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Gnanambal Vs. G.R. Selvaraj - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1970)2MLJ429
AppellantGnanambal
RespondentG.R. Selvaraj
Cases ReferredMahendra v. Sushila
Excerpt:
- - inasmuch as the opinions of these two doctors are based upon mere examination of the records, i think it is better to act upon the evidence of p. [after discussing the evidence his lordship proceeded :] 4. on the evidence, she learned counsel for the appellant contended that the findings of the courts below that the appellant was of incurable unsound mind for a continuous period of three years prior to (he presentation of he petition is not warranted and that at the worst against the appellant it could only be said that she appellant is a person of weak intellect. there is an important difference between 'unsoundness of mind 'and 'dullness of intellect'.unsoundness of mind may arise from perversion of the mental powers, and may exhibit itself by means of delusions or strong.....orderk.s. palaniswamy, j.1. this is an appeal filed by the wife from the decision of ?he additional judge, city civil court, madras, confirming he decree of he trial court dissolving the marriage between he appellant and the respondent on the ground that he appellant was incurably of unsound mind for a continuous period of three years immediately preceding the presentation of the petition for divorce. the husband-respondent is employed as an appraiser in the customs department. he married the appellant in february, 1949, when hey were respectively aged about 22 and 16. there are five children of he marriage, a boy and four girls. the boy is the eldest and is aged about 15 and the youngest girl is aged 7. the last child was born in january, 1959, and at hat time the appellant was.....
Judgment:
ORDER

K.S. Palaniswamy, J.

1. This is an appeal filed by the wife from the decision of ?he Additional Judge, City Civil Court, Madras, confirming he decree of he trial Court dissolving the marriage between he appellant and the respondent on the ground that he appellant was incurably of unsound mind for a continuous period of three years immediately preceding the presentation of the petition for divorce. The husband-respondent is employed as an Appraiser in the Customs Department. He married the appellant in February, 1949, when hey were respectively aged about 22 and 16. There are five children of he marriage, a boy and four girls. The boy is the eldest and is aged about 15 and the youngest girl is aged 7. The last child was born in January, 1959, and at hat time the appellant was sterilised. Therefore, there is no prospect of the appellant bringing forth any more child. Even in the middle of 1951, the appellant appears to have showed signs of mental ailment. That necessitated her being treated by Dr. Dairiam, Superintendent of the Mental Hospital, Madras. She was also treated by other doctors. But hat treatment did not give the desired relief. The appellant was treated at he Christian Medical College Hospital, Vellore, from September, 1961 to December, 1965. The doctor who treated her was Dr. Rose Chack , who has given evidence on behalf of the respondent as P.W. 1. Throughout the period the appellant was not treated as an in-patient. For some time she was treated as an i -patient and for some time she was treated as an out-patient. Exhibit A-1 is he history sheet maintained in that hospital. That contains all the details of he treatment, including prior history, the treatment given from time to time , he condition of the patient, etc. The disease was diagnosed to be Paranoid Schizophrenia.

2. In support of his complaint that his wife was insane, the respondent-husband spoke of some incidents and let in evidence by way of corroboration. Both the Courts below have accepted the evidence with regard to three incidents. In the year 1959, he respondent celebrated the house-warming ceremony (grahapravesam) of a house built in Alagappa Nagar. The evidence establishes that at the time of the function, the appellant poured hot coffee on the head of he respondent. In October, 1962, the respondent's father passed away. When mourning was being observed, the appellant is said to have picked up a quarrel with her mother-in-law and thrown an ever-silver utensil at her. In January, 1964, the marriage of the respondent's younger brother took place, and according to the custom, the appellant was to participate in some of he ceremonies along with the respondent. But she did not attend the function. Both the Courts below have accepted the respondent's case with regard to these incidents. Wish regard to the incident when the appellant was said to have thrown an ever-silver utensil at her mother-in law, the respondent relied on Exhibit A-5, which is a letter written to him by the appellant's brother, R.W. 3, in which R.W. 3 has indirectly admitted that the appellant was not of sound mind. But these incidents by themselves are not sufficient to prove the unsoundness mind, much less incurable unsoundness of mind for a continuous period of three years prior to the presentation of the petition.

