22. In our opinion, the Family Court was justified in denying the decree of annulment of marriage on the ground of Section 12(2) of the Act that even after coming to know of such illness, the appellant husband continued to live with the respondent wife and cohabit as husband and wife and, therefore, on the ground of fraud or on the ground of such mental disorder he could not be awarded the decree of annulment of marriage.
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Decided On: 23.01.2007
Prakash Kumar Bachlaus
Vs.
Smt. Chanchal @ Jaya
Vs.
Smt. Chanchal @ Jaya
Hon'ble Judges/Coram:
Gyan Sudha Misra and Vineet Kothari, JJ.
Gyan Sudha Misra and Vineet Kothari, JJ.
1. Marriages are made in Heavens and they are only performed here on this earth', is the oft quoted extract from Hindu mythology. Hindu Marriages is a sacrament and not a contract is another tenet. To sustain and endure a marriage, the couple has to sail through various tides in life. Feeling of love, affection, depression, broken heart, unfulfilled desires are some of them. For ultimate good and peace in Society marriages must endure and last and not allowed to be broken easily. Hindu Marriage Act, 1955 was enacted by Parliament with these parameters in mind.
2. This is husband's appeal having lost before the Family Court, who sought a decree of annulment of his marriage which took place on 30.11.1993 according to Hindu rites under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to 'as the Act') on the ground that a fraud was played upon him and his wife Smt. Chanchal @ Jaya who was suffering from Schizophrenia & Gilbert Syndrome and, therefore, after living with her for about 5 months, the marriage broke down on 14.5.1994 when the wife left the matrimonial home and since then the couple is living separately.
3. The Family Court framed 3 issues as under:
(i) whether the respondent's wife was suffering from a illness Gilbert Syndrome and whether she was a patient of Schizophrenia even prior to marriage?
(ii) Whether the respondent was married to appellant husband by playing a fraud upon him; and
(iii) Whether the appellant was entitled to a decree of annulment of marriage under Section 12 of the Act?
4. While the first two issues were decided by the Family Court in favour of the applicant husband, the third issue was decided against the applicant husband denying the decree of annulment of the marriage mainly on the ground that even after coming to know of the said mental disorder of the wife admittedly and undisputedly on 24.4.94 the applicant husband continued to live and to cohabit with the wife upto 14.5.93 and, therefore, he was not entitled to the decree of annulment of the marriage in view of Section 12(2) read with Section 12(1)(c) of the Act.
5. A look at relevant provisions would be apposite here:
5. Conditions for a Hindu Marriage. -A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;12. Voidable marriages. - (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:
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or(iii) ...
(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity
(iv) ...
(v) ...
(a) that the marriage has not been consummated owing to the impotence of the respondent; or(2) Notwithstanding anything contained in Sub-section (1), no petition for annulling a marriage-
(b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), 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; or ,
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(a) on the ground specified in Clause (c) of Sub-section (1), shall be entertained if -13. Divorce.--(1) Any marriage solemnized, whether before of 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-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or(b) ...
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(i) ...
(ii) ...
(iii) ...
(i) ...
(ia) ...
(ib) ...
(ii) ...
(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.
Explanation. - 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;(iv) ...
(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; or
(v) ...
(vi) ...
(vii) ...
6. Being aggrieved by the said judgment and decree refusing the annulment of marriage, the appellant husband has approached this court byway of present appeal. Respondent wife has also filed cross-objections.
7. We have heard learned Senior Advocate Mr. S.M. Mehta, for the appellant husband and Mr. R.K. Agrawal for the respondent-wife at length. This court even made efforts for reconciliation between the parties after calling the parties to Court but while the wife appeared to be ready and willing to unconditionally go to the matrimonial home and live with the husband, the appellant husband gave a fiat refusal and was not at all ready and willing to take back the wife into the matrimonial home. The parties having constantly failed to arrive at a mutual settlement, the court proceeded to hear the present appeal on merits and the same was heard at length.
