with in a most cruel manner right on the very first night as well as thereafter because of the fact that her husband was an alcoholic and that because of his alcoholic habits she had not been able to conceive and that is how, admittedly, there is no child from the wedlock.

4. Filing of the aforesaid written statement was followed by an application under Order 6 Rule 17 CPC by the appellant wherein the appellant sought for an amendment incorporating therein certain incidents of cruelty being on account of the alleged abuses, filthy language used and insult caused by his wife. The said application was allowed and the proposed amendment was incorporated in the petition by incorporating two specific dates and two specific incidents which was not pleaded in the original petition.

5. On the basis of the pleadings of the parties, three issues were framed by the Trial Court which are in the following manner :-

(1) Whether the respondent has been incurable of unsound mind of such a kind and to such an extent that the etitioner cannot reasonably be expected to live with the respondent?

(2) Whether the respondent is guilty of treating the petitioner with cruelty?

(3) Relief.

6. During the course of the trial, parties produced both oral and documentary evidence and on conclusion thereof, the Additional District Judge heard the counsel for the parties and thereafter by his judgment and decree dated 25.8.1995 dismissed the petition.

7. Counsel for the appellant during the course of his arguments submitted that the respondent hurled filthy abuses on the appellant as also on his mother and, therefore, the plea of mental cruelty was proved and the Trial Court acted illegally and committed error of law in holding that the said plea was not proved. It was also submitted that the intention of the respondent to leave her matrimonial home becomes apparent and clear for she admits execution of Ex. PW1/A which is a list of articles dated 24.4.1989. It was submitted that a bare perusal of the said list goes to prove that the respondent had collected all the articles including the bedding, spoons and jewellery, cloths etc. to break the matrimonial home with the intention of never returning back. He also submitted that the doctor examined as PW. 2 had issued a certificate which was proved during the trial as Ex. 2/A and had also deposed that the respondent was suffering from a disease called Obsessive Compulsive Neurosis and in rejecting the said certificate, the Trial Court committed error of law. Counsel for the appellant also stretched that the marriage had irretrievably broken down and relying on Ex. PW1/1, he stated that the petition should have been allowed by the Trial Court. He submitted that on the facts pleaded and proved by the appellant, both the plea of cruelty and mental disorder were proved and established and, therefore, the judgment and decree passed by the Trial Court is illegal and void. In support of his contention, he relied upon the decision of the Supreme Court in V. Bhagat Vs. D. Bhagat (Mrs.); reported in (1994) Supreme Court cases 337, a Division Bench decision of Calcutta High Court in A.E.G. Carpet Vs. A.Y. Derderia; , Sh. Ashok Sharma Vs. Smt. Santosh Sharma; and in Smt. Kamini Gupta Vs. Mukesh Kumar Gupta; reported in AIR 1985 Delhi 221.

8. Counsel appearing for the respondent on the other hand submitted that during the period from 1982 to 1988 there was no allegation against the wife of using any foul language against the husband etc., and even during the aforesaid period there was no allegation that he was suffering from any mental disorder. It was submitted that the alleged receipt regarding the return of the articles was in fact thrust on her. On her behalf, the counsel also submitted that the appellant's weakness for liquor is the root cause of the present situation and her life has been ruined for no fault of her. It was submitted that the charges of cruelty and mental disorder are very serious charges which were found to be not established by the Addiional District Judge by giving sound reasons. In support of his submission, the learned counsel relied upon the decision of the Supreme Court in Ram Narain Gupta Vs. Smt. Rameshwari Gupta; , in Usha Gupta Vs. Santosh Kumar Pahadiya; reported In I (1996) DMC 71. He also relied upon the decision in Ranjana Saxena Vs. Prabhash Saxena; reported in 68(1997) DLT 397.

9. In order to prove that the respondent has treated the appellant with cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act, the burden is on the appellant/husband. It is settled law that in order to grant a divorce on the ground of cruelty, the entire matrimonial relations must be considered and the Judge trying a matrimonial case must maintain an attitude of sympathetic understanding. In order to property appreciate the contention of the parties, the relevant Section for the purpose of deciding the present dispute is quoted below :-

13. Divorce. - (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party.

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(iii) has been incurable of 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 respondent.

Explanation - in this clause, -

(a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment, or.

10. In the context of the aforesaid provisions and evidence adduced by the parties in support of their respective contentions, I would proceed to decide the case pleaded first on the question of mental disorder and thereafter on the question of cruelty.

11. In a similar case, namely Ram Narain Gupta (supra), the Supreme Court has held that :-

"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 degree of the "mental disorder".

It was further held that :-

"Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other."

It was further held that :

"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."

12. It would, therefore, be necessary to test and scrutinise the evidence adduced herein in the light of the aforesaid decision rendered by the Supreme Court. In support of the aforesaid contention, the appellant examined the doctor as PW.2. He stated that in March, 1989, which was corrected later on as March, 1988, the appellant had brought his wife to him for treatment and that on diagnosis he found her to be suffering from a disease called Obsessive, Compulsive Neurosis. He also stated that he was told that he was taking treatment earlier also and he had been shown the prescriptions of other doctors. He stated that his treatment did not show much improvement in her. He proved Ex. PW. 2/A which is a photostat copy of his prescription slip issued to the respondent. In his cross-examination, he stated that he did not maintain any record regarding his patients except in his appointment diary.

