Tek Chand, J.
1. This first appeal has been preferred by Manishwar Dutt Vashisht against his wife Indra Kumari under Section 28 of the Hindu Marriage Act (Act 25 of 1955) from the order of the Additional District Judge, Delhi, dated 29th of March 1961.
2. A petition was made by the husband on 28th of October 1955 under Section 12 of the Act, praying that the marriage of the petitioner with respondent Indra Kumari be annulled and a decree of nullity passed on the ground that the marriage was in contravention of the condition specified in Section 5(ii) in so far as the respondent Indra Kumari was a lunatic at the time of the marriage. The marriage between the parties was performed on 9th of May 1955 at Amritsar when the petitioner was under 30 years and the age of the respondent was 20/21 years. It is alleged in the petition that after the marriage he learnt that his wife was a lunatic both before and at the time of the marriage and has been of unsound mind; and her insanity prior to marriage had been concealed by the respondent's parents from the petitioner and his relations and that fraudulent representation had been made that she had passed the Intermediate Examination and was studying for B.A. and that she was mentally and physically sound. On the arrival of the couple at Delhi, after the solemnisation of the marriage, it was observed that the respondent was not normal but was insane.
On 23rd of May 1955, she became violent and uncontrollable and that she was taken back to Amritsar on 24th of May, and she was treated in the Mental Hospital there. It was also alleged that the consent of the petitioner and of his parents to the marriage was obtained by fraud and misrepresentation regarding the condition of her health, age, education and by concealment of the fact that she was a lunatic. On the above grounds, it was prayed that the marriage be declared to be null and void and a decree of nullity be passed in petitioner's favour and against the respondent, The respondent was impleaded personally and also through her father as her guardian ad litem on the ground that she was not of sound mind.
3. In the written statement, the allegations as to her lunacy were denied and it was maintained that she was and always had been a person of sound mind ever since her birth and has been enjoying good health both bodily and mentally. It was denied that any facts relating to her mental and physical health had been concealed from the petitioner or his parents or that any fraudulent representation was made in that behalf. It was stated that she had passed the Matriculation and Intermediate Examinations from the University of Punjab prior to her marriage. She had also passed 'Bhushan' and 'Prabhakar' Examinations in Hindi language and at the time of the presentation of the petition she was studying for the B.A. Examination in Government College at Amritsar. It was stated that the petition under Section 12 was made by the petitioner with some ulterior purpose with a view to get the marriage annulled so that the petitioner might be free to marry again. It was also said that the petitioner wanted to keep the dowry which they had received on the occasion of the marriage from her father's side. In the additional pleas, it was stated that Shri Lakshmi Dutt Vashisht, father of the petitioner, and Shri Baldev Inder Singh, father of the respondent, were close friends and knew each other's, family for many years in the past and no question of making fraudulent representation could arise.
4. A preliminary objection was also raised that Indra Kumari was competent in law to appear in the Court and defend herself and she objected to being represented through her father as guardian ad litem on the ground that she was a person of unsound mind. It was said that she did not require any guardian ad litem and the petition should, therefore, be amended.
5. The trial Court framed the following issue:
'Was the respondent Indra Kumari of unsound mind at the date of the presentation of the petition and is she still incapable of defending herself in these proceedings?' The Additional District Judge, after recording evidence on this issue, decided it against the petitioner by his order dated 3rd of May 1956 and directed that the respondent would defend the proceedings by herself without any guardian ad litem. Two issues were framed on merits:--
'1. Was the respondent lunatic at the time of her marriage?
2. Was the petitioner's consent to his marriage with the respondent obtained by fraud and if so, what is the effect of it?'
6. At the trial, the second issue was not contested. Moreover, it was found that there was no evidence to show that the petitioners consent had been obtained by fraud. The issue was thus found against the petitioner.
7. The first, and now the only issue, was strenuously contested between the parties and considerable evidence has been led by the petitioner to show that Indra Kumari was a lunatic before, at the time of, and also subsequent to her marriage. The learned Additional District judge, after having exhaustively discussed the evidence, came to the conclusion that the respondent suffered from an acute type of mania on 22nd and 23rd of May 1955. This attack had come on suddenly and was not shown to have been present either before or at the time of marriage. The several circumstances relating to her behaviour, from which an inference was sought to be deduced regarding her being a lunatic were discussed and the trial Court concluded that there was not sufficient evidence in support of this issue regarding mental infirmity at the time of her marriage but some symptoms of mania had appeared on 22nd or 23rd of May which ultimately resulted in Indra Kumari being treated at the Mental Hospital, Amritsar, as an outdoor patient.
