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Kartik Chandra Banerjee Vs. Sm. Manjurani Banerjee and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 770 of 1969
Judge
Reported inAIR1973Cal545,78CWN36
ActsHindu Marriage Act, 1955 - Section 12; ;Evidence Act, 1872 - Sections 101 to 104 and 114
AppellantKartik Chandra Banerjee
RespondentSm. Manjurani Banerjee and anr.
Appellant AdvocateAmalendu Mohan Mitra and ;A.N. Basu, Advs.
Respondent AdvocateNagendra Mohan Saha, Adv.
DispositionAppeal dismissed
Cases Referred(Bishun Deo v. Seogeni Rai
Excerpt:
- .....and the first respondent ought to be annulled on the ground that she was a lunatic at the time of marriage and his consent to the marriage was obtained by practising fraud on him. 5. further case of the appellant is that he had to spend rs. 1,000/- in the marriage and the second respondent is liable to make good the loss as on his mis-representation, he agreed to bind himself with the marriage tie with the first respondent. 6. both the respondents contested the proceeding and in their written statement they denied all material allegations. apart from the general denial, it was asserted that the appellant gave consent to the marriage after protracted negotiation and proper enquiries about 'physical, mental and social conditions' of the first respondent. it was, however, admitted.....
Judgment:

A.K. Sinha, J.

1. This is husband's appeal against dismissal of his application for declaration of his marriage with respondent No. 1, the wife, as nullity and for consequential reliefs, preferred in this Court briefly, in the following circumstances :

2. Shortly put, the petitioner's case is that on the negotiations of the appellant's uncle and other relations and the father of the first respondent, marriage between him and the first respondent was solemnised on 4th June, 1964 after performing Hindu rites of 'Sampradan and Kusandika' at the residence of the first respondent. But after solemnisation of marriage when the first respondent was brought to the residence of the appellant on 5th June, 1964 at about 7.15 p. m. she was found not to have been behaving like a normal person at night. As according to the custom that was a night technically called 'Kal Ratri' when the husband and wife could not meet, she had to remain in a separate room. There she insisted on closing all windows and doors and pulling off the ceiling fan although it was extremely hot. She also covered her body with a thick bed-sheet by lying on the bed and indulged in incoherent talks behaving like a lunatic during the whole night. On the next morning, she refused to cleanse her teeth or take her bath and as she talked incoherently 'Ful-sajja' ceremony could not be performed. On the following day of Baubhat ceremony she indulged in similar behaviour and although she was forced to take bath and persuaded by her parents to wear wedding 'sarees' and ornaments she continued to behave abnormally by talking incoherently and throwing some of her ornaments. At night also at certain times she even asked the appellant to lie flaton his back so that she could pose like Goddess Kali standing on God Shiva.

3. It is alleged that on the next morning i.e. on 8th June, 1964, first respondent was taken to her father's residence by her parents but on enquiry the appellant came to know that the first respondent was a lunatic from long before the marriage and she was not cured by treatment.

4. It is also alleged that the father, the respondent No. 2. concealed the lunacy of the first respondent at the time of negotiation of marriage and obtained the appellant's consent by such fraudulent concealment and false representation. It is alleged, therefore, that the marriage between the appellant and the first respondent ought to be annulled on the ground that she was a lunatic at the time of marriage and his consent to the marriage was obtained by practising fraud on him.

5. Further case of the appellant is that he had to spend Rs. 1,000/- in the marriage and the second respondent is liable to make good the loss as on his mis-representation, he agreed to bind himself with the marriage tie with the first respondent.

6. Both the respondents contested the proceeding and in their written statement they denied all material allegations. Apart from the general denial, it was asserted that the appellant gave consent to the marriage after protracted negotiation and proper enquiries about 'physical, mental and social conditions' of the first respondent. It was, however, admitted that on 'Boubhat' night the first respondent suffered from temporary nervous break down because of separation from parents and her migration to a new house where the members were unknown to her and further due to stress and strain of the marriage ceremony. That malady, however, was removed when she took some medicine prescribed by a Doctor and fell into deep sleep. It is alleged that she had no ailments from the next morning but in spite of various attempts thereafter the appellant refused to take her back.

7. Upon these pleadings quite a number of issues were framed and as many as 10 witnesses were examined on behalf of the appellant while the respondents examined themselves and one of the witnesses and some documentary evidence were also adduced by both parties. The learned trial Court on evidence found as a fact that although the first respondent betrayed certain signs of abnormality on next two days after the solemnisation of marriage she was not a lunatic at the time of marriage. On the question of fraudulent suppression or concealment of lunacy of the first respondent at the time of negotiation of marriage, the learned trial Court equally found that case of obtaining consent by a fraudulent representation or concealment of alleged lunacy of the first respondent was not established and the appellant was also not entitled to a decree for compensation of Rs. 1,000/- or any amount and accordingly dismissed the application. That is how in short the appellant being aggrieved has preferred the present appeal.

