Saxena Vs. Pankaj Pandit  Insc 134 (21 March 2006)
Pal & Dr. Ar. Lakshmanan
out of S.L.P.(C) No.26418 of 2004) Dr. AR. Lakshmanan, J.
above appeal was filed by the appellant, wife of the respondent herein, against
the judgment and final order dated 10.9.2004 passed by the High Court of Delhi
in F.A.O. No. 235 of 2002 whereby the Civil Writ Petition filed by the
appellant was dismissed.
short facts are as follows:
marriage between the appellant-Vinita Saxena and the respondent-Pankaj Pandit
was soleminzed on 7.2.1993 as per Hindu rites and customs. No child was born
out of wedlock. The marriage, according to the appellant, lasted for five
months and was never consummated on account of the fact that the respondent was
incapable of performing his matrimonial obligations. According to the
appellant, from the first day of the marriage, the respondent's mother treated
the appellant with utmost cruelty both mental and physical and that the reason
for cruelty was the respondent's mental disorder. The respondent's case is a
case of Paranoid Schizophrenia and the appellant discovered only after the
marriage that the respondent was under constant treatment and observations of
different doctors even prior to the marriage for the said ailment. Though the
appellant knew the respondent prior to her marriage, in fact, it is only after
the marriage, the appellant realised and discovered the mental disorder of the
respondent. The appellant was never told by the respondent nor his parents that
he was suffering from such serious mental disorder and that he was under the
treatment and used to take strong medicines before the marriage. According to
Dr. C.R. Samanta, who was a consultant psychiatrist at Aashlok Hospital, the respondent was a case of Schizophrenia and depression.
On 4.7.1993, the appellant tried to discuss regarding the problems she was
facing with the respondent and her mother- in-law, who objected strongly and
accused the appellant of defaming the respondent.
instance, the appellant was beaten mercilessly by the respondent, which made
him nervous to the extent that he consumed "Baygon Spray" to commit
suicide. The appellant and her brother immediately took the respondent to the
hospital in order to save the respondent's life. Again, Dr. C.R. Samantha
prescribed certain medicines i.e.
Prodep to the
respondent was hospitalised for four days at Aashlok Hospital, Safdarjung Enclave and was
discharged after giving proper treatment on 7.7.1993. According to the
appellant, Triperidol is given in case of acute and chronic psychoses anxiety
disorders, mania, Schizophrenia as per the medical advise. The situation
further became worse on 8.7.1993 and 9.7.1993. Again on the instigation of the
respondent's mother, the respondent slapped and abused the appellant
mercilessly and she was not even allowed to have food that day and the next day
morning i.e. on 9.7.1993. On 9.7.1993, the appellant was pushed and kicked out
of the matrimonial home by her mother-in-law and the respondent and thereafter,
the appellant was not permitted to return again.
appellant filed H.M.A. Petition on 30.6.1994 against the respondent for
dissolution of marriage under Section 13(1)(1-a) and (iii) of the Hindu
Marriage Act,1955 hereinafter referred to as "the Act" on the grounds
of mental and physical cruelty and insanity before the Court of District Judge
trial Court vide its order dated 15.5.1993, relying on the facts and averments
made by the parties as well as taking the medical documents placed on record
observed that a letter of request should be written to the Medical
Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to examine
the respondent and to report about his mental state. However, this order was
subsequently set aside by the High Court in a Revision Petition filed by the
respondent. After the marriage had broken down the appellant pursued further
studies and completed M.S. (Structural Engineering) from IIT Delhi and in 1996,
left for her Ph.D. programme to U.S.A. Father of the appellant, J.S. Saxena,
deposed as PW-II and the appellant as PW-I and Dr. D.S. Arora, Medical
Superintendent, Aashlok Hospital and Dr Kuldeep Kumar of Safdarjung Hospital
recorded their statement as PW-III and PW-IV respectively supporting the case
of the appellant.
respondent, however, got only his statement recorded and before his
cross-examination could be concluded, deliberately did not appear in the
witness box to complete his deposition. The trial Court, vide order dated
19.3.2001, dismissed the petition filed by the appellant under Section 13(1)(1-a)
and (iii) of the Act for the grant of decree of divorce. Being aggrieved by the
said order, the appellant filed an appeal before the High Court. The High Court
vide order dated 10.9.2004 dismissed the appeal filed by the appellant holding
that the respondent is not suffering from Schizophrenia and that there is
insufficient material on record to establish the cause of cruelty and further
held that the incidents of cruelty is not so grave which come within the scope
of concept of cruelty. The High Court also held that the testimonies of the
doctors examined by the appellant to prove that the respondent was suffering
from Schizophrenia cannot be looked into for the reason that the respondent was
not under the treatment of the above doctors. Aggrieved by the said order, the
appellant filed this appeal by way of special leave petition before this Court.