According to the learned Additional District Judge, there was no evidence on the record to indicate that the symptoms were present on the date of marriage or soon after. The trial Court thought that there were predisposing and exciting causes present since her childhood which might have led to her ultimately suffering from mania but from the mere existence of such causes it could not be concluded that the actual attack of mania had come at the time of marriage. He, therefore, concluded that it had not been proved that the respondent Indra Kumari was a lunatic at the time of her marriage and the issue was decided against the petitioner and consequently the petition was dismissed but the parties were left to bear their own costs.
8. Before dealing with the principles, which are to be applied in such cases, it will be more appropriate to consider the evidence in this case. The petitioner has produced a number of witnesses who noticed abnormality of behaviour in the respondent at the time of and also soon after the marriage. Three doctors have been produced to depose that the respondent, when she was examined by them, suffered from mania. Reliance has also been placed upon documentary evidence. The respondent has appesrao herself and her father has also deposed in her favour and she has also produced other oral evidence besides relying upon documents in refutation of the allegation of unsoundness of mind against her. (Here His Lordship considered the evidence. After discussing the evidence of the different witnesses, including the two medical witnesses (Paras 9-16), His Lordship proceeded to deal with the evidence of the third Medical witness, Dr. Dayal Singh:)
17. The last medical witness is A.W. 10 (Dr. Dayal Singh) who was posted at Amritsar as Deputy Superintendent, Mental Hospital in 1955. He said that on 25th of May 1955, Indra Kumari was brought to Mental Hospital by her father and he examined her. He made a note on that day that she was suffering from schizophrenia. On 28th of May 1955, he recorded the following observations:
'She appears slightly less active than before, but still shows marked elation and there appears to be pressure of ideation with some flight of Ideas. Her lather had stated that there was no history of mental disease in her ancestors and 'as the illness suddenly started on the day when her marriage party was expected' towards the evening this appears to be more a case of mania' (vide Exhibit A/3).
He had revised his earlier diagnosis of schizophrenia and considered her to be more a case of mania. He could not give the duration of her disease. He expressed the view that in the case of mania, usually there is a constitutional pre-disposition but he could not say whether in her case there was constitutional pre-disposition. If this disease is not treated, its usual course is 4 to 6 months illness. But there is no clear cut demarcation as to the time that may be taken by a patient in developing into an acute stage. From a sudden start, this illness may reach an acute stage after a lapse of three or four weeks or even more, or less. He then said 'this disease of mania may in some cases affect the future offspring of the couple. Mania is liable to relapse'. He also said that normally marriage did not bring about mania. He had examined her on three or four occasions and according to his note of 27th of May 1955, the patient was responding favourably to the treatment. He said that some time mania might start all of a sudden and in a violent form. In some cases, sudden mental stress has led to an attack of mania either preceding or following marriage.
A good deal of stress was laid in the trial Court as well as in this Court regarding the observations quoted above in the register to the effect that her father had denied history of mental disease in her ancestors and the illness had started suddenly on the day when her marriage party was expected towards the evening. This was with a view to show that she was of unsound mind the evening before the marriage and, therefore, had become a lunatic at the time of her marriage. The learned counsel for the petitioner also commented on the fact that Dr. Dayal Singh was not cross examined with a view to show that the above entry was erroneous and that the girl's father had never admitted that the attack had suddenly started on that evening, Shri Baldev Inder Singh, who appeared as his own witness, however, denied having made the statement attributed to him. The Additional District Judge has not attached much importance to this entry. He construed the words 'as the illness suddenly started on the day when her marriage party was expected towards the evening this appears to be more a case of mania' to be Dr. Dayal Singh's own conclusions rather than what was reported to him by Shri Baldev Inder Singh, the father of the girl. According to the learned Judge, the words, which can be attributed to the father, are 'her father had stated that there was no history of mental disease in her ancestors'. What follows these words, is the impression formed by Dr. Dayal Singh himself. The Addlittonai District Judge commented on the fact that Dr. Dayal Singh was not clearly asked as to what had the father of the respondent said and that It was not even clarified from him as to what was the basis of his observation that the Illness had started on the day the marriage party was expected.
It seems to me that the evidence on the record, suggesting pre-nuptial unsoundness of mind, to be rather slender. Efforts might have been made to produce definite and convincing evidence showing an attack of lunacy immediately before the marriage. The doctors, who might have treated her before her marriage, have not been produced. It is quite possible that Dr. Dayal Singh might have formed an erroneous impression. I would hesitate to draw a conclusion regarding lunacy at the time of marriage or just preceding marriage from the inconclusive note of Dr. Dayal singh. It is true that no effort was made either in the examination-in-chief or cross-examination of Dr. Dayal Singh, to elucidate the fuller details regarding the circumstances In which he wrote that the illness had suddenly started on the day when her marriage party was expected.