3. On the side of the respondent-husband, two doctors, gave evidence, and they are Dr. Rose Chacko, P.W. 1, Psychiatric specialist working in the Christian Medical College Hospital, Vellore, where the appellant underwent treatment, and Dr. Bhushanam, P.W. 6, Professor of Mental Diseases in the Stanlay Hospital, Madras, and Physician in the Government Mental Hospital, Madras. The appellant examined Dr. Ganesan R.W. 4, Civil Assistant Surgeon, Government Mental Hospital, Madras P.W. 6 and R.W. 4 had no occasion to examine the appellant. They gave their respective opinions based upon a study of the details found in the case sheet, Exhibit A-1. On examining the details of the treatment, P.W. 6 gave his opinion that the chances of recovery were extremely impossible and that the appellant would not be in a position to share the responsibility of household life. He was willing to examine the appellant, but the appellant did not submit herself to an examination. P.W. 6 is a specialist whereas R.W. 4 is not a specialist, and has not even obtained a Diploma in mental sciences. His opinion is that paranoid schizophrenia is curable. He however, admits that electric shock treatment would be given only in advanced mental cases and that inasmuch as the appellant had been given 63 shocks, he had to concede that the appellant should have been an extreme mental case. Inasmuch as the opinions of these two doctors are based upon mere examination of the records, I think it is better to act upon the evidence of P.W. 1 the specialist under whom the appellant admittedly underwent treatment at Vellore. The evidence of P.W. 1 is hat she found he appellant suffering from mental illness, that the mental illness could not be completely cured in spite of the treatment given for five years and that the illness was paranoid schizophrenia. She, however, admits in cross-examination that some of the cases of schizophrenia treated by her had been cured. Even at the time when P.W. 1 gave evidence she was giving treatment to the appellant. On the basis of what she observed even at the time of giving evidence P.W. 1 said that the appellant had not been completely cured and that some of the initial ailments for which the appellant came to her for treatment in 1961 still persisted. She also said hat 'he appellant can look after herself, but some of she old mental ailments would still persist. The sum and substance of her evidence is that hough paranoid schizophrenia is a curable disease, the appellant could not be cured completely in spite of treatment for five years.

[After discussing the evidence His Lordship proceeded : ]

4. On the evidence, she learned Counsel for the appellant contended that the findings of the Courts below that the appellant was of incurable unsound mind for a continuous period of three years prior to (he presentation of he petition is not warranted and that at the worst against the appellant it could only be said that she appellant is a person of weak intellect. It is also contended on behalf of the appellant that it has not been proved hat he disease from which the appellant is suffering is incurable or that the unsoundness of mind was for a continuous period of three years immediately before the presentation of the petition.

5. In Stroud's Judicial Dictionary at page 2141, the distinction between unsoundness of mind and lunacy or mania is brought out in the following terms:

'Unsound mind ' which all persons must understand to be a Depravity of Reason or want of it. Mere centricity is not such an unsoundness of mind as will amount to testamentary incapacity. There is an important difference between ' unsoundness of mind ' and ' dullness of intellect'....Unsoundness of mind may arise from perversion of the mental powers, and may exhibit itself by means of delusions or strong antipathies, which is called ' Mania '; or it may arise from what may be termed as defect of mind, as where the mind was originally incapable of directing itself to anything requiring judgment which is ' idiocy ' or where a mind originally strong, has become weakened by illness or age though producing no such insanity as to amount to Mania.

6. In the same dictionary at page 1120, the ' lunatic ' is defined:

Lunatic is one who hath had understanding but by disease, grief or other accident hath lost the use of his reason. He is indeed properly one that hath lucid intervals sometimes enjoying his senses and sometimes not.

7. It is indisputable in this case that the disease from which the appellant has been suffering is paranoid schizophrenia. In Clinical Psychiatry (second edition) by W. Mayer Gross at page 230, the term ' schizophrenia ' is defined as:

The term ' schizophrenia ' is used here for a group of mental illnesses characterised by specific psychological symptoms and leading in the majority of cases, to a disorganisation of the personality of the patient. The symptoms interfere with the patient's thinking, emotions, conation and motor behaviour, and with each in a characteristic way. The disorganisation of personality often results in chronic invalidism and lifelong hospitalization in spite of the absence of gross physical signs or symptoms.

