Madhya Pradesh High Court
Rajesh Kumar Gupta vs Smt. Mohani Gupta on 21 February, 2024
Author: Sheel Nagu
Bench: Sheel Nagu
F.A. No.478 of 2014
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 21st OF FEBRUARY, 2024
FIRST APPEAL No. 478 of 2014
BETWEEN:-
RAJESH KUMAR GUPTA S/O B.R. GUPTA, AGED
ABOUT 38 YEARS, OCCUPATION: CONTRACTOR
R/O BICHHIYA, TEHSIL AND DISTRICT MANDLA
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI SANJAY KUMAR PATEL - ADVOCATE ALONG
WITH SHRI SUSHIL KUMAR SHARMA - ADVOCATE)
AND
SMT. MOHANI GUPTA W/O RAJESH KUMAR
GUPTA, AGED ABOUT 32 YEARS, R/O IN FORNT OF
LALIPUR PETROL PUMP, VILLAGE LALIPUR, P.S.
TEHSIL AND DISTRICT MANDLA (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI BHUPENDRA KUMAR MISHRA - ADVOCATE)
----------------------------------------------------------------------------------------
This appeal coming on for hearing this day, Justice Vinay Saraf
passed the following:
JUDGMENT
By present appeal preferred under Section 19 of Family Courts Act
r/w 28 of Hindu Marriage Act, 1955, appellant/husband assailed judgment
and decree dated 5.4.2014 passed by Principal Judge, Family Court,
Mandla in Civil Suit No.1-A/2014, whereby learned Family Court
dismissed petition filed by appellant/husband for grant of decree of
divorce. With the consent of the parties, appeal is heard finally.
2. Appellant married respondent on 11.7.2008 as per Hindu Rights and
Rituals in village Lalipur, District Mandla and they were blessed with one
boy on 20.04.2011, who is presently residing with wife. Hereinafter for the
sake of brevity, appellant is referred as "husband" and respondent as
"wife".
3. Husband filed divorce petition on 19.06.2012 u/s 13(1)(iii) of Hindu
Marriage Act, 1955 (in short 'H.M. Act') upon allegation that when wife
was residing with him, he observed that her behaviour was unnatural like
she used to take bath for hours, standing at one place for long time, unable
to cook food properly, forget to switch off gas burner, tried to jump from
roof, doesn't wear clothes properly etc. and found that mental condition of
wife was not sound & proper.
3.1 It is further pleaded that when her unnatural behaviour was brought
to knowledge of her father, he revealed that even before marriage she was
under treatment of Neuro Physician Dr. M.S. Jauhri of Jauhri Hospital,
Jabalpur and she is suffering from mental disease Schizophrenia. Husband
took wife to Dr. Jauhri, who advice to consult with Psychiatrist Dr.
Ashutosh Kapoor and treatment was started. Later on, she was treated at
Netaji Subhash Chandra Bose Medical College, Jabalpur and at Manoyog
Clinic, Nagpur, but her condition was not improved.
3.2 Husband stated in petition that under these circumstance, it was not
possible to live with her and, after sending wife and minor son to her
parental home, petition for divorce was filed by husband on the ground of
mental disorder of wife enumerated in Section 13(1)(iii) of Hindu Marriage
Act. According to allegations mental disease of wife is continuous and
incurable and of such a kind and to such an extent that husband cannot
reasonably accept to live with wife. Husband prayed for grant of decree of
divorce.
4. Respondent/wife appeared before Family Court and denied
allegations of mental disorder. She pleaded in written statement that
husband asked wife to bring Rs. 50,000/- from her father and when she
expressed her inability to bring amount, he treated her with cruelty and
when she disclosed act of cruelty to her father, a complaint was lodged by
her father on 04.09.2009 at Police Station Mandla, where husband and his
family members accepted their fault and assured to behave properly in
future and, thereafter, they continued residing together, however after some
time husband again started beat her to fulfill his demand of money.