8. Now in this appeal before us the first question if not the only question, that arises for consideration as to whether or not the first respondent was a lunatic at the time of marriage is pre-eminently a question of fact based on evidence. The learned trial Court, it appears, gave a number of reasons for not accepting the evidence adduced on behalf of the appellant and came to the conclusion that the first respondent was not a lunatic at the time of marriage. We do not think we can take a view of the evidence different from that of the trial Court. Although as many as 10 witnesses were examined we do not find any of them speaking about any abnormal mental condition of the first respondent excepting certain behaviours appeared to have shown by her on the next successive three days after the marriage. It is in evidence that Dr. Lal Mohan Ganguly who was a tenant of the foster monther of the appellant introduced the father of the first respondent to the uncle of the appellant and thereafter negotiations started and the marriage was settled. It is rather surprising that Lal Mohan Ganguly, a medical practitioner himself was not cited as a witness in this case although he was the person who introduced the father of the first respondent to the uncle of the appellant for negotiating the marriage. He must have been quite intimate with both families and naturally he would have been one of the most important witnesses to disclose the mental condition of the first respondent No explanation is given why this gentleman was not examined. Then, the P.W. 3, P.W. 4. P.W. 5 and P.W. 6 are all friends of the appellant whose evidence we do not think is of any importance excepting that they have stated abnormal behaviour of the first respondent on the night of Boubhat ceremony. Some of them have said that apparently they could not detect anything unnatural but from certain behaviour they suspected something wrong but at the same time witness No. 2 suggested to the appellant for medical treatment to which the appellant did not respond excepting saying that he suspected her to be a lunatic. It may be taken therefore that even on that night the appellant was only suspicious. How then, he was confirmed in his suspicion? The first respondent, it is admitted, was taken by the father on the next morning after the ceremony to his house and thereafter the girl never could come back to the husband. It is said by the appellant in his evidence that on enquiry he came to learn that his wife was a lunatic. On cross-examination he said that he came to know from one Hari Halder and Radha Ballav of Second Feeder Road, Bankura, but none of them has been examined in this case by the appellant as his witness. Of course, the appellant tried to explain awaytheir non-citation as witnesses on the allegation that they were the friends of his father-in-law which again is not corroborated by any of his witnesses.

9. Then again, the appellant himself stated before the Court in no uncertain term that he was not agreeable to get the first respondent examined and observed by specialists keeping her either in his house or in the House of her father nor he was agreeable to keep the first respondent under observation in the clinic of Dr. Davis, a reputed psychiatrist for any length of time. It is undisputed, again, that the first respondent had been prosecuting her studies in a Bankura Mission Girls High School and she was sent from the same School, though as a private candidate, to sit at the School Final Examination in the year 1964 (Ext. D) but the appellant, it is admitted in his evidence, did not make any inquiries from the School authorities about the mental condition of his wife. These documents together with a number of other documents if not challenged and in fact they are not challenged, would clearly establish that the wife had no mental maladies during the period upto 1964 when she was sent and did sit for examination under the Board of Secondary Education. The School Final, Examination as appears from Ext. 'A' (commenced from 23rd March, 1964, and the marriage took place admittedly on 4th June, 1964. It is impossible to conceive that a girl who had been suffering from any mental infirmities would be sent as a normal student to sit in the School Final Examination of 1964 unless there is cogent and clear evidence to show that these documents were fake or fabricated and did not disclose the real state of affairs. We must say in this case, that evidence is utterly lacking. So, the only reasonable conclusion could be that the girl who was quite in a healthy state of mind in March, 1964 maintained her normal mental condition even in June, 1964 when the marriage took place, unless there were proper and sufficient evidence to the satisfaction of the Court in proof of the fact that the girl became a lunatic at the time of marriage. It is well established as stated by Raydon : 'the burden of proving the existence of a sufficient degree of unsoundness of mind at the time of marriage, to invalidate it, is in all cases on the person impugning its validity. But if permanent unsoundness of mind is proved the burden of showing that the marriage took place during a lucid interval lies on the person seeking to uphold it; subsequent recovery of the person of unsound mind does not affect the question of validity' (See Raydon on Divorce 11th Ed. p. 124). Clearly, in this case the entire burden of proving the lunacy of the first respondent at the time of marriage as pleaded in his petition lay heavily on the appellant but that burden has remained undischarged by him.

