IN THE HIGH COURT OF MADRAS
C.M.A. No. 990 of 2008 and Crl. R.C. No. 1353 of 2007
Decided On: 20.12.2016
T. Jagedeeswari and Ors.
Hon’ble Judges/Coram: Pushpa Sathyanarayana and R. Subramanian, JJ.
Citation:AIR 2017 (NOC) 415MAD
1. The wife, who suffered a decree for divorce in H.M.O.P. No. 536 of 2004 on the file of the Family Court, Coimbatore, is the appellant in this appeal. The said H.M.O.P. No. 536 of 2004 was filed by the husband under Section 13(1)(iii) of the Hindu Marriage Act claiming that the wife is suffering from incurable unsoundness of mind to such an extent that he cannot reasonably be expected to live with her.
2. The sum and substance of allegations in the petition is as follows: Even on the second day after marriage the respondent/wife had disclosed that she does not like him and she did not consent for the marriage. The marriage took place because of the compulsion of her parents. The petitioner/husband had advised her and attempted to live happily. He would claim that the respondent/wife always fought with him. She would not sleep the whole night, would sit outside the house and torment him. According to the husband, she had often threatened to commit suicide. Such behaviour on the part of the wife caused serious mental agony and fear in him. When he complained about the above conduct of the respondent/wife to her parents, they have taken her to their house on 27.11.2011 and they had consulted a psychiatrist by name Dr. Pradeep at 219, Cowli Brown Road, R.S. Puram, Coimbatore. After a week her parents brought her to the husbands house and left her, stating that she will lead normal life. In the mean time, the respondent/wife became pregnant. But her attitude did not change. She has behaved in the same manner without even bothering about her health condition. It is also claimed that the wife left the house along with her parents after removing the Thali. This conduct caused serious mental agony to the petitioner/husband. However, after few days, the parents of the respondent/wife came to the petitioners house and said that the removal of Thali happened by mistake and they collected the Thali and her jewels. They also invited him for the Valaikapu ceremony. On 12.07.2002 a male child was born to the respondent wife. On the same day i.e., 12.07.2002, the respondent/wife took treatment from another psychiatrist Dr. K. Raghunathan at Bala Medical Centre hospital, Trichy Road, Ramanathapuram, Coimbatore. Since the respondent/wifes condition deteriorated, on the day of the wedding anniversary i.e., 05.11.2002, she was admitted as inpatient in the Tiruchur mental hospital, Kerala, where she was treated for four days. It is also claimed by the husband that he is afraid that the respondent/wife may commit suicide, if she is required to live with him. On the aforesaid pleadings, the petitioner/husband sought for divorce on the ground of unsoundness of mind.
3. The respondent/wife resisted the said petition contending that at the insistence of the mother of the petitioner/husband, he would beat her with belt and wooden stick. It is also her case that the petitioners mother would often instigate the petitioner to ill-treat her. The allegations of unsoundness of mind, torture, threatening with suicide etc., were denied specifically. She would claim that she is living as a dutiful wife and she begot a male child out of the wedlock. She was forced to bear with the cruel treatment meted out by the husband. The allegation of removal of Thali and the claim that she was treated at Bala Medical Centre on 12.07.2002 by Dr. K. Raghunathan were also denied. Though she admitted the fact that she was admitted in the hospital at Tiruchur, she would claim that the doctor advised the husband not to beat or threaten the respondent/wife at any point of time. According to the wife, the petition for divorce itself has been filed, after leaving the respondent/wife in her parents house with the sole object of obtaining a divorce.
4. In the above said circumstances, the respondent/wife had filed M.C. No. 105 of 2006, seeking maintenance for herself and minor child. According to her, the petitioner/husband is earning a sum of Rs. 10,000/- per month out of his employment with Annaimalai Agencies and is getting rental income about Rs. 7,500/- per month. It was also claimed that he owned a car and a motor cycle. This application was resisted by the petitioner/husband contending that the wife being a person with unsound mind, she is not entitled to claim maintenance.
5. Both H.M.O.P. No. 536 of 2004 and M.C. No. 105 of 2006 were tried together and the learned Family Judge, Coimbatore framed the following issues for consideration.
1. “Whether the petitioner in H.M.O.P. No. 536 of 2004 is entitled to divorce?