8. Learned Counsel for the appellant Mr.Mehta, Senior Advocate emphasized that the behaviour and attitude of respondent-wife was abnormal right from the beginning and he recounted few incidents referring to the averments made in the plaint and evidence produced before the Family Court. In brief the appellant husband urged that the appellant husband is a highly educated person and is working as a Lecturer in the College and he was not knowing about the mental disorder of respondent-wife who was suffering from Gilbert Syndrome and Paranoid Schizophrenia and had he known about it, he would have never married the said respondent. A fraud was played upon him and the fact of said mental disorder of the wife was concealed from him and his family members. Soon after the marriage on 30.11.93 on the very first night, the wife started behaving in an abnormal mariner and on the very first night, she spoke in a highpitch tone and asked the husband that why should he not have put on shirt of black or red colour. This caused serious disturbance to the mind of husband. Thereafter also the behaviour of respondent wife continued to be abnormal and she was very sharp tongued with the family Members of the husband. At the time of marriage, the sister of respondent wife said that the colour of eyes of wife was yellow because of Jaundice for which she was taking the medicines. According to the appellant husband, the respondent wife started misbehaving with the husband even at the initial stages of their marriage and on 3.12.1993 when the family members were watching T.V., she suddenly said that your T.V. is a junk. On 11.3.1993, when they were sleeping in the bedroom, the respondent wife suddenly jumped on the appellant husband and pressed his throat and the appellant could barely save himself. Similar incidents happened on 23rd and 24th April, 1994. Between 4.4.94 to 10.4.94 when the appellant husband with his family members and respondent wife went to Alwar to attend the marriage of his cousin sister and on 9.4.94, when they were going out for local sight seeing, the respondent wife insisted on riding with the appellant husband on his scooter and when requested to sit with other family members in the accompanying car, she ran towards the local lake and tried to commit suicide and was prevented to do so by the brother-in-law of appellant husband. On 10.4.94, when the couple was returning from Railway Station, the respondent wife suddenly in the cycle rickshaw itself kissed the appellant husband which was quite abnormal, which was refused by the appellant husband. All these incidents quoted above created serious doubt in the mind of the appellant husband that the respondent wife was suffering from mental disorder and, therefore, on 30.4.1994 he took her to Dr. G.K. Shukla, a famous doctor for such diseases in Jawahar Lal Nehru Hospital, Ajmer who asked for the previous prescriptions and before whom the respondent wife admitted that she was already under the treatment of Dr. Shiv Gautam, Professor of Psychiatric Department, SMS Hospital, Jaipur. On 2.5.1994 the appellant husband requested the father of respondent wife to send him the prescriptions of the earlier Dr. Shiv Gautam. However, when they were not sent, on 15.5.1994 the appellant husband himself went to Jaipur and brought such prescriptions which clearly established/ showed that the respondent wife was suffering from paranoid schizophrenia even prior to her marriage and was under the treatment. As already stated since 15.4.1994 both husband and wife are living separately and the application for annulment was filed by the appellant husband before the Family Court in June, 1994.
9. The respondent wife herself contested the said petition before the Family Court, Ajmer. Both the parties got examined witnesses, four on the side of appellant husband, Aw. 1 Prakash Kumar, husband himself, Aw.2 Dr. G.K. Shukla, Aw.3 Shanti Devi, mother and Aw.4 Satish Kumar, father of the appellant husband whereas NAVV. 1 Smt. Chanchal alias Jaya, respondent wife and NAW.2 Rammurti, mother of the respondent wife were examined. Documentary evidence was also placed before the Family Court in the form of few letters, certificate of Dr. Shiv Gautam, income certificate and doctors prescriptions of the wife respondent. After hearing the parties and taking written submissions, the Family Court decided the case as aforesaid denying the decree of annulment of marriage.
10. Before us, the arguments were made on behalf of the appellant husband by the learned Counsel for the appellant who relied upon the judgments in Durga Prasanna Tripathy v. Arundhati Tripathy MANU/SC/0500/2005 : AIR2005SC3297 ; Bikkar Singh v. Smt. Mohinder Kaur MANU/PH/0146/1981; and Smt. Asha Srivastava v. R.K. SrivastavaAIR 1981 Delhi 253, Learned Counsel for the appellant husband submitted that in view of the clear findings of the Family Court that the respondent wife was suffering from such serious mental disorder as to render of the living together of the husband and wife impossible and the said fact having been concealed from the husband and his family members at the time of marriage, he was entitled to a decree of annulment of marriage and he also submitted that having lived separately for more than 12 years now, the marriage had fallen on the rocks and had crossed the point of return and, therefore, this Court should award the decree of annulment of marriage and in the alternative a decree of divorce Under Section 13 of the Act even awarding permanent alimony.
