Kerala High Court

Thulasi Bai
vs
C.V. Manoharan And Ors. on 4 August, 1989
Equivalent citations: I (1990) DMC 61

Bench: K Sreedharan
JUDGMENT K. Sreedharan, J.

1. These proceedings are between same parties. They are concerning the marriage between them. So, I consider it advantageous to dispose of them by this common judgment.

2. I will first take up S.A. No. 498/1987. This second appeal arises out of a proceeding under the Hindu Marriage Act, 1955, hereinafter referred to as ‘the Act’, for declaration of the marriage between the parties as nullity under Section 12(1)(c) of the Act. Trial Court dismissed that application filed by the husband. On his appeal learned District Judge passed a decree annulling the marriage. That decree is under challenge. (I am referring to the parties as they are arrayed before the Trial Court in the proceedings under the Act).

3. Material averments made by husband in the petition filed before Trial Court are as follows : Petitioner and respondent are Hindus. Their marriage was solemnised on 13-12-81 in accordance with the religious rites of the community to which they belong. After marriage they resided at his house till they left for Ranchi, his place of employment. During the stay at the petitioner’s house and on arrival at Ranchi respondent used to take certain pills regularly. They were stated to be sleeping pills. During train journey to Ranchi, respondent behaved in a strange manner. She used to speak incoherent without any sense. She used to laugh, cry and talk without any rhyme or reason. Petitioner and his brother who accompanied them to Ranchi spent sleepless nights taking care of her. Respondent’s eratic behaviour continued and she began to show symptoms of an insane person. When it became un-controlled she was admitted in Davis Institute of Neuro-psychiatry at Ranchi. She was treated for schizophrenia and was administered electric shock. The matter was intimated to respondent’s parents. Her father sent a letter giving details of medicine which were given to her before marriage. He sent through a person a prescription given by a local doctor and also some holy ashes for early cure. On 24-1-1982 her father reached Ranchi in the company of petitioner’s brother and brother-in-law. On that day, she was discharged from the hospital, Doctors opined that she is a mental patient suffering from Schizophrenia and that if medicines are discontinued her ailment will become very acute. She was given electric shock on 25-1-1982 and on 30-1-1982. All of them returned to Kerala on 1-2-1982. Thereafter they are living separate. The marriage between the parties is null and void on the following grounds :

(i) At the time of the marriage the respondent has been suffering from mental disorder of such a kind and extent that she was unfit for marriage and procreation of children. She was also subject to recurrent attacks of insanity at the time of and prior to the marriage. The respondent was also incapable of giving a valid consent to the marriage in consequence of unsoundness of mind.

(ii) The consent of the petitioner to the marriage was obtained by fraud as the fact of mental disorder of the respondent was suppressed from the petitioner. Had he been aware of the mental illness of the respondent before the marriage, the petitioner would not have consented to the marriage. The respondent and her parents had deliberately played fraud upon the petitioner by concealing the mental incapacity of the respondent. After the fraud was detected by the petitioner be has not lived with the respondent as husband and wife.

4. On the above ground petitioner prayed for a decree of nullity of the marriage entered into between him and the respondent. In the alternative he prayed that the marriage between them be dissolved by a decree of divorce as the respondent has been incurably of unsound mind and has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent

5. In the written objection filed by the respondent she has denied the allegation of mental disease. According to her, she was never treated for any mental ailment. It is stated that on account of the long journey in the train and the new invironment to which she was put, she had some excitement. The difficulty in understanding Hindi also contributed to such a situation. She stated that petitioner’s brother who accompanied them to Ranchi attempted to have indecent advances towards her and that did upset her. As a result of these she was admitted to a hospital at Ranchi. After her return she continued to take medicine given by the doctor at Ranchi for some time. She is now cured of all ailments. She asserted that no doctor has so-far certified her to be an insane person.

6. On the side of the petitioner Exts. A-1 to A-6 were marked and P.Ws. 1 and 2 examined. P.W. 1, is the petitioner himself. At his instance, the respondent was sent for medical observation. P.W. 2, Professor of Psychiatry, after observing her issued Annexure 6, certificate. That certificate is to the following effect :

“She was not showing any gross behaviour disturbance during the period of observation. Her emotional responses were appropriate and talk was relevant. She was observing the normal etiquettes of behaviour. Apparently there was no hallucinations or delusions. In short, she is not having any features of unsound-ness of mind at present.”

7. The doctor as P.W. 2 stated that patients with mental illness are having lucid intervals. Patients having severe attack of mental illness will continue to show features of illness even during lucid intervals. In the case of others, no symptom will be seen during such intervals. During the period the respondent was kept in observation she was not having hallucinations.

