Bijayesh Mukherji, J.
1. This is an appeal by the wife Anima Roy, whose marriage with the respondent Probodb Mohan Roy, a learned Additional District Judge, Alipore, has declared, by his judgment and decree dated February 28, 1966, to be null and void.
2. The appellant Anima and the res' pondent Probodh, Hindus both, were married under the Hindu rites on July 3 1960, when Anima was 25 and Probodh 37.
3. The Hindu Marriage Act, 25 of 1955, came into force on May 18, 1955.
4. Section 12, Sub-section (1), Clause (b), of the Act makes any marriage, whether solemnized before or after May 18, 1955, voidable, and provides for its annulment, by a decree of nullity, if it contravenes Section 5, Clause (ii), thereof. Section 5, Clause (ii), in turn, provides that a marriage may be solemnized between any two Hindus if neither party is an idiot or a lunatic at the time of the marriage.
5. The husband respondent raises a matrimonial cause in the Court of the District Judge, Alipore, for annulling, by a decree of nullity, his marriage with the appellant, Sm. Anima Roy, on the ground that she was a lunatic on July 3, 1960, the date of the marriage. The date when he does so is May 29, 1963, a little less than three years after the marriage.
6. The appellant wife resists such a cause and denies that she was anything of the kind; a lunatic, on July 3, 1960, or ever.
7. The learned Judge in the Court of first instance who has had the advantage of hearing and seeing the appellant Anima, has 'not the slightest doubt' that she is of sound mind at the time the cause is heard, that is, on and about February 21, 1966. He rejects too the evidence of Dr. Nagendra Nath De, the petitioning husband's first witness, who examined Anima on December 12 and 19, 1962, and found her to be insane. So he does, because insanity in December 1962 does not prove insanity on July 3, 1960. Yet he finds her to be insane on July 3, 1960, for the following amongst other reasons:
One, the evidence of another medical man, Dr. Arun Kumar Roy Chowdhury, the petitioning husband's second witness, who examined her on September 4, 1960, only two months after the marriage, and found her to be a patient of schizophrenia, a kind of lunacy, is deserving of consideration on the point whether or not she was a lunatic on July 3, 1960.
Two, the appellant acted in an unusual way on July 3, 1960, at, during and after the marriage ceremony, (i) by not looking at the respondent at the time of Subhadrishti (exchange of auspicious glances between the husband to be and the wife to be), (ii) by having torn off the garlands, not once, not twice, but thrice, at the time of the exchange of garlands (Mala Badal) between the husband to be and the wife to be, (iii) by having withdrawn her hand from the palm of the respondent at the time of the Sampradan (the giving away of the girl) and (iv) by having sat facing the wall of the room, with her legs stretched towards her husband in the Basar Ghar (where the spouses just married are taken).
Three, on July 5, 1960, when the ceremony of Fulsajyya (a bed of flowers) was had, the appellant did not join the respondent, her husband then, in his bed, but spent the night, seated on a Satranji spread over the floor, with a newspaper right in her front, in spite of the respondent having invited her to come to him. Worse, towards the end of the night, she raised a shout, and asked why she did so, she gave no reply.
Four, between July 4, 1960, and July 11, 1960, when the appellant was in her matrimonial home, she talked incoherently, wore vacant looks, did not respond to any question, proved herself to be disobedient and went without a veil.
8. The learned trial Judge, therefore, voids the marriage of July 3, 1960, between the appellant and the respondent and enters a decree for nullity. Hence the appeal by the wife.
9. Much the most important point for determination in this appeal is whether or not the appellant was a lunatic on or about July 3, 1960, the date of her marriage with the respondent. But three matters need clearing up at the very outset. One, who can be called a lunatic for the purpose of marriage? Two, upon whom lies the burden of proving that the appellant is a lunatic at the relevant time? Three, what is the standard of proof required in a case of this type?
