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Joginder Kaur Vs. Surjit Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF. A. F. O. No. 194-M of 1982
Judge
Reported inAIR1985P& H128
ActsHindu Marriage Act, 1955 - Sections 13 and 13(1); Code of Civil Procedure (CPC), 1908 - Order 32; ;Evidence Act - Sections 145
AppellantJoginder Kaur
RespondentSurjit Singh
Cases ReferredEsmail Nagree v. State of Maharashtra
Excerpt:
.....not feel upset very often. 1, not only deposed that she was prepared to get herself medically examined from any doctor the respondent liked--of course other than those at ludhiana--but she actually made an application on februaru 23, 1982 that since her husband had set up a false and fabricated case to show her to be suffering from certain mental disorder or ailment, she was ready to get herself examined from mental hospital, amritsar. to diagnose schizophrenia on the basis of hardly any material before these witnesses is just like making a diagnosis of a coronary disease only on the basis of pain in the chest or the diagnosis of typhoid fever only in the presence of a sustained pyrexia. thus i am satisfied that there is not enough material on record to record a finding that the..........today'. this statement, to my mind, is not enough to fix the identity of the appellant as the patient examined by him. it is more so when he admits in the opening part of his cross-examination that 'it is not necessary that i may be able to identify all the patients who remained under my treatment'. he further admitted that he was not in a position to tell if joginder kaur who was examined by him was accompanied by someone or not. it deserves to be noted here that his statement was recorded on may 21, 1981, i.e. almost one and a half years after the examination of the patient by him. it looks difficult that he could identify the appellant as the patient examined by him. further it was only on the basis of the prescription chit, copy of which is exhibit pa and the medicines.....
Judgment:

Has the appellant-wife been suffering continuously or intermittently from a mental disorder including schizophrenia of such a kind and to such an extent that the trial Court could justifiably grant a decree for divorce against her in terms of S. 13(1)(iii) of the Hindu Marriage Act, 1955 (for short, the Act), is the solitary question that arises for decision in this appeal. Apparently this sub-clause has four elements--(I) the party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder; (ii) the decease must be of such a kind; (iii) and of such an extent that (iv) the other party cannot reasonable be expected to live with her or him. The case set up by the respondent husband in his petition under S.13 of the Act is as follows:--

Parties were married at Jallundur on December 3, 1978 according to Sikh rites and an off-shoot of the marriage is a son born on April 3, 1980, now admittedly in the custody of the appellant. The appellant has an incomplete development of mind and has been suffering from split personality and psychopathic disorder. She has been suffering from schizophrenia from the very beginning which fact was kept concealed by her parents. Soon after the marriage she started behaving in an abnormal manner as she would laugh and cry without any rhyme or reason in the presence of the members of the house and even the visitors. She had no sense of decency and cannot differentiate between vulgarity and decency. At times she would urinate in the open compound in the presence of the males and would even ease herself in the living room. Soon after the marriage when the neighbors and other relatives paid customary visits to see and meet her she behaved in an abnormal manner a couple of times and went to the extent of spitting at the face of the visitors on slightest enquiry by them. When he and his father protested to the father of the appellant about her strange behaviour, he admitted that 'she has been suffering from psychopathic disorder but she was got treated by them from Mental Hospital' and insisted that she had already recovered from the disease. He got her medically checked up and treated from Dr. R. L. Narang of Dayanand Medical College and Hospital, Ludhiana and also from the Christian Medical College & Brown Memorial Hospital, Ludhiana. Even after a prolonged treatment she could not be cured. She then left his house in Ludhiana for her parents' place at Jullundur and initiated proceedings against him under S. 125 of the Criminal P. C., besides a case under the Dowry Act with a view to harass him. When his father went to Jullundher to attend to these cases against him, the appellant filthily abused him in the presence of the public and also physically assaulted him with her slipper. Under the circumstances the respondent cannot reasonably be expected to live with the appellant.

