On the 31st of May, the Hon’ble Kerala High Court while hearing a matrimonial appeal observed that an allegation about suppression and failure to inform a particular fact before marriage cannot be treated as fraud, unless the person failing to mention it was under legal obligation to state it. It further stated that delusion disorder, even if exists in a spouse, is not a ground for divorce under the Divorce Act.
Fact of the case:
The present matrimonial appeal was filed the appellant who was married to the respondent for 2 years. He claimed that the respondent failed to disclose her mental disorder before marriage for which he sought divorce as he felt that he was a victim of cruelty. However the respondent sought for the restitution of conjugal rights. The appellant and the respondent in both appeals are husband and wife respectively. They are doctors by profession. The appellant being aggrieved by the order of the lower court on granting for the restitution of marriage to the respondent filed the present appeal.
Contention of the appellant:
Sri. N.K.Subramanian, the learned counsel for the appellant contended the following:
- It was stated that the respondent found the wife drowsy, lethargic, abnormal and not being excited as a normal newly wedded bride.
- It was contended that consent to the marriage was obtained by fraud perpetrated by the respondent in suppressing material facts regarding her mental condition under Section 18 and the proviso to Section 19 of the Divorce Act, 1869.
- It was also stated that the respondent was suffering from incurable unsoundness of mind and mental disorder prior to the marriage.
- It was also claimed that the respondent herself has admitted that she was suffering from some kind of delusion disorder.
- The counsel established his argument on the principle that if the consent of one spouse is obtained by the other, through force or fraud, law recognizes the same as basis for annulment of marriage.
- It was further contended that the respondent has suppressed vital information about her health condition at the time of settlement of marriage and that itself is sufficient for annulment of the marriage.
Contention of the Respondent:
Sri. K.N.Abhilash, the learned counsel for the respondent contended the following:
- There is nothing on record to show that the respondent was suffering from incurable unsoundness of mind at the time of marriage.
- Although it was alleged by the appellant, and practically admitted by the respondent, that two psychiatrists viz., Dr. K.P. Raghavan and Dr. K.S. Rajeev treated the respondent, no steps were taken by the appellant to examine them or to produce the treatment record.
- The respondent imputed that the appellant was suffering from erectile dysfunction, and thus, he was incapable of performing sexual activities.
- The essential ingredient to be proved for securing an order of dissolution of marriage under Section 10 (1) (iii) of the Act, 1869 is that the respondent has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition however no medical opinion of a medical expert established that the illness which the respondent has allegedly been suffering from is incurable.
Observation and Judgement of the case:
The following observation has been made by the Hon’ble Kerala High Court:
- The matrimonial cruelty – be it physical or mental – takes place within the four walls of the matrimonial home and, hence, independent witnesses may not be available. Thus, the court can act upon the sole testimony of the spouse if it is found convincing and reliable.
- It is the duty of the court to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omission of the other.
- The cruelty may be mental or physical. If it is physical, it is a question of fact and degree.
- For something to be a ground of divorce it is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the marital tie.
In the light of the above, the Hon’ble High Court granted a decree in favour of the appellant for dissolution of marriage on the ground of cruelty u/s 10(1)(x) of the Act. Consequently, the prayer for restitution of conjugal rights by the respondent was rejected.
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