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Smritikana Bag Vs. Dilip Kumar Bag - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 181 of 1980
Judge
Reported inAIR1982Cal547,86CWN213
ActsHindu Marriage Act, 1955 - Sections 12(1), 13(1), 14 and 14(1)
AppellantSmritikana Bag
RespondentDilip Kumar Bag
Appellant AdvocateBhaskar Ghosh, Adv.
Respondent AdvocateSailendra Bhusan Bakshi and ;Sailendra Nath Dutta, Advs.
DispositionAppeal allowed
Cases ReferredSawita Devi v. Pran Nath
Excerpt:
- chittatosh mookerjee, j. 1. the appellant wife has preferred this appeal against the judgment and decree passed by the learned additional district judge, 12th court, alipore dissolving her marriage with the respondent hushand under section 13(1)(iii) of the hindu marriage act, 1955. the learned additional district judge, however, dismissed the prayer of the respondent husband for annulling the marriage of the parties on the ground specified in section 12(1)(b) of the said act. the respondent husband has also filed a cross-objection against the said dismissal of his prayer for annulment of their marriage.2. on 3rd march, 1976 the marriage between the appellant and the respondent according to hindu rites took place at 50/1, shib tbakurbari lane, p. s. behala, district 24 parganas. on 21st.....
Judgment:

Chittatosh Mookerjee, J.

1. The appellant wife has preferred this appeal against the judgment and decree passed by the learned Additional District Judge, 12th Court, Alipore dissolving her marriage with the respondent hushand under Section 13(1)(iii) of the Hindu Marriage Act, 1955. The learned Additional District Judge, however, dismissed the prayer of the respondent husband for annulling the marriage of the parties on the ground specified in Section 12(1)(b) of the said Act. The respondent husband has also filed a cross-objection against the said dismissal of his prayer for annulment of their marriage.

2. On 3rd March, 1976 the marriage between the appellant and the respondent according to Hindu rites took place at 50/1, Shib Tbakurbari Lane, P. S. Behala, District 24 Parganas. On 21st Sept., 1976 Dilip Kumar Bag, the respondent herein, had presented in the Court of the District Judge, 24 Parganas his petition for annulment of his marriage with the appellant under Section 12 and in the alternative for dissolution of the said marriage under Section 13(1)(iii) of the Hindu Marriage Act, 1955. Although the said petition for divorce was presented by the respondent husband before even one year had elapsed since the date of his marriage with the respondent, he did not make any application under the proviso to Section 14(1) of the Hindu Marriage Act for allowing him to present the said petition for dissolution of marriage. He did not plead any case of exceptional hardship to him or of exceptional depravity on the part of his wife. Therefore, it is patent that on the date of the presentation of the said petition, the Court below was not competent to entertain the respondent husband's petition for dissolution of his marriage with the appellant by a decree of divorce. But the said bar under Section 14 of the Hindu Marriage Act did not apply to the respondent's petition for annulling the marriage under Section 12(1) of the said Act. It is somewhat strange that none of the parties had drawn the attention of the Court below to the provisions of Section 14(1) of the Hindu Marriage Act and overlooking the said provisions, the Court below has dissolved by a decree of divorce the marriage between the appellant and the respondent.

3. We find from the records that on 1st April, 1977 the present appellant had filed her written statement in the present case and on 15th April, 1977 the trial Court had framed the issues. On 14th May, 1977 the respondent husband, who was the petitioner in the Court below, purported to file an application under Order 6, Rule 17 of the Code read with Section 39 (2) of the Marriage Laws (Amendment) Act, 1976. He prayed that ht might be allowed to amend his main application 'with a view to give further details and to avail of the reliefs provided in the Marriage Laws (Amendment) Act, 1976'. It was further averred 'that the main application was drafted in 'hot haste', due to oversight and inadvertence, proper details of happenings' were not given in the main application. It may be pointed out that the Marriage Laws (Amendment) Act, 1976 (Act 68 of 1976) was published in the Gazette of India Extraordinary Issue dated May 27, 1976 and on 21st Sept., 1976 the respondent husband had presented his petition for annulment and in the alternative for dissolution of the marriage with the appellant wife. Therefore, the provisions of Sub-section (2) of Section 39 of the Marriage Laws (Amendment) Act, 1976 were not attracted to the facts of the present case. But, undoubtedly the Court below had jurisdiction to allow amendments prayed for the purpose of determining the real questions in controversy between the parties. The Court below had allowed the amendments prayed for. Therefore, the present appellant had filed an additional written statement.