10. On the first matter, Mr. Das Gupta, appearing for the appellant, refers us to Ratneswari Nandan Singh v. Bhagawati Saran Singh, AIR 1950 FC 142, and contends that there are various degrees of lunacy or insanity and that unless total loss of reason, incapacitating a party to the marriage to understand the very ceremony of the marriage, is found, the extremely strong presumption in favour of the validity of the marriage remains unrebutted and, therefore, prevails. That no doubt is the law laid down by the Judicial Committee of the Privy Council in Mouji Lal v. Chandrabati Kumari, (1911) 38 Ind App 122=ILR 38 Cal 700, and reiterated by the Federal Court in the Ratneswari case, AIR 1950 FC 142 supra. But that is the old Hindu Law under which insanity or lunacy was not a disqualification for purposes of marriage, none of the early Smriti writ' ers having made such unfortunate ailment a disqualification, as pointed out by Mukherjea, C. J., (then Mukherjea, J.) in the Ratneswari case, AIR 1950 FC 142. Or, as Sir Gurudas Banerjee says in his Tagore Law Lectures on Marriage and Stridhan:
'Even considering Hindu marriage to be entirely a sacrament, the acceptance of the bride is a necessary and indispensable part of the ceremony. Therefore, he, whose loss of reason is complete, should be deemed incompetent to accept the gift of the bride. Such marriage is invalid on the ground that the capacity for performance of the essential ceremony of the marriage is lacking in the bridegroom.'
quoted in the very case: the Ratneswari case, AIR 1950 FC 142 supra.
11. But the law that rules this litigation is not the old Hindu Law, The law that rules this litigation is the Hindu Marriage Act, 25 of 1955. And that law, by Section 12, Sub-section (1), Clause (b), and Section 5, Clause (ii), provides for annulment, by a decree of nullity, of a marriage with a lunatic. That is all the Hindu Marriage Act says. The Act does not say anything about various degrees of lunacy. But who is a lunatic? The Hindu Marriage Act does not even define a 'lunatic'. The Lunacy Act, 4 of 1912, does, as Mr. Ghosh, appearing for the husband respondent, points out. By Section 3, Clause 5, thereof, 'lunatic' means an idiot or a person of unsound mind. The definition thus says that 'lunatic' 'means' (it does not say 'includes') an idiot or a person of unsound mind. It is, therefore, a hard and fast definition and we cannot give any other meaning to the word 'lunatic' than that which is mentioned in the definition itself. We say so, merely adopting (to the context here) what Lord Esher, M. R,, said about the hard and fast definition of 'landlord', in Gough v. Gough, In re Agricultural Holdings (England) Act, 1883, (1891) 2 QB 665 (674). Hence, going by the language of the Hindu Marriage Act, It is not possible to make room for different degrees of lunacy. No doubt, while Section 5, Clause (ii) of the Hindu Marriage Act 1955, makes a difference between an idiot and a lunatic, Section 3, Clause (5), of the Lunacy Act regards an idiot as much a lunatic as a person of unsound mind. But that does not matter. Because the respondent husband's case is rested on the appellant wife's lunacy and lunacy alone. So, can it be said upon evidence that appellant Anima is a person of unsound mind at the time of the marriage? If it can be said so, she is then a lunatic on the crucial date, and the decree of nullity granted by the learned trial Judge will stand. If, however, it cannot be said so, she is not a lunatic on the crucial date, and the decree of nullity recorded by the learned Judge must be discharged. That is how we clear up the first matter.
12. On the second matter -- upon whom lies the burden of proving the appellant Anima's lunacy -- the obvious answer is: upon the respondent husband who petitions the Court below for a decree of nullity on the ground of the appellant wife's insanity. In support of this proposition, self-evident though, here is a quotation from Rayden on Divorce, 8th Edition, at page 221:
'The burden of proving unreasonable delay, cruelty, adultery, desertion, wilful separation or conduct conducing, lies, it is submitted, on the party alleging it; as does that of proving insanity and estoppel.'
13. Coming nearer home to the fasciculus title -- Of the burden of Proof --in Chapter 7 of the Evidence Act, 1 of 1872, here is the respondent husband who desires the Court to give judgment, as to his legal right of having a decree, dependent on the existence of his wife's lunacy on or about July 3, 1960 -- a fact which he asserts -- and, he must, therefore, prove that this fact of insanity exists. So, by virtue of Section 101 of the Evidence Act 1872, the burden of proof lies on him. Again, he would fail if no evidence at all were given on either side. So, by virtue of Section, 102 of the Evidence Act 1872, the burden of proof in this matrimonial cause lies on him too. This is what we find on the second matter.