respondent filed a counter affidavit. It is stated in the counter affidavit
that the special leave petition is devoid of any merit inasmuch as the Courts
below have given findings of fact in favour of the respondent and the Courts
below have rejected the pleas of the appellant on the ground that she has not
made out any case for grant of divorce. It was submitted that the appellant
even before the marriage was having intimacy with the respondent from 1986 to
1993 and she did not find any abnormality in the behaviour of the respondent.
It was also submitted that the appellant has not made out any case seeking
divorce on the ground of causing cruelty to her inasmuch as she has failed to
prove any instance leading to causing such cruelty to her by the respondent. It
was submitted that the respondent is willing to take the appellant and keep her
happy to the fullest and it is the desire of the respondent that the marriage
should not break on the ground that she is building up her career in America for the past 12 years. Since
concurrent findings of fact is in favour of the respondent, the appellant ought
not to be stated that the respondent and his mother were involved in causing
cruelty to her and that the Courts below have also disbelieved the version of
the appellant that the cruelty was caused by the respondent due to his mental
disorder. It was further contended that the appellant did not lead any evidence
to prove as a matter of fact that the respondent was suffering from
Schizophrenia and that the appellant has filed the petition deliberately and wilfully
and with a view to harass the respondent and his mother. It was also contended
that the mere branding of spouse as Schizophrenic is not sufficient and that
the degree of mental disorder of the spouse must be proved to be such that the appellant
spouse cannot be reasonably be expected to live with the other. It was also
submitted that from the evidence and pleadings, it has clearly been stated that
the appellant was having sex with the respondent without any problem and there
is no truth in the allegation made by the appellant. The other allegations
mentioned in the Divorce Petition have not been proved at all and that the
appeal filed by the appellant deserves to be rejected.
heard Ms. Kamini Jaiswal, learned counsel appearing for the appellant-wife and
Mr. Dhruv Mehta, learned counsel appearing for the respondent-husband.
have perused the pleadings, annexures filed along with the appeal and the
orders passed by the courts below and the grounds of appeal.
counsel for the appellant while reiterating the averments made in the appeal
submitted the following grounds for granting divorce as prayed for by the
of the marriage itself would constitute mental cruelty to a married woman.
attempted to commit suicide also amounts to mental cruelty and harassment.
has lived only for five months after the marriage and she was mercilessly
beaten by the respondent and his mother.
absolutely nothing to show that the documents and prescription given by the
doctors have been concocted. They are the official records of the Hospital.
prescriptions and the evidence of doctors clearly illustrate that the
respondent was under the treatment of Dr. Samantha and was a case of Paranoid
before his cross examination could be concluded, deliberately did not appear in
the witness box to complete his deposition and his evidence had to be closed.
was denied the matrimonial bliss of physical relation by the respondent because
of his incompetency which itself constitute cruelty for a married woman.
The threat to
commit suicide by the respondent amounts to cruelty and the Courts below took
cognizance of the fact that the respondent consumed "Baygon spray".
Samantha was not alive, the medical record authored by him can only be proved
by secondary evidence though Dr. D.S. Arora, medical Superintendent who
certified on oath that the respondent was admitted in Aashlok Hospital and stated that he had brought the records in respect of Pankaj
Pandit. He also identified the signatures of Dr. Samantha and the medical
prescriptions of his having treated the respondent have also been produced and
proved by him where it had been categorically stated that the respondent is
suffering from Paranoid Schizophrenia.
Likewise on the ground of
non-availability of Dr. Abhyankar, who had authored the medical prescription as
he was no more in service of the hospital cannot be fatal to disregard the
evidence of the other doctor, who produced and proved the entire record.
The marriage between the appellant
and the respondent hardly lasted for five months and both of them are living
separately for the last 13 years.
counsel appearing for the appellant cited the following decisions:
Bhosale vs. State of Maharashtra, (2002) 7 SCC 748,
vs. Aneel Kaur, (2005) 2 SCC 22,
Smt. Uma Wanti
vs. Arjan Dev , AIR 1995 P&H 312
Harbhajan Singh Monga
vs. Amarjeet Kaur AIR 1986 MP 41
Mrs. Rita Nijhawan
vs. Shri Balkishan Nijhawan, AIR 1973 Delhi 200
Singh vs. Yuvrani Pratap Kumari, AIR 1970 SC 137.