4. Mr. Bakshi, learned advocate appearing on behalf of the respondent husband, has not disputed that on the original date of his client's petition under Section 13(1)(iii), the trial Court was not competent to entertain it, but he has submitted that after expiry of more than one year from the date of marriage, the respondent husband had applied, inter alia, for amendment of his petition under Section 13(1)(iii) of the Hindu Marriage Act and we ought to treat the date on which the said amendment application was filed as the date of presentation of the instant petition for divorce. According to Mr. Bakshi, learned advocate for the respondent husband, therefore, the Court below was competent to pass the impugned decree for dissolution of the marriage between the parties.

5. A Hindu marriage no longer creates indissoluble ties' between the husband and the wife; and Section 13 of the Hindu Marriage Act, 1955 sets out grounds of divorce. But the legislature by enacting Section 14 has imposed a ban upon presenting a petition for divorce unless one year has elapsed from the date of marriage. In case of exceptional hardship to the petitioner or exceptional depravity of the respondent, the Court under proviso to Section 14(1) of the Act may, however, allow a petition under Section 13 to be filed within one year from the date of marriage. The sub-section (1) of Section 14 begins with the expression 'notwithstanding anything contained in this Act ... .. ...'. Therefore, in spite of other provisions including those of Section 13 of the Hindu Marriage Act, the Court cannot entertain any petition for divorce within one year of marriage. The suit is to be regarded as not entertained if it is thrown out at its inception without decision on its merits. The inability to entertain means not inability to grant relief to the plaintiff but inability to give him a trial at ail (vide observations of B. K. Mukherjea and Ellias, IT. in Nakul Chandra v. Shyama-pada Ghose, AIR 1945 Cal 381 regarding the scope of Section 37-A (3) of the Bengal Agricultural Debtors Act).

6. The object of Section 14(i) is clearly to prevent the parties from presenting a divorce petition without giving a trial to their marriage for 'at least one year. Thus, Section 14 has been enacted 'with the object of preventing hasty suits for dissolution of marriage' (see observations of Lord Denning in Bowman v. Bowman, (1949) 2 All ER 127 : 1949 P. 353-356, with reference to the provisions of Section 1(1) of Matrimonial Causes Act, 1937, which was replaced by Matrimonial Cases Act, 1950, Section 2; thereafter, by Matrimonial Cases Act, 1965, Section 2 and thereafter, by Matrimonial Cases Act, 1973, Section 3. See also Rayden on Divorce (13th Edition), Vol. 1, Chapter XI, Sections I and II, pages 316-320). Rayden on Divorce (13th Edition) in a note under Chapter XI, Section I page 349, has referred to Bamford v. Bamford, 1956 CLY 2831, where the marriage took place on 27th June, 1956 and it was held that the earliest date on which the petition could have been filed was 28th June, 1956 and accordingly the petition was dismissed). We agree with the observations made in Meganatha Naya-gar v. Shrimathi Susheela, : AIR1957Mad423 , that Section 14 of the Hindu Marriage Act is grounded on public policy and that it provides restrictions upon hasty recourse to legal proceeding without making any real effort to save the marriage.

6-A. We have already noted that the present respondent husband did not make any application before the trial Court for permission to present his petition for divorce within one year of his marriage with the present appellant. He did not plead or prove his exceptional hardship or exceptional depravity on the part of the wife. Therefore, the proviso to Section 14(1) was not attracted to the present case. Further, even in a case where such permission under Section 14(1) proviso is obtained by misrepresentation or concealment of the nature of the case, the Court has been given a discretion either to direct that the decree for dissolution shall not have effect till the expiry of one year from the date of marriage or to dismiss the petition without prejudice to file a fresh petition after expiry of one year from the marriage.

7. The decision of the Division Bench of Jammu and Kashmir High Court in Sawita Devi v. Pran Nath, AIR 1967 J & K 89 is distinguishable on facts. Without obtaining leave under the proviso to Section 14, a petition under Section 13 of the Hindu Marriage Act was presented within three years of marriage. The learned District Judge while allowing the amendment of the said petition granted leave under proviso to Section 14(j)of the Act (as the said provision stood before the amendment of the Marriage Laws Regulation Act, 1976). The learned Judges of the Jammu and Kashmir High Court did not agree with the trial Court that the case was a fit one for granting such leave but accepted the submission of the learned lawyer for the husband that the application in question was a composite one under Sections 10 and 13 of the Act. The learned Judges further applied the principles that in order to shorten the course of litigation and to do complete justice between the parties, the Court ought to take notice of subsequent events. According to the Division Bench, in the interest of the parties and also for doing substantial justice, the petitioner husband ought to be allowed to amend his petition subject to payment of costs.

