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Arvind Kumar Upadhyay Vs. Anju Devi Alias Anju Kumari - Court Judgment

LegalCrystal Citation
CourtJharkhand High Court
Decided On
AppellantArvind Kumar Upadhyay
RespondentAnju Devi Alias Anju Kumari
Excerpt:
.....of p.w.-7, dr. m. jalil, who had examined the respondent, shows that he has clearly stated in his cross-examination that the patient was not suffering from any mental disease and 'haklana' (stammering) is not a disease.8. the witnesses examined on behalf of the respondent in the court below, have supported the case of respondent. the respondent was examined in the court as r.w.-5 and she has been put to a lengthy cross-examination on two dates. during her cross-examination she has given cogent answers to the questions, put to her and there is nothing to show that she was suffering from any mental illness, and indeed the court below has also recorded in her deposition that during her cross-examination, the court found that she was not suffering from any mental illness.9. the court below.....
Judgment:

F. A. No. 200 of 2013 [ Against the judgment and decree dated 3.10.2013, passed in Matrimonial Title Suit No. 127 of 2006, by Sri Awadhesh Mall, learned Principal Judge, Family Court, Hazaribag. ] Arvind Kumar Upadhyay ..... … Appellant Versus Anju Devi @ Anju Kumari .…. … Respondent ------------ For the Appellant : Mr. S.P. Sinha, Advocate For the respondent : Mr. Purnendu Sharan, Advocate ------------ PRESENT : HON’BLE MR. JUSTICE H. C. MISHRA : HON’BLE MR. JUSTICE DR. S.N. PATHAK ------ By Court:- Heard learned counsel for the appellant as also learned counsel for the respondent.

2. The petitioner-appellant is aggrieved by the Judgment and Decree dated 3.10.2013, passed by the learned Principal Judge, Family Court, Hazaribag, in Matrimonial Title Suit No. 127 of 2006, whereby the petition, filed by the petitioner-appellant, under Section 13 of the Hindu Marriage Act, 1955, for dissolving the marriage between the appellant and the respondent with a decree of divorce, on the ground of mental illness of the respondent-wife, has been dismissed by the learned Court below.

3. The case of the petitioner-appellant, in brief, is that the sole respondent is his legally married wife and the marriage between them was solemnized on 17.6.2005 at Hazaribag, according to Hindu rites and customs. After the marriage, both the appellant and the respondent were living together as husband and wife, but in the first night of the marriage itself, the petitioner found that she was suffering from throat problem and could not speak freely, as she used to stammer and he also found that she was mentally ill and suffering from mental retardation. The appellant made a complain to the brother of his wife, but he was threatened with dire consequences. It is also the case of the appellant that he also got his wife treated by a Doctor, who referred her for treatment to C.I.P., Kanke, Ranchi, and it was found that she was suffering from mental illness as she was mentally retarded and there was every chance of violent acts, which could be dangerous to the appellant. Thus on the grounds of mental illness of the respondent-wife, as also on the ground of fraud, at the time of contacting for the marriage, the petition for divorce under Section 13 of the Hindu Marriage Act, 1955, was filed in the Court below. -2- 4. Upon notice, the sole-respondent appeared and contested the suit. The case of the sole-respondent is that she was never suffering from any mental illness or any throat problem and she is absolutely a normal lady and after the marriage, she was living with her husband leading a conjugal life, but she was being subjected to torture and cruelty by the husband and his family members.

5. The Court below on the basis of averments of the parties have framed issues, in which, issue No. IV, is the main issue, which reads:- "Whether the respondent has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent".

6. Evidences were adduced from both the sides, both oral as well as documentary, and eight witnesses were examined on behalf of the appellant in the Court below, including the appellant himself and one doctor namely Dr. M. Jalil, who was examined as P.W.-7. Needless to state that the witnesses, examined on behalf of the appellant have stated that the respondent-wife was suffering from mental illness from the very beginning and the petitioner-appellant, who examined himself as P.W.-6, has gone to the extent of stating that his wife was suffering from mental retardation and her behavior was like insane person and in fact she was only half sane.

7. The Lower Court record shows that the documentary evidence, relating to the alleged mental illness of the sole-respondent were proved as Exhibit- 1 and 1/1 by P.W.-7, Dr. M. Jalil and the other prescriptions relating to mental illness of the sole-respondent were also proved as Exhibits-2, , 2/1. The evidence of P.W.-7, Dr. M. Jalil, who had examined the respondent, shows that he has clearly stated in his cross-examination that the patient was not suffering from any mental disease and 'Haklana' (stammering) is not a disease.