2. The appellant besides denying all the material allegations made against her and as referred to above, categorically pleaded that she never suffered from any unsoundness of mind or mental disorder. She has never been examined and treated by any doctor as alleged by the respondent. According to her, the story put forth by the respondent is a mere concoction. In support of this stand of hers she has pointed out that the respondent had initially field a similar petition under S. 13 of the Act against her and ultimately withdrew the same with permission to file a fresh one on the same cause of action, vide order dated October 31,1980 passed by Shri. R. P. Gaind, Additional District Judge. The petition did not contain the material allegations now made in this petition. She further pleaded that 'in reality the petitioner and his parents are very greedy persons' as soon after the marriage, the respondent and his family members started complaining about the insufficiency of the dowry brought by her. They insisted that the appellant should at least bring a fridge and a scooter or Rs. 10,000/- in cash in lieu thereof from her parents. She knowing the financial position of her parents, pleaded their inability to meet the demands of the respondent and his parents. Ultimately the respondent pushed her out of the house towards the end of December, 1979. In January, 1980, her father, with a view to rehabilitate her in respondents' house, brought her back to the said house and with a view to save her from the mal-treatment presented certain gold ornaments to the respondent. According to her, 'after the lapse of few days, the petitioner again started mal-treating the respondent and she was again turned out of the house in wearing clothes in the second week of March, 1980'. While pushing her out of the house the respondent gave a warning that she would be accepted in that house only if her father gave him a scooter. The respondent's attitude towards her was so callous and cruel that he even did not turn up to see his newly born son on April 3, 1980 in spite of his having been informed telegraphically.

3. It deserves to be mentioned here that the respondent, along with his petition under S. 13 of the Act, also presented an application under O. 32 of the Civil P. C. for the appointment of a guardian-ad litem on the ground that the appellant was of unsound mind and could not manage her affairs. A contest having been raised by her to the effect that she did not suffer from any mental infirmity, counsel for the respondent did not press that application and she was allowed to prosecute the proceedings herself. This is so very clear from the order of the Court dated March 25, 1981.

4. The evidence led by the respondent in support of the above noted case of his can conveniently be divided into three categories in order to find the weight and worth of the same:--(I) Oral evidence about the abnormal behaviour of the appellant, (ii) her admission about the ailment in question as tape-recorded, Exhibit A. W. 5/1 (its Punjabi rendering running into 23 pages is Exhibit A. W. 5/2) and (iii) the medical or the experts' evidence. Under the first heading, come the statements of A. w. 4 Mrs. Neena Khanna and A. W. 6 Bhagwan Das besides that of the respondent himself. Mrs. Khanna is admittedly respondent's mother's sister. According to her, she invited the parties to a dinner after about a week of their marriage. While enjoying the same she noticed that the appellant picked up a Chapati and 'kept in on the table instead of in a plate and then started taking food'. A few days later when she paid a visit to the house of the parties, she found the appellant sitting in the sun and pulling out threads from a piece of cloth. On her enquiry as to what she was doing, the appellant started laughing. On another visit to the house of the parties, she found that the appellant while standing on the roof of her house was throwing walnuts--which her mother-in-law had brought-from-Vaishu Devi--into the house of the neighbours and asking them to enjoy the same. According to Bhagwan Das, A. W. 6, who admittedly lives opposite to the house of the respondent, after about a month of the marriage of the parties, he saw the appellant standing on the roof of her house and throwing her suitcase in the street. Though the respondent corroborates A. W. 4 only to the extent that while enjoying a dinner at her place, the appellant had behaved in the manner suggested by this witness, yet I find that the evidence of these witnesses besides being highly interested is of make-believe type and can be produced very conveniently. Further, the behaviour of the appellant referred to by these two witnesses A. Ws. 4 and 6 is not mentioned anywhere in the petition filed under S. 13 of the Act. What has been stated in the petition to show that abnormal behaviour on the part of the appellant is not disposed to by either of these two witnesses. Besides this these factual allegations lose much of their credence on account of the fact that these did not find place in the earlier petition moved by the respondent under S. 13 of the Act. It is clear from Exhibit A. W. 5/3 copy of the order dated October 31, 1980 passed by the Additional District Judge, Ludhiana, that the said petition was instituted on March 28, 1980 and was later permitted to be withdrawn under O. 23 of the Civil P. C. Though a copy of that petition has not been produced on the records of this case, yet the following admission of the respondent in this regard completely supports the claim of the appellant that these allegations were not made in that petition:--

'I had told my lawyer about the movements of the respondent deposed to by me today in my examination-in-chief when he drafted the petition for divorce which was later on withdrawn. My lawyer had not mentioned these movements in that petition'.