8. The respondent husband's petition under Section 13(1)(iii) of the Hindu Marriage Act, 1955 was not only prematurely filed, but also the evidence about appellant wife's mental condition covered such a short period that it is not possible to satisfactorily decide whether or not she was really of unsound mind or suffered from any mental disorder of a kind and of such an extent that the petitioner husband was not reasonably expected to live with her.

9. Even after the amendment of the Marriage Laws (Amendment) Act, 1976, only in cases of certain kinds of mental disorder of the respondent, the Court under Section 13(1)(iii) of the Hindu Marriage Act may dissolve marriage by decree of divorce. The petitioner by merely proving that the respondent is of unsound mind or suffers from mental disorder cannot obtain divorce. The petitioner would be required to prove that the respondent had been incurably of unsound mind. Alternatively, he ought to prove that the respondent to the petition under Section 13(1) of the Hindu Marriage Act had been suffering continuously or intermittently from mental disorder which according to- Explanation (a) of Clause (iii) of Section 13(1) means 'mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia'. The Explanation (b) to Clause (iii) of Section 13(1) gives the meaning of the expression 'psychopathic disorder'. No doubt, it is no longer relevant whether such psychopathic disorder requires or is susceptible to medical treatment. But marriage could be dissolved only by proving that the respondent was suffering from some form of mental disorder which was of such a kind and of such an extent that the petitioner could not reasonably be expected to live with the respondent. In other words, the petitioner must prove that because of such mental disorder, it was not reasonably possible to enjoy conjugal life with the respondent. The Court ought to be satisfied that the respondent's mental disorder is of such a nature and of such intensity that it would not be reasonable to compel the petitioner to endure or suffer the same. In a given case, if it is proved that because of the abnormally aggressive or seriously irresponsible conduct resulting from psychopathic disorder, it was not reasonably possible for the petitioner to live with the respondent, the Court may dissolve the marriage under Section 13(1)(iii) of the Hindu Marriage Act.

10. We have already pointed out that the respondent husband had presented his petition under Section 13 of the Hindu Marriage Act within a period of little more than six months from the date of marriage. On 3rd March, 1976 their marriage took place and the following day the petitioner and the respondent wife had come to the former's residence at 47, Rajani Mukherjee Lane, Behala. The petitioner had pleaded that on 5th March, 1976 when the Boubhat ceremony was performed it appeared that Smritikatna had mental infirmity. According to the petitioner, she was found completely of unsound mind and became extremely aggressive and violent in nature. As already staled, that the alleged particulars of such mental disorder of the respondent were sought to be given by amending the petition under Section 13 of the Act. The petitioner husband claimed that on 11th March, 1976. Dr. A. Chakraborty, a psychiatrist, had examined her and had prescribed medicines. But she had continued to suffer from mental disorder. On 14th April, 1977 the husband got his wife Smritikana examined by Dr. D. N. Nandi, who was described as an eminent psychologist. According to the petitioner, as his relations were left with no peace by us wife, he had hired a flat at Tollygunge Circular Road and took her there on 19th of April, 1976. On 27th May, 1976, the petitioner's father-in-law had visited him and she had abused him and he had fainted and had to be removed to a hospital. Being unable to bear, the husband claimed to have sent his wife to his father-in-law's house, on 11th July, 1976 on return from his office, the petitioner found the respondent in the house. She continued to abuse and misbehave. With the help of Sri Madan Mondal, the petitioner got her admitted in the Hospital for Mental Diseases at Gobra on 14th of July, 1976. While she was still an indoor patient in the said hospital, on 21st Sept., 1976 the present husband had filed the petition under Section 12 and in the alternative under Section 13 of the Hindu Marriage Act. As already stated, he did not either plead or prove his exceptional hardship or depravity on the part of his wife. His original petition did not give particulars of the alleged mental illness of his wife, Smritikana. No doubt, he had filed his petition for amendment after expiry of more than one year from the date of the marriage. But he did not thereby plead or thereafter prove by evidence that even after expiry of the period of one year, the respondent wife had continued to be either incurably of unsound mind or that she was still suffering from mental disorder of such a kind and such an extent that the petitioner could not be reasonably expected to live with the respondent. The petitioner had amended his petition by only giving particulars of her alleged mental disorder between 4th of March, 1976 and 14th of July, 1976. He did not even wait for completion of his wife's treatment in the Hospital for Mental Diseases, Gobra.