The learned authors Harrison and others in their book 'Principles of Internal Medicine ' (fourth edition) at page 362 have defined the term thus:

Schizophrenia is a disease or group of diseases in which there is a slow, steady deterioration of the personality, beginning usually during adolescence and early adult life and involving particularly the effective life, thinking, conduct, and the depth of insight. The cause is unknown and no definable neuropathologic changes have been established. A hereditary factor operates in a certain proportion of cases.

Under the heading ' Clinical Manifestations', the learned authors have observed at page 364:

The illness declares itself largely by certain abnormalities of affectivity and thinking which are most clearly demonstrated by an examination of the mental functions of the patient. The medical history has not always been helpful in the authors' experience. It is true, as stated above, that in some cases the family will report a long-standing inability to form warm and satisfactory contacts with people, and a tendency to shun activities of an ' outgoing ' nature, especially with members of (he opposite sex, a disposition to indulge largely in solitary pursuits and daydreaming, all of which are special behavioural abnormalities of the introverted, schizoid, or dystonic type.

The learned authors have indicated the following primary signs or characteristics of the disease at page 364:

The specific and characteristic signs unique to schizophrenia are (1) disturbances in affect, (2) disturbances in thought processes and associations, (3) disturbances in attention.

Inappropriate or inadequate affect.--In many though not all patients with schizophrenia the affect, or outward expression of emotion, is bland, rigid, inappropriate, or ambivalent. Personal events of serious importance are discussed in a casual manner without any outward show of emotional concern, i.e., inadequate or bland affect....

Disturbances in thinking and ideational association.--In the patient's spontaneous utterances and in his replies to questions one finds that his thinking about any given topic is apt to be illogical, tangential and irrelevant....Inappropriate explanations may be offered. A patient seen tearing his shirt to shreds said that he was doing it because it was raining outside...an example of illogical association. In conversation, seemingly unrelated and impertinent items may be brought up and even given as answers to direct questions. Such disturbances in thinking are called associational irrelevancies....

Disturbances in attention. Often there are lapses in attention or preoccupation wish other ideas, and at these times the patient may ignore the questions of the examiner. Later he may respond alertly and focus his attention on the problem at hand and in fact may indicate shat he heard the examiner's earlier questions even hough he did not reply to them. In the later stages of the illness he appears continuously preoccupied and it is impossible to attract or to hold his attention even momentarily.

The learned authors have also indicated the secondary signs of this disease. At page 365 they say:

The term ' secondary' denotes those signs which appear to derive from the aforementioned disorders of thinking, emotion and attention. The most important of these are delusions, hallucinations, rigidity, resistiveness, negativism and mannerisms. Although not unique to schizophrenia, they occur with sufficient frequency to be of importance, and at times they appear to dominate the clinical picture.

At page 367, the learned authors have indicated the special types of schizophrenia, and one such type is pointed out as paranoid. What is ' paranoid ' is indicated in the same page as:

'Paranoid'--'Here Autistic, unrealistic thinking, delusions of persecution and grandeur, ideas of reference, and often hallucinations are the leading clinical findings. Often behaviour is unpredictable with a prevailing attitude of hostility and aggression. There may be excessive concern over religion, with or without delusions of persecution, and expansive delusions of omnipotence, genius, or special ability.

After dealing with different diagnosis and treatment and management of the schizophrenic patient, the learned authors have concluded at page 370:

From these data it is obvious that schizophrenia is a serious disease and one for which there is no specific : therapy.

In Sydney Smish's Forensix Medicine (9th edition) at page 389, the symptoms of the disease are described thus:

Its onset is usually slow and insidious and an examination of the past history, frequently shows the patient to have been of the gloomy, solitary type individual inclined to be unduly sensitive or bashful who does not mix well with his fellows in games and sport. The course of the disease is very variable, but an extreme degree of dementia is the usual outcome. As the disease progresses, the most notable symptom is an increasing emotional indifference which is evinced towards his duties, former pleasures and dearest friends.