It can be contended that nobody other than the father could have told Dr. Dayal Singh about it but It is also quite possible that from the gist of the talk Dr. Dayal Singh might have gathered this. The more important question to my mind, which Dr. Dayal Singh would have been keen to know, was whether heredity had any part to play regarding genial affliction in the case of the girl. As the statement is not free from ambiguity, in the absence of any other prom of attack of insanity at the crucial time, I would hesitate to hold the entry as a persuasive much less compelling evidence of pre-marital insanity, I am asked to draw a conclusion from absence of challenge in the cross-examination of Dr. Dayal Singh regarding this matter and my attention has been drawn to Ganpat Ram v. Kishen Lal, 1958-60 Pun LR 349, Chuni Lal Dkarwa Nath v. Hartford Fire Insurance Co. Ltd., AIR 1958 Punjab 440 and Banwari Lal v. Bhag Mal, AIR 1931 Lah 213 (214).
The learned counsel for the respondent has inter andcontended that Dr. Dayal Singh's statement is inadmissibleas hearsay evidence and omission to cross-examine Dr. DayalSingh on hearsay evidence would not make such evidenceadmissible. The Privy Council in Lim Yam Hong and Co. v.Lam Choon and Co., AIR 1928 PC 127, observed that thefailure of an advocate to object to the admission of evidencecannot so after the character of testimony as to convertinto corroborative evidence, that which the law regards asmerely fit for rejection, as hearsay. If, what was statedin Exhibit A/3, was not a conclusion of Dr. Dayal Singhbut what Baldev Inder Singh told him about the time ofthe attack of mania, then that would be contrary to the ruleof evidence excluding hearsay statements. In this case, thequestion of lunacy of the respondent at the time of hermarriage is a vital issue, the onus of proving which restssquarely on the petitioner. I would not, in the circumstances,draw an inference in favour of her being a lunatic at thetime of her marriage from what was noted by Dr. DayalSingh in Exhibit A/3. Insanity at a particular time has tobe strictly proved and the entry ex proprio vigors in theregister is not sufficient for substantiation of the issue.(After discussing further the evidence (Paras 18-27), (His Lordship concluded:))
I do not think there is a sufficient, cogent and convincing testimony pointing towards Indra's unsoundness of mind 'at the time of marriage'. Section 5(ii) is specific that the unsoundness of mind should be present 'at the time of the marriage'. A supervening lunacy after the marriage does not furnish a ground for annulment.
28. Unsoundness of mind has been dealt with under Sections 5(ii), 10, 12(1)(b) and 13(1)(iii) of the Hindu Marriage Act. Section 5 deals with pre-existing conditions to the solemnisation of marriage between any two Hindus and if either party is an idiot or lunatic at the time of the marriage it can be avoided. Section 10 deals with judicial separation and under Sub-section (1) (e) it is a good ground for judicial separation that the other party 'has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition'. The existence of conditions mentioned in Section 5, (i) (iv) and (v) create an absolute bar to a valid marriage. A marriage solemnised after the commencement of the Act, which is bigamous or is within the degrees of prohibited relationship or where the parties are sapindas, is null and void ipso jure and ab initio. While Section 11 deals with void marriages, Section 12 makes marriages Suffering from specified infirmities merely voidable. In other words, marriage with a person, who is an idiot or a lunatic at the time of the marriage, is valid unless successfully avoided. This provision creates a discretionary bar, leaving the matter to the party affected to move the Court for relief, Section 13 enumerates grounds for dissolution of marriage by a decree of divorce, and one of them is, that the other party 'has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition'.
The unsoundness of mind referred to in Section 10, Justifying judicial separation, and in Section 13, entitling the petitioner to a decree of divorce, is an affliction which supervenes after marriage. An attack of insanity, where (sic) amounts to mania or schizophrenia, if it comes after marriage, will not furnish a ground for annulling the marriage under Section 12. What is of moment, therefore, is the mental condition at the time of marriage which is the crucial time for determining the question of annulment. If insanity supervenes subsequent to marriage, it cannot be annulted. Similarly, where a party had suffered from an occasional derangement of mind prior to marriage but the mental state at the time of marriage was not unsound, such a marriage cannot be avoided. Courts have drawn a distinction between a sudden occurrence of insanity in contradistinction to cases where unsoundness of mind has been of progressive growth. A sudden attach of Insanity before marriage, which has been transitory, cannot invalidate marriage if at the time of the marriage the malady had ceased.