11. The respondent husband in para 9 of his petition under Section 12 and 13 of the Hindu Marriage Act as originally filed in the Court below, inter alia, merely averred that after marriage his wife 'was found completely of unsound mind and became extremely aggressive and violent in nature and actions....' He further alleged that she had been, admitted in the Hospital for Mental Diseases, Gobra on 14th of July, 1976 and there was absolutely no chance of recovery. The respondent husband in para 12 (b) of the amended plaint made a slightly different case by averring that at the time of the marriage his wife had been subject to recurrent attacks of insanity. The respondent in para 12 (c) of the plaint purported to give alleged particulars of her conduct which he described as 'unbecoming and aggressively violent'. The respondent bad been incurably of unsound mind and has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that he could not reasonably be expected to live with her. The respondent in paras 12 (e) and 12 (f), inter alia, submitted that his wife, the present appellant, ought to be examined by a competent psychiatrist for the purpose of ascertaining her insanity and mental disorder and for this purpose her detention in the hospital for a period of 10 days was necessary.

12. We have already observed that the evidence adduced by the parties was not sufficient for adjudging that the appellant wife was either of incurably unsound mind or was suffering from any mental disorder of such a kind and to such an extent that the appellant husband cannot reasonably be expected to live with her. Dilip Kumar Bag, the petitioner respondent, was examined as P. W. 4. There was practically no corroboration of his evidence that they had begun to suspect about the unsoundness of her mind on 4-3-1976 as she did not take bath, nor she had slept and had unnatural appearance. According to Dilip. P. W. 4, on 5th of March, 1976, i.e., the date of Boubhat ceremony, her appearance appeared to be unnatural. Dilip himself admitted that he and his wife did not spend together the nights of 4th and 5th of March, 1976 according to their custom. It is common knowledge that in case of a negotiated marriage, among Bengali Hindus till the ceremony of Phoolsajjya, the bride and bridegroom live separate from each other and the bridegroom has hardly any chance to become familiar with his bride during this period. The respondent petitioner did not examine his mother, sister and other members of his family except his father as witnesses, in the case. Therefore, it would not be safe to rely upon the interested testimony of Dilip, P. W. 4, that on the 4th and 5th of March, 1976 his wife had behaved abnormally by refusing to dress up or had received gifts with her left hand and had even thrown away all of them. Haricharan Bag, the father of Dilip, P. W. 5, himself admitted that on the wedding day he was present only for a short time and rest of the time he was looking after the visitors. He did not notice the bride quite well at the time of wedding. Although, P. W. 5 during his cross-examination claimed that on 4th of March, 1976 he himself, his wife and all the inmates had realised that Smritikana was of unsound mind and had discussed among themselves about her unsoundness of mind, it is improbable that P. W. 5 did not immediately tell anything to he father but he was told about it in the night of Boubhat ceremony. If really on the 4th and 5th of March, 1976 Smritikana had behaved unnaturally and had acted in irresponsible manner in the presence of the relations and the guests, there was no reason why the mother-in-law of the bride or his uncle and also other relations were not produced as witnessess to testify, During cross-examination P. W. 5 claimed that all his relations were told and they had said that the bride was of unsound mind. Smritikana in her evidence totally denied the allegation that she had behaved in unnatural or irresponsible manner as alleged by the petitioner husband. It was not probable that if on the 4th and 5th of March, 1976 she had behaved in the manner alleged by her husband, Smritikana had willingly gone through the Boubhat and Phoolsajjya ceremonies. On her behalf several photographs taken during the marriage ceremony were exhibited (vide Ext. C series). Although Dilip had admitted that during ceremonies in his house, photographs were taken, he did not produce the said photographs. None of the photographs (Ext. C series) indicated anything unusual or unnatural in the appearance of Smritikana. Therefore, the evidence given by the petitioner husband about his wife's conduct and behaviour on the 4tb and 5th of March, 1976 do not appear to be credible.