11. The same was seriously and vehemently opposed by Mr. R.K. Agarwal, learned Counsel appearing for the respondent wife who submitted, relying on various case laws that no fraud was played upon by the respondent wife or her family members and before marriage she was interviewed and talked at length by the family members and appellant husband. Moreover, Gilbert syndrome is no illness and one can lead a normal life with that and even paranoid schizophrenia in the case of respondent wife was of mild nature and with the constant treatment, the wife was absolutely cured and was leading a normal life, of course with separation from her husband. The incidents pointed out by the appellant husband though denied in the written statement and evidence by the respondent wife, even if taken to be true only amounted to "ordinary wear and tear of the marriage life" and such incidents could happen in any married life. He submitted that the wife was absolutely normal and was ready and willing to go to her matrimonial home and the appellant husband had deliberately and wrongly kept her out of the matrimonial home and, therefore, the appellant husband was not entitled to any decree of annulment or divorce as claimed and the appeal deserves to be dismissed with costs. He relied upon the judgments in case of Ram Narain Gupta v. Smt. Rameshwari Gupta MANU/SC/0402/1988 : AIR1988SC2260 ; R. Lakshmi Narayan v. Santhi MANU/SC/0317/2001 : [2001]3SCR329 ; B.N. Panduranga Shet v. S.N. Vijayalaxmi MANU/KA/0073/2003 : AIR2003Kant357 ; Smt. Rita Roy v. Sitesh Chandra MANU/WB/0034/1982 : AIR1982Cal138 ; and Raghunath Gopal Daftardar v. Sau. Vijaya Raghunath Daftardar MANU/MH/0055/1972 : AIR1972Bom132 . He mainly submitted on the strength of these judgments that the degree of mental disorder which must be proved should be such which renders it impossible for spouses to live with each other and such standard of proof is strict and it cannot be claimed that before the Family Court where lawyers' appearance is not allowed, the degree of proof may be less burdensome, though the procedure adopted by the Family Court may be of summary nature. He also denied the allegations of fraud against the wife or her family members and relying on Bombay High Court decision he submitted that mere non-disclosure prior to marriage or concealment of curable disease of a girl and false representation that she was healthy does not amount to fraud within the meaning of that word used in Section 12(1)(c) of the Act and no decree of annulment could be given on that ground.
12. Before coming to the discussions and reasoning, we should give our attention to the nature of illness of the respondent wife as alleged. The Hon'ble Supreme Court in Vinita Saxena v. Pankaj Pandit in a recent judgment reported in MANU/SC/8038/2006 : AIR2006SC1662 had occasion to deal with a similar case where the wife came with a case seeking decree of divorce on the ground of mental disorder in the form of paranoid schizophrenia of the respondent husband. There the Hon'ble Supreme Court extracted the discussion about the disease schizophrenia as under and it is considered appropriate to extract the same as under:
A Research on the Diseases
Schizophrenia is one of the most damaging of all mental disorders. It causes its victims to lose touch with reality. They often begin to hear, see or feel things that aren't really there (hallucinations) or become convinced of things that simply aren't true (delusions). In the paranoid form of this disorder, they develop delusions of persecution or personal grandeur. The first signs of paranoid schizophrenia usually surface between the ages of 15 and 34. There is no cure, but the disorder can be controlled with medications. Severe attacks may require hospitalisation. The appellant has filed Annexures L, M, N, O, P and Q which are extracts about the aforesaid disease. The extracts are sum and substance of the disease and on a careful reading it would be well established that the evidence and documents on record clearly make out a case in favour of the appellant and hence the appellant was entitled to the relief prayed. In the memorandum and grounds of appeal, some salient features of the disease have also been specified. Some of the relevant parts of the extracts from various medical publications are reproduced hereinbelow:
What is the disease and what one should know?