4.1 Wife further pleaded that husband is habitual drinker and after
consuming alcohol he often beat her and abuse in filthy language. Wife
raised plea in written statement that secretly sleeping pills were given to
her by husband and his family members, due to which her health
deteriorate. Elder brother of husband is in Police department and on the
strength of power of his elder brother, husband left wife and minor son in
month of February, 2012 at her parental home with a demand to bring Rs.
5.00 lacs, otherwise to live with her father.
4.2 To rebut allegation of mental disorder, wife pleaded that she is
educated up to M.A. (previous). She made complaint on 08.07.2012 to S.P.
Mandla, but no action was taken by Police Officers under pressure of elder
brother of her husband, consequently she filed a complaint before JMFC,
Mandla, which was registered u/s 498-A of IPC against her husband and
family members and still pending.
5. Learned Family Court on the basis of pleadings of parties, framed
issues. Husband examined himself (PW-1), Dr. A.D. Haq (PW-2), Shyam
Gupta (PW-3), Dr. Ratnesh Kumar (PW-4), whereas wife examined herself
(DW-1), Virendra Kumar Gupta (DW-2), Rajendra Prasad Gupta (DW-3),
Sunder Lal Patel (DW-4) and Narayan Prasad Turkail (DW-5).
6. After considering oral and documentary evidence produced by
parties, learned family court by impugned judgment and decree, dismissed
petition filed by husband with a direction to pay maintenance @ Rs. 4000/-
per month to wife and minor son.
7. Shri Sanjay Patel, learned counsel appearing on behalf of husband
submits that u/s 13(1)(iii) mental disorder is enumerated as one of the
grounds for divorce and husband has proved on record that wife is suffering
from Schizophrenia and was under treatment even before marriage and this
fact was deliberately suppressed from husband. He submits that even after
marriage, wife was taken to Neuro Physician, Psychiatrist and Councilor
for treatment, but there was no improvement in her condition.
7.1 He further submits that husband intimated to Police Mandla
regarding mental status of his wife and filed application before Parivar
Paramarsh Kendra, Mandla. Initially he took wife to local Dr. Prahalad
Kshatriya and Dr. Tarun Ahirwar and thereafter to Dr. Jauhri, Dr. Kapoor,
Dr. Nimbalkar and to SIMS Hospital, Nagpur. By exhibiting medical
papers Ex.P/4 to P/31 husband brought on record that wife is suffering from
Schizophrenia and this fact was duly proved by PW-2 Dr. A.D. Haq in his
court statement. PW-3 Shyam Gupta proved that wife was suffering from
disease even before marriage. PW-4 Dr. Ratnesh Psychiatrist of Victoria
Hospital, Jabalpur also proved that wife is suffering from Schizophrenia.
7.2 Shri Patel points out that wife in para 22 of her cross-examination
admit that after marriage on 14.07.2008 and 20.07.2008, her husband took
her to Dr. Prahlad Kshatriya for treatment, however, denied that before
marriage she was under treatment of Psychiatrist of Nagpur. He prays for
allowing the appeal and grant of decree of divorce.
7.3 Learned counsel for appellant relied relied on judgment delivered by Apex
Court in the matter of Vinita Saxena vs. Pankaj Pandit, AIR 2006 SC 1662, and relied
on the following paras which are reproduced as under;
"32. 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. The cruelty may be mental or physical,
intentional or unintentional. There may be cases where the
conduct complained of itself is bad enough and per se unlawful
or illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such cases,
the cruelty will be established if the conduct itself is proved or
admitted.
33. The cruelty alleged may largely depend upon the type of
life the parties are accustomed to or their economic and social
conditions, their culture and human values to which they attach
importance. Judged by the standard of modern civilisation in the
background of the cultural heritage and traditions of our society,
a young and well-educated woman like the appellant herein is
not expected to endure the harassment in domestic life whether
mental, physical, intentional or unintentional. Her sentiments
have to be respected, her ambition and aspiration taken into
account in making adjustment and her basic needs provided,
though grievances arising from temperamental disharmony are
irrelevant. This view was taken by the Kerala High Court in
Rajani v. Subramonian [AIR 1990 Ker 1 : (1990) 1 DMC 561] .