13. Both Dilip, P. W. 4 and his father, Haricharan, P. W. 5, claimed that they got Smritikana treated by Dr. Amiya Chakra-borty and he prescribed certain medicines. But Dr. Amiya Chakraborty was not examined as a witness and, therefore, the contents of his prescription (Ext. 5) were not admissible. For the same reason, no reliance can be placed upon the prescription granted by Dr. D. N. Nandi (Ext. 5-A), who also did not depose in the case. Thus, there was no corroboration of the evidence of P. Ws. 4 and 5 that the present appellant was under medical treatment of the aforesaid two doctors during the months of March and April, 1976.

14. Dilip, P. W. 4, had claimed that from 18th April, 1976 he had begun to live separately with his wife in a different house with a view to cure her. It was somewhat unusual that although Smritikana was of unsound mind, she did not sleep, she could not take food and used to become angry, her husband with Smritikana had shifted to Tollygunge Circular Road flat. Even if they employed a servant, it was not reasonable and probable that Smritikana who was described as a mental patient used to be left alone in the said flat when Dilip went to his office. Again there was no corroboration of the evidence of Dilip that also during her stay at Tollygunge Circular Road flat Smritikana used to become extremely violent and abusive. She would call the passers-by and go to the roof and dance. Neither the neighbours nor the landlord of the Tolly-gunge Circular Road flat were examined as witnesses to corroborate the evidence of Dilip about his wife's alleged behaviour during their stay up to 14th of July, 1976. The same observations applied with regard to the alleged incident on 11th of July, 1976 when on return from office Dilip allegedly saw his wife sitting on the road near his house and the landlord on enquiry had allegedly told Dilip that she would not go inside in spite of requests.

15. The medical evidence given on the side of the petitioner husband also did not establish that Smritikana was either incurably of unsound mind or suffered from mental disorder of such a kind and to such an extent that the petitioner husband could (not?) reasonably be expected to live with her. At this stage, it may be pointed out that Dilip in his petition under Sections 12 and 13 of the Hindu Marriage Act had described Smritikana, the present appellant, as a person of unsound mind represented by her father. But she herself appeared in the Court below which rejected the petitioner husband's prayer for appointing a guardian ad litem for her. The learned Additional District Judge in his Order No. 26 dated 30th Nov., 1977 recorded that on examination in Court there was nothing prima facie to suggest that she was of unsound mind. The trial Court allowed her as sui juris to contest the case. She herself deposed as a witness and was subjected to lengthy cross-examination. The Court below did not record anything unusual about her demeanour. On perusal of her evidence, we find also that Smritikana gave intelligent and sane replies. We shall hereinafter refer to the evidence given by Dr. K. P. Chatterjee of Sarkarpole Institute of Mental Health where she was admitted as an indoor patient under orders of the trial Court. According to the said hospital report, and the oral evidence of Dr. K. P. Chatterjee, no mental abnormality in her was detected.

16. The petitioner got his wife, the present appellant, admitted into the Hospital for Mental Diseases Cobra on 14th of July, 1976. Dr. Ajit Sankar Mukherjee (P. W. 1) Superintendent of the said Mental Hospital in course of his cross-examination had admitted that he did not personally examine Smt. Smritikana Bag and he had been summoned by the Court to produce the hospital report. When admittedly Dr. Ajit Sankar Mukherjee had no personal knowledge, the petitioner husband cannot rely upon his testimony for proving that his wife was incurably of unsound mind or suffered from a mental disorder of such a kind and of such an extent that it was reasonably impossible for him to live with her. Dr. Ranjan Sen, Deputy Superintendent of Hospital for Mental Diseases, Gobra, (P. W. 2) who was examined by the petitioner husband, had stated that Smt. Smritikana Bag was an indoor patient and was under his treatment. The petitioner did not examine as witness Dr. Arun Pra-kash Bhattacharjee a clinical psychologist of the said Hospital, who had examined her and who had also written a part of the treatment sheet (Ext. 2). He was not subjected to cross-examination with reference to his said writing, Therefore, the endorsement by Dr. A. P. Bhattacharjee upon the said treatment sheet (Ext. 2) were clearly inadmissible. Dr. Ranjan Sen (P. W. 2) in his oral evidence stated that the present appellant was suffering from schizophrenia of the paranoid type. But on the basis of the said opinion of Dr. Ranjan Sen, P. W. 2, we are unable to hold that the appellant wife was either incurably of unsound mind or was suffering from mental disorder of such a kind and to such an extent that the petitioner could not reasonably be expected to live with her. In fact, Dr. Sen did not depose that her illness was incurable or state about the extent of her mental disorder. In course of his cross-examination, Dr. Sen admitted that the symptoms noted by him on the treatment-sheet might be developed by temporary mental shock. He further stated, 'it may be that husband of Smt. Smritikana Bag has got her forcibly admitted or her father later complained to me and got her discharged'. We are not prepared to accept the submission of Mr. Bakshi that the above expression 'forcibly admitted' did not mean that although she was a normal person she was compelled by her husband to take admission in the hospital. Both Dr. Mukherjee and Dr. Sen had been examined on this point; while Dr. Mukherjee had denied that, a patient could be forcibly admitted, Dr. Sen did not deny the said suggestion. Further, Dr. Sen stated that Smt. Bag was a patient not of psychoneurosis but of psychosis which meant complete madness. But his said opinion was not consistent with his further statement that he would not be surprised if Smt. Bag was reported to be a normal woman by Sarkarpore Mental Hospital. According to the last endorsement made in the treatment sheet (Ext. 2), at the time of her discharge she had improved and was manageable at home.

