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Smt. Rita Roy Vs. Sitesh Chandra Bhadra Roy - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 371 of 1978
Judge
Reported inAIR1982Cal138,86CWN167
ActsHindu Marriage Act, 1955 - Section 13(1); ;Constitution of India - Article 21; ;Evidence Act, 1872 - Section 114
AppellantSmt. Rita Roy
RespondentSitesh Chandra Bhadra Roy
Appellant AdvocateDipankar Ghosh, ;P.K. Roy and ;P.C. Roy, Advs.
Respondent AdvocateS.N. Mukherjee and ;B.K. Banerjee, Advs.
DispositionAppeal allowed
Cases ReferredThurlow v. Thurlow
Excerpt:
- .....1973, the respondent became incurably of unsound mind and has been suffering intermittently from mental disorder of such kind and to such an extent that she cannot safely and reasonably be expected to live with the petitioner.2. the respondent filed written statement denying the material allegations made by the husband. her case is that before the marriage she had passed the higher secondary examination. she had been treated with cruelty after she gave birth to the daughter. in jan., 1973, she was in a family way. a forced abortion was made and the same told upon her health heavily. she had to go to gobra mental hospital for treatment. after treatment for a short period, she was declared fit.3. the learned additional district judge has believed the petitioner's version, found that the.....
Judgment:

B.N. Maitra, J.

1. The husband has filed the present suit for divorce. The case is that on the 4th Dec., 1969, he was married to the respondent, Kita Roy, according to Hindu rites. The marriage was consummated. After the marriage she showed signs of abnormality. On the 8th Dec., 1970, a daughter was born out of the wedlock. Once she attempted to commit suicide. After observing her abnormal mental condition, he had her examined in the Mental Observation Ward, Bhowani-pore, in Jan./Feb., 1970. She was also under the treatment of one Dr. Gobinda Sen. In 1973, she was examined by doctor, Subsequently, she was admitted to Gobra Mental Hospital for treatment. From Jan., 1973, the respondent became incurably of unsound mind and has been suffering intermittently from mental disorder of such kind and to such an extent that she cannot safely and reasonably be expected to live with the petitioner.

2. The respondent filed written statement denying the material allegations made by the husband. Her case is that before the marriage she had passed the Higher Secondary Examination. She had been treated with cruelty after she gave birth to the daughter. In Jan., 1973, she was in a family way. A forced abortion was made and the same told upon her health heavily. She had to go to Gobra Mental Hospital for treatment. After treatment for a short period, she was declared fit.

3. The learned Additional District Judge has believed the petitioner's version, found that the wife has been intermittently suffering from mental disorder which includes schizophrenia and her mental disorder is of such kind and to such an extent that the husband cannot reasonably be expected to live with her, The suit was decreed. The wife has preferred the present appeal.

4. It has been argued on behalf of theappellant that the plaint is defective. Initially a prayer was made before the learned District Judge for representing her by her guardian mother. The learned District Judge examined her and turned down that prayer. The evidence given by the petitioner's side only shows that she has only some mental disorder. But she is not of incurably unsound mind or has not been continuously or intermittently suffering from mental disorder, At any rate, such slight mental disorder is not of such kind and to such an extent that the husband cannot reasonably be expected to live with her, within the meaning of the later portion of the amended Section 13(1)(iii) of the Hindu Marriage Act, Reference has been made to the certificate Ext. A to show that after treatment she was declared fit in 1974. The case of Bennett v. Bennett, reported in (1969) 1 All ER 539, Cleary v. Cleary, in (1974) 1 All ER 498 and Thurlow v. Thurlow, in (1975) 2 AH ER 979 have been cited. It has been stated that this slight mental disorder is curable after treatment and she can fully recover, behave properly and do her household 'duty. The letters written by her, Ext. B series, demonstrate her normality and coherency. Though in the petition filed by the husband, there is no allegation that her father is off his head. But P, W. 4, Sitesh, petitioner, has stated that her father is also a crazy fellow. There is no evidence that there is no prospect of her recovery. So, the Court should reject the husband's prayer.