8. Petitioner as P.W. 1 gave evidence in terms of the averments made by him in the petition. He proved Exts. A-1 to A-5. Ext. A-1 is the discharge certificate issued by Davis Institute of Neuropsychiatry, Ranchi. That slip shows that the lady was an in-patient in the Institute during the period from 10-1-1982 to 22-2-1982 and that her disease was diagnosed as Schizophrenia. She was directed not to stop the medicine without Doctor’s advice and that she can be treated at home. Ext. A 2 dated 24-1-1982 is the prescription issued by Dr. Madhukar, Consultant Psychiatrist attached to, Davis Institute of Neuropsychiatry. He prescribed four medicines. Ext. A 3 is the certificate issued by Dr. Madhukar on 29-1-1982. That certificate is to the effect that Tulasi wife of Manoharan was treated for nerves disorder from 10-1-1982 and was discharged on 24-1-1982 with advice to continue medicine and should have regular check up. It went on to state that she is unable to look after herself and needs constant supervision and care. Ext. A 4 is a letter stated to have been sent by the girl’s father to P.W. 1. In that letter her father gave names of three medicines which were being administered to her. P.W. 1 was also informed that he had sent through one of his friends the prescription obtained from the local doctor and some holy ashes. The prescription mentioned in Ext. A 4 which was sent through another is proved as Ext. A. 5. Exts. A 1 to A 5 were admitted in evidence without any protest from the side of the respondent. The genuineness of these documents, were not challenged in cross-examination. Evidence given by P.W. 1 that Ext. A 4 is a letter sent by his father-in-law and that Ext. A 5 is the prescription sent by his father-in-law through another are also not in challenge. P.W. 2 the Psychiatrist has categorically stated that the medicines mentioned in Ext. A 4 letter and Ext. A 5 prescription are medicines administered to patients suffering from mental illness, schizophrenia, mentioned in Ext. A 1. The doctor further stated that he knows the institute which issued Ext. A 1 discharge slip. P.W. 2 was not cross-examined on behalf of the respondent.

9. The lower Appellate Court granted a decree annulling the marriage on the ground that petitioner’s consent for the marriage with respondent was obtained as a result of fraud as contemplated by Section 12(1)(c) of the Act. So, the only question that is to be considered by me is whether the marriage between the parties is to be annulled on account of fraud as contemplated by Section 12(1)(c) of the Act.

10. Section 12(1)(c) of the Act is in the following terms :

12(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :

(a) x x x x
(b) x x x x

(c) That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force (or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent);”

11. The marriage between the parties can be annulled by a decree of nullity if the consent of the petitioner was obtained by fraud as to any material fact or circumstance concerning the respondent. In other words if any material fact or circumstance concerning the respondent was kept concealed from the petitioner as a result of the fraud, the marriage can be annulled by a decree of nullity. From Ext. A 4 letter written by the respondent’s father, it is seen that she was being given Melleril 25 mg. two tables each thrice a day; Largetil 50 mg on tablet each thrice daily and Dormine 10 mg one every night. PW 2, the Psychiatrist examined in the case stated before court that these medicines are given to persons suffering from Schizophrenia as well. Ext. A 2 prescription given by Dr. Madhukar at Davis Institute of Neurosychiatry is also of medicines meant for treating Schizophrenia. This is also sworn to by PW 2, He was not cross-examined on behalf of the respondent as stated earlier. Genuineness of Exts. A 4 and A 5 was also not disputed. This shows that even before the marriage the respondent was taking medicines, which are prescribed for treating Schizophrenia. This circumstance leads to the inference that the respondent was suffering from mental disorder. That mental illness should necessarily be taken as a material fact concerning the respondent. This fact was not divulged to the petitioner before the marriage. The contention raised in the written objection filed by the wife is that she has never been affected by any mental disease. In the nature of this contention the above mentioned material fact concerning the respondent can safely be taken to have been kept concealed from the petitioner.

12. Learned Counsel representing the appellant, wife raised a contention that the lower Appellate Court was not justified in acting on Exts. A1 to A5. According to him, these documents have not been properly proved. I find it difficult to agree with this argument. As stated earlier, these documents were admitted in evidence and proved through PW 1 without any objection from the side of respondent-wife. The fact that respondent was admitted in Davis Institute at Ranchi by the petitioner is not in dispute. When she was discharged Exts. A 1 to A 3 were issued to the petitioner. He produced them in court. So, those documents were produced from proper custody, Exts. A-4 letter was sent to PW 1 by his father-in-law. Father-in-law sent Ext. A 5 prescription also to the petitioner through one of his friends. PW 1 produced all these documents from proper custody. He is competent to swear to those documents as well. He did prove the same. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the Trial before the document is marked as an exhibit and admitted as evidence. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. (Vide Gopal Das and Anr. v. Sri Thakurji and Ors. AIR 1943 PC 83. In P.C.P. Reddiar v. S. Perumal AIR 1972 SC 608 their Lordship had to consider the admissibility of a report prepared by a Head Constable which was marked in the proceedings without any objection. It was observed :

”It was next urged that even if the reports in question are admissible, we cannot look into the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.”

13. Exts. A 1 to A 5 have been admitted in evidence without any objection. The contents of those documents are evidence in the proceedings. They may not be conclusive in the sense that the party challenging those documents can let in rebuttable evidence. If there is no rebuttable evidence, the court can rely on the contents of those documents. The respondent cannot, therefore, be allowed to contend that the documents are not to be referred to by the court.