29. In Jackson v. Jackson, 1908 P. 308, the wife had asked for a decree of nullity of marriage upon the allegation that the respondent at the time of the marriage was not of sound mind and incapable of entering into marriage contract and subjected to morbid delusions. On the facts of that case, the petitioner had led evidence which satisfied the Court of existence of the unsoundness of mind at the time of the marriage. Bargrave Deane J. posed the question and answered it ill the following words:--
'The first question I have to ask myself is, what is the law with regard to these questions of nullity of marriage, when the allegation is, as here, that one of the parties was from unsoundness of mind incapable of contracting?'
30. There is one substratum running through all the cases which indicates that one has to look at the nature of the alleged unsoundness of mind to see whether it is of character which might come on suddenly, or whether it is a matter of progressive growth and development.
31. In the older reported cases, the Court has hardly ever granted a decree where the evidence of the medical witnesses has proved or suggested that the particular form of Insanity might be of sudden occurrence.
32. The cases where the Court has found incapacity to contract are where the unsoundness of mind has been of progressive growth. In that case, the respondent's insanity had, however, been successfully traced back to an' early period to an Incident which justified the Court in arriving at a conclusion that it existed before as well as alter the contract of marriage was entered into.
33. The condition of the state of a party's mind at other times, before or after marriage, will not govern the question of its validity though that may provide evidence for holding that at the time of the marriage the Infirmity also existed. That, of course, will depend upon the nature and the intensity and duration of the attack. A marriage of a person, subjected to temporary or periodical insanity, will be deemed to invalidate the marriage if it is shown to have been performed at a time the mind of one spouse was deranged. A marriage of a person contracted while ha or sne was lucid despite the occurrence and recurrence of insanity before or subsequent to marriage, cannot invalidate it. It thus follows that on the state of mind at the time when the marriage is celebrated, its validity or invalidity depends: and the mental condition, before or after the ceremony is immaterial, except, In so far as, It affords evidence of mental incapacity at the time of the performance of marriage.
34. The next question, which has a bearing, is theextent of mental incapacity present at the time of marriagewhich will be sufficient to avoid it. Under Section 5(ii) of the Hindu Marriage Act, a condition for solemnisation ofa marriage is that 'neither party is an idiot or a lunatic atthe time of the marriage'. It is not the petitioner's casethat the respondent is an 'idiot' or In the words of Blackstone an 'idiot' is one 'that hath had no understandingfrom his nativity; and, therefore, is by law presumed neverlikely to attain any'. According to Coke's definition 'anidiot is who from his nativity by a perpetual Infirmity isnon compos mentis.' Such a person is destitute of reasonfrom birth. Sometimes, however, an idiot is also said toinclude a person who is destitute of intellectual powers whether the incapacity is congenital or developmental or accidental. It consists in total want of reason.
35. The term 'lunatic' is generic and includes every kind of unsoundness of mind except idiocy, but it has to be remembered that unsoundness of mind does not include mere weakness of mind. Etymologically, the term 'lunatic' is derived from 'luna' the moon, as in the pre-scientific times it was believed that the malady was affected by the waxing or waning of the moon. Lexically, the term has a wider meaning, and includes a person of deranged or unsound mind or a person who once possessed of reason but has lost it. The term now includes all unsound persons but lunacy refers to many facets of mental abnormality of varying degrees of severity, or incapacity ranging tram mental weakness to total insanity. It is not necessary to categorise various forms of insanity which have been called by distinct names by mental experts. The expression, though elastic, does not include mere eccentricity or every infirmity of mind.
As observed by Sir William Scott in Turner v. Turner, (1808) 161 ER 600 (601-60Z), that madness may subsist in various degrees, sometimes slight, as partaking rather of disposition or humour, which will not incapacitate a man from managing his own affairs, or making a valid contract. It must be something more than this, something which, a there be any test, is held by the common judgment of mankind to affect his general fitness to be trusted with the management of himself and his own concerns. Every aberration or deviation from a normal behaviour cannot be termed lunacy as there are large number of behavioural variations between lunacy invalidating marriage and normalcy. Some persons may be crotchety, cranky, suffer temporarily from emotional imbalance by reason of heat of passion, ungovernable temper, uncontrollable jealousy, or entertain feelings of insensate hatred or unreasoning revenge, or suffer from moral depravity or from incurable perversions, or may be hypersensitive or excitable, or be stupid or obtuse, or exhibit certain eccentricities or idiosyncracies, which in an individual of ordinary mental equipoise are not discernible and yet, such a person would not be classed among lunatics. It is for this reason that standards of medical profession regarding mental affliction cannot in an cases be applied by the law Courts where unsoundness of mind is a factor for deciding a legal status, a contractual obligation, tortious or criminal liability.
