S.M. Abdul Wahab, J.
1. This appeal has arisen out of the order dated 27.2.1989 in C.M.A.No. 10 of 1989 on the file of the District Judge, Tirunelveli, reversing the order of the learned Subordinate Judge, Tirunelveli dated 4.3.1988 in H.M.O.P.No. 91 of 1987, dissolving the marriage of the appellant with the respondent.
2. The appellant/husband filed H.M.O.P No. 91 of 1987 under Section 12(1)(b) and (c) of the Hindu Marriage Act, 1955 for dissolution of the marriage dated 1.6.1984 at Tiruchendur. His case is that the appellant did not know anything about the family of the respondent. During the betrothal and the marriage, the father of the respondent fraudulently concealed the fact that the respondent was subject to recurrent attacks of insanity. The consent of the appellant was obtained by fraud. The reception function as mentioned in the invitation could not be performed on account of the behaviour of the respondent. Her behaviour was strange, odd and uncommon. On 1.6.1984 itself, the appellant was informed that the respondent became suddenly ill. It became worse the next day and the day after. She was not taking food. She was not talking to anybody. It appeared to the appellant that she was suffering from some kind of mental disorder. The parents and relatives of the respondent alone were administering some drug or the other, without consulting a doctor. A witch was brought in. He chanted manthras and smeared white ashes upon the forehead of the respondent to drive out the evil spirit haunting her. On 4.6.1984 when she was taken to the appellant's house, her behaviour became violent. When questioned, the respondent's father confessed that he concealed the treatment of the respondent at Sri Ramakrishna Ashram Hospital, Trivandrum, from 18.5.1984 to 28.5.1984 for recurrent attacks of insanity under Dr. Chandrasekaran. After learning, the appellant sent a notice of dissolution of the marriage. After receipt of her reply, the petition for dissolution was filed.
3. In the counter, the respondent denied that she was suffering from insanity or any other mental disease. The reception was conducted as stated in the affidavit. The betrothal was conducted when the relatives and the wives of the two advocate friends of the appellant were present. The respondent was sad because of her mother's condition due to prarlytic attack and also of the fact that she had to leave the family. The treatment at Trivandrum was not for any mental disease, but only for the griefs which she was experiencing due to parting of her parents and the marriage was celebrated with full satisfaction. Hence, there was no substance in the petition for dissolution.
4. The trial Court framed an issue as to whether the respondent was suffering from mental disease and the said fact was concealed and suppressed while getting consent of the appellant for the marriage. The trial Court found that the respondent suppressed the material facts regarding the disease, which she was suffering before the marriage while getting consent. Therefore, the petition was allowed. On appeal, the I Additional District Judge, Tinmelveli, reversed the finding of the trial Court and found that the marriage was valid. Hence, the appellant was not entitled to the relief claimed under Section 12(1)(b) and (c) of the Hindu Marriage Act, 1955.
5. Now, the learned Senior Counsel for the appellant Mr. T.R. Mani, urged before this Court that the respondent was suffering from schizophrenia and suppressing that fact, the consent of the appellant was obtained for the purpose of the marriage. If the appellant had been informed about it, he would not have contracted the marriage at all. The learned Counsel stated that from the evidence it is seen that the respondent was given treatment at Sri Ramakrishna Ashram Hospital, Trivandrum from 18.5.1984 to 28.5.1984 and she was given electro-convulsive treatment during the said period. Therefore, the learned senior counsel Mr. T.R. Mani submitted that the case squarely falls under Section 12(1)(b) and (c) of the Hindu Marriage Act, 1955, According to him, the Appellate Court has erred in coming to the conclusion that there was no proof that the respondent was of unsound mind or mad women during the betrothal, marriage and after the marriage and the marriage could not be dissolved under the aforesaid sections.