A psychotic lacks insight, has the whole of his personality distorted by illness, and constructs a false environment out of his subjective experience.
It is customary to define 'delusions' more or less in the following way. A delusion is a false unshakeable belief, which is out of keeping with the patient's social and cultural background. German psychiatrists tend to stress the morbid origin of the delusion, and quite rightly so. A delusion is the product of internal morbid processes and this is what makes it unamenable to external influences.
Apophanous experierice which occur in acute schizophrenia and form the basis of delusions of persecution, but these delusions are also the result of auditory hallucinations, bodily hallucinations and experiences of passivity. Delusions of persecution can take many forms. In delusions of reference, the patient feels that people are talking about him, slandering him or spying on him. It may be difficult to be certain if the patient has delusions of self-reference or if he has self- reference hallucinosis. Ideas of delusions or reference are not confined to schizophrenia, but can occur in depressive illness and psychogenic reactions.
Causes
The causes of schizophrenia are still under debate. A chemical imbalance in the brain seems to play a role, but the reason for the imbalance remains unclear. One is a bit more likely to become schizophrenic if he has a family member with the illness. Stress does not cause schizophrenia, but can make the symptoms worse.
Risks
Without medication and therapy, most paranoid schizophrenics are unable to function in the real world. If they fall victim to severe hallucinations and delusions, they can be a danger to themselves and those around them.
What is schizophrenia?
Schizophrenia is a chronic, disabling mental illness characterized by:
Psychotic symptomsHow does schizophrenia develop?
Disordered thinking
Emotional blunting
Schizophrenia generally develops in late adolescence or early adulthood, most often:
In the late teens of early twenties in menWhat are the symptoms of schizophrenia?
In the twenties to early thirties in women
Although schizophrenia is chronic, symptoms may improve at times (period of remission) and worsen at other times (acute episodes, or period of relapse).
Initial symptoms appear gradually and can include:
Feeling tenseWhat are psychiatric symptoms?
Difficulty in concentrating
Difficulty in sleeping
Social withdrawal
Psychotic symptoms include:
Hallucinations: hearing voices or seeing things.A patient may experience:
Delusions: bizarre beliefs with no basis in reality (for example, delusions of persecution or delusions of grandeur).
These symptoms occur during acute or psychotic phases of the illness, but may improve during periods of remission.
A single psychotic episode during the course of the illnessDuring a psychotic episode, the patient is not completely out of touch with reality. Nevertheless, he/she has difficulty distinguishing distorted perceptions of reality (hallucinations, delusions) from reality, contributing to feelings of fear, anxiety, and confusion.
Multiple psychotic episodes over a lifetime
Continuous psychotic episodes
The disorder can prove dangerous for some - especially when symptoms of paranoia combine with the delusional symptoms of schizophrenia. In fact, doctors say paranoid schizophrenics are notorious for discontinuing the treatments which help control their symptoms.
The Indian Drug Review has specified the drug Trifluoperidol as a sedative and tranquiliser. With regard to administration it has been suggested that it is given to a patient suffering from schizophrenia. Incidentally this drug was being administered on medical advice to the respondent.
13. It would also be useful to refer to the definitions of these related terms from Dorland's Illustrated Medical Dictionary 28th Edition. The term "schizophrenia" has been defined as under in the said dictionary:
Schizo-phrenia (skiz"o-fre'ne-e, skit"so-fre'ne-e)[schizo- +Gr.phreh mind +-ia] [DSM-IH-R] a mental disorder or heterogeneous group of disorders (the schizopherenias or schizopherenic disorders)com-prising most major psychotic disorders and characterized by disturbances in form and content of thought (loosening of associations, delusions, and hallucinations), mood (blunted, flattened, or inappropriate affect), sense of self and relationship to the external world (loss of ego boundaries, dereistic thinking, and autistic withdrawal), and behaviour (bizarre, apparently purposeless, and stero-typed activity or inacivity). The definition and clinical application of the concept of schizophrenia have varied greatly. The DSM-II-R criteria emphasize marked disorder of thought (delusions, hallucinations, or other thought disorder accompanied by disordered affect or behaviour), deterioration from a previous level of functioning, and chronic-ity (duration of more than 6 months), thus excluding from this classification conditions referred to by others as acute, borderline, simple, or latent schizopherenia,. Originally called dementia praecox and characterized as a psychosis with adolescent onset and a chronic course ending in deterioration. The term schizopherenia was introduced by Bleuler because neither early onsent nor terminal deterioration is an essential feature; he emphasized the splitting and lack of personality integration seen in the disorder.