36. It is, therefore, not every form or degree of insanity or lunacy that invalidates a marriage. The menial derangement must be such as to adversely affect the capacity to solemnise marriage. The test applied is that a person should have the capacity to understand the nature of contract of marriage and the duties and responsibilities entailed by it. It is not possible to define in more precise terms the extent or the degree of mental capacity. Broadly, the mental incapacity to enter into marriage should approximate to mental incapacity which disables a person from entering into contracts generally. A view has also been expressed that marriage depends to a great extent on sentiment, attachment and affection which persons with weaker intellects may also feel and the discernment or soundness of judgment while contracting marriage is of a lesser degree than in the case of an ordinary contract. It will suffice to say that persons solemnising marriage must possess a mental capacity sufficient to understand the nature of marital obligations and willingness to shoulder them. Complete want or entire dethronement of reason is not the test for the validity of a marriage. On the other extreme, a mere weakness of intellect will not justify annulment, Ability to understand the nature of marital union and the probable consequences is an acceptable test for determining validity of marriage.
37. This test has been accepted by Courts in England. Sir J. Hannen in Durham v. Durham, (1885) 10 P.D. 80 at p. 82 said :
'. . . . .the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others.'
He also said:--
'I agree with the Solicitor General, that a mere comprehension of the words of the promises exchanged is not sufficient. The mind of one of the parties may be capable of understanding the language used, but may yet be affected by such delusions, or other symptoms of insanity, as may satisfy the tribunal that there was not a real appreciation of the engagement apparently entered into.'
The facts of that case were somewhat similar to the instant case. The ceremony of marriage was performed in October 1882 and there was evidence of symptoms of insanity from and after April 1883. At the time of hearing of the suit in March 1885, the wife was hopelessly insane. There was considerable evidence to show that the wife was of apparently sound mind in the period immediately preceding the ceremony of marriage. It was admitted that she was exceptionally shy and reserve in her manner and did not possess great intellectual powers. Sir J. Hannen found on the facts that at the time of the marriage she was capable of and did in fact give her consent to the marriage and ha dismissed the husband's petition. The principles cited in this decision have been cited with approval in a number of subsequent cases vide inter alia Forster v. Forster, (1923) 39 TLR 658 (661). In the Estate of Park, Park v. Park, 1953 (2) All ER 408, (Probate, Divorce and Admiralty Division). The decision in the case of Park v. Park was taken up in appeal before the Courts of Appeal but without success, vide in the Estate of Park; Park v. Park, 1953 (2) All ER 1411. Singleton J. in the above case cited a long passage from the judgment delivered by Caruthers J. in Jemima Cole v. William Cole (1857), 5 Sneed's Ten. Rep. 56. The following lines from the above passage may be cited with advantage:--
'The test question in all such cases is whether the party is capable of making any binding contract. The identity of the doctrine that unsoundness of mind vitiates this as well as all other contracts is well established. But every consideration of policy and humanity admonishes us that a contract so essentially connected with the peace and happiness of individuals and families, and the well-being of society, should not be annulled on this or any other ground, not clearly made out. The consequences, in many cases, would be most deplorable. The rights of property would be unsettled and the peace of families destroyed, to say nothing about the effects upon the innocent offspring. The annulment of other contracts would only affect property; but this would be that, and more -- it would tell upon the happiness, character, and peace of the parties. The appalling character of these consequences is well calculated to impress the Courts with the solemn duty of requiring a clear case for the application of the general principle to this delicate and important contract. It is however, only a civil contract, and must stand or fall by the usual tests applicable to contracts. It is not every unsoundness that will avoid a contract. The degree necessary to produce this effect is fixed by the law; and must be made out by proof. All persons of lawful age are presumed to be capable of contracting, until the contrary is made to appear. So, sanity is presumed and if the contrary is alleged, it must be proved by the party imputing it. If a state of permanent insanity is ones shown, the burden of proof shifts, and a lucid interval must be proved by the other side. But the rule is different in a case of temporary insanity, depending on some exciting cause not in perpetual action. The general rule is, 'that those who have not the regular use of their understanding, sufficient to deal with discretion in the common affairs of life, or the weakness being so considerable as to amount to derangement, are incapable of contracting a valid marriage, or making any other binding contract.' Bishop on Mar. and Div., Section 177. Sir John Nicholl, in Browning v. Reane, says  2 Phitlim 69 (70): 'If the incapacity be such. . . . .that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecility, to take care of his or her own person and property, such an individual cannot dispose of her person and property by the matrimonial contract, any more than by any other contract.' It is difficult to describe any exact, palpable line between legal capacity and incapacity. Perhaps this is impracticable, as an abstract thing, in reference to the ability to make a valid contract, as insanity subsists in various degrees and the line of separation between it and mere imbecility is often faint and imperceptible. The general test is the fitness of the person to be trusted with the management of himself and his own concerns. Such a person has a disposing, contracting mind, although it may be in a degree impaired.'