6. The trial Court considered the evidence of P.Ws.1 to 5 in detail. P.W.1 has stated that from 18.5.1984 to 28.5.1984 the respondent was suffering from acute schizophrenia excitement and illness. However, he has added that the behaviour of such person affected with such illness would be abnormal. P.W.1 is a specialist in psychiatry. P.W.2 attached to Tirunelveli Medical College Hospital, Palayamkottai, has stated that he considered the records sent from Dr. Ramachandran of Sri Ramakrishna Ashram Hospital, Trivandrum and stated that scizophernia will recur. He has also stated that it is not correct to state that this illness will not recur in future. P.W.1, a practising Advocate of Tirunelveli Bar, has stated that there was no reception held after the marriage. P.W.5 has stated that when he went to the respondent's house on 3.6.1984, he heard the chanting of manthras and was stated that since the respondent was ill, a witch was brought to chant manthras. Even though the respondent as R.W.1 has denied about the illness, the records Exs.A-1, A-2 and C-1 show that the respondent was suffering from acute schizophrenia excitement and the said disease is a mental illness and it will recur. In Ex.C-1 though, it is mentioned that she was not insane at present, but at the same time she was suffering from the disease schizophrenia, which was bound to recur at any time. It is also stated in the report that the seeming normal behaviour of a schizophrenic patient under drugs, is purely temporary in nature and it could not be taken as normal behaviour. The report further adds that from the nature of treatment and the drugs prescribed, her condition at the time of the marriage was that she was suffering from acute schizophrenia and she could not have been normal at the relevant time. It is also stated that she could not have understood the consequence of her acts. P.W.3 the appellant has categorically asserted that if he had known that the respondent was suffering from mental disease and she was taking treatment, he would not have married. He has also stated that neither the father of the respondent, nor her brothers, informed about the mental condition of the respondent. After he learnt about it, he was shocked and on that account he could not leave the house of the respondent for three days. P.W.3 has also stated that from 5.6.1984 onwards till the date of his examination, he did not meet the respondent, When enquired, he was informed that she has become mad. Another important thing to be noted is that, even during the five days i.e., from 1.6.1984 to 5.6.1984 the marriage was not consummated. He has categorically stated this in his cross-examination. R.W.1 has also admitted that she had nervousness before she was taken to the hospital. She has again stated that as she had the nervousness on account of the fact that she had to separate herself from the mother, she was taken to Tirunelveli Hospital. With reference to the consummation of the marriage, her answer is evasive. She has stated that from the night of the marriage day she and the appellant were in marital life as husband and wife. This is not the answer to the categorical assertion of P.W.3 that there was no consummation of the marriage. Further, from the fact that the certificates, Exs.A-1 and A-2 and C-1 to C-3, it is clear that she was suffering from schizoprenia and yet she has not admitted this fact. Probably she herself thinks that if she admitted that she was suffering from schizophrenia, the appellant would not have consented for the marriage.
7. After considering the aforesaid evidence, the trial court found that the respondent was suffering from the disease of acute schizophrenia even before the marriage and the said fact was wilfully and wantonly suppressed by the parents of the respondent and if this fact had been revealed to the appellant, the appellant would not have consented for the marriage. He has also taken note of the fact that the couple were young, but however there is no other way except to allow the petition and the court was not willing to direct the petitioner to take the respondent who is subject to recurrent schizophrenia in future.
8. When we come to the judgment of the lower appellate court, the case has been approached from a very narrow perspective. According to the lower appellate court, the issue involved was whether the respondent was really a mad woman and that in that mental condition she was married to the appellant. The lower appellate court has stated that the respondent was not affected with schizophrenia diseases at any time. This is totally contrary to the evidence available on record. Finally he concludes that from the evidence of Ex.C-1 and P.W.2, it was clear that the respondent was hot mad. This finding is in a sense perverse. The trial court has not found that the respondent was a mad woman. It has found on the evidence that she was suffering from schizophrenia and the said fact was suppressed to the parents of the appellant and the appellant himself. The lower appellate court has also found that since there is no proof that the respondent was suffering from schizophrenia before the betrothal and once betrothal is performed, the bride becomes the property of the bridgegroom and further, as there was no suppression of misrepresentation before the betrothal function, the contention that the consent of the appellant was obtained by suppression and fraud cannot stand.
9. The petition has been laid under Section 12(1)(b) and (c) of the Hindu Marriage Act, 1955, which reads as follows:
Voidable marriages: (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
(b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner (was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force (or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent).