2. Whether the petitioners in M.C. No. 105 of 2006 are entitled to maintenance, if so how much?
3. What other relief the petitioner in H.M.O.P. No. 536 of 2004 is entitled to?
4. What other relief the petitioners in M.C. No. 105 of 2006 are entitle to?”
6. On the side of the husband, he examined himself as P.W. 1 and one Dr. A. Mohamed was examined as P.W. 2; Ex. P.1 to Ex. P.5 were marked. On the side of the wife, she was examined as R.W. 1 and one Dr. Raghunathan was examined as R.W. 2; Ex. R1 and Ex. R.2 were marked.
7. The learned Family Judge, Coimbatore who considered the evidence on record, both oral and documentary, came to the conclusion that the respondent/wife is suffering from incurable unsoundness of mind and it will be dangerous for the husband to live with her. On the above said conclusion the learned Family Judge, Coimbatore allowed the H.M.O.P. No. 536 of 2004, granting divorce under Section 13(1)(iii) of the Hindu Marriage Act. The learned Family Judge, Coimbatore after considering the evidence on record awarded a sum of Rs. 2,75,000/-, to be paid by the husband as permanent alimony. In so far as the M.C. No. 105 of 2006 is concerned the learned Family Judge dismissed the same on the ground that permanent alimony has been ordered, to be paid by the husband. Aggrieved by the said judgment and decree of the learned Family Judge, Coimbatore, the wife has preferred the appeal in C.M.A. No. 990 of 2008 and Crl. R.C. No. 1353 of 2007.
8. We have heard Mr. C.R. Prasannan, learned counsel for the appellant in C.M.A. No. 990 of 2008 & the petitioner in Crl. R.C. No. 1353 of 2007 and Mr. L. Mouli, learned counsel appearing for the respondent in the both the appeal as well as the Criminal Revision case. The following points emerge for determination in the appeal and the Criminal Revision Case.
1. “Whether the husband has made out a case for grant of divorce on the ground of unsoundness of mind under Section 13(1)(iii) of the Hindu Marriage Act?
2. Whether the wife and the minor child are entitled to maintenance under Section 125 of Crl. P.C. If so what is the quantum of maintenance?”
9. Mr. C.R. Prasannan, learned counsel appearing for the wife would take us through the allegations in the petition as well as the evidence and contend that the husband has not made out a case for grant of divorce under Section 13(1)(iii) of the Hindu Marriage Act.
10. It would be useful to extract the provision under which divorce can be granted on the ground of unsoundness of mind. Section 13(1)(iii) reads as follows:
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
In this clause:-
(a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.”
“the other portions of Section 13 are not relevant for our purposes”
11. From the language of Section 13(1)(iii), it can be seen that mere abnormal behavior cannot be a ground for divorce and what is required to be proved by the other spouse is that due to incurable unsoundness of mind of such kind or such an extent that the complainant spouse cannot reasonably be expected to live with him/her. Very high degree of proof is required to enable the Court to grant divorce on the ground of unsoundness of mind.
12. In this background, if we look at the pleadings in the case on hand, the following grounds are made for claiming unsoundness of mind on the part of the wife:
1. The fact that she expressed that her consent was taken by compulsion.
2. She frequently fought with the husband.
3. Spent sleepless nights and did not allow the husband to sleep.
4. She threatened to commit suicide
5. She did not care for her health even during the pregnancy.
6. She removed the Thali
7. She was treated by two psychiatrists at Coimbatore.
8. She was admitted as inpatient in Thiruchur Mental Hospital, Kerala for a period of four days from 05.11.2002
9. The cumulative effect of the above had created a fear in him and he feels that wife may even commit suicide, if she is forced to live with him.
13. As already pointed out, all these allegations were specifically and separately denied by the wife. Though taking treatment as inpatient at Thiruchur Mental Hospital was admitted, the wife claimed that the doctor has not given an opinion that she is unfit for married life. She would also plead that the doctors at Thiruchur Mental Hospital had advised her husband to behave more responsibly and avoid beating or ill-treating the wife. The question as to what constitutes unsoundness of mind that would entitle a spouse for divorce was considered by the Hon’ble Supreme Court of India in “Kollam Chandra Sekhar Vs. Kollam Padma Latha MANU/SC/0959/2013 : (2014) 1 SCC 225”.