10. It is, however, contended by Mr. Mitra on behalf of the appellant, in the firstplace, that the Doctor who gave certain medicine to the first respondent at the instance of his father on the first night after the marriage when she began to behave abnormally was not called in as a witness. The medicine thus administered, it is submitted, was kept a secret and was never disclosed before the Court; secondly, it is said by the father of the first respondent that during the pendency of this case he took the first respondent to a psychiatrist in Calcutta who examined her and gave his opinion that she did not suffer from unsoundness of mind. This psychiatrist was also not examined by the father, it is, therefore, argued that in this case the best evidence has been withheld by the other side and necessarily adverse inference ought to be drawn against the respondents. We are unable to accept this contention as correct. For, on the first night the Doctor did not examine the first respondent. There is also no evidence to indicate that this Doctor had ever treated her. It is stated by the father that this Doctor gave some sedatives and after taking that medicine she fell asleep. This part of the evidence of the father is not challenged nor there is any other evidence to contradict that the medicine was something else than some sleeping drug. So, the evidence of this Doctor was neither material nor could have advanced the cause of the appellant. As regards the examination by a psychiatrist in Calcutta this happened long after the proceeding was started. At any rate, the opinion given by this medicine expert which though not admissible was not controverted. But merely because, the respondents did not get this psychiatrist examined, it cannot be said that adverse inference against the mental soundness of the first respondent should be made by the Court It is on the appellant and not on the respondent to prove by adducing the opinion-evidence of the medical expert to show that the allegation of lunacy of the appellant's wife stood corroborated also by the opinion of the medical expert. We have, however, already seen that the appellant obstinately refused to get his wife examined by any of the medical experts suggested to him when he came to the witness box to support his own case. The only consequence therefore is that the opinion of a psychiatrist as stated by the father regarding' the mental condition of the first respondent would he inadmissible but that fact by itself cannot establish the case of the appellant far less to raise an adverse inference against the respondents on the question of lunacy of the first respondent at the time of marriage.

11. Mr. Mitra has lastly contended that the first respondent did not submit to observations in Calcutta Nursing Home by a mental specialist though offered by the appellant to do so But, we find that this offer was made only at the time of inquiry under Order 32, Rule 15 of the Civil P. C. It appears from the relevant order of thelearned Trial Court that the Chief Medical Officer, Bankura, was directed to examine the first respondent who after such examination, as already noticed, gave his report certifying that the first respondent was of sound mind. So the evidence of at least one medical man like the Chief Medical Officer of the District is in favour not of the appellant but of the first respondent. It was therefore all the more necessary for him to get the wife examined by proper medical experts to contradict the opinion of the Chief Medical Officer and to establish his own case in proof of lunacy.

12. This apart the peculiar feature of this case is that the first respondent was sent back to her father's place immediately after the ceremony on the third day was finished. It is in evidence in this case that she was not brought back by the appellant in his matrimonial home again. On the contrary, in an undue haste the present proceeding was started in less than 3 weeks from the date of marriage. It may be that on next two or three nights after the marriage the first respondent showed certain abnormal behaviours but these facts by themselves without more by no means could establish that the first respondent was a lunatic at the time of marriage. In this case, the appellant and his relations who negotiated the marriage adopted an attitude which to say the least, was highly unnatural and unusual for in such a situation the reasonable attitude of appellant's near relations ought to have been to keep the first respondent with them and watch at least for some time to see whether she was really suffering from insanity. It is common experience that man may behave sometime like an insane person; but because of such behaviours it would be dangerous to conclude that such a man is a lunatic.

13. The learned trial Court, it appears, also considered that in any case there was no evidence of any abnormal behaviour of the girl at the time when the marriage was solemnised. Although that is too technical but having regard to the facts and circumstances of this case we fully agree that the learned trial Court was justified in taking such a view of the entire matter as there is practically no evidence of lunacy of the first respondent adduced in this case. Even if, there was any such evidence of abnormal behaviour on the night when the marriage was actually solemnised, we do not think, that evidence would have been sufficient to establish, on the facts of this case, that the first respondent was a lunatic at the time of marriage. For, question often may and in absence of statutory meaning given under the Act as to what is lunacy or who is a lunatic person. In absence of any such definition, the word 'lunacy' must be taken in its ordinary significance i.e. a person suffering from unsoundness of mind or insanity, which may again be intermittent or permanent. The question nevertheless is a complex one andmust be decided by the Courts on the facts of each case. No hard and fast rule can be laid down to deduce a conclusion on a set pattern. Medical evidence may not always be given in all cases or may not be in all circumstances a determining factor but nonetheless it is one of the most important elements of evidence. Even in a case of intermittent insanity we think many factors have to be considered including both pre-nuptial and post nuptial physical and mental state of the wife or the husband, as the case may be, to determine whether he or she suffered from lunacy at the time of marriage. The question was discussed at some length in a decision of Allahabad High Court in Titli v. Alfred Robert Jones, AIR 1934 All 273 at pp. 282-283, it was held amongst other things following the principle laid down in Danial Mcnaughten's case that the medical science might have a long category of various degrees of abnormality considered to be insanity but that is not the legal view. 'The law has set up a very high standard as the only test which has been laid down is as to whether the person was by reason of unsoundness of mind incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law.'