37. As to what constitutes the required mental cruelty for the
purposes of the said provision, will not depend upon the
numerical count of such incidents or only on the continuous
course of such conduct but really go by the intensity, gravity and
stigmatic impact of it when meted out even once and the
deleterious effect of it on the mental attitude, necessary for
maintaining a conducive matrimonial home.
38. If the taunts, complaints and reproaches are of ordinary
nature only, the court perhaps need consider the further question
as to whether their continuance or persistence over a period of
time render, what normally would, otherwise, not be so serious
an act to be so injurious and painful as to make the spouse
charged with them genuinely and reasonably conclude that the
maintenance of matrimonial home is not possible any longer.
43. This Court in Digvijay Sinhji v. Pratap Kumari [(1969) 2
SCC 279 : AIR 1970 SC 137] has held as follows: (SCC p. 281,
para 5)
"5. A party is impotent if his or her mental or physical
condition makes consummation of the marriage a practical
impossibility. The condition must be one, according to the statute,
which existed at the time of the marriage and continued to be so
until the institution of the proceedings. In order to entitle the
appellant to obtain a decree of nullity, establish that his wife, the
respondent, was impotent at the time of the marriage and
continued to be so until the institution of the proceedings."
8. Per contra, Shri Bhupendra Kumar Mishra, learned counsel for wife
submits that husband has failed to prove mental disorder of wife and in her
statement she has denied that due to illness, she is not able to perform his
household duties properly. She denied that she is suffering from mental
disease. Her father also denied fact of treatment of wife before marriage.
Rajendra Prasad Gupta, Sunder Lal Patel and Narayan Prasad Turkail also
denied that she is suffering from any disease.
8.1 He further submits that Dr. A.D. Haq never treated wife and stated
only as per instructions of husband. He accepted in cross examination that
his signatures are not available on Ex.P/2 and original record of Parivar
Paramarsh Kendra is also not available. In para 11, DR. A.D. Haq accepted
that he had no any conversation with Doctor who allegedly treated Mohni
Gupta (wife) and he is not a Psychiatrist. He accepted in para 11 that
presently Mohni Gupta is not looking as dis-balanced. In para 12, he
accepted that in his presence, no treatment was given to Mohni Gupta.
8.2 Shyam Gupta had dispute with sister of respondent-wife and
therefore, he stated in favour of husband. The fact of dispute was admitted
by him in his cross examination. He further submits that PW-4 Dr. Ratnesh
Kumar in para 4 of his cross-examination has accepted that there is not a
single document on record signed by him and he has not brought original
file of Hospital. He has simply advised the patient for Pathology Test. In
para 9 of his cross-examination, he accepted that he has not brought notes
also. In para 11, he stated that he did not advice for meditation and in para
16, he accepted that he has not brought any documents with him to prove
the fact that he ever treated Mohni Gupta.
8.3 Shri Bhupendra Kumar Mishra, further submits that Dr. Prahlad is
Maternal and Child Health specialist and has not been examined in Court.
There is nothing regarding any mental disease in rescription of Dr. Prahlad
Ex.P/4 and P/5. He further submits that Ex.P/6 and P/7 are documents of
eye checkup and Dr. M.S. Jauhri has not been examined in Court.
Prescription Ex.P/8, P/25 and P/26 do not contain signatures of respondent
and no opinion was given in these prescriptions by Dr. Jauhri that she is
suffering from any such disease that she is not able to perform regular
duties.
8.4 Dr. Ashutosh Kapoor has also not been examined in the Court.
Ex.P/9 and P/10, Ex.P/16, P/18 to P/24, Ex.P/27 to P/29 do not contain
signatures of Mohni Gupta and there is no such opinion recorded by Dr.