14. After revisiting of law on the subject, the Hon’ble Supreme Court had observed as follows:
“41. Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly. In the Vedic period, the sacredness of the marriage tie was repeatedly declared; the family ideal was decidedly high and it was often realised. In Vedic Index I it is stated that “the high value placed on the marriage is shown by the long and striking hymn”. In Rig Veda, X, 85; “be, thou, mother of heroic children, devoted to the Gods; be, thou, Queen in they father-in-laws household. May all the Gods unite the hearts of us two into one”, as stated in Justice Ranganatha Misras Maynes Treatise on Hindu Law and Usage.
42. Marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case, the respondent was unwell and was taking treatment for the same. The illness had its fair share of problems. Can this be a reason for the appellant to abandon her and seek dissolution of marriage after the child is born from their union? Since the child is now a grown-up girl, her welfare must be the prime consideration for both the parties.”
15. Regarding unsoundness of mind as ground for divorce, the Hon’ble Supreme Court had referred to an earlier judgment reported in “3 MANU/SC/0402/1988 : (1988) 4 SCC 247 Ram Narain Gupta Case” which reads as follows:
“20. The context in which the ideas of unsoundness of mind and mental disorder occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the mental disorder. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.”
16. A Division Bench of the Karnataka High Court, in very recent decision in Miscellaneous First Appeal No. 103381 of 2014 dated 20.07.2016, while considering the question of grant of divorce under Section 13(1)(iii) of Hindu Marriage Act, has made the following observation:
“Thus, the statute demands two elements to be proved to make a ground of divorce :- (a) Incurable unsoundness of mind (in the present case, Schizophrenia) and (b) to the extent of which the petitioner cannot be reasonably expected to live with her. Both factors are missing in the case brought to the Court. Her Schizophrenia condition is under remission. Without giving a breathing time for the relationship to settle and crystallize, husband had hurried to the Court.
24. At this stage, we are reminded of a story of success portrayed by Sylvia Nasar in the Biography, A Beautiful Mind (published by Simon & Schuster, as well as a Film of the same name) of John Forbes Nash Jr., an American Mathematician, born on June 13, 1928. He started showing symptoms of mental illness and spent several years at Psychiatric Hospitals and was treated for paranoid schizophrenia. After 1970, he refused further medication and his condition improved. Thereafter he was never committed to Hospital again. He recovered gradually with the love and care of his divorced wife whom he remarried in 2001. He gradually returned to academic work by mid 1980s. He was awarded the 1994 Nobel Memorial Prize in Economic Sciences for the thesis, which earned him Ph.D. Degree in 1950. He was both a Mathematician and Economist. He made groundbreaking work in the area of real algebraic geometry. He published number of theorems to his credit and was awarded prestigious Abel Prize in 2015.”
17. Now let us examine the case on hand, in the backdrop on the law laid down by the Hon’ble Supreme Court. P.W. 1, the husband in his cross examination had deposed as follows:
18. P.W. 2, the Doctor, who treated the wife at Thiruchur metal hospital has deposed in his chief examination as follows:
In his cross examination he would further state as follows:
19. The wife has been examined as R.W. 1 and she has been extensively cross-examined. On reading of the entire evidence, we find that she has not deposed against her pleadings in any manner except in one place where she had said “the divorce on the ground of unsoundness of mind as asked for by the husband can be granted”. But that by itself cannot be a ground of granting of divorce particularly on the ground of unsoundness of mind.
20. R.W. 2, the Doctor Raghunathan, who had treated the respondent/wife in his chief examination, would depose as follows:
21. From the above evidence, we are of the view that, it is difficult to assume that a case of unsoundness of mind as required by the statute, has been made out. As has been pointed out by the Hon’ble Supreme Court, mere unsoundness of mind cannot by itself constitute a ground for divorce. The unsoundness of mind should be to such an extent that it should be incurable that other spouse cannot be reasonably expected to live with the person who is alleged to be mentally unsound.