14. The documentary evidence taken along with the testimony of PW 2, Psychiatrist, shows that respondent is a victim of a mental disorder-Schizophrenia. Schizophrenia is said to be a difficult mental affliction. It is said to be insidious in its onset. It is characterised by the shallowness of emotions and is marked by a detachment from reality. In the paranoid states, the victim responds even to fleeting expressions of disapproval from others by disproportionate reactions generated by hallucinations of persecution. Even well meant acts of kindness and of expression of sympathy appear to the victim as deceitful traps. In its worst manifestation this illness produces a crude wrench from reality and brings about allowering of higher mental functions. It is said that Schizophrenia is a cruel mental disease which catches its victims during the most productive years of his life and mercilessly cripples him, emotionally and intellectually. It is used to be said that Schizophrenia is to psychiatry what cancer is to medicine.

15. Respondent is seen to be afflicted by mental disorder in the nature of Schizophrenia. I need not examine the intensity of that mental disorder for deciding this case. Only in a petition under Section 13(1)(iii) of the Act the court need examine whether the disease is of such a kind and of such an extent that the other party cannot reasonably be expected to live with her. In a case coining under Section 12(1)(c) of the Act what the court should find is whether any material fact concerning the respondent was kept concealed in getting the consent of the petitioner. The mental disorder of the respondent is a material fact concerning her. This was not made known to the petitioner. Respondent has flatly denied the allegation of mental illness. So she cannot contend that petitioner gave consent to the marriage after knowing her illness. In these circumstances the conclusion is that petitioner’s consent for the marriage was obtained by fraud. Petitioner is hence entitled to a decree of nullity under Section 12(1)(c) of the Act.

16. Yet another contention that was raised by the learned Counsel appearing for the appellant, wife, is that the marriage between the parties was an arranged marriage and, therefore, there could not have been any fraud played on the husband. PW 1 admits that his sister and uncle are neighbours to the wife. They have arranged the marriage. They were acquainted with the respondent and her relations. So, if the respondent had any mental disease, they would have come to know of it and the petitioner must have been aware of it. Consequently, it is argued that there was no fraud played on him. This argument is quite attractive. But it has no legs to stand. In the written objection, the respondent has hot put forward a case that she was having any mental disease and that the said fact was known to the petitioner or his relations. Her only contention is that she was of sound mind and on account of the long journey and the new environment to which she was taken, she had some mental imbalance. That contention is contrary to the one now put forward by the learned Counsel. So, I do not place any credence to the argument that the petitioner was aware of the mental illness and that no fraud was played on him.

17. Lastly it was contended that petitioner had with his full consent lived with the respondent as husband and wife after knowing about the illness and therefore, no decree of nullity under Section 12(1)(c) of the Act can be passed in view of the prohibition contained in Section 12(2)(a) of the Act. The basis on which this argument is advanced is the petitioner’s admission that he lived with respondent for 19 days immediately after the marriage during which period also she was seen taking medicines. I do not find any merit in this contention. The marriage was solemnised at a time when the petitioner was not aware of the mental illness of the respondent. Immediately after the marriage she was taken to his house. They lived there for 19 days. During that period she was taking medicines. When asked, he was told that they are sleeping pills. There was nothing further which put him on guard or which gave him an inkling of the mental illness of his wife. In the absence of any noticeable incident giving room for doubting the soundness of mind, no husband will get his wife examined by a Psychiatrist immediately after marriage. Viewed in this manner, the petitioner’s stay with respondent in his house cannot be taken as one failing within Sub-clause (a) of Clause (2) of Section 12 of the Act. Condonation of matrimonial offence has to conscience and deliberate act. It must convey full creation of the matrimonial status after coming to know of the fraud. Only such conscience and deliberate act of condonation can constitute a valid bar against a proceeding under Section 12(1)(c) of the Act. On the facts, it cannot be held that there was any condonation by the petitioner of the fraud committed upon him by his wife and her relations. The result of the all, discussion is that the court below was perfectly justified in annulling the marriage between the parties. Consequently, I find no ground to interfere with the decree passed by the learned District Judge. The Second Appeal fails. It is accordingly dismissed.

18. The wife initiated proceedings under Section 125 of the Code of Criminal Procedure claiming maintenance from her husband. After trial the learned Magistrate directed the husband to pay maintenance at the rate of Rs. 150/- per mouth. Husband challenged that order before the Sessions Court in revision. During the pendency of that Revision Petition, the District Court passed a decree annulling the marriage which is the subject matter of the Second Appeal. That judgment was produced before the learned Sessions Judge. In view of the decree annulling the marriage, the Revision Petition was allowed and claim of maintenance was negatived. That order is under challenge by the wife in the Criminal M C. filed under Section 482 of the Code of Criminal Procedure. Actually, she ought to have preferred a Revision Petition against the order of the Sessions Court. Be that as it may, I do not find any ground to award maintenance to her because of the decision in Second Appeal confirming the decree passed by the lower Appellate Court annulling the marriage.

19. The second appeal and Criminal Miscellaneous case are dismissed. I direct the parties to suffer their respective costs in the Second Appeal.