Acute s., acute schizophrenic episode; a condition characterized by acute onset of schzopherenic symptoms; since DSM-III-R defines schizophrenia as a chronic disorder, such conditions must now be classified in another psychotic syndrome, such as schizophreniform disorder, brief reactive psychosis, or schizoaffective disorder.
Ambulatory s., mild schizophrenia sufficiently well compensated so that the patient can maintain himself in the community without hospitalization.
Borderline s., latent s. catatonic s. [DSM-III-R], a type of schizophrenia characterized by marked psychomotor disturbance; catatonic stupor (marked decrease in reactively to the environment and in spontaneous activity) or mutism, catatonic negativism (resistance to all instructions or attempts to be moved), catatonic rigidity (maintenance of a rigid posture), catatonic excitement (excited, uncontrollable, and apparently purposeless motor activity), or catatonic posturing (assumption of bizarre fixed postures); associated features are stereotyped behaviors, mannerisms, and waxy flexibility, call also catatonia.
Childhood s., schizophrenia with onset before puberty, characterized by autistic, withdrawn behaviour, failure to develop art identity separate from the mother's, and gross developmental immaturity, a category that formerly included all types of childhood "psychosis" including symbiotic psychosis and infantile autism. DSMIII- R, taking the position that there is no clear relationship between these disorders and adolescent and adult schizophrenia] and other psychotic disorders, has renamed them pervasive development disorders.
Disorganized s.[DSM-IH-R], a type of schizophrenia characterized by frequent incoherence; marked loosening of associations, or grossly disorganized behaviour and flat or grossly inappropriate affect that does not meet the criteria for the catatonic type; associated features include extreme social withdrawal, grimacing, mannerism, mirror gazing, inappropriate giggling, and other odd behaviors, call also hebephrenia and hebephrenic s.
hebepherenic s., disorganized s.
latrent s., a type of schizophrenia characterized by clear symptoms of schizophrenia but no history of a psychotic schizophrenic epi-sode;it includes conditions that have been called borderline, incipient, prepsychotic, prodromal, pseudoneurotic, and pseudopsychopathic schizophrenia, patients described by these terms do not fit the DSM-III-R definition of schizophrenia; most would be classified as having schizotypal personality disorder.
Nuclear s., process s.
paranoid s., [DSM-III-R], a type of schizophrenia characterized by preoccupation with one or more systematized delusions or with frequent auditory hallucinations related to a single theme.
Paraphrenic s., paranoid.
Prepsychotic s., latent s.
process s., a subset of schizophrenias assumed (like the original concept of dementia praecox) to have endogenous original and poor prognosis as compared to other cases, termed reactive schizophrenia or schizophrenic reaction, that are assumed to be caused by predisposing or precipitating environmental factors and to have a better prognosis; called also schizophrenic process and nuclear s.
pseudoneurotic s., schizotypal personality disorder.
Pseudopsychopathic s., a term applied to patients who fit the diagnostic criteria of antisocial (psychopathic) personality disorder but have abnormalities of thought and emotion resembling those seen in schizophrenia. Reactive-s, a subset of schizophrenia assumed to be caused by predisposing or precipitating environmental factors and to have a more favorable prognosis than process schizophrenia.
Residual s., a type of schizophrenia characterized by a history of one or more episodes of schizophrenia with prominent psychotic symptoms, current lack of such symptoms, but continuing presence of other schizophrenic symptoms as blunted or inappropriate affect, social withdrawal, eccentric behaviour, illogical thinking, or loosening of associations.