Ashutosh Kapoor that she is suffering from any mental disorder. Similarly,
Dr. Shashikant has also not been examined. Ex.P/11 to P/14 do not contain
signatures of Mohni Gupta. He further submits that no Doctor has been
examined from SIMS Hospital of Nagpur and Ex.P/15 also does not
contain signature of Mohni Gupta and there is no opinion of Doctor that
she is suffering from any mental disorder. No Doctor from Medical College,
Jabalpur has been examined. Ex.P/17 does not contain signature of wife
and no opinion has been recorded in Ex.P/17.
8.5 He further submits that husband himself has admitted in para 21 of
his cross- examination that documents of medical treatment of wife filed
by him do not contain her signatures and in para 22 he admitted that his
wife is educated up to M.A. (previous). In para 23, husband accepted that
date of birth of his son is 20.04.2011 and presently son is residing with
mother. He admitted in para 24 that he left his wife and minor son at wife's
parental house and thereafter never went to bring her back. He accepted
that his wife lived for four years with him.
8.6 Shri Bhupendra Kumar Mishra, further submits that at the most
documents filed on behalf of husband may be accepted to bring the fact of
continuous treatment on record, but there is not a single document on
record to prove that wife is suffering from mental disorder and disease is
such a kind and degree that wife cannot be reasonably expected to live with
husband. He submits that learned Family Court has rightly dismissed
petition and appeal be dismissed.
9. Considering arguments advanced by rival parties and perused record.
Learned Family Court has decided issue No.1 in favour of husband by
holding that wife was under treatment of mental disease even before
marriage. Issue No.2 has also been decided in favour of husband whereby
Family Court held that marriage was performed by suppressing fact of
mental disease of wife. Issues No.3 and 4 regarding demand of dowry and
treating wife with cruelty by husband were decided in negative in favour
of husband. However, issue No. 5 has been been decided against husband,
whereby Family Court has held that husband is not entitle for decree of
dissolution of marriage and findings of issue no. 5 are under challenge in
present appeal. Wife has not filed any cross objection and, therefore, in
absence of any challenge to findings of Family Court in respect of issues
No. 1 to 4, there is no requirement to reappreciate evidence in respect of
issue nos. 1 to 4 and findings recorded by family court appears to be
acceptable.
10. Crucial question in appeal is that whether wife is suffering from such
a disease, which may be treated as mental disorder u/s 13(1)(iii) for grant
of decree of divorce ?
11. Section 13(1)(iii) provides that either of spouse can apply for
dissolution of marriage in case the other spouse is of unsound mind or
suffering from mental disorder. It is suffice to reproduce the provision at
this stage, which is infra :-
"Section 13 Divorce -
(1) Any marriage solemnized, 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--
(iii) has been incurably 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 the 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 sub-
normality 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"
12. Apex Court in Ram Narain Gupta vs. Smt. Rameshwari Gupta,
(1988) 4 SCC 247 held that in order to make out ground of divorce u/s
13(1)(iii) of HM Act, it is not sufficient to establish that spouse is suffering
continuously or intermittently from mental disorder, but it must further be
established that it is of such kind and extent that applicant cannot
reasonably be expected to live with respondent. For ready reference, the
relevant paras from said judgment are reproduced hereunder:-
"20. 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". 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.
21. The answer to the apparently simple -- and perhaps
misleading -- question as to "who is normal ?" runs inevitably
into philosophical thickets of the concept of mental normalcy
and as involved therein, of the 'mind' itself. These concepts of
"mind", "mental phenomena" etc., are more known than
understood and the theories of "mind"and "mentation" do not
indicate any internal consistency, let alone validity, of their basic
ideas. Theories of "mind" with cognate ideas of "perception"
and "consciousness" encompass a wide range of thoughts, more
ontolopical than enistemological. Theories of mental
phenomena are diverse and include the dualist concept -- shared
by Descartes and Sigmund Frued -- of the separateness of the
existence of the physical or the material world as distinguished
from the non-material mental world with its existence only
spatially and not temporally. There is, again, the theory which
stresses the neurological basis of the "mental phenomenon" by
asserting the functional correlation of the neuronal
arrangements of the brain with mental phenomena. The
"behaviourist" tradition, on the other hand, interprets all
reference to mind as "constructs" out of behaviour.