8. In Modi's Medical Jurisprudence (1963 edition) the relevant passage is to this effect:

Kraepelin, in 1896, named this disease dementia proecox. In 1911 Bugeon Bleuler introduced the term ' schizophrenia' which literally means splitting of the personality. The term dementia proecox was changed because it implied that he disease always ended in dementia, which it did not. The term proecox meant that the disease developed at the time of puberty or adolescence but many cases developed outside that period. Since it was thought (hat the disease always ended in dementia it meant a hopeless prognosis which created a spirit of defeatism in the minds of people.

9. That persons suffering from schizophrenia are also prone to commit serious crimes like murders is illustrated in Taylor's Principles and Practice of Medical Jurisprudence (11th edition) Volume I at page 587, wherein it is observed:

There have been a number of murder cases in recent years where juries have returned verdicts of guilty but insane upon evidence that the accused was suffering from schizophrenia at the time of committing the act.

In Handerson and Gillespie's Text Book of Psychiatry (9 th edition) at page 250 it is observed:

Schizophrenia, in its most typical form, consists in a slow deterioration of the entire personality, which often manifests itself at the period of adolescence. It involves a great part of the mental life, and expresses itself in disorder of feeling, of conduct, and of thought, and in an increasing withdrawal of interest from the environment.

As regards treatment, the learned authors have observed at page 285:

We have no specific and effective treatment for schizophrenia. Our attitude has to be melioristic : but much can and should be done which is helpful. In a considerable proportion of cases the treatment given determines the prognosis, at least in part. We can probably assist in arresting the disease process, we can certainly often limit the degree of deterioration, and we can sustain and develop the patients' undamaged assets.

As regards prognosis, this is what the learned authors have observed at page 288:

The more enthusiams and staying power we bring to the treatment of schizophrenia, the better are likely to be our results; but complete success cannot often be claimed for treatment. All our treatments are empirical and limited in their effects; we are frustrated by our very slight knowledge of the aetiology of the illness. Schizophrenia still accounts for about two-thirds of those who require long-term care in our mental hospitals, and is thus one of the major unsolved problems in she whole filed of medicine.

10. In the light of the foregoing, we may examine what the respondent husband seeking divorce under Section 13 (1) (iii) of the Hindu Marriage Act, 1955, has to establish. That section reads thus:

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:

(i) ...

(ii) ...

(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition.

The framers of this provision have taken into account the provisions of the English Matrimonial Causes Act, 1950. The English Act of 1950 reproduced what was contained in the Matrimonial Causes Act, 1937, and has been reproduced in the Matrimonial Causes Act, 1965. According to the English Act, a petition for divorce can be presented on the ground that the respondent is incurably of unsound mind and has been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition. Inasmuch as important phrases found in he Indian enactment have been taken from the English enactment, English decisions would be of valuable guide in interpreting the Indian enactment, as Indian case law on the Indian enactment is not much. It would be seen from a perusal of the Indian enactment that three essential things should be established by the party seeking divorce, and they are (1) that the other party to the marriage is of unsound mind; (2) that the unsoundness of mind is incurable and (3) that the incurable unsound mind was there for a period of not less than three years immediately preceding the presentation of the petition for divorce.

11. In Swettenham v. Swettenham (1938) 3 A.E.R. 18 , the main question considered under the Matrimonial Causes Act, 1937, was about the distinction between 'recovery' and ' cure.' The parties were married in 1878. Thereafter from time to time the wife was certified and recertified to be insane. She was, however, at large for considerable periods, one period extending to nine years, but she had been continuously ?detained for a period of 11 years immediately before the date of the hearing. The husband petitioned for divorce under the Matrimonial Causes Act, 1937, alleging that the wife was incurably of unsound mind and had been continuing under care and treatment for a period of five years. The wife denied that the was incurably of unsound mind. On a consideration of two important aspects, the Court held that the wife was incurably of unsound mind. One was that in spite of two considerable periods, during which the wife had been restored to mental health, she continued to be insane. The other was that the wife was of advanced age. At page 185, the relevant passage is this:

I am satisfied, without saying any more, that, although this is by no means an aggravated case of unsoundness of mind, or a violent or an extreme case, it is proved on he evidence, and not merely by the fact of certification'--which, of course, alone would not be enough--proved beyond any doubt whatever on the medical evidence, that this lady is of unsound mind, and the only question which has caused me any doubt at all is the question whether, having regard to the medical evidence, it can be said to be proved that the is incurably of unsound mind.