Vijay Kumar Ramchandra
Bhate vs. Neela vijaykumar Bhate, AIR 2003 SC 2462
B.N. Panduranga Shet
vs. N. Vijaylaxmi, AIR 2003 Karnataka 357
Mehta, learned counsel appearing for the respondent, per contra, after
referring to the grounds of divorce and the findings recorded by the trial
Court and the High Court which has affirmed the findings of the trial Court,
submitted that in order to make out a ground for divorce under Section
13(1)(iii) of the Act, it is not necessary to establish that the respondent is
suffering continuously or intermittently from mental disorder but it must
further be established that it is of such a kind and to such an extent that the
appellant cannot be reasonably be expected to live with the respondent. In
other words, the burden is not discharged by merely establishing that the
respondent is suffering from mental disorder which in the present case would
include Schizophrenia by virtue of the Explanation to the said provision but
the appellant must further lead evidence to establish that the mental disorder
is of such a kind and to such an extent that the appellant cannot reasonably be
expected to live with the respondent.
to learned counsel for the respondent, the above contention finds support from
a decision of this Court in Ram Narain Gupta vs. Smt. Rameshwari Gupta, 1988(4)
SCC 247. For ready reference, the relevant paras from the said judgment are as
"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.
xx xx xx
The reasoning of the High Court is that the requisite degree of the mental
disorder which alone would justify dissolution of the marriage has not been
established. This, it seems to us, to be not an unreasonable assessment of the
situation - strong arguments of Shri Goel to the contrary notwithstanding.
xx xx xx
burden of proof of the existence of the requisite degree of mental disorder is
on the spouse basing the claim on that state of facts.
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
Section 13(1)(iii). In the last analysis, the mere branding of a person as
schizophrenic will not suffice. For purposes of Section 13(1)(iii)
'schizophrenia' is what schizophrenia does." It was further submitted that
the aforesaid judgment of this Court has been followed by the Karnataka High
Court in the case of B.N. Panduranga Shet vs. N. Vijayalaxmi, (supra). Learned counsel also relied on the decision of
the Calcutta High Court in the case of Rita Roy vs. Sitesh Chandra AIR 1982
Calcutta 138 and the decision of the Himachal Pradesh High Court reported in
(1995) DMC 71 (DB).
counsel also cited the judgment of this Court in Rakesh K. Gupta vs. Ram Gopal Agarwala
& Ors., AIR 2005 SC 2426 for the proposition that even in a custody dispute
between the husband and wife wherein it was alleged by the husband that the
wife is suffering from Paranoid Schizophrenia, this Court still awarded custody
of the child to the mother.
to the learned counsel, the evidence which has been brought on record by the
appellant is wholly insufficient to infer that the respondent was suffering
from the said mental disorder and the doctors who are alleged to have treated
the respondent have not been examined as witnesses by the appellant and what
has been brought on record are certain prescriptions made by the said doctors
and the same are sought to be proved by examining the Medical Superintendent of
Aashlok Hospital, Safdarjung Enclave. Therefore, he submitted that in view of
the above fact, no inference can be drawn that the respondent was suffering
from Paranoid Schizophrenia and that the appellant has not been discharged of
the burden as required by the statutory provision. Learned counsel contended
that the words used in sub-clause (iii) of Section 13(1) to the effect that
"mental disorder of such a kind and to such an extent that the appellant
cannot reasonably be expected to live with the respondent" must be given
full effect as it is a well accepted principle of statutory interpretation that
a Court must make every effort to give effect to all words in a statute since
Parliament cannot be held to have been wasting its words or saying something in
vain. Learned counsel, for this proposition, relied on the following two
decisions of this Court: (2005) 7 SCC 234.
Union of India vs. Popular Construction, (2001) 8 SCC 470 Concluding his
submissions, learned counsel submitted that the appellant having failed to
establish the aforementioned requirement of the statute, the appeal must fail
on this ground.
