Madras High Court
C.Yogesh vs P.Jayanthi on 14 December, 2021
C.M.A. No.4710 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
C.M.A. No.4710 of 2019
C.Yogesh ... Appellant
vs
P.Jayanthi ... Respondent
Prayer: Appeal filed under Section 19 of the Family Court Act 1984
against the judgment and decree dated 17.10.2019 passed by the IV
Additional Family Court, Chennai in O.P. No.4455 of 2017.
For Appellant : Mr.N.Veerasamy
For Respondent : Mr.R.Ravi
JUDGMENT
[Judgment of this Court was delivered by T.RAJA, J.]
This appeal has been directed against the judgment and decree
dated 17.10.2019 passed by the IV Additional Family Court, Chennai
in O.P. No.4455 of 2017, in and by which, the IV Additional Family
Court, Chennai, dismissed the petition filed by the appellant,
disagreeing with the prayer for grant of divorce under Section 13(1)(i-
a) of the Hindu Marriage Act and refusing to dissolve the marriage
solemnised on 22.02.2015 between the appellant and the respondent.
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C.M.A. No.4710 of 2019
2.Learned counsel appearing for the appellant/husband
submitted that the respondent wife was a mentally retarded person
and behaved like a child below the age of 5 years, as a result, she
never stayed continuously in the matrimonial house and whenever she
decided to go her parent's house, she had created problems with the
appellant husband. Learned counsel appearing for the appellant
further submitted that the respondent and her mother picked up
quarrels with the appellant and his parents and abused them with
filthy language and tarnished their image in the Society and thereby,
caused mental cruelty on the appellant. Therefore, when the appellant
has filed a petition in O.P. No.4455 of 2017 before the IV Additional
Principal Judge, Family Court, Chennai seeking dissolution of marriage
under Section 13(1)(i-a) of the Hindu Marriage Act, the Family Court,
without considering these aspects, though has given findings that the
I.Q. level of the respondent is below normal, dismissed the petition
filed by the appellant. Aggrieved by the same, the appellant has been
advised to come to this Court.
3.Opposing the above prayer, learned counsel appearing for the
respondent submitted that the respondent has also admitted in the
counter affidavit filed before the Family Court that she snores, stutters
a little, bad odour emanates from her mouth and she was not
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C.M.A. No.4710 of 2019
intelligent enough in the estimation of the appellant. But, the difficulty
in speaking and stammering/ stuttering problems are not the grounds
for divorce. Therefore, the observation made by the Trial Court that
the I.Q. level of the respondent wife is below normal cannot be put
against her. Learned counsel appearing for the respondent further
submitted that when the appellant has accepted the respondent as his
wife and lived with her for two years from the date of marriage, he
cannot complain about her after two years of their marriage life on the
ground that she is mentally retarded and that the observation made
by the Trial Court that her I.Q. level is below normal, has not been
supported by any medical evidence. Although the Trial Court has
valued and assessed the discretionary attitude and conduct of the
respondent wife during the Trial, the same cannot be acceptable
unless it is supported by any medical evidence. Moreover, the
appellant, while pleading for divorce, has invoked only Section 13(1)(i-
a) of the Hindu Marriage Act, but, has not chosen to invoke Section
13(1)(iii) of the Act, which alone deals with unsound mind or mental
disorder.
4.In this regard, it is useful to refer 13(1)(iii) of the Hindu
Marriage Act as under:
'..13.Divorce – (1)Any marriage solemnised, whether
before or after the commencement of this Act, may, on a
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C.M.A. No.4710 of 2019
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.'
5.A perusal of the above act shows that either the husband or
the wife, when files a petition seeking dissolution of marriage, on the
ground that the other party 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, any marriage
solemnised before or after the commencement of this Act, may invoke
Section 13(1)(iii) of the Hindu Marriage Act. In the present case,
although the appellant has not chosen to invoke Section 13(1)(iii) of
the Hindu Marriage Act, has pleaded that the respondent is a mentally
retarded person, while filing the above O.P. No.4455 of 2017 before
the IV Additional Family Court, Chennai, therefore, in our considered
view, the Family Court had not referred the matter to the medical
board. Therefore, we are inclined to remand the matter back to the
Trial Court, giving liberty to the appellant to amend his grounds.
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C.M.A. No.4710 of 2019
Accordingly, the judgment and decree dated 17.10.2019 passed by
the IV Additional Family Court, Chennai in O.P. No.4455 of 2017 are
set aside and the matter is remitted back to the IV Additional Family
Court, Chennai for fresh consideration and the appellant is given
liberty to amend his grounds.
6.It is made clear that if the appellant makes any amendment
under Section 13(1)(iii) of the Hindu Marriage Act and pays sufficient
Court Fee for the same, the IV Additional Family Court, Chennai shall
refer the matter to the Medical Board to ascertain as to whether the
appellant has made out a case under Section 13(1)(iii) of the above
Act.
7.In any event, the matter shall be disposed of, on merits and in
accordance with law, within a period of six months from the date of
receipt of a copy of this order. With the above observation, the appeal
stands disposed of. No costs.
[T.R.,J.] [D.B.C.,J.]
14.12.2021
vga
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C.M.A. No.4710 of 2019
T.RAJA,J.
and
D.BHARATHA CHAKRAVARTHY,J.
vga
To
1.The IV Additional Family Court, Chennai.
2.The Section Officer,
V.R. Section,
High Court, Madras.
C.M.A. No.4710 of 2019
14.12.2021
https://www.mhc.tn.gov.in/judis