With regard to that, it is unnecessary to say more than that, on the evidence on either side, I am satisfied that, having regard to the long history of her illness, not forgetting in that connection the two very considerable periods during which she was restored--temporarily, at any rate--to health, but in particular having regard to length of the last onset, which now extends over 11 years, and above all to her age, I am satisfied hat there is no prospect of cure. That being so, I find that the petitioner has proved the case.

In Randall v. Randall (1938) 4 A.E.R. 696, one of the principles laid down is that it is not necessary to lay down any test about the degree of unsoundness of mind for the purposes of the Matrimonial Causes Act, 1937. On the evidence, the Court found that although the case was a mild one, it was satisfactorily established that there was incurable unsoundness of mind. The question arose whether it is sufficient to bring the case within the scope of Act. At page 701 the relevant observation is:

Here let me say one word about the issue of unsoundness of mind. I am not going to lay down any test of the degree of unsoundness of mind necessary for the purposes of the Matrimonial Causes Act, because to do so would serve no useful purpose, and might create difficulties.

The medical evidence showed, as in the instant case, that there were small improvements at times. In considering the effect of such improvements, the learned Judge has observed at pages 702 and 703:

The acute condition which existed formerly has disappeared, but there is an irreducible minimum of unsoundness of mind manifesting itself, as I have already said, by this absence of volition, of which every doctor who has examined him, and Mr. Heywood, who is in charge of him, has spoken. He said in terms that, such as his defect is, there is no doubt whatever that it is incurable. ' He used a metaphor to the effect that the original breakdown had caused scars, not in the literal sense, but figuratively, and that, though the symptoms had disappeared, and he condition generally had improved, that scarring of the mental condition must necessarily remain for all time. That is what he means by saying that there is an irreducible minimum of unsoundness of mind.

He satisfied me that he would be very reluctant to allow the patient to go out as a voluntary patient unless he personally was satisfied with she conditions under which that arrangement was made, and that, if it was desirable to allow him to live in the way that he sometimes expressed a desire to live namely, with a small cottage and a small garden--the proper way to give effect to that would be to change the single care order from his present place to any such cottage. Then, of course, he would still, within the meaning of the Act, be under the detention of a reception order, and in single care, as at present.

There also argument was advanced about the degree of insanity. In dealing with that question, the learned Judge said:

Once one has arrived at that decision that there is unsoundness of mind, and that it is incurable within the meaning of the Act, I am not concerned with the question of degree at all, except in so far as that is tested by 1 he statutory test that there has been care and detention for the requisite period.

In Swymer v. Swymer (1954) 3 A.E.R. 502, one of the important questions considered was, what would amount to continuous period of five years within the meaning of the Matrimonial Causes Act, 1950. There the husband was admitted to a Mental Hospital in 1925 and was discharged 26 years later and was later re-admitted to the same hospital as a voluntary patient. In 1953, he broke his leg in an accident and owing to lack of suitable facilities for treatment at the mental hospital, he was sent to a general hospital which was not an institution or a place approved for the purposes of the Mental Treatment Act, 1930. He returned to the Mental Hospital in May, 1953. He was incurably of unsound mind. In October, 1953, the wife presented a petition for divorce on the ground that the husband was incurably of unsound mind and had been continuously under care and treatment for a period of at least five years immediately preceding the presentation of the petition. On account of the period during which the husband was having treatment in the general hospital, the trial Court held that it had not been proved that the husband was continuously under the care and treatment for at least five years immediately preceding the presentation of the petition, and in that view rejected the wife's petition. Reversing that decision it was held in appeal that the word continuously should be read not only with common sense but also with the true object and intention of the Act in a sense which does not exclude the periods of authorised temporary absence from the concept of continuity which Parliament had in mind and that the word should be construed similarly in relation to the voluntary patients also.