In an English decision in (1953) 2 All ER 1411, In the Estate of Park, the question was discussed in some details and relying on the same principle in Mcnaughten's case and on long line of other decisions it was held that the dispute was to be resolved by finding whether he or she was capable of understanding the nature of the contract of marriage into which he or she was entering free from the influence of morbid delusion of the subject and not whether he or she was only passing through the ceremony of marriage. It is not necessary to deal with this point in further details for applying the test indicated in the above decisions it may safely be said that no evidence was adduced on the material question in this case in proof of lunacy of the first respondent. In our opinion, therefore, the appellant has failed to establish case of lunacy of the first respondent at the time of marriage.

14. The next issue of importance relates to whether the consent of the appellant was obtained by a fraudulent concealment of the lunacy of the first respondent at the time of marriage. Mr. Mitra, learned Advocate, for the appellant, did not seriously press this question. We do not see also any substance in this point, firstly because, no particulars of fraud have been given by the appellant in his substantive petition. What has been stated in paragraph 7 of his petition is that the 'Opposite party Nos. 1 and 2 concealed this from the knowledge of the petitioner and obtained his consent to solemnisation by such concealment. Opposite Party No. 1 was represented to be a normal person by her father and the petitioner believed his representation while solemnising the marriageas aforesaid.' This being the nature of pleadings of fraud or fraudulent concealment, no evidence ought to have been permitted to be adduced and even if adduced, should not have been looked into as essential pre-requisities namely particulars of fraud as required under Order 6, Rule 4 of the Code, were not given. It is well-settled that under the rule of pleading mere mention of fraud or fraudulent act of concealment is totally ineffective in absence of particulars of such fraud. (See 15 Ind App 119 (PC), Ganga Narain Gupta v. Tiluckram Chowdhury and : [1951]2SCR548 , (Bishun Deo v. Seogeni Rai) -- Secondly, the evidence in this case falls far short of lunacy and as the learned Court below has held, we think rightly, that the girl had not been suffering from lunacy at the time of marriage, question of suppression or concealment of lunacy by practising fraud could not arise.

15. The next question of payment of compensation amounting to Rs. 1,000/- equally for the same reason does not require any consideration. In view of the finding that the first respondent was definitely a normal girl, clearly, the appellant is not entitled to any compensation whatsoever. In our opinion, the decision given by the learned trial Court is correct.

16. Before we part with this case, we must record that this matrimonial proceeding has been unnecessarily protracted. It appears, the application was made on 22nd June, 1964. It is rather surprising to find that although the matter was taken up for hearing on November 29, 1966, it took more than one and a half years to complete the hearing. We do not find any substantial ground from the records as to why there was such an inordinate delay in disposing of this matrimonial proceeding. It would be the first endeavour of the Court concerned to dispose of matrimonial proceeding particularly in cases where the witnesses examined are not numerous but few and the evidence either oral or documentary do not appear to be voluminous. The appeal in this Court was also dragged on for unusual length of time. It is well to remember that in a proceeding where the question of breaking off a matrimonial home or dissolving a marriage tie arises, inordinate delay in pronouncing the judicial verdict in a Court of law may often be met with serious consequences. For, long and protracted proceeding often bring about total fruitration in the life of the spouse as having lived a life of separation for long years in spite of their best efforts they may be completely overpowered by play of time to get themselves adjusted to another mode of life which the Court may declare to be the only way for them in future.

17. The result, however is, this appeal is dismissed with costs. Hearing fee assessed at 30 GMs.Re: Application dt. 6-9-1972.

18. After hearing the learned Advocate on either side we do not think, we shouldpay any further costs to the first respondent as we have awarded costs in favour of the respondents in the appeal. The application in so far as prayer for litigation costs is concerned is disposed of accordingly.

Sen Gupta, J.

19. I agree.


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