: Cruelty It was submitted that in order to make out a ground for divorce
under Section 13(1)( i-a) of the Act, the conduct complained of should be grave
and weighty so as to come to the conclusion that the appellant spouse cannot be
reasonably expected to live with the other spouse. It must be something more
serious than "ordinary wear and tear of married life". For this
proposition, he relied on the judgment of this Court in A. Jayachandra vs. Aneel
Kaur (supra). Para 13 of the aforementioned judgment is
..but before the conduct can be called cruelty, it must touch a certain pitch
of severity. It is for the Court to weigh the gravity. It has to be seen
whether the conduct was such that no reasonable person would tolerate it"
It was argued that the trial Court, after examining the evidence, has come to
the conclusion that the acts complained of are not such as would constitute
cruelty and in any event the ground for divorce under Section 13(1)(i-a) is not
made out. It was submitted that the trial Court had occasioned to see the demeanour
of witnesses and, therefore, the view taken by the trial Court unless it can be
said to be perverse should not be faulted with. It was also contended that the
approach in such cases should be to perverse the matrimonial home. The judgment
in the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73 was
relied on for this purpose.
the contention raised by the counsel for the appellant that the parties have
not lived together for a long time and therefore, this is a fit case to pass a
decree of divorce, learned counsel for the respondent, submitted that this is a
wholly untenable argument and has to be rejected by this Court. For this, he
relied on the ruling of this Court in the case of A. Jayachandra vs. Aneel Kaur
his arguments, learned counsel appearing for the respondent submitted that both
the trial Court and the High Court have recorded concurrent findings and have
rejected the prayer of the appellant to grant decree of divorce under Section
13(1)(i-a) and (iii) of the Act and, therefore, this Court under Article 136 of
the Constitution of India cannot interfere with the said findings unless it is
established that the findings recorded by the trial Court and the High Court
further, he submitted that the findings of the trial Court are based on the
consideration of the entire evidence and well reasoned and in similar
circumstances, this Court refused to interfere with the concurrent findings of
fact arrived at by the Courts in Savitri Pandey vs. Prem Chandra Pandey
(supra). We have given our thoughtful and anxious consideration for the rival
submissions made by the respective counsel appearing on either side.
appellant filed a petition for divorce under Section 13(1)(i-a) and (iii) of
the Act on the ground of mental and physical cruelty. It is also her case that
on account of Paranoid Schizophrenia that the respondent was suffering from,
the appellant could not be reasonably expected to live with the respondent.
Section 13 (1)(i-a) and (iii) are reproduced hereunder:
solemnized, 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-
has, after the
solemnization of the marriage, had voluntary sexual intercourse with any person
other than his or her spouse; or
has, after the
solemnization of the marriage, treated the petitioner with cruelty; or * * * * *
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; or
suffering from a virulent and incurable form of leprosy; or
suffering from venereal disease in a communicable form; or
the world by entering any religious order; or
has not been
heard of as being alive for a period of seven years or more by those persons
who would naturally have heard of it, had that party been alive.
- In this
sub-section, the expression "desertion" means the desertion of the
petitioner by the other party to the marriage without reasonable cause and
without the consent or against the wish of such party, and includes the wilful
neglect of the petitioner by the other party to the marriage, and its
grammatical variations and cognate expressions shall be construed accordingly.
Either party to a
marriage, whether solemnized before or after the commencement of this Act may
also present a petition for the dissolution of the marriage by a decree of
divorce on the ground –
that there has
been no resumption of cohabitation as between the parties to the marriage for a
period of one year or upwards after the passing of a decree for judicial
separation in a proceeding to which they were parties; or
that there has
been no restitution of conjugal rights as between the parties to the marriage
for a period of one year or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.
A wife may also
present a petition for the dissolution of her marriage by a decree of divorce
on the ground –
in the case of
any marriage solemnized before the commencement of this act, that the husband
had married again before such commencement or that any other wife of the
husband married before such commencement was alive at the time of the
solemnization of the marriage of the petitioner:
that in either case the other wife is alive at the time of the presentation of
the petition; or
that the husband
has, since the solemnization of the marriage, been guilty of rape, sodomy or
that in a suit
under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956)
, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973
(2 of 1974) (or under the corresponding section 488 of the Code of Criminal
Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been
passed against the husband awarding maintenance to the wife notwithstanding
that she was living apart and that since the passing of such decree or order, cohabitation
between the parties has not been resumed for one year or upwards; or
marriage (whether consummated or not) was solemnized before she attained the
age of fifteen years and she has repudiated the marriage after attaining that
age but before attaining the age of eighteen years.
- This clause
applies whether the marriage was solemnized before or after the commencement of
the Marriage Laws (Amendment) Act, 1976. It is not in dispute that the marriage
has lasted hardly for five months and was never consummated on account of the
fact that the respondent was incapable of performing his matrimonial
obligations. The appellant has examined herself as PW-1.
has specifically stated in her deposition that the marriage was not consummated
at all. It has further come out in her deposition that she accompanied the
respondent at AIIMS and met Prof. Dr. Prema Bali, Sexologist and Marriage Counsellor.