12. Charlton v. Charlton (1955) 1 W.L.R. 675, on which Mr. Venkatarama Ayyar, appearing for the appellant relied, is not of much help. The wife in that case was admitted in an institution for mental treatment in February, 1947 in pursuance of a detention order under the Matrimonial Causes Act, 1950 for a period of six months. The order lapsed on the expiry of time and the patient was discharged. But she got herself re-admitted 12 days later as a voluntary patient and remained there continuously under care and treatment. In 1953, he husband petitioned for divorce on the ground that the wife was incurably of unsound mind and had been continuously under the care and treatment for a period of five years immediately preceding the petition. Confirming the order of dismissal of the petition by the trial Court, it was held in appeal that the period between discharge and re-admission on voluntary basis could not be regarded as negligible, and that the subsequent period of care and treatment on a voluntary basis did not follow ' without any interval' the period during which the wife was detained pursuant to the order of detention.

13. Whysall v. Whysall (1959) 3 A.E.R. 369, is an important decision. That decision lays down the test to be applied in deciding the question whether a person is incurably of unsound mind. In that case also, as in the instant case, the disease was paranoid schizophrenia. The husband entered a mental hospital pursuant to a reception order in May, 1952 and remained there at the hospital even at the time of the hearing of the case. He underwent electro convulsive treatment, as in the instant case, without any lasting improvement of his condition, but showed much improvement as a result of the treatment with drugs. The evidence of three medical witnesses established that though there was no prospect of full clinical recovery, there was possibility of some degree of ' social recovery '. It was also even possible that the husband might be able to be discharged from the hospital in about six months, if suitable living conditions could be found for him; but if he were discharged, he would still have to continue the treatment and drugs to maintain his recovery. In these circumstances, the wife presented a petition in February, 1958 for divorce on the ground that her husband was incurably of unsound mind within the meaning of Section 1 (1) (d) of the Matrimonial Causes Act, 1950. Having regard to the condition of the husband, the question was considered whether he could be held to be a person suffering from incurably of unsound mind. Dealing with this aspect, it is. observed at page 396:

It seems to me 'hat the intention of Parliament was to enable one spouse to obtain a dissolution of the marriage when the mental incapacity of the other, despite five years' treatment, was such as to make it impossible for them to live a normal married life together and when there was no prospect of any improvement in mental health which would make it possible for them to do so in the future. The state of mind envisaged was accordingly a degree of unsoundness. or incapacity of mind properly called insanity. If a practical test of the degree is required, I think it is to be found in the phrase used in Section 90 of the Lunacy Act, 1890--' incapable of managing himself and his affairs '--provided it is remembered that' affairs ' include she problems of society and of married life and that the test of ability to manage affairs is that to be required of the reasonable man....

What effect is to be given to the word ' incurably'? If a person may be discharged from hospital in a state in which he can resume married life, managing himself and his affairs, able to make a will and perhaps to enter into contracts or act as a trustee, does the fact that he will always have to take a regular dose of a drug to guard against any recurrence of the disease prevent it being said that he is cured Counsel for the wife's argument would have a patient with this prospect labelled 'incurable ' even if the hospital were to discharge him as recovered since, as he says the prophlactic doses would not be necessary if he was cured.

14. At page 397 it is observed:

If a man can hope to resume a normal married life and to manage himself and his affairs, no ordinary person would describe him as incurably of unsound mind or insane because he has to take a drug once a week or once a day. Equally, however, if in the light of medical knowledge at the time of the inquiry it is said that the patient's mental state is such that the best can be hoped for is discharge to conditions where he will not be required to manage himself or his affairs but will live an artificial distance protected from the normal incidents and problems of life he will properly be termed incurable. A parallel in the physical sphere is the patient who can go home but will always be bedridden, whom we would term a permanent invalid.

I would conclude, therefore, that in deciding whether a person is ' incurably of unsound mind ' the test to be applied is whether by reason of his mental condition he is capable of managing himself and his affairs and if not, whether he can hope to be restored to a state in which he will be able to do so. I would add to the above test the rider that the capacity to be required is that of a reasonable person.