"Functionalism", however, seems to assert that mind is the
logical or functional state of physical systems. But all theories
seem to recognise, in varying degrees, that the psychometric
control over the mind operates at a level not yet fully taught to
science. When a person is oppressed by intense and seemingly
insoluble moral dilemmas, or when grief of loss of dear ones etch
away all the bright colours of life, or where a broken marriage
brings with it the loss of emotional security, what standards of
normalcy of behaviour could be formulated and applied? The
arcane infallibility of science has not fully pervaded the study of
the non-material dimensions of "being".
22. Speaking of the indisposition of science towards this study, a
learned Author says:
".....we have inherited cultural resistance to treating the
conscious mind as a biological phenomenon like any other. This
goes back to Descartes in the seventeenth century. Descartes
divided the world into two kinds of substances: mental
substances and physical substances. Physical substances were
the proper domain of science and mental substances were the
property of religion. Something of an acceptance of this division
exists even to the present day. So, for example, consciousness
and subjectivity are often regarded as unsuitable topics for
science. And this reluctance to deal with consciousness and
subjectivity is part of a persistent objectifying tendency. People
think science must be about objectively observable phenomena.
On occasions when I have lectured to audiences of biologists and
neurophysiologists, I have found many of them very reluctant to
treat the mind in general and consciousness in particular as a
proper domain of scientific investigation.
.....the use of the noun "mind" is dangerously inhabited by the
ghosts of old philosophical theories. It is very difficult to resist
the idea that the mind is a kind of a thing, or at least an arena,
or at least some kind of black box in which all of these mental
processes occur. [ See: John Searle "Minds, Brains and Science"
1984 Reith Lectures, pp. 10 and 11]
23. Lord Wilberforce, referring to the psychological basis of
physical illness said that the area of ignorance of the body-mind
relation seems to expand with that of knowledge. In McLoughlin
v. O' Brian [(1983) 1 LR 410, 418: (1982) 2 All ER 298] , the
learned Lord said, though in a different context: (All ER p. 301)
"Whatever is unknown about the mind-body
relationship (and the area of ignorance seems to
expand with that of knowledge), it is now accepted by
medical science that recognisable and severe
physical damage to the human body and system may
be caused by the impact, through the senses, of
external events on the mind. There may thus be
produced what is as identifiable an illness as any that
may be caused by direct physical impact. It is safe to
say that this, in general terms, is understood by the
ordinary man or woman who is hypothesised by the
courts..."
24. But the illnesses that are called "mental" are kept
distinguished from those that ail the "body" in a fundamental
way. In "Philosophy and Medicine", Vol. 5 at page X the learned
Editor refers to what distinguishes the two qualitatively:
"Undoubtedly, mental illness is so disvalued because it
strikes at the very roots of our personhood. It visits us with
uncontrollable fears, obsessions, compulsions, and anxieties....
.....This is captured in part by the language we use in describing
the mentally ill. One is an hysteric, is a neurotic, is an obsessive,
is a schizophrenic, is a manic-depressive. On the other hand, one
has heart disease, has cancer, has the flu, has malaria, has
smallpox..." (emphasis supplied)
25. "Schizophrenia", it is true, is said to be difficult mental
affliction. It is said to be insidious in its onset and has hereditary
predisposing factor. It is characterised by the shallowness of
emotions and is marked by a detachment from reality. In
paranoid states, the victim responds even to fleeting expressions
of disapproval from others by disproportionate reactions
generated by hallucinations of persecution. Even well meant acts
of kindness and of expression of sympathy appear to the victim
as insidious traps. In its worst manifestation, this illness
produces a crude wrench from reality and brings about a
lowering of the higher mental functions.