5. The learned Advocate appearing on behalf of the husband has stated that she has been suffering from schizophrenia. Re-ference has been made to the pages 237, 245, 266, 270, 275 and 324 of Clinical Psychiatry, Mayer-Gross, Slater and Roth, 3rd Edition, It has been stated that schizophrenia is of various kinds. In some case life-long hospitalization is necessary. At page 245, there is a table to show how a child born of a patient suffering from schizophrenia may also be a victim of such disease, The element of association is also important and others may be affected. There is abnormality of thinking, disturbance of the thought process and of volition. Such a patient does not always act Out of his own volition and there is hardly any voluntary action, He or she is not a free agent. Sometimes he is aggressive and sometimes there are manifestations of schizophrenia. On most occasions he is a normal being and his abnormality is notcontinuous or patent. The Court shall have to consider the future life of the petitioner, who is a young man and has a social life. From 1969 to 1973 she lived with the petitioner. In the later portion of 1973 she went to her father's family and lived there. In 1975, she returned to the husband's place. Then she was again treated at the Gobra Mental Hospital, This has been admitted in the evidence, vide the statement made by D. W. 1 Rita Roy. The letters, Ext. B series, also prove the husband's version. So considering the facts of the case, the Court should have no hesitation in stating that Rita is incurably of unsound mind or she has been suffering intermittently from schizophrenia of such a kind and to such an extent that the husband cannot reasonably be expected to live with her, within the meaning of Section 13(1)(iii) of the Act.

6. So the point for consideration is whether Rita has been incurably of unsound mind or has been suffering intermittently from schizophrenia or mental disorder of such kind and to such an extent that the husband cannot reasonably, be expected to live with her.

7. There is no denial on behalf of the appellant that Rita had some mental disorder. Through the evidence of P, W, 2 Swadeshi Bala, petitioner's ex-maid-servant, and P. W. 3, Gautam, petitioner's ex-tenant, an attempt was made to show when she tried to commit suicide and how Rita behaved after the marriage and up to 1973. Similarly the petitioner examined P. W. 5 Basudeb Majumdar, who speaks of the incident and Rita's behaviour at the time of her 'Boubhat' and the period sub-, sequent thereto. This evidence is hardly relevant because in the plaint, the petitioner's allegation is that Rita is of incurably unsound mind from Jan. 1973 and since then she has been intermittently suffering from the same. But after the alleged attempt to commit suicide and strange behaviour, a daughter was born, P. W. 2 Swadeshi Bala left the petitioner's service in 1975. P. W. 3 Goutam ceased to be the petitioner's tenant in 1973, Henca this chapter of the petitioner's evidence is of no consequence in this case.

8. It has been rightly pointed out on behalf of the Appellant that the plaint is defective because in Section 13(1)(iii) of the Act the word 'Or' has been used after the expression 'has been incurably of unsound mind'. In paragraph 4 of the plaint the averment is, 'The respondent becameincurably of unsound mind since Jan., 1973 and that the respondent is intermittently suffering from mental disorder .....,,.....' This statement in the plaint is inconsistent because if Rita is incurably of unsound mind from Jan., 1973, she cannot at the same time intermittently suffer from mental disorder for the same period.

9. Then about schizophrenia, which is a mental disorder. In the bench case of Pronab v. Krishna, reported in : AIR1975Cal109 , it has been stated that each case of schizophrenia has to be considered on its own merits. Schizphrenia is an illness of slow insidious onset developing over years. There may be report of strange, odd inappropriate behaviour. There will be progressive deterioration in the level of performance at work and socially; school report, examination results and the employment record will provide objective and usually reliable indices of intellectual performance, its maintenance or decline; vide page 454 (of Cal WN) s (at p. 113 of AIR) of the report. The observations made by Handerson and Gillespies (10th edn) at page 279 may also be referred to

10. Let us apply the principles of law 'discussed in this case to the facts of the present one, P. W, 1, Dr. Gobinda Sen, examined the wife in 1973. He has stated in his evidence that she is schizophrenic and she cannot be permanently cured. But the case of schizophrenia does not appear in the report or prescriptions, Ext. 1 series and A, submitted by him. He has admitted in cross-examination that a schizophrenic patient can recover from illness after treatment and after such recovery she can appear in examination, do all domestic work and such other work.

