Yogeshwar Dayal, J.
(1) This is an appeal by Smt. Mohinder Kaur against the judgment and decree dated 27th March,1979 passed by learned Addl. District Judge, Delhi, dissolving the marriage of the appellant and her husband S.S. Sabharwal (respondent) under the provisions contained in Section 13(1)(iii) of the Hindu Marriags Act, 1955, as amended (hereinafter referred to as 'the Act').
(2) The decree has been passed by the learned Additional District Judge on the ground that the appellant has been suffering from mental illness which includes schizophrenia and this disease is incurable.
(3) The respondent-husband had filed petition for divorce on the ground of unsoundness of mind of the appellant-wife and also on the ground of desertion by her.
(4) The husband had filed petition for divorce on the aforesaid grounds on the allegations that the parties were married on or about 17.9 1961. Out of this wedlok, two male children were born. The elder son died after sometime and younger one died within 24 hours of his birth
(5) It was also alleged that the wife was suffering from incurable insanity from the very start of marriage. The husband continued treatment for several years with the hope that the wife might be cured. The out-door patient tickets of some of the private, as well as known hospitals, were attached with the petition. It was also alleged that the wife could not live alone in the house. She used to throw away the goods, cash, jewellery from the house and would close the outer door after that. She also used to pick up quarrels with the neighbours and passers-by. Her mental condition was aweful. One could suspect death at her hands. She might kill while sleeping or administer poison without understanding the merits and demerits of her action and used to leave house without information in a fit of insanity and finally left the husband's house on 7.9.1974.
(6) The wife had resisted the petition and inter alias pleaded that the husband himself has been guilty and 'has extended extreme mental and physical curelty towards' the wife. It was averred by the wife that the husband is guilty of neglecting her since 1962 itself. The husband was continuously placing demands for the amounts upon her and insisted that unless she fulfillled those demands the wife would not be permitted to stay with the husband peacefully. Even the two male issues born out of the wedlock were not properly looked after by the husband. The wife was kept at highly insufficient diet. The husband refused to spend sufficient amount on medicines and diet even at the stage when the first issue was born. She also alleged that the first child died within 24 hours. The husband left the wife unattended in Safdarjung Hospital and went to Ambala. The mother of the husband also did not bother to enquire about the health of the wife for continuously three to four months. Thereafter, relations intervaned but still the husband did not agree to take the wife from her parents' house directly but the wife went to the husband's brother's house and from there she accompanied the husband.
(7) It was also averred by the wife that the husband continued to be indifferent and neglectful towards the wife. He persisted on his demands for cash to be brought by her from her father.
(8) The second male issue was born in 1966. Still the husband was neglectful. When the child was about 4 years old, he got illand was admitted in Kalawati Hospital. The husband never brothered to attend to the child and even did not provide expenses for his medicines and proper care. The condition of the child deteriorated with the result that the child had an attack of paralysis. The wife looked after the child even in these circumstances, but the husband did not show any interest in the child so as to give proper medical treatment to him. The child died in 1974 at the age of 8 years.
(9) The wife also denied the allegation of unsoundness of mind. It was denied that she was suffering from incurable insanity either from the start of the marriage or thereafter. It was alleged that the husband has made out a false story in order to justify, ground turn divorce. The husband has himself been harsh, cruel, neglectful and indifferent towards her. The neglectful attitude of the husband has rendered her in a pitiable condition. It was. alleged that the husband is edicted to several vices and only cares to spend money on himself. The doCtors had repeatedly told him to change his behavior and leave his indifferent attitude.
(10) The allegations as to throwing away of goods cash or jewellery or of picking up quarrels with the neighbours or passers-by are stated to be false. It is stated that all these allegations have been fabricated and they are devoid of truth. It is also alleged that the husband had himself turned out the wife.
(11) It was also averred in reply that she is a metriculate and passed the examination in 1959 securing high second division and missing the first division by a short margin. She also served as a part-time employee with the Delhi Milk Scheme before her marriage for about a year and since the husband did not desire her to be in service after marriage, she discontinued service. She had been attending to all house-hold activities at the husband's house after her marriage but the husband and his mother never adopted reasonable and congenial attitude towards her. It was also alleged that the petition was highly belated.
(12) On the aforesaid pleadings, the learned trial court framed the following issues:
(1)WHETHERthe respondent is insance as alleged in the petition? (2) Whether the respondent left the house of the petitioner on 7.9.1974 as alleged in the petition, para No. 4, and if so, to what effect? (3) Relief.