10. Now, we have to see the conditions prescribed in Clause (ii) of Section 5 of the Hindu Marriage Act, 1955, which is as follows:
5. Conditions for a Hindu Marriage: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent that consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy.
The three conditions mentioned above are incapable of giving valid consent in consequence of unsound-ness of mind; though capable of giving valid consent, was suffering from mental disorder of such kind as to be unfit for marriage and the procreation of children and being subject to recurrent attacks of insanity or epilepsy.
11. From the facts we have found that the respondent was suffering from schizophrenia. The evidence of P.W.1 Dr. K. Ramachandran, with reference to the nature of the said disease is as follows:
She was diognised by me as an acute schizophrenia excitement. The illness she had is one of 'mental illness'. While she was being taken to the hospital on 18.5.1984 and given treatment on that day she was having the same mental illness. This mental illness does affect normal behaviour. A person having this kind of illness can be termed as not sane. A person who is afflicted with illness above named he or her natural behaviour would naturally be necessarily abnormal.
He has also added as follows:
Neither the intensity nor the frequency of the recurrence of the illness can be predicted so far as this kind of illness is concerned.
In Ex.C-1 also P.W.2 Dr. Balagurusamy, has stated as follows:
But at the same time since she is suffering from the disease schizophrenia which is bound to recur at any time which happened in this case as mentioned earlier. I cannot rule out the possibility of her getting the disease in future which is a recurring one. So during such time she will not be able to conduct the case. Generally patients suffering from schizophrenia behave like normal person after full treatment and when they are under drugs. Such seeming normal behaviour of a schizophrenic patient under drugs, is purely temporary in nature and cannot be taken as a normal behaviour.
12. This is the opinion of the Doctors. Section 12(1)(b) read with Section 5(ii)(c) of the Hindu Marriage Act, 1955 is directly attracted in this case. The respondent is opined to be suffering from Scizophernia, which is bound to recur at any time. Her behaviour cannot be taken as a normal behaviour when she has the attack of scizophernia excitement. She cannot understand the consequence of her acts as stated in Ex.C-1. The opinion of Dr. K. Ramachandran-P.W.1 is that the mental illness does affect the normal behaviour and the person having this kind of illness can be termed as not sane. Therefore, there is insantity and recurrence of the attack of the mental disease. Certainly, therefore, the respondent's case can be brought under the provisions of Section 12(1)(b) read with Section 5(ii)(c) of the Act.
13. Section 12(1)(c) of the Act also is applicable in this case. As per the said section, a marriage shall be voidable and may be annulled on the ground that the consent of the petitioner was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.
14. The appellant has categorically stated that if he had known about the schizophrenic disease of the respondent, he would not have given his consent. The father of the respondent has admitted that the facts of the respondent's treatment at the Trivandrum Hospital was suppressed. He has also stated that intentionally with fraudulent motive they have suppressed these facts. He has disclosed this fact to P.W.4, a Senior Lawyer. P.W.4 has also stated that when questioned as to why the facts of treatment for schizophrenia was suppressed, the respondent men admitted that it was a mistake committed by them. The father and brother of the respondent have also handed over the medical chits and prescriptions given to the respondent for purchase of medicines and also showing the nature of treatment given to the respondent.
15. It is true that the case involves the life of a young woman. The approach of the court also must be lenient and sympathetic when we consider the case of the respondent. At the same time, we cannot ignore the case of the appellant, also. He is an young man and a lawyer practising in a District Court Bar. In the evidence also we have seen that attempt of reconciliation was there. But ultimately it could not succeed. The Senior Lawyer, under whom the appellant was practising, has also made an honest attempt to settle the matter, but did not fructify. From the point of view of the appellant also we have to look at the case. Therefore, we have to mainly see whether the appellant has satisfied the requirement of Section 12(1)(b) and (c) of the Hindu Marriage Act, 1955. After a thorough scrutiny of the evidence, both oral and documentary, the conclusion is irresistible, namely, that he has established the requirement of the said section.
16. In Rajinder Singh v. Pomilla : AIR1987Delhi285 , it has been held what is misrepresentation and concealment of material facts depends on the facts of each case. The material fact is that vital and important fact which would induce or influence the mind of a party to give or withhold the consent to marry. As we have seen in this case, not only the appellant, but any ordinary young person would Have refused to marry a person suffering from the disease with which the respondent was suffering.