17. Dr. A. P. Banerjee (P. W. 3), who was Medical Officer of Hospital for Mental Diseases, proved the writing (Ext. 4) which consisted of an endorsement on the back of Ext. 1 to the effect that on 5th Nov., 1976 one Gopal Chandra Das had taken the patient Smt. Smritikana Bag on her discharge from the hospital. This witness did not testify about the mental condition of Smt. Bag.

18. We already referred to the fact that the appellant had appeared before the trial Court, the trial Court did not appoint any guardian ad item and had recorded that there was nothing prima facie to suggest that she was insane. She herself testified as a witness and her statements did not indicate that she was suffering from any mental infirmity. We have also referred to the evidence of Dr. K. P. Chatterjee, Visiting Psychiatrist, Sarkarpole Institute of Mental Health, who had examined her under the orders of the trial Court. She was an indoor patient for seven days in the said institute and Dr. Chatterjee who had opportunity to examine her, arrived at the conclusion that she was hale and hearty and was absolutely normal. We are not prepared to reject the opinion of Dr. Chatterjee on the ground that neither Dr. Pal was examined as a witness nor his report referred to in the hospital record was produced. The appellant wife did not also rely upon the said report of Dr. Pal. The learned Additional District Judge presumably on the basis of the evidence given by Dr. Sen came to the conclusion that the appellant wife was suffering intermittently from schizophrenia ever since her admission in Gobra Mental Hospital on 14th July, 1976. The Court overlooked that Dr. Bhattacharjee, who also examined the appellant wife did not depose. Therefore, only on the basis of the alleged symptoms noted in the treatment sheet the Court below was not entitled to find that her symptoms included 'irrelevant talk, delusion of poison, the suspicion against all members of the family, a belief that they were jealous of her, hallucination, passivity phenomenon and karbpuring strong, paranoid ideas against her in-law'. We have already stated, that the petitioner husband did not examine as witness his mother and sister or the landlord of Tollygunge Circular Road house. The father of the petitioner husband did not have any personal knowledge about her alleged symptoms. Even if it is assumed that the appellant wife had exhibited certain symptoms of mental disorder, there was no cogent evidence that her said alleged illness was of a kind and of such an extent that it was reasonably not possible for the petitioner husband to live with her. We have already pointed out that at the date of its filing, his petition for divorce under Section 13(1)(iii) of the Hindu Marriage Act was not entertain-able. The parties had also only lived together for little over four months. Even before the hospital authorities had completed her treatment and had made any final pronouncement about her mental health, the petitioner husband rushed to Court. On this state of evidence we are unable to hold that he has satisfactorily proved the kind and the extent of the alleged mental disorder of the appellant-wife or that it was not reasonably possible to live with her. Not only Section 14 of the Hindu Marriage Act was a bar to his petition under Section 13(1)(iii) but also the evidence produced by the petitioner-husband indicated that he had filed the said petition without ascertaining whether it was reasonably possible to live with his wife. The trial Court had overlooked the provisions of Section 14 of the Hindu Marriage Act and also did not consider the evidence in the light of the relevant provisions of law. Therefore, we set aside the findings of the trial Court regarding the ground of dissolution of marriage under Section 13(1)(iii) of the Act. We hold that the petitioner-husbant was not entitled to a decree for dissolution on the said ground.