14. On the standard of proof - and this is the third matter we have set out for having cleared up -- we must notice first what Subba Rao, C. J.( (then Subba Rao, J.), says in Lachman Utamchand Kripalini v. Meena alias Mota, : 4SCR331 . His Lordship refers, in detail, to Bipinchandra Jaisingbai Shah v. Prabhavati, : 1SCR838 , and sums up the law on the standard of proof thus:
'In short, the Court equated the proof required in a matrimonial case to that in a criminal case.' That, however, is the standard of proof required in a matrimonial cause rested on desertion, as the Bipinchandra, : 1SCR838 and Lachman, : 4SCR331 cases are rested. In fine, the allegation of desertion must be proved beyond reasonable doubt, as an accused man's guilt has to be proved beyond reasonable doubt in a criminal trial.
15. But the case on hand is rested on insanity of a spouse -- the appellant Anima. The standard of proof in a case of this type is not as high as that. Here is a quotation once more from Rayden on Divorce ibid at page 222.
'4. Standard of proof. -- At the end of the case the Court must be satisfied that there has been no collusion, connivance or condonation on the part of the petitioner; but while, in an allegation of condonation, the Court need only be satisfied on a balance of probabilities, connivance certainly, and collusion probably, must be strictly proved by the person alleging it. The same standard as in the case of condonation applies to insanity. ..................'
In other words, in an allegation of Insanity (as here), the Court need only be satisfied on a balance of probabilities. That then is the standard of proof we keep in the forefront of our consideration, in weighing the evidence -- which we now proceed to do.
16. The learned trial Judge finds the appellant Anima to be a person of sound mind at the time of the trial in February 1966. Even before the case is brought to trial, the District Judge, Mr. Amiya Nimai Chakrabarti (now Mr. Justice Chakrabarti), examines her, finds her 'capable of protecting her interest as a defendant', and strikes off her representation by a guardian ad litem, namely, her father: just the manner in which she is represented in the original petition for a decree of nullity filed by her husband: vide order No. 17 dated September 3, 1963. These two findings by two different Judges are emphasized on behalf of the appellant Anima. To this may be added that we too have had the advantage of seeing Anima in Court: quite a normal person in every way. Indeed, we had directed both the spouses to attend Court on September 16, 1968, so that we could do our little to effect a reconciliation between them. But we refrained from doing so, as the respondent husband was very firm in his attitude in not taking her back to the matrimonial home. Indeed, Mr. Ghosh told us on his behalf, he was adamant, with no desire of having a progeny of lunatics. For that we do not consider the husband to be blameworthy. Surely he is entitled to hold what he feels honestly he should. All we were after was an endeavour to bring about a reconciliation, as indeed it was our duty to do under Section 23, Sub-section (2), of the Hindu Marriage Act 1955.
17. So, let all this be left alone, without the slightest prejudice to any party, and certainly with no presumption whatever adverse to the husband respondent who, we repeat, has been within his rights to do what he has done. That is not the point on the merits of the case. The point is, the sanity and equipoise of the appellant Anima, of which one Judge was satisfied in September, 1963, another Judge was satisfied in February, 1966, and we are satisfied in September, 1968, does not, by itself, prove her sanity and equipoise on July 3, 1960, and thereabouts. By parity of reasoning, her insanity, as testified to by Dr. Nagendra Nath Dey, the petitioning husband's witness No. 1, who examined her first on December 12 and 19, 1962, and granted a certificate (Ext. 1) on March 11, 1963, and again examined her on May 2, 1963, granting a certificate (Ext. l(a)) on May 15, 1963, does not, by itself, prove her insanity on that crucial date: July 3, 1960, and thereabouts. The learned trial Judge is unable to hold on the basis of such evidence that Anima was insane on July 3, 1960. So are we.
18. In Dr. De's evidence, there is at least one bad feature (out of so many) which we cannot very well pass by. He asks the Court to believe that he got the family history of the appellant Anima from her father, Lalit, the appellant's witness No. 1. Lalit's evidence is that he was not there when Dr. De was examining Anima. That looks so probable for two reasons. One, a father, placed as Lalit was, and that too more than two years after his daughter's marriage, on the verge of shipwreck then, would not, in the vast majority of cases, be so frank as that, helping his son-in-law with material for a decree of nullity. Two, Dr. De cannot remember who had identified Lalit before him. Worse still. Dr. De cannot even deny if the respondent husband had ushered before him somebody else introducing him as Anima's father. More, such a one, the respondent husband says in his evidence that Dr. De had talks with Lalit in absence of his daughter Anima, Normally, a patient like Anima and her father wait on a doctor at the same time. One does not go apart from the other. Upon the whole of the evidence, including that of the respondent husband, we believe the testimony of Lalit and find as a fact that he had not made any statement ever to Dr. De. So we do, disagreeing with the learned trial Judge who observes:
'It is very likely that the father is not now speaking the truth.' We hold instead, the likelihood is the other way about, the more so, as the respondent husband is then 'up and about' collecting certificates, one on March 11, 1963, (Ext. 1), and another on May 15, 1963, (Ext. l(a)), only a few days ahead of the commencement of the present matrimonial cause.