8. The witnesses examined on behalf of the respondent in the Court below, have supported the case of respondent. The respondent was examined in the Court as R.W.-5 and she has been put to a lengthy cross-examination on two dates. During her cross-examination she has given cogent answers to the questions, put to her and there is nothing to show that she was suffering from any mental illness, and indeed the Court below has also recorded in her deposition that during her cross-examination, the Court found that she was not suffering from any mental illness.

9. The Court below has discussed the evidence on record on the aforesaid issue No. IV, in detail and taken into consideration of the evidence of -3- P.W.-7 Dr. M. Jalil, wherein he has admitted in his cross-examination that patient was not suffering from any mental disease and also taking into consideration the evidence of R.W.-5, has stated that the respondent was cross-examined on two dates i.e. on 9.7.2012 and 10.7.2012, but her conduct was constant in the lengthy cross-examination, and she gave proper answers to the questions, put to her. The Court below has also stated that it has been recorded that during cross-examination it did not appear that she was mentally ill.

10. Discussing the evidences on record, the Court below has given the finding that the petitioner-appellant had failed to prove that the respondent had been incurably of unsound mind or had been suffering continuously or intermittently from mental disorder of such kind and to such extent that, the petitioner cannot reasonably be expected to live with the respondent. Thus, the main issue in the case was decided against the petitioner.

11. Learned counsel for the appellant has taken sole ground for challenging the impugned judgment and decree, passed by the learned Court below, submitting that the appellant had been able to prove in the Court below that the respondent was mentally retarded, which fact was concealed from the appellant at the time of marriage, and accordingly, it is a good ground for dissolution of the marriage between the parties by a decree of divorce. Learned counsel, has submitted that the Court below has failed to consider the evidence of petitioner-appellant in the Court below and witnesses of the petitioner-appellant, who have been fully supported the case of the petitioner-appellant that the respondent was mentally retarded. It is also submitted that these witnesses were put to lengthy cross-examinations, but nothing could be taken in their cross-examination to discredit their testimony, and accordingly, the fact that the sole-respondent is mentally retarded, stood proved in the Court below. It is also submitted that the said mental illness of the respondent stands proved also by the medical prescriptions, which have been proved in course of evidence in the Court below, as Exhibits-1 and 2 series. Learned counsel has, accordingly, submitted that in view of the unimpeachable evidence, brought on record, the impugned judgment and decree, passed by the Court below, cannot be sustained in the eyes of law.

12. Learned counsel for the sole-respondent on the other hand has opposed the prayer and has submitted that the doctors of the C.I.P., Kanke, Ranchi have not been examined by the petitioner-appellant in the Court below and only one Dr. M. Jalil has been examined, who also, in his cross-examination, has -4- admitted that the respondent was not suffering from any mental illness. Learned counsel has also pointed out that the specific case of the sole-respondent is that the medical reports of the sole-respondent are forged and fabricated documents and in view of the fact that the doctor, alleged to have issued Ext-2 series, has not been examined in the Court below, these documents cannot be even looked into. Learned counsel has further pointed out that the respondent was herself subjected to a lengthy cross-examination on two dates, but she gave very cogent answers to the questions put to her, and thus, the Court below has written in his deposition that during her cross-examination, it did not appear that the respondent was suffering from any mental illness. Learned counsel has, accordingly, submitted that the Court below has decided the issue, very correctly and there is no illegality in the judgment and decree, passed by the learned Court below.

13. Having heard counsels for both the sides and upon going through the record, we find that the Court below has very meticulously dealt with all the evidences adduced during the trial in the Court below, including the evidence of P.W.-7, Dr. M. Jalil, where he has admitted in his evidence that the patient was not suffering from any mental illness, and the Court below has also taken into consideration the lengthy cross-examination of the sole-respondent, where she gave very cogent answers to the questions put to her, and accordingly, decided the main issue No. IV, framed by it against the petitioner-appellant and in favour of the sole-respondent.

14. In view of the aforesaid discussions, we do not find any illegality and/or irregularity in the findings given by the Court below and dismissing the suit for divorce by Judgment and Decree dated 3rd of October, 2013, passed in Matrimonial Title Suit No. 127 of 2006.

15. There is no merit in this appeal and the same, is accordingly, dismissed. ( H. C. Mishra, J.) (Dr. S.N. Pathak, J.) Jharkhand High Court, Ranchi Dated the 19th of October, 2016. N.A.F.R./ Amitesh/-


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