In her deposition, it had also come out that the Doctor informed her that the
respondent cannot perform the marital obligations. She was also informed by the
said Doctor that the respondent was a Psychopathic case and he has no power of
concentration. She was also informed that the disease is of incurable in
nature. The appellant has further deposed that respondent kept on sleeping for
three days immediately after solemnization of marriage and the appellant was
told that she should not disturb him. It was further stated in her evidence
that on 4.7.1993, the appellant was blamed for the respondent's illness and was
mercilessly beaten up and on the same day the respondent consumed "Baygon
Spray" to commit suicide and he was taken to Aashlok Hospital, Safdarjung Enclave by the appellant and her brother.
cross-examination, the appellant has stated that though they were studying
together in the Engineering College, however, there were no special meetings between them
except meeting in the class. It has also come on record that there was no
intimacy between the appellant and the respondent. The appellant has
emphatically denied the allegation about the intimacy between the appellant and
the respondent prior to marriage w.e.f. 1987. She also stated on oath that it
was a marriage though of her choice but solemnized only after her parents had
given the consent. In the cross- examination, the respondent has not been able
to shake or destroy the case of the appellant.
support of her case, PW-2, J.S. Saxena father of the appellant, was examined.
He supported the appellant's case and corroborated her evidence. Even in the
cross-examination of PW-2, there is no material change or inconsistency. With
regard to the grant of cruelty, there is deposition of the appellant and her
father on record which clearly establishes and proves that the appellant was
treated with cruelty by the respondent and his mother. With regard to the plea
of mental insanity i.e. Section 13(1)(iii), the appellant adduced the evidence
of Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital as well as Dr. Kuldeep
Kumar of Safdarjung Hospital. Dr. D.S. Arora, a summoned witness produced the
entire record pertaining to the respondent. He exhibited the case of the
respondent maintained by Dr. C.R. Samantha. Dr. D.S. Arora identified the
signatures of Dr. C.R. Samantha and proved Ex. PW-3/1. The original record of
respondent was produced in the Court. Dr. D.S. Arora also proved the
prescriptions Ex. PW-3/2 and Ex. PW-3/3. Ex. PW-3/5 was the prescription
written by Dr. D.S. Arora and it was bearing his signatures. The entire medical
history and record of the respondent pertaining to his medical illness, his
visit and admission to Aashlok Hospital on 4.7.1993 and discharge on 7.7.1993 as well as the case
history of the respondent maintained by Dr.C.R. Samantha were duly proved and
to the medical record, the respondent was admitted with reference to a case of
Psychopathic and depression for the last fortnight, now admitted for disturbed
consciousness. He was suggested to take Triperidol medicine. The other prescription
has been authored by Dr. D.S. Arora who stated that the respondent had consumed
"Baygon Spray". It was also specified that the respondent is a known
case of depression. Medicine 'Triperidol' was suggested to be administered to
him. With regard to the consumption of "Baygon Spray", a stomach wash
was carried out upon the respondent and he was administered injections
'Atropine', and 'Dextrose-1/V and PAM 1 to 1/V. The evidence of Dr. D.S. Arora
and the record signed by Dr. C.R. Samantha are admissible in evidence and has
been legally proved. The evidence of Dr. Kuldeep Kumar of Safdarjung Hospital also establishes the case of mental insanity and the fact
that the respondent was a case of Paranoid Schizophrenia. The said Doctor
produced the original record and made necessary deposition. He had brought the
originals during his examination and it is recorded that the respondent had
visited the Psychiatric Ward on 12.12.1992 along with his mother. Dr. Abhyankar
also recorded about the history of respondent's illness. It was also recorded
by the said Doctor that the respondent suffers from delusion of persecution and
reference effect and on the physical examination it had been observed that the
respondent has clear systematized delusion of persecution and reference and,
therefore on the review it is clear that the respondent is suffering from
Paranoid Schizophrenia. The medical record of the respondent maintained by the Safdarjung
hospital (Outdoor Patient Department) has been established that the respondent
visited Hospital on 21.12.1992 and was advised for psychological testing. It
was observed in a medical sheet that the respondent was initially diagnosed for
psychosis. However, on subsequent visits and after detailed examination it has
been confirmed that he suffers from Paranoid Schizophrenia.
appellant has also produced on record a communication dated 9.5.1994 addressed
by Professor Dr. Prema Bali, who was working in the Institute of Sexology and Marriage Counselling. Dr. Prema Bali is the relative of
respondent and she has communicated to the appellant that the respondent has a
psychiatric problem as his case is a case of Paranoid Schizophrenia. It would
be pertinent to observe that there is no evidence whatsoever adduced by the
respondent or on his behalf. In fact, after recording of the
examination-in-chief and part cross-examination, the respondent refused to come
in the witness box and ran away. The observation has been made by the trial
Court in the proceedings.