19. The next medical man examined is Dr. Arun Kumar Roy Choudhury, the petitioning husband's second witness. His eminence as a psychiatrist is not denied, What is denied is that his evidence, taken as a whole, proves, the insanity of Anima on or about July 3, 1960. A little more than 2 months after July 3, 1960, the date of the marriage, to be exact, on September 4, 1960, he examined Anima and found her to be a victim to schizophrenia, a kind of lunacy. But when did Anima have this ailment? Let Dr. Roy Choudhury answer it;
'She might have developed it in the course of two months or in the course of five years.'
Such 'liquid' evidence, without more, does not enable us to hold that Anima had this kind of lunacy on or about July 3, 1960. It is significant that Dr. Roy Choudhury speaks of two months, as if to fix the starting of the ailment two months back, that is to say, on or about July 3, 1960. But when you are indulging in a guess -- as indeed Dr. Roy Choudhury does -- why say two months, somewhat dogmatically? It might be two weeks as well.
20. That apart, the 1st report of Dr. Roy Choudhury is in the form of a letter dated October 10, I960 (Ext. 2), to Dr. Sankar Chowdhury whose patient Anima was and who bad sent Anima to Dr. Roy Chowdhury. But Dr. Sankar Chowdhury, the first to examine Anima, is not examined. The second report dated December 11, 1962, (Ext. 2(a)), is on the basis of records kept by Dr. Roy Chowdhury. So the records are the primary evidence, not forthcoming at the trial, and the report is the secondary evidence. But we make no point of it, having regard to the eminence of Dr. Roy Choudhury. The interesting feature about the second report is that Dr. Roy Chaudhury does not attribute to Anima's father, Lalit, any of the details about his family history as Dr. De does. All that he attributes to Anima is that she is of a reserved nature, remaining idle, taking no interest in the surroundings, and suffering from insomnia as well as anorexia, an orotund expression meaning lack of appetite. Call such a one insane? Then, the world is full of insane people. Be that as it may, let Dr. Roy Choudhury's evidence that Anima was found to be a patient suffering from schizophrenia on September 4, 1960, be accepted, for what it is worth. But, without more, from such evidence the conclusion does not follow that Anima was just so on or about July 3, 1960, the date of her marriage, as is the finding come to by the learned trial Judge as well:
'So, his (Dr. Roy Choudhury's) evidence does not prove that Anima Roy was of unsound mind on July 3, 1960.'
21. But, it is said, there is a lot more: all that had happened at the date of the marriage and thereabouts, as set out in paragraph 7 ante. If all that can be believed, sure enough it will lend assurance to what Dr. Roy Choudhury found on examination of Anima on September 4, 1960. But, can all such allegations be believed? Do some of them, even if believed, give rise to the ineluctable inference of Anima having been a lunatic? The learned trial Judge answers the two questions just posed in the affirmative. We do not. We proceed to state why.
22. Subhadrishti, (exchange of auspicious glances between the husband to be and the wife to be) is part of Striachar (rituals observed by the women-folk) just before the sacred mantras are uttered to solemnize the marriage under the Hindu rites. The respondent husband says, Anima did not look towards him at all. The appellant wife says, it is not a fact that she did not look at her husband at the time of Subhadrishti. Once it is remembered that a veil is thrown over both at the time of Subhadrishti, the only witnesses to such exchange of glances must necessarily be Probodh and Anima, and none else. The barber, Manindra Nath Das, the petitioning husband's third witness says, however, that Anima did not look towards Probodh on such an occasion. But, certainly, he was not under the veil thrown over them both. Anybody knowing even a little about this part of the Striachar knows that a function as this is performed so. No doubt, Manindra is not cross-examined. But the story he tells is itself so incredible, the ceremony of Subhadrishti being performed in the manner it is. So, failure to cross-examine, emphasized on behalf of the respondent husband, cannot amount to an acceptance of Manindra's testimony on the point. See Phipson on Evidence 10th Edition, paragraph 1542: p. 595. And what remains is the evidence of Probodh and Anima. Anima's denial, the learned trial Judge does not take into his consideration. Upon the whole of the evidence, including the averment in the petition for a decree of nullity where not a word is stated about such evidence, we prefer her denial to other testimony to the contrary.