26. "Schizophrenia" is described thus:
"A severe mental disorder (or group of disorders)
characterised by a disintegration of the process of thinking, of
contact with reality, and of emotional responsiveness. Delusions
and hallucinations (especially of voices) are usual features, and
the patient usually feels that his thoughts, sensations, and
actions are controlled by, or shared with, others. He becomes
socially withdrawn and loses energy and initiative. The main
types of schizophrenia are simple, in which increasing social
withdrawal and personal ineffectiveness are the major changes;
hebephrenic, which starts in adolescence or young adulthood
(see hebephrenia) ; paranoid, characterised by prominent
delusion ; and catatonic, with marked motor disturbances (see
catatonia).
Schizophrenia commonly -- but not inevitably -- runs a
progressive course. The prognosis has been improved in recent
years with drugs such as phenothiazines and by vigorous
psychological and social management and rehabilitation. There
are strong genetic factors in the causation, and environmental
stress can precipitate illness. [ See Concise Medical Dictionary
at p. 566 : Oxford Medical Publications, 1980] "
27. But the point to note and emphasise is that the personality
disintegration that characterises this illness may be of varying
degrees. Not all schizophrenics are characterised by the same
intensity of the disease. F.C. Redlich and Daniel X. Freedman in
"The Theory and Practice of Psychiatry" (1966 Edn.) say:
"Some schizophrenic reactions, which we call psychoses,
may be relatively mild and transient; others may not interfere too
seriously with many aspects of everyday living....."(p. 252)
Are the characteristic remissions and relapses expressions of
endogenous processes, or are they responses to psychosocial
variables, or both ? Some patients recover, apparently
completely, when such recovery occurs without treatment we
speak of spontaneous remission. The term need not imply an
independent endogenous process; it is just as likely that the
spontaneous remission is a response to non-deliberate but
nonetheless favourable psychosocial stimuli other than specific
therapeutic activity . . . . (p. 465)s (emphasis
supplied)
28. The reasoning of the High Court is that the requisite
degree of the mental disorder which alone would justify
dissolution of the marriage has not been established. This, it
seems to us, to be not an unreasonable assessment of the
situation -- strong arguments of Shri Goel to the contrary
notwithstanding.
33. This medical concern against too readily reducing a
human being into a functional non-entity and as a negative unit
in family or society is law concern also and is reflected, at least
partially, in the requirements of Section 13(1)(iii). In the last
analysis, the mere branding of a person as schizophrenic will not
suffice. For purposes of Section 13(1)(iii) "schizophrenia" is
what schizophrenia does".
13. In the matter of Vinita Saxena (supra), Apex Court did not grant
decree of divorce only on the ground that husband is suffering from
schizophrenia, but decree was passed taking into consideration additional
fact that parties were living separately since last 13 years and considering
humane aspects decree of divorce was passed. Paras 50, 51, 52 of judgment
are reproduced here as under:-
"50. The facts and circumstances of the case as well as all
aspects pertain to humanity and life would give sufficient cogent
reasons for us to allow the appeal and relieve the appellant from
the shackles and chain of the respondent and let her live her own
life, if nothing less but like a human being.
51. In our view, the orders of the courts below have resulted
in grave miscarriage of justice to the appellant who has been
constrained into living with a dead relationship for over 13 years.
The resultant agony and injustice that has been caused to the
appellant, it is a fit case for interference under Article 136 of the
Constitution and reversal of findings of the courts below which
have resulted in grave miscarriage of justice.
52. In the result, the civil appeal stands allowed. There will
be a decree for divorce in favour of the appellant wife and
against the respondent husband. The order of the trial court as
affirmed by the High Court, stands set aside. There will be no
order as to costs".
14. Apex Court in the matter of Kollam Chandra Sekhar vs. Kollam
Padma Latha, (2014) 1 SCC 225 has considered the aspect of grant of
decree on the ground that other spouse is suffering from schizophrenia.