RESEARCH ON THE DISEASE
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
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 appellant and hence 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 part
of the extracts from various medical publications are reproduced herein below:
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 experiences.
is customary to define 'delusion' 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
experiences 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
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
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.
is schizophrenia? Schizophrenia is a chronic, disabling mental illness
Psychotic symptoms * Disordered thinking * Emotional blunting How does
schizophrenia develop? Schizophrenia generally develops in late adolescence or
early adulthood, most often:
the late teens or early twenties in men * In the twenties to early thirties in
women What are the symptoms of schizophrenia? Although schizophrenia is
chronic, symptoms may improve at times (periods of remission) and worsen at
other times (acute episodes, or period of relapse).
symptoms appear gradually and can include:
Feeling tense * Difficulty concentrating * Difficulty sleeping * Social
withdrawal What are psychotic symptoms? Psychotic symptoms include:
Hallucinations: hearing voices or seeing things * 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.
patient may experience * A single psychotic episode during the course of the
illness * Multiple psychotic episodes over a lifetime * Continuous psychotic
episodes During 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. 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.
Indian Drug Review has specified the Drug Trifluoperidol as a sedative and
tranquilizer. With regard to administration it has been suggested that it is
given to patient suffering from Schizophrenia. Incidentally this drug was being
administered on medical advice to the respondent." In our view, the trial
Court failed to appreciate the uncontroverted evidence of the appellant who had
proved the case on every count. It has been established beyond doubt by the
Medical doctors who had deposed as witnesses and brought the original medical
record of the respondent that the respondent is suffering from mental disorder.
ground for grant of divorce on the plea of mental insanity/mental disorder is
different than cruelty. The appellant, in our view, had proved beyond doubt
that the respondent suffered from mental disorder and that the appellant
suffered cruelty by and at the behest of the respondent.
single Judge of the High Court failed to appreciate that in the absence of any
evidence led by the respondent, the appellant's evidence had to be relied upon
and on the basis of the evidence, the decree for divorce was bound to be
granted in favour of the appellant. The appellant had also given specific
instances of cruelty which clearly establish that she had a reasonable
apprehension that it will be harmful or injurious for her to live with the
PROPOSITION ON THE ASPECT OF CRUELTY
settled by catena of decisions that mental cruelty can cause even more serious
injury than the physical harm and create in the mind of the injured appellant
such apprehension as is contemplated in the Section. It is to be determined on
whole facts of the case and the matrimonial relations between the spouses. To
amount to cruelty, there must be such wilful treatment of the party which
caused suffering in body or mind either as an actual fact or by way of
apprehension in such a manner as to render the continued living together of
spouses harmful or injurious having regard to the circumstances of the case.
word 'cruelty' has not been defined and it has been used in relation to human
conduct or human behaviour. It is the conduct in relation to or in respect of
matrimonial duties and obligations. It is a course of conduct and one which is
adversely affecting the other. The cruelty may be mental or physical,
intentional or unintentional.
may be cases where the conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such cases, the cruelty will
be established if the conduct itself is proved or admitted.
cruelty alleged may largely depend upon the type of life the parties are
accustomed to or their economic and social conditions, their culture and human
values to which they attach importance. Judged by standard of modern
civilization in the background of the cultural heritage and traditions of our
society, a young and well educated woman like the appellant herein is not
expected to endure the harassment in domestic life whether mental, physical,
intentional or unintentional. Her sentiments have to be respected, her ambition
and aspiration taken into account in making adjustment and her basic needs
provided, though grievances arising from temperamental disharmony. This view
was taken by the Kerala High Court in the case reported in AIR 1991 Kerala 1.