38. In G.E.G.R. v. E.M.R., AIR 1925 Sind 95, which was a case of nullity of marriage between Christians, a view was expressed that where a contract of marriage was attempted to be set aside, it must be proved not only that the person attempting to set aside was eccentric or deficient to a certain extent in his mental capacity, but that the whole mental being was so affected that be was incapable of appreciating not necessarily the nature of the act but its validity. Mst. Titli v. Alfred Robert Jones, AIR 1934 All 273, was a case under Section 19 of the Divorce Act (1869). The parties were Christians. Following the view taken in two English Cases, Mukherji J, said:--
'The observations to be found in the well known case of Moss v. Moss, (1897) P. 263, are very pertinent on the point. Persons differ from one another in the degree of intelligence possessed by them. It would be a dire calamity if it could be said as a matter of law that a marriage, entered into by a person who is neither a lunatic nor an idiot, is void, simply because one of the parties lacks in intelligence, although he is able to understand the nature of the bonds of matrimony into which he is entering. As observed by Hannan, P. in (1885) 10 P.D. 80, the contract of marriage is a very simple, one, which does not require a high degree of intelligence to comprehend.'
39. A similar matter was considered by the Federal Court in Ratneshwari Nandan v. Bhagwati Saran, AIR 1950 F.C. 142, where the parties were governed by Hindu Law. The observations of the Privy Council in Mouji Lal v. Chandrabati Kumari, ILR 38 Cal 700 (PC), were cited with approval. Their Lordships of the Privy Council had observed that an objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the extremely strong presumption in favour of the validity of a marriage which had taken place in fact. Mukherjee J. delivering the judgment of the Federal Court at page 178 said:--
'There are undoubtedly various degrees of insanity and the fact that a man has been adjudicated a lunatic may mean and imply that he is not competent to manage his own affairs, but it does not necessarily show that he suffers from complete mental aberration. He may have sufficient amount of reason still left in him which would enable him to understand the ceremonies of marriage and take an intelligent part in them. This view finds full support from the decision of the Judicial Committee in ILR 38 Cal 700 (PC).'
In cases where marriage is sought to be annulled on ground of idiocy or lunacy of a spouse, the onus in support of the plea of insanity existing at the time of the marriage lies on the petitioner. Of course, where permanent insanity is shown, then it is for the respondent to show that marriage was performed during a lucid interval. The presumption is in favour of validity of marriage and in favour of mental capacity of the spouses entering into matrimony. As marital union is closely associated with peace and happiness of society in general and individuals and families in particular, the marriage should not be annulled on grounds of mental incapacity unless the evidence in support of the alleged idiocy or lunacy at the time of marriage is cogent and compelling. The petitioner, in order to succeed, must make out his allegations clearly and beyond doubt. The consequences attending on annulment of marriage are grave and the Courts before passing a decree of nullity insist on production of evidence which is satisfactory and convincing. Courts must eschew matters and considerations which are irrelevant and extraneous and concentrate upon the real question in issue, namely, the degree of mental infirmity at the time of marriage invalidating its solemnisation. The evidence of pre-nuptial or post-nuptial insanity must be such from which an inference in favour of insanity at the time of marriage may be convincingly deduced. The standard of proof in such cases must approximate to satisfaction of the Court beyond reasonable doubt. Court has to be vigilant guardian to see that the legal requirements are fulfilled before it annuls the marriage which has been solemnised; and the grounds justifying the granting of relief sought have been strictly proved.
In Preston Jones v. Preston Jones, 1951-1 All ER 124 (138), (House of Lords), Lord Mac Dermott said:--
'The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the Court might be 'satisfied', in respect of a ground for dissolution, with something less than proof beyond reasonable doubt.'
The above observations equally apply where the marriage is sought to be annulled. It goes without saying that in sifting the evidence the Court must exercise sound discernment and should not sit with any preconceived bias and not withhold the relief where, on the facts and circumstances of the case, it ought, in all reason, to be granted.
40. The evidence produced on the record may thus be judged in the light of legal standards mentioned above, it was also contended by the learned counsel for the petitioner, that there were pre-disposing causes in the early life of Indra Kumari which would lead to insanity. These were that she was born of a mother who in her early age left her in order to live as the wife of her uncle and took no interest in her nurture and upbringing. From the age of seven, she had a step-mother. There is no suggestion that her stepmother was in any way cruel or was allowed to maltreat her, so as to affect her mind. There is no evidence that the step-mother has been unkind to Indra Kumari. It is then said that after passing the Matriculation Examination, she was not given education in College. Indra Kumari in her statement said that she preferred to learn music at home which she did for 2 or 3 years. It was also said that her father, while partitioning family property, did not give her anything although substantial areas of land were given by him to his other children. I do not think that the matters mentioned above could in all seriousness be deemed as pre-disposing causes which could lead to insanity. Moreover, there is nothing on the record to show that upto the time of her marriage she acted in a manner so as to give rise to suspicion of a deranged mind.