(13) The learned Trial Court did not accept the plea of desertion and found issue No.2 against the husband. The learned Trial Court, however, found issue No. 1 in favor of the husband and granted the decree.
(14) The husband, inter alia, examined Dr. Jacob K. John (P.W.I) of All India Institute of Med cal Sciences who merely brought the summoned record. He deposed that the wfe came as O.P.D. patient in the Hospital on 29.5.1970. Her disease was diagnosed as 'schizophrenia' as per the hospital record which he had brought. He also deposed that she was undergoing treatment 'till now' but she was irregular. He also stated that this disease is incurable.
(15) In cross-examination, this witness did state that he did not examine the patient personally but he had seen the patient twice 'this year'. He also stated how the diagnosis of schizophrenia was made. He also stated that those symptoms have been merit oned in the record which he had brought with him.
(16) The husband examined himself as Public Witness .2. He, inter alia, deposed 2 bout her behavior. He also deposed that the wile was got medically treated in the Willingdon Hospital, Safdarjang and All India Institute of Medical Sciences. A private doctor, Sunita Nanda, also treated her medically. He produced certain papers from various hospitals which were marked as Alto A6. It was also stated that she remained admitted in the hospital for about two months.
(17) The husband also examined Shri Malak Chand as Public Witness .3. This witness is a neighbour who deposed about the conduct of the wife as to throwing out articles from the house including valuable articles.
(18) Pritam Singh (P.W.4) was examined to depose about the wife's illness and the fact that she was having fits. Pritam Singh is supposed to be an elderly relation of the parties. He stated that he had got the wife medically treated but she was not cured.
(19) Sher Singh (P.W.5) was examined as a neighbouring shop-keeper from whom purchases were being made by the wife. He deposed that she used to leave the hundred rupees note after taking goods worth Rs. 10.00 and the balance amount used to be left by the witness at her house. The witness also deposed that the wife used to quarrel with the husband and she used to throw out the articles from the house, including ornaments. Kesar Singh (P.W.6) was examined to depose about the wife remaining ill after the marriage. The witness was told that she was suffering from mental ailment and that she was undergoing treatment.
(20) In rebutal, the wife examined Dr. Rajat Ray (R.W.I) of the All India Institute of Medical Sciences. He deposed that he had treated the wife sometime in the year 1975 but did not remember what was the exact picture. He even stated that the wife was suffering from schizophrenia. He had not brought the record because the same was not traceable. He also stated that this diseases of schizophrenia was not curable but there could be improvements which are of five categories.
(21) The wife also examined her brother, Shri R.S. Sahani (R.W.2) who deposed that his sister was perfectly alright.
(22) To the same effect is the statement of the wife herself who examined herself as R.W.3. She also deposed about her remaining under treatment at the All India Institute of Medical Sciences. She stated that she is a metriculature but failed in 'Prabhakar'. She deposed that she was never in service.
(23) In cross-examination, she admitted that she was never given beating at any time by the husband. In fact, she stated that she had written letter to her husband that her brother used to bear her. She did not know that she was ever treated by Dr. Sunita Nanda. She also denied that she was ever treated at the Willingdon Hospital. She also stated that she never reported to anybody about the treatment of her husband towards her while she was living with him, nor had she made any complaint against the husband to the doctor in the hospital where she was undergoing treatment. She, however, admitted having been medically treated at several places. She denied that the children born to her were ill because of her illness. She denied that she was mentally deranged.
(24) The learned Trial Court, after considering the entire evidence, gave a finding that the wife was suffering from mental illness which includes 'schizophrenia' and that this disease is incurable.
(25) Mr. Charya, learned counsel who appeared on behalf of the wife, submitted that the plea of the husband in the petition for divorce was that the wife was suffering from incurable insanity whereas the evidence led by the husband was to the effect that the wife was suffering from mental disorder like schizophrenia. It was also submitted that the issue framed was whether the wife was insane where as the finding given is that the wife was suffering from mental illness. It was thus submitted that the finding is contrary to the plea taken in the petition.
(26) Section 13(l)(iii) of the Act as amended is as under :
'13. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition 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. Explanationn :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; Before its amendment, the section 13(l)(iii) of the unamended Hindu Marriage Act, was as under : 13.(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 for a continuous period of not less than three years immediately preceding the presentation of the petition ..................'
THEAmending Act (68 of 1976) not only amended section 13(l)(iii) but also, inter alia, amended Section 5(ii) of the Hindu Marriage Act relating to the Conditions for a Hindu Marriage', and made a similar change as to when the marriage is avoidable under Section 12(l)(b).