In 1993 (2) Hindu L.R. 637, the Court had gone to the further extent of
observing as follows: "Sometime even a gesture, the angry look, a
sugar coated joke, an ironic overlook may be more cruel than actual
beating" Each case depends on its own facts and must be judged on these
concept of cruelty has varied from time to time, from place to place and from
individual to individual in its application according to social status of the
persons involved and their economic conditions and other matters. The question
whether the act complained of was a cruel act is to be determined from the
whole facts and the matrimonial relations between the parties. In this
connection, the culture, temperament and status in life and many other things
are the factors which have to be considered.
legal concept of cruelty which is not defined by statute is generally described
as conduct of such character as to have caused danger to life, limb or health
(bodily and mental) or to give rise to reasonable apprehension of such danger.
The general rule in all question of cruelty is that the whole matrimonial
relations must be considered, that rule is of a special value when the cruelty
consists not of violent act but of injurious reproaches, complains accusations
or taunts. It may be mental such as indifference and frigidity towards wife,
denial of a company to her, hatred and abhorrence for wife or physical, like
acts of violence and abstinence from sexual intercourse without reasonable
cause. It must be proved that one partner in the marriage however mindless of
the consequences has behaved in a way which the other spouse could not in the
circumstances be called upon to endure, and that misconduct has caused injury
to health or a reasonable apprehension of such injury. There are two sides to
be considered in case of cruelty.
the appellant's side, ought this appellant to be called on to endure the
conduct? From the respondent's side, was this conduct excusable? The court has
then to decide whether the sum total of the reprehensible conduct was cruel.
That depends on whether the cumulative conduct was sufficiently serious to say
that from a reasonable person's point of view after a consideration of any
excuse which the respondent might have in the circumstances, the conduct is
such that the petitioner ought not be called upon to endure.
what constitute the required mental cruelty for purposes of the said provision,
will not depend upon the numerical count of such incidents or only on the
continuous course of such conduct but really go by the intensity, gravity and
stigmatic impact of it when meted out even once and the deleterious effect of
it on the mental attitude, necessary for maintaining a conducive matrimonial
home. If the taunts, complaints and reproaches are of ordinary nature only, the
court perhaps need consider the further question as to whether their
continuance or persistence over a period of time render, what normally would,
otherwise, not be so serious an act to be so injurious and painful as to make
the spouse charged with them genuinely and reasonably conclude that the maintenance
of matrimonial home is not possible any longer.
modern view of cruelty of one spouse to another in the eye of law has been summarised
as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition
page 270:- "The general rule in all kinds of cruelty that the whole
matrimonial relations must be considered and that rule is of special value when
the cruelty consists not of violent acts, but of injurious reproaches,
complaints, accusations of taunts. Before coming to a conclusion, the judge
must consider the impact of the personality and conduct of one spouse on the
mind of the other, and all incidents and quarrels between the spouses must be
weighed from the point of view.
determining what constitutes cruelty, regard must be had to the circumstances
of each particular case, keeping always in view the physical and mental
condition of the parties, and their character and social status." This
Court in Dastane vs. Dastane AIR 1975 SC 1575 observed as under:- "The
Court has to deal not with an ideal husband and an ideal wife, (assuming any
such exist) but with the particular man and women before it. The ideal couple
or a mere ideal one will probably have no occasion to go to a matrimonial court
or, even if they may not be able to drawn their differences, their ideal
attitudes may help them overlook or gloss over mutual fault and failures.
without sex The Division Bench in the case of Rita Nijhawan vs. Balkrishan Nijhawan
in AIR 1973 Delhi 200 at 209 observed as follows:
without sex is an anathema. Sex is the foundation of marriage and without a
vigorous and harmonious sexual activity it would be impossible for any marriage
to continue for long. It cannot be denied that the sexual activity in marriage
has an extremely favourable influence on a woman's mind and body. The result
being that if she does not get proper sexual satisfaction it will lead to
depression and frustration. It has been said that the sexual relations when
happy and harmonious vivifres woman's brain, develops her character and trebles
her vitality. It must be recognized that nothing is more fatal to marriage than
disappointment in sexual intercourse." Section 13(1)(iii) 'mental
disorder' as a ground of divorce is only where it is of such a kind and degree
that the appellant cannot reasonably be expected to live with the respondent.
Where the parties are young and the mental disorder is of such a type that
sexual act and procreation of children is not possible it may furnish a good
ground for nullifying the marriage because to beget children from a Hindu
wedlock is one of the principal aim of Hindu Marriage where sanskar of marriage
is advised for progeny and offspring. This view was taken in AIR 1991 MP 205.