Summing up his reasoning, the learned Judge held that the Parliament could not have intended to treat as cured a man whose optimum prospect of recovery is to be fit for this sort of half life and in that view it was held that the wife had proved her case that the husband was incurably of unsound mind.

15. The decision in Chapman v. Chapman (1961) 1 W.L.R. 1481, on which Mr. Venkatarama Ayyar for the appellant relied, is not of much help. That was a case where the husband was suffering from paranoid schizophrenia. The evidence established that after the discharge from the hospital he was no longer subject to any reception order. He was no longer under any medical treatment or care. He was able substantially to control his condition by the taking of drugs. He was able to work and earn wages and was capable of securing work. He was normally living at a hostel without any special supervision or care. It was not established that he was incapable of managing himself and his affairs, bearing in mind that affairs must be held to include the problems of work, society and marriage. It was, therefore, held that the wife had failed to establish that her husband was incurably of unsound mind.

16. Coming to the Indian decisions Mr. Venkatarama Ayyar relied upon A. S. Mehta v. Vasumati : AIR1969Guj48 , There, the husband applied for decree of nullity of the marriage or divorce. He alleged that he relied upon the representation made by the wife's father about the condition of the wife and went through the marriage, that after the marriage the respondent came to reside with him, that at that time he found that the wife's mental condition was defective and that she was insane and did not know how to lead a married life. On these allegations he said that as the wife's mental condition was incurable, he was entitled to a decree of mullity or in the alternative a decree of divorce. The trial Court held that the husband had failed to establish that the wife was either an idiot or lunatic at the time of the marriage or that her mental condition had not been disclosed at the time of the marriage. It was also held that the husband had failed to prove that the wife of unsound mind for the relevant period or that the mental condition was incurable. In this view, the trial Court dismissed the petition. In the appeal, it was contended that the evidence established the following facts; (1) that the wife did not know how to dress her clothes and she kept the buttons of her blouse open; (2) that though she was Brahmin she did not take bath daily; (3) that she did not distinguish between cereals and vegetables as she had stated that she did not know what use may be made of Mug and that chola was cooked after putting into water and that it was not eaten, but applied on the head; (4) that she had no control over the nature discharges as she passed urine and stools even in the kitchen; (5) that : she did not recognise persons and did not give welcome to the visit and she had no sense and recollection of places, roads, neighbours, etc., and (6) that she required to be helped. These circumstances were strongly relied upon in support of the contention that the wife was incurably of unsound mind. The learned Judge Mehta, J., if I may say so with respect, rightly rejected the contention, for, all that : was established by those circumstances even if they were taken as true was that the wife was subnormal in her mental capacity. But that was not sufficient to lead to the inference that the person was incurably of unsound mind. The evidence in that case established that the wife was slow of understanding and was not able to answer some questions, though she was able to answer some questions. On a consideration of the entire evidence, the learned Judge held that the wife was able to manage herself and all her affairs in her own simple way and was able to keep up with the obligations of marital life, though on some occasions she needed better instructions or advise. In conclusion, it was held that in any event, the mental defect was not of such a degree or extent which would make the wife incapable of managing herself and her affairs and there was no evidence whatsoever to show that the wife was suffering from any particular mental ailment. On facts, this decision, on which Mr. Venkatarama Ayyar very strongly relied, is distinguishable, for, in the instant case, it is established beyond doubt that the appellant has been suffering from paranoid schizophrenia.

17. The Punjab High Court in Sucha Singh v. Gurbachan Kaur (1965) 5 Cur. L.J. 417, on which Mr. Damodar Rao, appearing for the respondent relied, dealt with a case where the wife was suffering from schizophrenia as in the instance case. Though the trial Court, on the evidence, found that the wife was not of normal condition and was suffering from schizophrenia, still it refused to allow the husband's petition for divorce for the reason that the evidence did not establish that the respondent was insane. Reversing this decision it was held in appeal that the evidence was sufficient to establish that the wife was incurably of unsound mind for a period of three years immediately before the presentation of the petition. What weight should be given to the lucid intervals when the wife was able to talk well, was considered by the appellate Court and it was held that, according to the medical testimony of the witnesses, who gave evidence in that case, there could be lucid intervals in the condition of a person suffering from schizophrenia for weeks and even months and that, therefore, the fact that the person was able to give lucid answers during sometimes cannot mean that the person is not of unsound mind.