23. Say, Anima did not look towards Probodh then, though we do not find it possible to say so. Can that be attributed to her insanity and insanity alone, to the exclusion of all other hypotheses? No; that is not possible either.
24. On the ceremony of exchange of garlands, also part of Striachar, the evidence of the respondent Probodh and his witnesses numbering 4, 6 and 7, namely, Anil Kumar Bhattacharjee, Subhasini (Probodh's aunt and also a mother unto him) and Surendra Nath Basu, is that Anima tore off the garlands, even 3 or 4 times, as some of them say. But that barber Manindra Nath Das, the third witness of the petitioning husband -- and a barber of the groom's party at that -- the most competent witness on the point, being nearest to the bride and the bridegroom then, says nothing of the kind. All he says is that Anima put the garland in the hand of Probodh. That explains absence of cross-examination of the barber, though so much commented upon. And what is Anima's evidence? She denies having torn off garlands ever. But she admits that once the garland tore off of its own. A natural event which has little in it to excite a surprise. The learned trial Judge passes such evidence by. We, for our part, accept the evidence of Anima and reject the over-coloured evidence of Probodh and most of his witnesses. Here also, say, the bride put the garland in the hand of the groom, as the barber says she did. Will that be attributed to Anima's insanity, to the exclusion of all other hypotheses? That cannot be. Various reasons other than insanity, such as over-shyness, extreme nervousness etc. might have led her to do what she had done, if at all.
25. Such is our approach too mutatis mutandis on the allegation of Anima having withdrawn her hand from the palm of Probodh at the time of the Sampradan ceremony. The denial of Anima, as also of her father Lalit, present during the Sampradan ceremony, has, however, been overlooked by the learned trial Judge.
26. Absence of cross-examination of Anil Bhattacharjee and Surendra Basu, the petitioning husband's witnesses numbering 4 and 7, on such evidence touching the Sampradan ceremony, has been commented upon, and very rightly too. But Probodh has been cross-examined, though in a general way: that all his allegations against Anima are false. So, put at its highest, if the denial of Anima and her father Lalit be ignored, it may be said that when the Sampradan ceremony was on, Anima withdrew her hand from the palm of Probodh. Let her. Only for this, will it be said that she is a lunatic? We are clear in our mind, that cannot be said, to the exclusion of all other hypotheses. We are equally clear, the denial of Anima and Lalit does deserve to be taken into reckoning.
27. Now, we come to the allegation about Anima's behaviour in the Basar Ghar, where the spouses just married are taken, to spend the night in the midst of women-folk of the house of a certain age group. Probodh says in his evidence, Anima sat facing the wall and stretching her legs towards him. This appears to be an improvement upon his statement in the third paragraph of the petition for a decree of nullity -- a statement which we treat as evidence under Section 20, Sub-section (2) of the Hindu Marriage Act, 1955: that 'in the Basar Ghar she (Anima) all along kept silent, lay aloof in one corner with her back turned towards your petitioner'. If her back was turned towards Probodh, she could not have stretched her legs towards him except by an acrobatic feat which, we feel sure she is not capable of. Such evidence, self-defeating, produces disbelief in our mind, nothing to say of the fact that a girl, married a few minutes ago, is apt to keep silent instead of showing herself a garrulous wind-bag in the Basar Ghar.
28. On the Fulsajyya day on July 5, 1960, the gravamen of the charge against Anima is that she did not share the same bed with Probodh, though invited to do so. Her explanation is that she felt very tired and slept on the floor. We see nothing unbelievable in it. That apart, there are girls and girls. Some are pert and do not hesitate to jump into the bed with her husband on the very first night: the Fulsajyya day. Some are shy enough or frigid and have to be won over by-and-by. Certainly, this furnishes no indicium of anything approaching insanity.
29. Again, towards the close of the night on the Fulsajyya day, when Probodh is in the bathroom, Anima finds herself alone and raises a shout. Women who suffer from fear-complex do so. For that, the inference by no means follows that she is a lunatic at the relevant time. Asked why she has shouted, she keeps mum. What will such a one say in the midst of her new surroundings andin the circumstances proclaiming her weakness, of which she must be then feeling ashamed? No indicium of insanity can this be.