19. The learned Additional District Judge refused the prayer of the petitioner-husband for annulling the marriage of the parties on the ground that the same contravened clause (ii) of Section 5 of the Hindu Marriage Act. We agree with the said findings of the trial Court. We have already held that the petitioner-husband has not satisfactorily proved that at the date of the presentation of his petition his wife was incurably of unsound mind or was suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner could not reasonably be expected to live with her. The petitioner or his father themselves had no personal knowledge about the state of mental health of the appellant wife before marriage. He did not at all prove his allegations made in para (8) of his petition under Section 12, in the alternative under Section 13 of the Hindu Marriage Act. The statement made by the petitioner-husband regarding what they had allegedly heard about her treatment for mental disease before her marriage were entirely hearsay. There was no evidence that she had ever become insane or mentally unbalanced before her marriage or that she had assaulted her neighbours as alleged in paras 12 (g) and 12 (h) of the amended petition. We have already observed that there was no cogent evidence that at the time of marriage or during the other ceremonies which followed the appellant-wife had behaved like a person of unsound mind or showed that she was suffering from mental disorder of such a kind or to such an extent as to make her unfit for marriage and procreation of children. There was also no evidence that before her marriage she had suffered from recurrent attacks of insanity. We have already observed that the ladies of the petitioner's household or the friends and relations, who had attended the marriage and ceremonies, which took place in the petitioner-husband's house were not examined to corroborate that the appellant-wife's behaviour was unnatural or that even then she appeared to be suffering from mental disorder. It was improbable that the marriage of the parties was finalised without the ladies of the petitioner's house at all seeing her and finally approving her selection as a bride. On this point the case of the appellant appears to be much more trustworthy. Usually, in case of negotiated marriages among middle-class Bengali families, the ladies of the bridegroom's family visit, not only once but on several occasions, the prospective bride's house before finally selecting her. There was no special circumstance in this case which would warrant an assumption that there was any departure from such usual practice. The petitioner-husband did not examine Sri Madan Mondal, who had negotiated the marriage. It is difficult to accept the explanation for not examining Sri Madan Mohan Mondal, who was a colleague of the petitioner-husband's father.

20. In our view, the Court below rightly held that the petitioner-husband has failed to adduce any evidence that at the time of the marriage the appellant-wife was of unsound mind or was suffering from any mental disorder. Therefore, the husband-petitioner's prayer for annulling the marriage under Section 12 of the Hindu Marriage Act must fail.

21. Mr. Bakshi, learned advocate for the respondent, has submitted that in case we hold that the respondent-husband's petition under Section 13(1)(iii) of the Hindu Marriage Act was hit by Section 14 of the said Act and, therefore, not maintainable, the Court may be pleased to pass a decree for judicial separation on the ground of mental disorder of the appellant-wife. Even to obtain a decree for judicial separation the respondent-husband must establish any of the grounds specified in Sub-section (1) of Section 13 of the Hindu Marriage Act. In other words, in case he fails to prove that she had been incurably of unsound mind or has been suffering continuously or intermittently from any mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent and the Court refuses to dissolve the marriage by decree of divorce, the Court cannot grant the petitioner-husband alternative relief by way of decree of judicial separation founded on the same grounds. Question of passing a decree for judicial separation instead of a decree of divorce might arise only when the ground on which the petition for dissolution of marriage is founded is proved but having regard to the circumstances of the case the Court considers it just to pass a decree for judicial separation. But when the petitioner-husband could not substantiate a ground on which he founded his petition for dissolution of marriage, we cannot grant him decree for judicial separation by way of alternative relief.

22. Before We close this judgment, we make it clear that the petitioner-husband (the respondent herein) had adduced evidence about the mental condition of his wife (the appellant) from date of marriage up to the date of the filing of his petition under Sections 12 and 13 of the Hindu Marriage Act. Therefore, our findings and observations in this judgment are mainly confined to the petitioner's case covering the said period of time. We have not recorded any finding about the present mental condition of the appellant and we express no opinion as to whether or not either of the parties would be now entitled to any relief under the provisions of the Hindu Marriage Act or under any other law.

23. For the foregoing reasons, we allow this appeal, set aside the judgment and decree of the learned Additional District Judge and dismiss the respondent-husband's petition under Sections 12 and 13 of the Hindu Marriage Act. We also dismiss the cross objection preferred by the respondent. In the circumstances of the case, there will be no order as to costs.

R.K. Sharma, J.

I agree.


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