17. In Mini v. James Koshy Alexander and Ors. : (1994)2MLJ487 , a Bench of this Court, has taken the view that if a person was suffering from schizophrenia at the time of the marriage and continues to suffer the same mental illness, there is no hesitation to hold that the petitioner has proved her case that the first respondent was a lunatic at the time of the marriage.
18. In Sujatha v. Hariharan : (1995)2MLJ327 , another Bench of this Court has held as follows:.to have a cause of action for annulling a marriage under Section 12(1)(c) of the Hindu Marriage Act, to constitute fraud there must be some abuse of confidential position, some intentional imposition or some deliberate concealment of material facts which are the fundamental basis of the marriage contract.
As we have seen in this case, there was concealment of the sickness suffered by the respondent.
19. In Kanchan Devi v. Promod Kumar Mittal : AIR1996SC3192 , the Apex Court has held in paragraph 16 as follows:
In view of the peculiar facts and circumstances of the case and being satisfied that the marriage between the appellant and the respondent has irretrievably broken down and that there is no possibility of reconciliation, we in exercise of our powers under Article 142 of the Constitution of India hereby direct that the marriage between the appellant and the respondent shall stand dissolved by a decree of divorce.
During the last fourteen years, in spite of an attempt for mediation, there was no reconciliation and there was no contact at all between the spouses. On the other hand, they have spent these valuable period of youth in the litigation, fighting bitterly against each other. These circumstances clearly indicate that the marriage has broken down.
20. The learned Counsel for the respondent submitted the following decisions to support his contentions:
1. Jayaradha v. A.N. Mahalingam (1994) 2 L.W. 690; 2, Shankar Ram v. Mrs. Sukanya (1997)2 L.W. 371. Rajagopalan v. Usha Rajagopalan (1988) 1 M.L.J. 181.
21. In Jayaradha v. A.N. Mahaligam (1994) 2 L.W. 690, the appellant knew about the illness of the respondent/bride and there was no suppression. Therefore, the said case is not helpful to the respondent.
22. In Shankar Ram v. Mrs. Sukanya (1997) 2 L.W. 371, a Bench of this Court has held in paragraph 14 as follows:
The expression as to the nature of the ceremony or as to the material fact or circumstances concerning the respondent' was added by the Amending Act of 1976. This provision treats such a marriage voidable giving option to the spouses to obtain a decree of nullity. The expression 'consent of the petitioner' used in Section 12(1)(c) in the background of arranged marriages amongst Hindus, would include consent given by the petitioner to the marriage as a result of negotiations made on his or her behalf by his or her parents, elders in the family or other relations and friends. The words 'force' and 'fraud' are not defined in this Act. Section 17 of the Contract Act defines the word 'fraud'. It means and includes acts committed by a party or with his connivance or by his agent with intent to deceive or to induce the other party to enter into the contract. However, a marriage is liable to be annulled when fraud was played on the husband by suppressing a material fact. Similarly, the wife also is entitled to claim annulment.
23. In this case, there was a suppression of the fact that the respondent was afflicted with the disease schizophrenia. The non-disclosure or the suppression is a concealment of a vital fact. There is no evidence in this case that the said fact was disclosed to the parents of the appellant or to him before the marriage. By concealing this vital fact, the consent has been obtained from the appellant. Hence, it tantamount to fraud, with reference to a material fact concerning the respondent.
24. In Rajagopalan v. Usha Rajagopalan : (1998)1MLJ181 , a Single Judge of this Court has taken the view that psychomotor epilepsy is not a ground for divorce. The learned Judge found that psycho-motor epilepsy would give an experience of a brief clouding of consciousness during the time of which some meaningless act may be performed by the affected person. Considering that, the learned Judge took the view that it was not the disease of unsound mind. The said case is not helpful to the respondent.
25. For the foregoing reasons, I am of the view that the appellant is entitled to succeed. Accordingly, the appeal is allowed, the judgment and decree of the lower appellant court is set aside and the judgment and decree of the trial court is confirmed. However, there will be no order as to costs throughout.