It appears that since that petition of the respondent was likely to fail for non-pleading the specific acts of misbehaviour of the appellant as pleaded now, he chose to withdraw that petition. Otherwise also, the appellant while appearing as r. w. 1, besides denying the assertions made on behalf of these two witnesses has stated that since Mrs. Neena Khanna had married outside her caste as a result of a love affair, she did not like her visits to the house of the respondent and it was as a result of that that she had deposed to as stated above. Further it is her stand that as a matter of fact it is Mrs. Neena Khanna who on account of her annoyance with the appellant has instigated the respondent to divorce her. I thus find it extremely difficult to rely on the statements of these witnesses to return a verdict of insanity or unsoundness of mind of the appellant.

5. So far as the second category of evidence is concerned, it is no doubt true that a tape-recorded conversation is comparable to a photograph and is admissible under S. 8 of the Evidence Act provided the recorded conversation is relevant to the matter in issue and the identification of the voice and the accuracy of conversation is proved by eliminating the possibility of erasing the recorded tape. It deserves to be highlighted that the respondent has not made even a remote reference to this recorded conversation in his petition under S. 13 of the Act. He has nowhere explained either in the petition or in his statement as A. W. 5 as to under what circumstances and in what manner this conversation had been recorded. None except himself has proved the recorded female voice to be that of the appellant. He has not got this voice compared by recording the voice of the appellant in Court. It has been observed by their Lordships of the Supreme Court in Yusuf alli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147, that

'The time and place and accuracy of the recording must be proved by a competent witness and the voice must be properly identified. One of the features of magnetic tape recording is the ability to erase and reuse the recording medium. Because of this facility of erasure and reuse, the evidence must be received with caution. The Court must be satisfied beyond reasonable doubt that the record has not been tampered with'.

As per respondent's own admission, this tape-recording of the conversation between the parties was started in January, 1980 and was completed in five or six sittings. He was not in a position to tell the durations or the different intervals which intervened the recording of this conversation. This tape has been palyed in Court and I find that it is in question-answer form and leaves the impression as if the lady whose voice has been recorded was being subject to some sort of cross-examination. The whole conversation is in one continuous running form and does not show any interruption in as much as there are not introductory words or sentences to show that different parts of this conversation had been recorded at different times. On the face of it, it looks strange that the appellant wife would like herself to be subjected to this type of cross-examination particularly when her conversation was being recorded. It is not respondent's case that this recording was done stealthily. If it was like that, then it proves nothing else than an effort to create evidence. As already pointed out, the female voice has not been compared with that that of the appellant and thus it cannot be held beyond doubt that the voice recorded is that of the appellant and not of an imposter. Further, as already pointed out, the relations between the parties had deteriorated within three to four months of the marriage which took place on December 3, 1978. How and why the appellant would allow herself to be subjected to such a cross-examination in January, 1980, is not clear nor has been explained by the learned counsel for the respondent. Above all this, I am of the considered view that this alleged earlier statement of the appellant could neither be used as an admission of hers about the matter in controversy, i.e. her mental ailment or could be used for belying or shaking her veracity during cross-examination in terms of S. 145 of the Evidence Act. Before an earlier statement of a party can be treated and acted upon as an 'admission' it has essentially to be clear, categorical and unambiguous. Though the learned trial Judge has recorded in paragraph 16 of the judgment under appeal that as per this recorded statement the appellant has admitted that 'even before her marriage, she suffered from mental disorder and had been receiving treatment from the doctors', yet I find that there is not a word to that effect in this statement or in its Punjabi rendering, Exh. A. W. 5/2. All that has been accepted by the female voice in this recorded conversation is that she had suffered an electric shock about four years earlier and had been given certain injections to treat her. At a later stage in this conversation the said voice has again stated that she suffered this shock when she was pressing certain clothes. There is not even a word, much less an admission made in this statement, that the appellant in case the recorded female voice has to be held to that of hers-ever suffered from any mental ailment or unsoundness of mind. Thus this statement does not contain any admission by the appellant. Otherwise the appellant has not been confronted with this statement during the course of her cross examination as R. W. 1 nor has it been put to her in any other manner. Thus the same is totally irrelevant. I, therefore, discard this piece of evidence.