From ordinary misfortunes, domestic infellcites, even calamities, which are experienced by some even at an early age, it is not safe to deduce that they carry the seed of mental derangement which in later years may germinate into insanity and still later lead to total dethronement of reason. It is not sufficient to prove mental incompetency by proving the existence of factors which may possibly become pre-disposing causes in certain cases. A conclusion regarding insanity cannot be drawn on the ground that there existed in the past a cause which might have tended to bring about insanity or that there was a taint of insanity in a person's family without actual evidence of insanity in the person himself at the point of time required by law. Insanity must be proved by preponderance of evidence clear and convincing. Where there are two versions, the one in favour of insanity may not merely be counter-balancing but must also overcome the legal presumption of sanity. There is no evidence that the mental aberration manifested by Indra Kumari on or about 23rd of May 1955 was developmental or progressive and not sudden. From the so-called pre-disposing causes, I cannot come to a conclusion in favour of lunacy at the time of marriage.
41. The most important question in this case is whether at the time of marriage Indra Kumari was mentally incapacitated in a degree so as not to understand that she was participating in the solemnisation of marriage and did not understand the consequences of matrimony or the resultant marital duties. (After referring to the evidence (rest of this para and Para 42) His Lordship concluded:)
From the above, I am not satisfied that she was mentally afflicted in terms of Section 5(ii) of the Act.
43. I may now refer to the effect of the medical evidence of Dr. Dlesh, Dr. Vidya Sagar and Dr. Dayal Singh and also the condition of Indra Kumari as described in the letter of Shri Mudgil (Exhibit A-5) dated 24th of May 1955 addressed to R.W. 2 Baldev Inder Singh, and the record of her treatment as an out-door patient in the Mental Hospital (Exhibit A/3). If what had happened on 24th of May 1955 had occurred at the time of marriage or even Just before or immediately thereafter, the evidence justifying annulment of marriage might have stood the legal test.
The insane behaviour on and after 23rd of May cannot be attributed to her retroactively in support of the conclusion that she was a lunatic at the time of marriage. As I have already said, there is no proof on the record that her malady was developmental or progressive and not sudden. According to the diagnosis of Dr. Vidya Sagar (A. W. 2), she was suffering from mania (simple) and not schizophrenia. He said 'ordinarily, simple mania comes on quite suddenly and disappears quite quickly under electric treatment.' He stopped her treatment when he thought she had been cured. Reference was made to Dr. Vidya Sagar's statement, 'mania of the type that I saw in her case may recur later in life'. These words cannot be read to one on that such a mania is likely to recur (sic). There is no gainsaying the fact that after she was cured in June 1955, there has been no recurrence of the attack either mild or serious, uptill now. After 1955, she passed B.A. and B.T. Examinations and she has been employed as a teacher in Sacred Heart School ever since April 1958 and she had also sent her form for appearing in the M.A. English Examination.
The question, therefore, which calls for decision, is whether in a case like the present a sudden attack of mania, which affected her only temporarily, is a sufficient evidence of the person's state of lunacy at the time of the marriage. I am afraid, I will not be justified in leaping to such a conclusion. Prior to her marriage, at the age of 20 years, she had passed Matriculation, intermediate, Bhushan and Prabhakar Examinations. Absence of recurrence suggests that the attack of insanity in May 1955 was mania (transitoria) and it was sudden and of short duration.
44. Mr. Gurbachan Singh read to me copiously from a number of legal books on the subject. These works are Emotional Problems of Living by English and Pearson (1958 Edition) pages 483484, 487, 488, 489; Law of Medicine by Curran pages 558, 561; Annual Survey of Psychoanalysis, Vol. IV by Frosch and Nathaniel Ross, pages 144, 167; Mind, Medicine and Man by Zilboory, page 144, General psychology by Garrett (Second Edition) 1961, page 538; American Handbook of Psychiatry, Volume I (1959) Pages 447 and 449; and Medical Jurisprudence by Modi (13th Edition) 1959, pages 377 to 379. The passages deal with manifestations in conditions of acute mania, Manic-depressive psychosis, functional psychosis, Etiology of Manic-depressive reactions and schizophrenic reactions. I have read the above passages carefully but I have not been able to derive much benefit from what is said therein for purposes of deciding this case.