Apex Court framed question No.1 that, whether the respondent is suffering
from a serious mental disorder i.e. schizophrenia or incurable unsoundness
of mind, and can this be considered as a ground for divorce under Section
13(1)(iii) of the Hindu Marriage Act, 1955?
To answer this question after considering various pronouncement of
Apex Court including judgment of Ram Narain (supra) and judgment of
Vinita Saxena (supra), Apex Court observed as under :
"In our considered view, the contents of the report as stated
by the team of doctors do not support the case of the appellant
that the respondent is suffering from a serious case of
schizophrenia, in order to grant the decree of divorce under
Section 13(1)(iii) of the Act. The report states that the respondent,
although suffering from "illness of schizophrenic type", does not
show symptoms of psychotic illness at present and has responded
well to the treatment from the acute phases and her symptoms
are fairly under control with the medication which had been
administered to her. It was further stated that if there is good
compliance with treatment coupled with good social and family
support, a schizophrenic patient can continue their marital
relationship. In view of the aforesaid findings and reasons
recorded, we have to hold that the patient is not suffering from
the symptoms of schizophrenia as detailed above".
15. In view of above pronouncement, it appears that it itself is not
sufficient to grant decree of divorce u/s 13(1)(iii) that spouse is suffering
from schizophrenia, but it is also required to prove by cogent evidence
before Court that disease is of such a kind and degree that husband cannot
reasonably be expected to live with wife.
16. Section 13(1)(iii) does not make mere existence of a mental disorder
of any degree sufficient in law to justify dissolution of a marriage. The
contest in which the ideas of unsoundness of mind and mental disorder
occur in section as ground for dissolution of a marriage, require assessment
of degree of mental disorder and its degree must be such that spouse
seeking relief cannot reasonably be expected to live with other. All mental
abnormalities are not recognized as grounds for grant of decree. The
medical concern against too readily reducing a human being into a
functional nonentity and as a negative unit in family or society is law's
concern also and is reflected, at least partially, in the requirements of
Section 13(1)(iii). The personality disintegration that characterises
schizophrenia may be of varying degrees. Not all schizophrenics are
characterised by same intensity of disease. Burden of proof of existence of
requisite degree of mental disorder is on the spouse basing claim on that
state of facts.
17. Coming to facts of present case and considering above
pronouncements and legal proposition, findings of learned Family Court
recorded in respect of issue No.5 have been examined, wherein Family
Court has opined that husband has failed to prove to bring on record
gravity and degree of disease and could prove only the fact of long
treatment of schizophrenia.
18. Learned Family Court considered the fact that wife give birth to a
male child and she alone is taking care of minor son at her parental house
and if she is not normal then it is not possible for her to take care of child.
Family Court has further observed that wife is educated upto M.A.
(previous) and, therefore, it cannot be accepted that disease is such a kind
and degree that she cannot lead a normal life or she cannot procreate a child.
Therefore, looking to evidence available on record, learned Family Court
decided issue No.5 against appellant/husband.
19. After considering entire evidence available on record, this Court has
no hesitation in accepting findings and approach of learned Family Court,
which appears to be valid and practical. Though, appellant/ husband was
able to prove that respondent/wife is suffering from schizophrenia, but he
failed to prove that disease is of such a kind and degree, which may be
accepted for dissolution of marriage. No sufficient material was produced
on record by husband except prescriptions of Doctors, which do not contain
any specific finding that disease is having grave consequences. Therefore,
in considered opinion of this Court, judgment and decree passed by learned
Family Court, whereby petition filed by husband u/s 13(1)(iii) of H.M. Act
was dismissed are just, proper, legal and not perverse and do not require
any interference by this Court in this appeal.
20. Consequently, appeal fails and is hereby dismissed. No order as to
costs.
21. Record of Family Court be returned back along with copy of this
judgment.
(SHEEL NAGU) (VINAY SARAF)
JUDGE JUDGE
Irfan