6. So far as the third and the last category of the evidence i.e. medical evidence is concerned, it consists of the statements of A. W. 1, Dr. R. L. Narang, Professor and Head of the Department of Psychiatry, Dayanand Medical College and Hospital, Ludhiana; A. W. 2, Dr. Ajay Kohli, Lecturer, Department of Psychiatry, Christian Medical College and Hospital, Ludhiana and a. W. 3, Dr. Sarabjit Singh, a practitioner in Psychiatry at Jullundur since 1972. Though there is hardly anything that can be said against the status and veracity of these gentlemen, yet I find that their evidence even if accepted as a whole, falls far short of the standard or requirement to record a conclusion that the appellant has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the respondent either cannot reasonable be expected to live with her or is entitled to the grant of a decree of divorce in his favour. Firstly, these witnesses do not fix the identity of the appellant as the lady examined by them while expressing the opinion recorded in their statements. A. Ws. 2 and 3 have nowhere pointed out that the appellant was the person examined by them. Though in the case of A. W. 1 he has stated in his examination-in-chief that 'Joginder Kaur respondent remained under my treatment from 16-1-1980 till 2-2-1980' yet he nowhere points out that it was Joginder Kaur (appellant) who was present in Court had been examined by him. It is only when her counsel during the course of his cross-examination for some unknown reasons suggested that he had not examined Joginder Kaur appellant, he deposed that 'it is wrong to suggest that I had not examined respondent Joginder Kaur present in Court today'. This statement, to my mind, is not enough to fix the identity of the appellant as the patient examined by him. It is more so when he admits in the opening part of his cross-examination that 'it is not necessary that I may be able to identify all the patients who remained under my treatment'. He further admitted that he was not in a position to tell if Joginder Kaur who was examined by him was accompanied by someone or not. It deserves to be noted here that his statement was recorded on May 21, 1981, i.e. almost one and a half years after the examination of the patient by him. It looks difficult that he could identify the appellant as the patient examined by him. Further it was only on the basis of the prescription chit, copy of which is Exhibit PA and the medicines prescribed therein that he opined that the patient who was examined by him was suffering from mental disorder and the same very medicines were also administered to the patients suffering from schizophrenia. He otherwise had no record or data with him on the basis of which he could vouchsafe about the ailment from which the patient suffered. He further concedes during the course of his cross-examination that in Exhibit PA, he had not mentioned that the patient was suffering from schizophrenia. All that he had mentioned therein was that it was a case of hypomania which according to him is a sort of mental disorder which can also represent schizophrenia in younger age. He, however, accepted the suggestion that hypomania necessarily may not mean schizophrenia. He also admitted that he had examined the patient only for half an hour and it was primarily on the basis of the past history which he recorded on a rough piece of paper which he did not retain with him that he concluded that the patient was suffering from schizophrenia,.

7. A. W. 2, Dr. Kholi, has deposed that he had examined the patient named Joginder Kaur for 45 minutes to one hour and on the basis of the past history given by her husband he diagnosed it to be a case of schizophrenia. He candidly admitted that neither any identification mark of that patient Joginder Kaur was recorded anywhere in the file before him nor, as already pointed out, has he deposed that the appellant was that Joginder Kaur whom he had examined. He has also admitted that besides him, Dr. K. N. Namburdripad, Neuro Surgeon of that hospital, had also examined that patient and 'on her Physical examination no abnormality was detected'. 'E. E. G. was advised by Dr. Namburdripad and was found to be normal'. According to him, E. E. G. is done to detect any physical abnormality of the brain. Similarly A. W. 3, Dr. Sarabjit Singh, diagnosed the patient examined by him to be suffering from schizophrenia on the basis of the prescription slip, Exhibit PB, issued by him on December 21, 1979. He admitted in his cross-examination that the case history recorded by him reads as follows:--

'a. I Often feel agitated (upset)b. I am always happy.c. I want to have new clothes.d. I also feel like seeing movie'.

He, however, did not accept that all these four factors are found in a normal person as according to him, every normal person will not feel upset very often. He also denied the suggestion that he had diagnosed the patient to be a case of schizophrenia on the ground that she often felt upset. He further conceded that he did not conduct any physical examination of hers. Then on what basis or date he concluded that the patient (appellant) was suffering from schizophrenia, is left to anybody's imagination. He gave a lie to A. W. 1. Dr. Narang, while stating that 'it is correct that schizophrenia is different from hypomania'. He conceded that he had 'first diagnosed her to be a case of hypomania and not schizophrenia'. The above resume of evidence, to my mind, falls far short of the standard to record a finding that the appellant was suffering from continuous or intermittent mental disorder or schizophrenia to such an extent that the respondent cannot reasonably be expected to live with her.