30. Thus, of the several counts of allegations that go before, covering July 3, 1960, the date of the marriage, and July 5, following, the Fulsajyya day, those we cannot bring ourselves to believe from the majority. And, in any event, it is impossible to spell out therefrom, taking singly or collectively, Anima's insanity, to the exclusion of all other hypotheses.
31. Now, to the other allegations, one by one. Anima stayed with her husband from July 4 to July 11, 1960, and left for her father's place at Sibpore. Again, she returned to her matrimonial home on July 27, 1960, and went away on July 31, following. During such stay, she, it is stated in paragraphs 4 and 6 of Probodh's petition for a decree of nullity, refused to take food at usual times, took no interest in social functions, talked irrelevant matters, was very careless about herself and obstinate too. Probodh's evidence, however, is not just that: on hunger setrike all along, she became a bit violent and tried to bite his hands. About the attempted biting, the petition is silent, Not even paragraph 12 avers anything, though the averment therein is about Anima's behaviour after January 1961, not in the last part of July 1960. Be that as it may, Anima denies all such allegations in a convincing manner. And she has not been cross-examined on the point and nothing like this has been put to her. Upon the whole of the evidence, we accept the denial of Anima as true.
32. During the 5-day stay again, and even later, up to the final separation of the two spouses, according to Probodh, he had had no sexual intercourse with Anima. Anima's evidence, however, is that the marriage was consummated --on which again there is no cross-examination. Everything apart it draws largely on our belief that Probodh and Anima, full of youth and strength, going by their outward appearance even now, would be closeted together for nights on end without their marriage being consummated. Here also we prefer Anima's evidence to Probodh's.
33. Now, we reach the end of 1961 or the beginning of 1962. According to Probodh's aunt, Subhasini, his sixth witness, Anima returned to her matrimonial home one year and a half after July 31, 1960. That would be in or about January 1962. That time also she stayed for four days. Subhasini then found her 'completely mad', because she was not wearing Sari but her husband's underwear instead. Such a grave and clinching allegation is, however, nowhere to be found in the respondent husband's petition for a decree of nullity. It clearly appears to be an afterthought and we reject such evidence. On top of that, insanity in January 1962 or thereabouts does not prove insanity on July 3, 1960, or thereabouts.
34. So far then about all sorts of allegations against Anima and her behaviour --allegations most of which we reject and most of which, taken singly or collectively, do not lead to the inference of Anima's insanity on the crucial date, July 3, 1960, or thereabouts.
35. Now, need looking into certain other matters, the first of which is that it was a negotiated marriage before which the respondent husband and his party, consisting of his aunt Subhasini and a friend Kartick, went to have a look at the girl twice or thrice, as Lalit and Anima say. Probodh says otherwise: he and his aunt Subhasini and Kartick did go to Sibpore to have a look at the girl (Anima), but only once. Usually and normally, in such negotiated marriage, one visit seldom does suffice. So, what Lalit and Anima say look more probable. Then, be it one visit or more, Kartick picked up conversations with Anima in presence of Probodh to whom, it appeared, Anima was talking 'slowly' and not 'smartly'. Let that be so. Sure enough, Anima did not strike them to be insane then: in or about March 1960. She did not, because she was not really insane. One to whom are attributed so many inelegant behaviours early in July 1960, did not exhibit any symptom like that then. We do not put it any the higher. And the probity, if not even the sanity, of the would-be husband, who wants his would-be wife to talk, not in a manner in which Anima was talking in such a meeting, may very well be in doubt.
36. Two prescriptions, one dated December 23, 1960, (Ext. 3), and another dated April 10, 1961 (Ext. 3 (a)), prescribing Largactil for Anima, have been pressed into service with a view to proving her insanity. But the maker of these prescriptions, Dr. S.N. Banerjee, is not examined. So why he prescribes so remains unknown. Such prescriptions get into evidence on the testimony of Dr. A.K. Roy Choudhury who knows the handwriting of Dr. S.N. Banerfee. That is all. No doubt, in chief, Dr. Roy Choudhury says that Largactil is prescribed for patients suffering from mental diseases. But all mental diseases do not make insanity. This is one consideration. Another is: in saying so in chief, Dr. Roy Choudhury shows himself to be a partisan witness, though it pains us to make this remark. Because, on cross-examination, he himself admits that, a tranquillising drug, Largactil is prescribed for patients suffering from other diseases too. That, indeed, is common learning. Thus, on the foot of such prescriptions, it is impossible to hold that Anima was a lunatic on or about even December 23, 1960 and April 10, 1961, And the same question again. Insanity, if that, then, does not prove insanity on or about the crucial date: July 3, 1960.