22. We have examined the evidence on record and the cumulative effect of the evidence on record leads us to believe that the husband has not made out a case for grant of divorce on the ground of unsoundness of mind. There might have been hiccups in the family but that by itself cannot lead to a presumption that the wife is of unsound mind, which is incurable and it is of such gravity that the husband cannot be expected to live with her. Even the doctor, examined by the husband namely, P.W. 2 has deposed that the disease can be controlled. He would further depose that the wife is capable of discharging her marital obligations. He would also state that with medication she can lead normal life. The husband has also admitted that he had led a normal family life, as a result a male child was born on 12.07.2002. These vital admissions, according to us, would go against the claim of the husband that the wife is suffering from incurable unsoundness of mind.
23. The learned Family Judge, without adverting to the essential requirements of the statute, particularly Section 13(1)(iii) of the Hindu Marriage Act, had granted the divorce on the ground that the husband has proved that the wife had taken treatment with two psychiatrists. The learned Family Judge had overlooked vital admissions in the evidence of P.W. 2, the Doctor examined by the husband and had taken only portion of the evidence to come to a conclusion regarding unsoundness of mind. This approach of the learned Family Judge had resulted in his reaching a wrong conclusion which compels us to interfere in appeal.
24. We therefore find that the husband has not made out a case for divorce on the ground of unsoundness of mind under Section 13(1)(iii) of the Hindu Marriage Act. Hence, the judgment and decree of the learned Family Judge in H.M.O.P. No. 536 of 2004 dated 21.03.2007 are liable to be set aside and are accordingly set aside.
25. As regards the maintenance case filed by the wife in M.C. No. 105 of 2006, the learned Family Judge dismissed the same solely on the ground that he had granted divorce along with permanent alimony and therefore there is no necessity for an order for separate maintenance. Now that we have set aside the decree for divorce, the wife has become entitled to maintenance. Since there is enough evidence on record to determine the quantum of maintenance also, we do not wish to remand the matter for consideration of the Family Court. The husband has accepted that he is working as a car salesman in Coimbatore at Annaimalai agency since July, 2003 and he got a salary of Rs. 1,976/- per month, when he joined the company. Though he claimed that he has not drawn a sum of Rs. 2,200/- as salary, he has not chosen to produce any salary certificate to establish his claim. He would admit that his mother is a retired teacher, who is getting pension. He would also admit that his mother owned house and she is getting rental income of Rs. 1,800/- per month from the said house. He also would get commission on sale of every car and this is not included in salary. He would also admit receipt of commission of Rs. 400/- per car. The evidence was taken in the year 2007 and we are now in the year 2016. Even a causal labour is earning about Rs. 300-500/- per day. Therefore, it is clear that the husband suppressed his actual income. The wife in her evidence has stated that his husband has a decent income of more than Rs. 10,000/- per month and he is also getting rental income.
26. It is admitted that the wife had educated the child all these years. The child is now 14 years old. It is also admitted that the husband has not paid any amount towards maintenance of the wife and the child till date. Though the husband has deposited a sum of Rs. 1,25,000/- out of Rs. 2,75,000/- directed to be paid as permanent alimony, the said sum has not been withdrawn by the wife. Taking into account the present day cost of living, the fact that the child is also aged about 14 years, and the education expenses of the child, we feel that the monthly maintenance of Rs. 4,000/- for the wife and Rs. 2,500/- for the child would be the proper sum. This monthly maintenance has to be paid from the date of the petition in MC. No. 105 of 2006 i.e., 16.06.2006 onwards. The wife would be entitled to withdraw the sum of Rs. 1,25,000/- deposited by the husband forthwith and the same can be adjusted against the arrears of past maintenance.
27. In the result C.M.A. No. 990 of 2008 is allowed setting aside the judgment and decree of the Family Court, Coimbatore in H.M.O.P. No. 536 of 2004, and the same stands dismissed. Crl. R.C. No. 1353 of 2007 is allowed setting aside the order in M.C. No. 105 of 2006 and granting the monthly maintenance of Rs. 4,000/- to the wife and Rs. 2,500/- to the minor child, payable from the date of petition in M.C. No. 105 of 2006 i.e., 16.06.2006. The wife will be entitled to withdraw a sum of Rs. 1,25,000/- along with accrued interest if any. Consequently the connected M.P. No. 1 of 2008 in CMA. No. 990 of 2008 is closed. No costs.