It will be noticed that both the provisions as to condition for a valid marriage and the ground for divorce have been substantially changed by the Amending Act. Previously, before amendment, the marriage could be dissolved on the ground of either spouse being of incurably unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; but now the grounds have been changed and, if I may say, expanded. Now the condition of 'three years' has been completely removed the instead 'mental disease' has been divided into two parts (a) incurable nature of unsoundness of mind and (b) 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.
The 'mental disorder' to further explained to include 'schizophrenia'.
from the very construction of this section, it appears that the intention of the Legislature was that 'schizophrenia', a mental disease, comes within the ambit of 'mental disorder' as distinguished from unsoundness of mind.
Iam conscious of the fact that in various judicial pronouncements before the amendment of the Act, certain kind of 'schizophrenia' was held to be included within the meaning of disease of unsoundness of mind but the amendment makes the position quite clear when it divides the mental disease into two parts as stated above.
BYthe principle of sound construction of statutes, it will be clear that since 'schizophrenia' has been statutorily held to be included within the meaning of 'mental disorder', it is naturally excluded from the ambit of the other 'mental disease', namely, unsoundness of mind.
INthe petition, the husband had pleaded that the wife was suffering from 'incurable insanity' which led the learned Trial Court to frame the aforesaid issue. There was no issue as to whether the wife was suffering from a continuous or intermittent mental disorder like 'schizophrenia and the said disease was to such an extent that the husband could not be reasonably expected to live with the wife.
IT is however, true that in the petition, the husband had pleaded about the behavior of the wife like: 'respondent could not live alone in the house she used to throw away the goods, case, jewellery from the house. she used to pick up quarrels with neighbours and passersby. Her mental condition was awful. One could suspect death at her hands. She might kill while sleeping or administer poison without understanding the merit and demerits of her action and used to leave house without information in a fit of insanity' which may be symptoms of mental disorder like 'schizophrenia' but mental disorder was not pleaded is so many words.
In this situation, learned counsel for the husband moved an application during the hearing of the appeal, purporting to be under Order 6 rule 17 read with Sec. 151 of the Code of Civil Procedure (C.M.2137/79) inter alias praying for amending the petition for divorce by specifically pleading 'schizophrenia' and for leave to amend paragraph 4 of the petition by adding the following sub-para:
'The respondent (appellant) is continuously suffering from mental disorder i.e. schizophrenia, and her mental disorder is of such a kind and to such an extent that the petitioner (respondent) cannot reasonable be expected to live with the respondent'.
ITwas pleaded in the application that this amendment does not change the nature of the case. It was also pleaded in the application that the husband has already reached the age of 45 years (and has been living in miserable condition and the amendment is in the interest of justice.
THEapplication was contested on behalf of the wife and it was submitted that it was a new case being set up and the amendment ought not to be allowed.
ITappears to me that the husband, in paragraph 4 of the petition for divorce, had alleged incurable insanity but had also mentioned the symptoms which appear to be symptoms of a person suffering from mental disorder but 'schizophrenia' as such was not mentioned.
THEamendment prayed is such that it does not change the nature of the case, nor does it take the wife by surprise. It is true that the application for amendment is belated in the sense that it is being filed during the hearing of the appeal but the principles for dealing with amendments of pleadings are well-settled. The Court has to primarily look to the interest of justice, particularly where delay would not be a sufficient ground to refuse amendment.
Had this application for amendment been filed in the Trial Court, I have no doubt that the court ought to have allowed it. Now, is it a sufficient ground for this Court to disallow it when the matter is at the stage of appeal? The appeal itself is a continuation of the original proceeding,. I find it in the interest of justice that the amendment should be allowed on the following grounds:
(1) The amendment does not set up a new case. (1) The amendment, if allowed, does not take the opposite party by surprise. (3) The amendment, if allowed, will avoid multiplicity of proceedings. (4) Even in the petition for divorce symptoms of mental disorder were mentioned. (5) The wife can be compensated by costs.
Iwould, thereforee, allow the application for amendment and permit the husband respondent to file the amended petition
THEallowing of amendment, however, necessitates remand and the appellant should pay costs of amendment being allowed. I direct the amendment to be allowed on payment of costs of Rs. 300.00 .
The appeal is consequently allowed to the extent that the judgment and decree of the learned Trial Court is set aside and the case is remanded to the Trial Court for trial on the basis of the amended petition
ITis, however, made clear that the parties will have opportunity to lead 'further' evidence
PARTIESare directed to appear before the learned Trial Court on 20th November, 1979