Schizoaffective s., see under disordered
simple s., schizophrenia without prominent psychotic features; schizotypal personality disorder (see under personality) undifferentiated s., a type of schizophrenia characterized by the presence of prominent psychotic symptoms but not classifiable as catatonic, disorganized or paranoid.
14. The other term Gilbert syndrome is defined like this:
Gilbert Syndrome., an inborn error of bilirubin metabolism, probably autosomal dominant, a benign elevation of unconjugated bilirubin with no liver damage or nemotologic abnormalities. Called also constitutional hepatic dysfunction, familial cholemia, hyperbilirubinemia constitutional hyperbilirubinemia jaundice, and Gilbert cholemia or disease.
15. Theories of mental phenomena are diverse and include the dualist concept - shared by Descartes and Sigmund Freud - of the separateness of the existence of the physical or the material world as distinguished from the non-material mental world with its existence only spatially and not temporally. There is, again, the theory which stresses and neurological basis of the mental phenomenon by asserting the functional correlation of the neuronal arrangements of the brain with mental phenomena. The 'behaviourist'-tradition, on the other hand, interprets all reference to mind as 'constructs' out of behaviour. "Functionalism", however, seems to assert that mind is the logical or functional state of physical systems. But all theories seem to recognize, in varying degrees, that the psychometric control over the mind operates at a level not yet fully taught to science. When a person is oppressed by intense and seemingly insoluble moral dilemmas, or when grief of loss of dear ones etch away all the bright colours of life, or where a brokenmarriage brings with it the loss of emotional security, what standards of normalcy of behaviour could be formulated and applied? The arcane infallibility of science has not fully pervaded the study of the nonmaterial dimensions of'being'.
16. Lord Wilberforce, referring to the psychological basis of physical illness said that the area of ignorance ,of the body-mind relation seems to expand with that of knowledge. In LC Loughlin v. O. Brian (1983) 1 AC 410 the learned Lord said, though in a different context:
...Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical may be caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable and illness as any that may be caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who is hypothesised by the Courts....
17. This medical concern against too readily reducing a human being into a functional non-entity and as a negative unit in family or society is law's concern also and is reflected, at least partially, in the requirements of S.13(1)(iii). In the last analysis, the mere branding of a person as schizophrenia will not suffice. For purposes of Section 13(1)(iii) 'schizophrenia' is what "Schizophrenia does".
18. From the aforesaid definitions and extracted portion from the judgment of the Hon'ble Apex Court though the disease schizophrenia appears to be a serious mental disorder and it may render normal marital life impossible but the question is that whether appellant husband has proved to the hilt that the respondent wife in the present case is suffering from such disease and if so to what extent and whether such extent of disease is sufficient for giving a decree of annulment of marriage. Unfortunately, in this case Dr. Shiv Gautam under whose treatment the respondent wife is stated to have been prior to her marriage was not even examined at the instance of either of the parties by the Family Court. Dr. G.K. Shukla, Aw.2 who examined the respondent wife on 25.4.1994 on a question put by court stated that he did not prepare any report about the illness of the respondent wife and what was the percentage of Gilbert syndrome was not known nor the percentage of schizophrenia was not known to him. He also stated that upon talking tq the respondent wife he felt that she was feeling lack of confidence and also felt that she was being wronged. Upon cross-examination by the respondent wife herself the said doctor stated that Gilbert syndrome is a inheritable disease and upon reduction of level of enzymes the patient may suffer from jaundice and feel inaction, lack of hunger and even anaemic. The statements of Aw.l husband, Aw.3 & Aw.4 parents of husband only state about the minor incidents and normal disputes of a wife of any person in the family of in-laws. They do not point out any such serious incident which establish serious disease of schizophrenia or Gilbert syndrome; The incidents cited above as stated in the plaint and statement of husband also do not, in our opinion, establish the case of mental disorder of the respondent wife to such a extent which would render the normal marital life impossible. We would like to rely upon the judgment of Hon'ble Supreme Court in A. Jayachandra v. Aneel Kumar MANU/SC/1023/2004 : AIR2005SC534 where the Hon'ble Supreme Court held that "ordinary wear and tear of married life" does not amount to cruelty and before a conduct can be said to be cruelty, it must touch a certain pitch and severity,
19. We have also examined the statements of NAW.1 respondent wife and NAW.2 her mother Smt. Rammurti. They have clearly stated that the respondent wife was not suffering from schizophrenia or Gilbert syndrome and before marriage she was only suffering from a disease akin to jaundice and was taking 'Gardinal' medicine for the same. She has also stated that she is B.A. Pass and since her terms with her Bhabhi were not so good and she had also failed once in B.A. Exam, therefore, she was suffering from depression and for that she was under the treatment of Dr. Shiv Gautam. The mother of the respondent wife also similarly stated that her daughter was normal and even if and she was suffering from mild schizophrenia resulting in yellow colour of her eyes for which she was taking medicines and the appellant husband and his family members about 15 women and 15 men had come to see the respondent girl before her marriage and all their questions were properly answered and nothing was concealed from them. We have also examined some of the letters placed on record as Exhibit 1 to 5 which also do not indicate that the respondent wife was suffering from high level of schizophrenia so as to render the normal marital life impossible.