18. Mr. Venkatarama Ayyar for the appellant contended that in Matrimonial Causes the Court should insist on proof beyond reasonable doubt, that in the instant case the evidence does not establish beyond reasonable doubt that the appellant was suffering from incurable unsound mind for a continuous period of three years and that benefit of doubt should be given to the appellant. The proceeding in divorce proceeding is a civil proceeding and not a criminal proceeding. The : analogies and precedents of criminal law have no authority in the divorce Court which is a civil tribunal. But there has been a divergence of opinion in England on the question whether the same strict proof, proof beyond reasonable doubt, is required for a matrimonial cause as is required in a criminal offence. The House of Lords in Blyth v. Blyth L.R. (1966) A.C. 643, by a majority of three to two settled the controversy, but only about condonation, connivance and the like bars to relief, the standard laid down there for being preponderance of probability, not about the grounds for dissolution, adultery and the like, where satisfaction beyond reasonable doubt was necessary. But the Supreme Court has consistently taken the view that the standard of proof in a matrimonial cause in India is proof beyond reasonable doubt. In Bipinchandra Jaisinghai Shah v. Prabhavati : [1956]1SCR838 , which is a case of divorce-at the instance of the husband on the ground of desertion of the wife for a continuous period of four years, the Supreme Court held that the plaintiff must prove the offence, beyond all reasonable doubt. In Earnist John Whi e v. Kathleen Olive Whi e : [1958]1SCR1410 which was a case of divorce on the ground of adultery, the Supreme Court pointed out that the standard of proof in divorce cases would be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence, he would be satisfied within the meaning of Section 14 of the Indian Divorce Act, 1809. In Lachman Utamckand v. Meena : [1964]4SCR331 , which was a case of judicial separation for desertion by the wife under Section 10(1)(a) of the Hindu Marriage Act, 1955, the Supreme Court reiterated the view that it is settled law that the burden of proving desertion is on the petitioner and that he or she should establish it beyond reasonable doubt to the satisfaction of the Court. The same view was reiterated by the Supreme Court in Mahendra v. Sushila : [1964]7SCR267 , It would, therefore, follow that the burden lies upon the respondent-husband to establish beyond reasonable doubt that the appellant, his wife, has been incurably of unsound mind for a continuous, period of not less than 3 years immediately prior to the presentation of the petition.

19. I now turn finally to consider the effect of the view which I have formed of the facts of the case in the light of the principles indicated above. The evidence of P.W. 1, taken along with the several facts recorded in Exhibit A-1, establishes the following. The appellant has been suffering from paranoid schizophrenia from 1961 and is not completely cured even now. She is lacking in volition and spontaneity. There has been deterioration and loss of her personality. She is incapable of meeting the normal incidents and problems of married life. She is demented and suffering from the residual scars of the mind due to the mental illness, even though she might have shown some improvement off and on as a result of heavy electro convulsive treatment (E.C.T.) and other drugs. She is lacking in activity and awarness and her memory has become poor, without reasonable prospect of restoration to its normal condition. She requires sympathetic supervision and care. There may be occasional lucid intervals when she may be co-operative or clean in her dress or can look after herself. But that is not sufficient to hold that here is a prospect of her return to normal life. Even if the condition obtaining during lucid intervals continues without break, which is not likely, it would enable the appellant to live only half-life. I am aware that a decision in favour of the husband will put an end to the martial tie of the couple. But that appears inevitable, as I am not prepared to misplace my sympathy in favour of the wife in he face of the satisfactory evidence which entitles the husband beyond reasonable doubt to the relief asked for, though the appellant is entitled to sympathies. I am afraid she cannot be helped.

20. I am satisfied on the evidence that both the Courts below were right in holding that the appellant has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition. In the result, the appeal fails and is dismissed. In the circumstances, the parties will bear their own costs. Leave granted.


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