Court in Digvijay Singh vs. Pratap Kumari, AIR 1970 SC 137 has held as follows
"A party is impotent if his or her mental or physical condition makes
consummation of the marriage a practical impossibility. The condition must be
one, according to the statute, which existed at the time of the marriage and
continued to be so until the institution of the proceedings. In order to
entitle the appellant to obtain a decree of nullity, establish that his wife,
the respondent, was impotent at the time of the marriage and continued to be so
until the institution of the proceedings." Lord Denning in Sheldon v.
Sheldon (1966) 2 All ER 257, "The categories of cruelty are not disclosed.
Each case may be different. We deal with the conduct of human being who are not
generally similar. Among the human beings there is no limit to the kind of
conduct which may constitute cruelty. New type of cruelty may crop up in any
case depending upon the human behaviour, capability to tolerate the conduct
complained of. Such is the wonderful realm of cruelty." Spouses owe rights
and duties each to the other and in their relationship they must act
reasonably. In every case where cruelty exists it is possible to say that the
spouse at fault has been unreasonable. The list of cruelty, therefore, should
be breach of the duty to act reasonably, whether in omission or commission,
causing injury to health. Such a list avoids imputing on intention where in
fact none may exist. Further all such matters are foresight, desires, wishes,
intention, motives, perception, obtuseness, persistence and indifference would
remain relevant but merely as matter of evidence bearing upon the requirement
to act reasonably or as aggravation of the matters charged. We can also take
note of the fact that the respondent had filed a revision against the order of
the trial Court's direction for setting up of a medical Board to examine the
respondent. At the time of hearing, this Court directed the counsel for the
respondent to ascertain from the respondent as to whether he is willing to
submit himself for medical examination. However, the respondent refused to
submit himself for medical examination and go before the medical Board. This
would but confirm the contention of the appellant that the respondent is
suffering from Paranoid Schizophrenia and that this Court can draw adverse
inference in view of the conduct of the respondent.
case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness
of mind may be held to be cruelty.
case of Harbhajan Singh Monga vs. Amarjeet Kaur (Supra), it has been held that
attempt to commit suicide by one spouse has been found to amount to cruelty to
observation made by this Court in the case of Shobha Rani vs. Madhukar Reddi,
AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances of
the case on hand. It reads as follows:
has been a marked change in the life around us. In matrimonial duties and
responsibilities in particular, there is a sea change. They are of varying
degrees from house to house or person to person. Therefore, when a spouse makes
complaint about the treatment of cruelty by the partner in life or relations,
the Court should not search for standard in life. A set of facts stigmatized as
cruelty in one case may not be so in another case. The cruelty alleged may
largely depend upon the type of life the parties are accustomed to or their
economic and social conditions. It may also depend upon their culture and human
values to which they attach importance. The Judges and lawyers, therefore,
should not import their own notions of life. Judges may not go in parallel with
them. There may be a generation gap between the Judges and the parties. It
would be better if the Judges keep aside their customs and manners. It would be
also better if Judges less depend upon precedents." Humane aspects which
this Court should consider:
The appellant was 24 years of age when she got married.
The marriage lasted for four to five months only when she was compelled to
leave the matrimonial home.
The marriage between the parties was not consummated as the respondent was not
in a position to fulfil the matrimonial obligation.
The parties have been living separately since 1993. 13 years have passed they
have never seen each other.
Both the parties have crossed the point of no return.
workable solution is certainly not possible.
Parties at this stage cannot reconcile themselves and live together forgetting
their past as a bad dream.
Parties have been fighting the legal battle from the year 1994.
The situation between the parties would lead to a irrefutable conclusion that
the appellant and the respondent can never ever stay as husband and wife and
the wife's stay with the respondent is injurious to her health.
The appellant has done her Ph.d. The respondent, according to the appellant, is
not gainfully employed anywhere.
a matter of fact, after leaving his deposition incomplete during the trial, the
respondent till date has neither appeared before the trial Court nor before the
facts and circumstances of the case as well as all aspects pertain to humanity
and life would give sufficient cogent reasons for us to allow the appeal and
relieve the appellant from shackles and chain of the respondent and let her
live her own life, if nothing less but like a human being.
view, the orders of the Courts below have resulted in grave miscarriage of
justice to the appellant who has been constrained into living with a dead
relationship for over 13 years. The resultant agony and injustice that has been
caused to the appellant, it is a fit case for interference under Article 136 of
the Constitution of India and reversal of findings of the Courts below which
have resulted in grave miscarriage of justice.
result, the civil appeal stands allowed. There will be a decree for divorce in favour
of the appellant-wife and against the respondent-husband. The order of the
trial Court as affirmed by the High Court, stands set aside. There will be no
order as to costs.