37. The two letters, Exts. 4 and 4(a), to Probodh, one by Bablu. Anima's elder brother, and another by Lalit, her father, have been very much in our mind. Certainly they show Anima suffering from a malady. Supplemented by the oral evidence of Lalit, we can go so far as to hold that it was an illness of her mind which fostered in her an unstable equilibrium, so much so, that she fainted on the news of the death of Alo Shome, a daughter of Lalit's nephew and her friend. But, some of us are endowed with a strong mind, and some are not. Those who are not do not prove themselves to be lunatics as a matter of course. Insanity is, no doubt, an illness of the mind. But every illness of the mind is not insanity. That is what we are anxious to stress and do stress.
38. The respondent Probodh, in his evidence, attributes to Bhandu Shome, a cousin of Anima, a statement that she was insane, even before her marriage. Bhandu alias Sunil Kumar Shome, Anima's second witness at the trial, pledges his oath to say that he had never said so. We believe Bhandu and disbelieve Probodh on the point. It is indeed difficult to take it for granted, in absence of further and better evidence, that a cousin will let his cousin down in this manner, even if his cousin were insane. These are matters which the afflicted one's near and dear ones go all out to keep hidden so that her life may not be blasted. That is natural human conduct. So, Probodh speaks much too much in attributing a statement like this to Bhandu.
39. Exhibit 6 is a khata, an exercise book, full of scribblings which, Anima owns, is hers. So what? In our idle moments, many amongst us do scribble so in a nonsensical manner. Sure enough, they are not so many lunatics. Such consideration apart, how the khata comes into Court remains a mystery. We have ransacked the record hi vain with a view to finding out who it was filed by and when So, the way in which it swooped down in Court when Anima was in the witness-box has something unsavoury about it. Had it been filed in the usual way, Anima and her legal advisers would have had notice of it and might have offered an explanation for such scribblings. Even then, Anima's candour in admitting her authorship of such scribblings shows her to be a witness of truth. Be that as it may, they do not prove her insanity.
40. We have been referred to Hender-son and Gillespie's Text book of Psychiatry (1962), Oxford Medical Publications. With interest and profit, we have gone through the observations contained at pages 281, 282 and 288, specifically referred to, and other pages too. This authority only confirms us in our belief that the lunacy of Anima, in the sense that she is down with schizophrenia, has not at all been proved. To come to a satisfactory and dependable diagnosis, which is beset with difficulties, what is needed is a close attention to the nature of the previous personality and to the adequacy of the previous social adjustments, followed by a prolonged observation, Neither Dr. Roy Choudhury nor Dr. De did anything of the kind. So, this authority can be of little help to the respondent husband. In sum, going by the balance of probabilities and upon the whole of the evidence, we are not at all satisfied that Anima was a lunatic on or about July 3, 1960.
41. There is still another matter which stands between the respondent husband and the relief of a decree for nullity he claims. Probodh was convinced by July 5, 1960, that his newly wedded wife Anima was a lunatic. He was convinced all the more on September 4, 1960, when Dr. Roy Choudhury pronounced her to be a patient suffering from schizophrenia. Why then his petition for a decree of nullity on May 29, 1963 -- some three years after that? why this unnecessary and most improper delay? He passed not a single night at his father-in-law's place. He made up his mind about the lunacy of Anima and treated her with scant attention and respect. Far from being satisfied, upon the whole of the evidence, that there has not been unnecessary and improper delay, we are satisfied just the other way about. Under Section 23, Sub-section (1), Clause (d) of the Hindu Marriage Act, 1955, we shall not, therefore, decree the relief he prays the Court for.
42. In the result, the appeal succeeds and is allowed. The judgment and decree of the Court below be set aside. The husband respondent's petition for a decree of nullity of the marriage on July 3, 1960, do stand dismissed.
43. Upon all we see, we direct, each party do pay and bear its costs, save that the litigation expenses, if paid already by the respondent husband during the car riage of the litigation, here and below, shall not be refunded. We direct so all the more, as the relationship between the parties has already been embittered by all that has happened. Let it not be embittered still more by costs which cannot but produce a festering recollection in the mind of one who has to pay.
44. I agree.