11. Let us now look to the report submitted by him. His report is Ext. A dated 3-2-1974. This doctor examined the wife Rita on that date and stated that she has been suffering from mental aberration. Any way, this doctor further certified that she was under his treatment up to 13-11-1973 and at present she has recovered from her illness. It is thus clear that she had no progressive deterioration.

12. In the case of Dr. Narayan Ganesh v. Mrs. Sucheta Narayan, reported in : AIR1970Bom312 that Court dealt with the case of schizophrenia elaborately, It will appear from the page 31T of the report that it will always be wise, even for the consultant psychiatrist to see the patienton several occasions before ruling out schizophrenia, and his relatives, employers and friends should be interviewed, A single interview may not disclose any abnormalities. But if he can be observed in hospital, quite blatant signs may be recognized. Now the petitioner's own case is that she was in Gobra Mental Hospital. No blatant sign of abnormality was detected in the hospital. Moreover, P, W. 1 Dr., Gobinda Sen examined her only on two occasions. So such examination by him is not sufficient to form an opinion that she has been suffering from schizophrenia.

13. There is a very important aspect of the case because she has stated in her evidence that her husband can have no fear if he lives with her, vide the evidence of D. W. 1 Rita Roy. No Cross-examination was levelled on this. It will be pertinent to point out that according to the amended Rule 3A of Order 18 of Civil P, C, the petitioner was required to be examined first, If he is examined later, the Court shall have to record reasons and grant him permission to be examined subsequently, No such permission was given by the Court. Still the husband, P. W. 4, Sitesh, or his mother (P. W, 6 Saila Roy) does not utter a word that it is unsafe to live with her, she ever misbehaved with them or tortured or abused or behaved with them in any violent manner. This evidence is sufficient for the Court to conclude that her slight mental disorder is not of such kind and to such an extent that the husband cannot reasonably be expected to live with her within the meaning of the second portion of Section 13(1)(iii) of the Act.

14. The letters Ext, B, series, written by her to her relations in 1976 consistently show her sobriety and coherency as well, The husband's case is that in 1976 she was thoroughly deranged. There is no cogent and clear evidence on behalf of the husband to show that such slight illness cannot be fully recovered.

15. A party's behaviour is associated with mental disorder, Reference may be made to Raydon on Divorce. Vol. 2, thirteenth edition, at p. 226, that in dealing with the Matrimonial Causes Act, 1973, it has been stated that broadly speaking the phrase 'The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent' is within the same range as conduct amounting to constructive desertion, that is, grave and weighty conduct---serious conduct -- which reasonably results in one party leaving the other: or, to put the matter another way, it may broadly be said to be cruelty without injury to health. It has already been stated that though the husband was examined later, he does not say anything that she was either cruel in her behaviour or she ever misbehaved with him on any occasion. According to the aforesaid Clause (iii), two elements are necessary to get a decree. The party concerned must be of unsound mind or intermittently suffering from schizophrenia or mental disorder. At the same time that disease must be of such a kind and of such an extent that the other party cannot reasonably be expected to live with her. So only one element of that clause is insufficient to grant a decree.