20. It appears that on account of some untoward behaviour of wife in the moments of irritation and depression displeased the appellant husband and he wanted to wriggle out of the sacraments of marriage and, therefore, taking the shelter of these grounds of mental disorder, he initiated such legal battle and parties started living separately after 5 months of their marriage.
21. The Hon'ble Supreme Court in R. Lakshmi Narayan v. Santhi (supra) held that Section 9 provides that a marriage may be solemnised between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein in Clause (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and Section 12(1)(b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in Clause (ii) of Section 5. On a plain reading of the said provision it is manifest that the conditions prescribed in that section, if established disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the court for breaking a marriage already solemnised. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety.
22. In our opinion, the Family Court was justified in denying the decree of annulment of marriage on the ground of Section 12(2) of the Act that even after coming to know of such illness, the appellant husband continued to live with the respondent wife and cohabit as husband and wife and, therefore, on the ground of fraud or on the ground of such mental disorder he could not be awarded the decree of annulment of marriage. Consequently, we are inclined to dismiss the appeal of appellant husband and refusing the decree of annulment of marriage on the same grounds and we do so accordingly. We also for the same reason, refuse to grant decree of divorce Under Section 13 on the same grounds as urged by the learned Counsel for the appellant husband as we are of the opinion that it is incumbent upon the appellant husband to continue to live with his legally married wife and perform his marital obligations.
23. Therefore, the following further positive directions in the facts and circumstances of the case, we deem it proper to issue to the appellant husband and respondent wife both:
1. That the appellant husband Prakash Kumar Bachlaus shall take back the respondent wife Smt. Chanchal alias Jaya in his matrimonial home and start living with her as husband and wife and provide her the normal peace, love and affection of a matrimonial home.
2. We also direct the respondent wife to perform her marital obligations in a peaceful and normal manner and take care of the needs of her husband and her family members in a peaceful and cordial manner. She is not supposed to cry on the roof top, as it were, about her victory in this legal battle at this forum and she should understand that living peacefully in a harmony in a family is more appropriate behaviour in view of overall peace and good atmosphere required in the society rather than broken marital homes and acrimonies of such unfortunate litigations.
3. That the appellant husband shall deposit a sum of Rs. 1,00,000/-(Rs. one lac) in the form of fixed deposit in the name of respondent wife with any nationalized bank within a period of 15 days from today and handover such fixed deposit to the respondent wife as a compensation for the long number of years which she was compelled to live separately and away from her marital home.
4. That the appellant husband shall or for such period for which he does not take back the respondent wife in the matrimonial home and start living with her from the date of this judgment shall pay an ad hoc monthly maintenance of Rs. 7,000/- to the respondent wife in cash or by account payee demand draft in the first week of every month.
5. That if within six months of our judgment and order still the appellant husband does not take back the respondent wife in the matrimonial home and start living as husband and wife as directed above, the respondent wife shall be entitled to approach this Court by way of contempt petition.
24. While dismissing the aforesaid appeal with the aforesaid directions, we express our sanguine hope that the couple before us instead of entering into further litigative battles would more concentrate on letting the good senses prevail and live as a happy family. Costs easy.
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