13. Nothing is stated nor any record is proved by the said doctor to indicate as to what is the nature of treatment that he had prescribed for her and for how long such treatment continued. He states that he was shown the prescription of other doctors, but not a single prescription of other doctors is proved on record. I have also carefully perused Ex. 2/A which is just a certificate showing that the respondent was suffering from Obsessive Compulsive Neurosis. Certificate exhibited as Ex. PW. 2/A states that she had earlier taken treatment from another psychiatrist in the year 1983. The said certificate is dated 23.7.1991. The doctor had stated that he had examined the respondent in the month of March, 1988/March, 1989 but he did not maintain any record of his patients. It was also stated by him that he used to see about 30 patients a day. It thus appears that he is very busy medical practitioner and it is not explained as to how he could remember after two years what the respondent was suffering from and that she had earlier taken treatment for another psychiatrist in the year 1983. It is also alleged in the said certificate that she was under treatment for about four months under him. Not a single prescription is put on record. He has also not deposed the line of treatment that he had prescribed for her. The said certificate issued by the doctor and even the evidence of the doctor does not prove the case of mental disorder. In order to prove the case of mental disorder, its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the other. The evidence adduced in support of the case of the respondent suffering from mental disorder is scanty and is not sufficient to prove the allegation made by the appellant.

14. So far the plea of cruelty is concerned, in V. Bhagat (supra), the Apex Court had occasion to consider the question as to what kind of cruel treatment does clause (i-a) of Section 13 of the Hindu Marriage Act contemplates. Explaining the kind of mental cruelty that is required to be established under the said Section, their Lordships held thus :-

"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. Mental cruelty must be of 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 a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."

15. In order to defend herself, the respondent could make statement of facts against the imaginary and irresponsible allegations and averments made in the petition. In a matrimonial suit merely because there are allegations and counter-allegations, a decree for divorce should not follow. But if totally unfounded allegations and aspersions on character, honour or reputation or status or health of the aggrieved party are made in the written statement, they would constitute matrimonial cruelty within the meaning of Sub-clause (i-a) of Section 13(1) of the Hindu Marriage Act.

16. It is alleged by the appellant that by making unfounded wild allegations against him he is a drunkard and alcoholic and by her nature of using filthy and abusive language, not only against the appellant but also against his mother and sister, mental disorder is proved.

17. In the light of the aforesaid allegation, I proceed to examine as to whether mental cruelty is proved on the allegations made by the appellant and thereafter shall also proceed to examine whether the allegations made by the respondent in the written statement amount to mental cruelty within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act. It has been alleged that the respondent has been using filthy and abusive language against the family members including the appellant. The aforesaid plea was disbelieved by the Trial Court on the ground that the parties had been living together and married for over six years and no such allegation was made during the aforesaid period of user of such filthy and abusive language. It is alleged that on 10.7.1988 and 31.7.1988 the respondent started using such words and filthy language. Even allegations were made that the wife has allegedly commented about the illicit affair of the appellant with his mother. Although the mother examined herself as a witness for the appellant and stated so, but such a statement could be accepted for the same appears to be figment of imagination only and to make out a story to justify a ground for divorce. In my considered opinion, therefore, the plea of the appellant that the respondent has caused cruelty by using filthy and abusive language cannot be accepted as proved and established in the present case.

18. So far the allegation made by the respondent in the written statement is concerned that her husband was an alcoholic and she did not conceive because of the aforesaid reason, the Trial Court found that the said averments made in the written statement and the explanation given by her as to the reasons why she could not conceive has not been proved. Merely because those allegations were made against the appellant, it could not be said that merely because such statement was made a case of cruelty is made out against her husband which would justify dissolution of marriage. In may considered opinion, reliance for making such a submission by the appellant is misconceived.

19. Another submission of the learned counsel appearing for the appellant that the marriage had irretrievable broken down. The said plea was sought to be supported on the fact that the respondent had collected all the articles by executing a receipt with no intention of coming back to the matrimonial home. In my considered opinion the same could not be a ground is a ground for allowing the dissolution of marriage. In this connection, it may be appropriate to state the irretrievable break down of marriage if not a ground recognised by law for grant of decree of divorce. The Supreme Court, of course, by exercising the powers under Article 142 of the Constitution of India granted such a decree for irretrievable break down of marriage in the case of, V. Bhagat (supra). The said power, in may considered opinion, is, however, not available to the High Court for the High Court is bound by the statutory provisions made in that regard and cannot grant a decree which is not recognised by the aforesaid statutory provisions. In this connection, reference may be made to the decision of the Gujarat High Court in Anil Kumar Vs. Sunita; reported in I (1998) DMC 345 and the decision of the Gauhati High Court in Gouri Shankar Chakravarty Vs. Smt. Basana Roy; reported in AIR 1999 Gauhati 48. Reference may also be made to a Division Bench decision of this Court in Smt. Nitu alias, Asha Vs. Krishan Lal; .

20. Thus considering, I am of the considered opinion that the appellant has failed to make out any ground for dissolution of marriage in the present case and, therefore, the appeal has no merit and is dismissed accordingly but without any cost.