8. As against the above noted evidence, the appellant while appearing as R. W. 1, not only deposed that she was prepared to get herself medically examined from any doctor the respondent liked--of course other than those at Ludhiana--but she actually made an application on Februaru 23, 1982 that since her husband had set up a false and fabricated case to show her to be suffering from certain mental disorder or ailment, she was ready to get herself examined from Mental Hospital, Amritsar. It was as a result of this application that after hearing the counsel for the parties, the Court vide its order dated February 27, 1982, directed her to be examined by the doctor incharge. Mental Hospital, Amritsar with a view to find out if she was suffering from any mental disorder and if so, of what nature This conduct of the appellant goes a long way to support her assertion that the respondent has come to Court with a cooked up version.

9. Dr. Harbans Lal Sharma, Medical Superintendent, Mental Hospital, Amritsar, has appeared as R. W. 3. As per his statement, the appellant was admitted as an indoor patient in the Mental Hospital on March 11, 1982 and remained under his continuous observation from the date till April 5, 1982. He submitted his report to the Court. Exhibit RW3/A. As per his findings, the appellant was sane and was not suffering from any feature of insanity. He identified the appellant in Court as on the relevant file on the basis of which he deposed, besides other particulars, a photograph of the appellant was also pasted. The statement of this witness has been disbelieved by the lower Court for the reason that the witness expressed some doubt about the correctness of paragraph 8 of his report, Exhibit RW3/A in which it had been recorded that Joginder Kaur was also thoroughly assessed by the Senior Clinical Psychologist who reported no feature of insanity in her except that she was having excessive loading of neurotic traits and at times during the test situation, got confused. The doubt about the correctness of this report was expressed on the ground that the written report of the Senior Clinical Psychologist was not present in the file on the basis of which this witness was deposing. This to my mind is not enough of a reason to discard the statement of this witness as a whole. If the report of the Senior Clinical Psychologist was not there at all, there was no fund for this witness to make that report as a part of his report. Exhibit RW 3/A. It appears that the report of the Senior Clinical Psychologist was either misplaced or per chance was not made a part of the file. Another ground recorded by the lower Court for disbelieving or not accepting the evidence of this witness as compared to the evidence of S. Ws. 1 to 3 is that this witness was only a Diploma Holder in Psychological Medicines. The Court appears to have lost sight of the fact that this witness had completed his medical education much earlier to the year 1977 when no M. D. Course in Psychiatry was available. According to him, prior to 1977, Diploma in Psychological Medicines was treated at par with M. D. Degree and it was on that account that one of M. Ds. was his junior in the Mental Hospital. Having carefully scrutinised the evidence of this witness I do not find that it does not deserve to be preferred to the evidence of A. Ws. 1 to 3 which, as already pointed out, is not based on much of factual data besides not fixing the identity of the appellant as the patient examined by those witnesses. To diagnose schizophrenia on the basis of hardly any material before these witnesses is just like making a diagnosis of a coronary disease only on the basis of pain in the chest or the diagnosis of typhoid fever only in the presence of a sustained pyrexia. Thus I am satisfied that there is not enough material on record to record a finding that the appellant was suffering from any mental disorder of the type which disables the respondent to live with her. I am also of the considered view that even the following finding recorded by the lower Court in the penultimate paragraph of the judgment, completely disentitles the respondent to have a decree of divorce in his favour:--

'The respondent in this case suffers from schizophrenia which is a curable disease. The chances of a full clinical recovery in case of schizophrenia may not be there. Chances of social recovery may be there and in many cases, this recovery is achieved.

As is depicted from the answers which the respondent gave during the course of her statement, it appears, that she is recovering from the disease. It is a case of social recovery from schizophrenia. It is difficult to say whether such recovery can be prolonged or long lasting. It can recur any moment, if circumstances do not remain conducive to the mental make up or the psychology of the respondent. In such cases, drug treatment has necessarily to be continued for a long time. The continued drug treatment to maintain the social recovery and the chances of the disease to recur do make out a case for the petitioner to ask about the divorce by way of dissolution of marriage'.

If the appellant as per the finding of the Court had recovered from her ailment i.e., schizophrenia, and could continue to remain in that state of mind by continuous treatment, then how can it possible be held that she had been continuously or intermittently suffering from a mental disorder of such a kind and to such an extent that the respondent cannot reasonably be expected to live with her. It is not every type of schizophrenia on the basis of which the respondent can reasonably be held entitled to a decree of divorce.

10. For the reasons recorded above, I allow this appeal and while setting aside the judgment and decree of the trial Court, dismiss the petition of the respondent with costs, which I determine at Rs. 330/-.

11. Appeal allowed.


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