These are no doubt scientific words dealing with symptoms and also treatment but from their study I am unable to draw any useful conclusion which might throw light on the mental condition of Indra Kumari at the time of her marriage. The learned discourses given in these words are not of much help in determining the state of mind of the respondent for purposes of legal tests.
For determining the question, whether causes exist for annulling a marriage by virtue of mental incapacity, the Courts have to draw conclusion from the evidence produced in individual cases and after applying the legal tests, the Court has to exercise its own judgment alter taking into consideration such assistance as may be forthcoming from medical evidence. As pointed out by the learned Editor of Principles of Hindu Law by Mulla, 12th Edition, page 851,
'the question is to be determined not upon wire-drawn speculations but upon tangible and established facts. The question is a mixed one, partly within the range of common observation and partly within the range of medical experience. The gravity and importance of the issue requires that the Court ought to form its own independent judgment on the point. Medical testimony can be of considerable assistance and even guidance but the question is one for the Court and not for the experts and evidence of experts does not relieve the Court from the obligation of satisfying itself on the point beyond reasonable doubt.'
45. I may now deal with what I may style as an argumentum ad hominem, an appeal on humanitarian ground and a plea for avoidance of domestic intelicity. The petitioners point of view may be expressed thus:
There are strong misgivings in the mind of the petitioner and the relations between the parties have been seriously strained. There is no likelihood of their ever living together as husband and wife. It would in the circumstances inflict intense misery on the couple to keep them tied together in matrimonial bonds; and particularly when it would not be possible for the petitioner to give to the respondent connubial love, to perform conjugal functions, discharge marital obligations and to willingly offer her the maritaj protection; or, to expect from her in return uxorious loyalty and wifely devotion.
It was urged that if the marriage is not annulled the parties would live a frustrated existence. In other words, the petitioner wanted to be relieved of the matrimonial bond which he had entered into with the respondent, in order, that he might be able to marry again, giving a similar liberty to the respondent. The argument is specious and the Court must not yield to it. Even where marriage is not a sacrament or a religious rite and is a Civil contract, it is not at par with an ordinary contract relating to property. It is within the option of a man and a woman to enter into a matrimonial contract but once marriage Is performed, such a contract cannot be revoked at will. A marriage contract cannot be avoided at the discretion of the parties. Marriage, even where it does not partake of a sacramental character and rests merely on a contract, the State, as such, acquires an interest in it, in so far as the marriage contract is the foundation of the family and is a social institution of the highest importance in which the State is deeply concerned. Even where marriage is a purely civil contract, it is also a status. It is a social institution which is regulated and controlled by law.
A marriage concerns not only the two persons who have entered into matrimony but also the society. It is the concern of the society apart from the interest of the two individuals affected that marriage as such, should as far as possible, be preserved. The law must guard and maintain the matrimonial relation with watchful vigilance, as marriage vitally affects the public welfare. It is for this reason that even among societies, which are less conservative parties cannot contract out of marriage at their pleasure. The principal distinction between the marriage contract and other contracts lies in this that marriage contract cannot be revoked or annulled by the parties but only by the sovereign power of the State. The rights and obligations cannot be altered by the parties themselves but only by law. In the matter of annulment or of dissolution of marriage, public policy is involved, and the State has an interest. Law does not favour annulment or dissolution of marriage and its policy is to uphold the marital status. The proceedings as to annulment of marriage or its dissolution are no doubt between the parties concerned but the. marriage relationship, though consensual at its beginning, cannot be discarded by mere volition of either or both parties.
Marriage relationship between any two persons being also a matter of public concern the Courts have, therefore, to scrutinize questions involved in annulment or dissolution from the point of view of social well-being, it is for this reason that the legislature has made stringent rules. Before marriage can be rescinded, the Court has to zealously see, whether the relief sought in annulment of marriage, is within the permissible bounds of law. A marriage tie cannot be severed by abandonment, desertion or by consent. The cases in which the enforcement of law may conceivably result in unhappiness of either or both parties, cannot be helped, it the law does not provide relief. The Courts will not grant a decree of nullity except on production of clear and convincing evidence.
It is for this reason that annulment cannot be granted even where the other party does not resist the claim. Courts do not grant annulment pro contesso and insist on proof that the petitioner is entitled to a decree. In the insant case, the annulment sought has been strenuously contested by the respondent and in the absence of clear proof of her lunacy at the time of her marriage, the relief sought by the husband has to be refused. After giving anxious consideration to all the points urged at the bar, I have not been able to persuade myself to hold that the petitioner has established that the respondent Indra Kumari was a lunatic at the time of the marriage.
46. For reasons discussed above, the appeal preferredby Munishwar Dutt Vashist fails and is dismissed.