16. The case of Bennett v. Bennett (1969-1 All ER 539) (supra) shows that the parties were married in 1965, but were together for only short periods. Before the marriage she was admitted to a mental hospital on two occasions, she received shock treatment and was subsequently discharged. The husband was not aware of those facts. In Nov., 1965, the husband returned home and came to know of the same. The he went abroad and returned in 1966. He did not see the wife. But he immediately consulted a solicitor and filed a petition for a decree of nullity under Section 9 of the Matrimonial Causes Act, 1965. It has been held that there was no evidence that the wife had suffered from recurrent attacks of insanity, within the meaning of Section 9 (1) (b) (iii), insanity being interpreted to mean the same as unsoundness of mind in Section 9 (1) (b) (i). It has been further held that although the wife had been temporarily insane and of unsound mind for a short period in 1955, she suffered from a temporary hysterical nurosis, within the definition of mental disorder in Section 4 of Mental Health Act, 1959. There was no evidence that she was suffering from a mental disorder of such kind or to such an extent as to be unfitted for marriage and the procreation of children, within the meaning of Section 9 (1) (b) (ii) of the section. The husband's petition was, therefore, dismissed. The case of Cleary v. Cleary (1974-1 All ER 498) (supra) is on adultery and has therefore no bearing on the facts of the present one. The next case of Thurlow v. Thurlow (1975-2 All ER 979) (supra), cited on behalf of the appellant, shows that the wife was suffering from increasinglysevere nurological disorder and she ceased to do any house work. The husband had to do the house-work and nurse the wife in addition to his full time employment. She had an attack of epilepsy. So, that case is also distinguishable.

17. It has been contended on behalf of the respondent that the husband filed an application before the learned District Judge that the wife was completely insane and without her medical examination, his case could not be proved. The wife was not willing to subject herself to any medical examination. Hence the prayer was not allowed. The Full Bench case in : AIR1971Cal1 has been cited. It has been stated that in that case one of the parties to the marriage was reluctant to be examined by a doctor. Since Rita was not willing to get herself examined by a doctor, there will be an adverse inference against her.

17-A. That case is clearly distinguishable because that was a case of impotency and not of insanity. Moreover, there is no provision in the Hindu Marriage Act, 1955, or in the rules framed thereunder or in the Civil Procedure Code or in the Indian Evidence Act to compel the wife to subject herself to such medical examination. The P. W. 1 Dr. Govinda Sen examined her twice. The matter would not have improved by her examination again by a doctor. So there is no scope for drawing any adverse inference.

18. It has been further contended on behalf of the respondent that there will be an adverse inference because her mother was not examined. This contention cannot be accepted because the wife was under no legal obligation to examine her mother. The husband has to prove his own case and he cannot succeed on the weakness of the wife's case. There can be no adverse inference for the non-examination of Rita's mother.

19. The prescriptions, Ext. 1 series, show that only tranquilisers were prescribed for her. The husband's version is that in 1976 her madness did aggravate. But the letter Ext. B (9) dated 9-1-1976 will show that after an examination she was selected as a candidate for training in the education institution. True the prescription Ext. 1 (a) dated 30-6-1976 reveals that she was in an anxious state of mind. But such anxiety is expected of such a young wife because her letter Ext. B (3) of March 1976, clearly shows that thehusband's side was having consultationswith lawyers and she asked her mother not to go to see her for her husband's elder brother forbade anyone of her house to go to her.

20. Thus from the aforesaid discussion, the contention put forward on behalf of the respondent cannot be sustained. We are clearly of opinion that she only has slight mental disorder and she has been suffering intermittently from the same. But after considering the totality of the evidence and the impact on the husband we must hold that such mental disorder is not of such a kind and to such an extent that the husband cannot reasonably be expected to live with her, within the meaning of the second portion of Clause (iii) of Section 13(1) of the Act. One expects that the husband would be tolerant and not file a suit for divorce seven years after the marriage, specially when a child was born. We, therefore, find that the decisions arrived at by the learned Additional District Judge are erroneous.

21. The appeal is allowed. The judgment and decree of the trial Court be hereby set aside and the suit dismissed.

22. There will be no order as to costs.

Banerjee, J.

23. I agree.


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