Ram Narain
Gupta Vs. Smt. Rameshwari Gupta [1988] INSC 272 (12 September 1988)
Venkatachalliah,
M.N. (J) Venkatachalliah, M.N. (J) Sen, A.P. (J)
CITATION:
1988 AIR 2260 1988 SCR Supl. (2) 913 1988 SCC (4) 247 JT 1988 (3) 621 1988
SCALE (2)670
ACT:
Hindu
Marriage Act, 1955--Section 13(1)(iii)-- Dissolution of marriage--All mental
disorders not recognised as grounds for grant of decree--Degree of severity or
acuteness of--To be proved--Burden of proof on the spouse who alleges--Mere
branding of a person as Schizophrenic not enough.
HEAD NOTE:
The
appellant and respondent married in 1977. In 1983, the appellant filed a suit
for dissolution of the marriage, alleging that his wife was suffering from
severe mental disorder, psychiatrically recognised as `Schizophrenia' which
rendered her unsociable and despite competent professional treatment, her
condition deteriorated to the point of making manifest in her suicidal
tendencies and aggressive violent behaviour towards others. The appellant could
not therefore reasonably be expected to live with the respondent as man and
wife.
The
Respondent denied the imputation of insanity and contended that the appellant
was determined to get rid of her, as a result of the domestic discord between
her and the appellant's mother and sister. Both the husband and the wife gave
evidence, to prove their respective cases. Other witnesses were also examined.
The respondent-wife produced a copy of the order passed by the Magistrate in
proceedings initiated by the appellant under the Lunacy Act. for the committal
of his wife to a mental asylum. The order stated that there was no abnormality
in her, requiring institutional treatment.
On
appreciation of the evidence, the trial court accepted the case of the
appellant and granted a decree for dissolution of the marriage.
The
Respondent-wife appealed to the High Court. Allowing the appeal, the High Court
reversed the decree of dissolution of marriage, granted by the trial court. It
held that the appellant had not shown that his wife's mental illness was so
intense as to justify a reasonable apprehension that it would be impossible or
unsafe for the appellant to live with her.
PG NO
913 PG NO 914 In the present appeal before this Court, it was contended on
behalf of the appellant that in assessing the reasonableness of the husband's
apprehension that he could not be expected to spend the rest of his life with a
`Schizophrenic', due acknowledgement required to be made to his subjective
susceptibilities also.
Dismissing
the appeal,
HELD:
1.1 Section 13(1)(iii) does not make the mere existence of a mental disorder of
any degree sufficient to justify the dissolution of a marriage. The 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.
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 as 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. [921
C-H; 922A]
1.2 scnizophrenia
is said to be a difficult mental- affliction. It is insidious in its onset and
has hereditary pre-disposing factor. Each case of Schizophrenia has to be
considered on its own merits. Mere branding of a person as Schizophrenic will
not suffice. For purpose of Sec. 13(1)(iii) Schizophrenia is what Schizophrenia
does. Not all Schzophrenics are characterised by the same intensity of the
disease.[924D;928D]
2. In
the instant case, taking into account the facts and circumstances the High
Court, on a reasonable assessment of the situation, rightly came to the
conclusion that the requisite degree of the mental-disorder which alone would
justify dissolution of marriage has not been established and that the decree
for the dissolution of the marriage. granted by the trial court was not
justified. [917C-D] Rita Roy v. Sitesh Chandra, AIR 1982 Cal 138, approved.
McLoughin
v. O'Brian, [1982] 2 All ER 298; Bennett v. Bennett. [1969] 1 All ER 539,
relied on.
John
Searle `Minds, Brains and Science' [l984] Reith Lectures, PP. 10 & 11,
Concise Medical Dictionary, p. 566, Oxford Medical Publications, 1980,
Philosophy and Medicine, Vol. 5, p.x. F.C. Redlich and Daniel X. Freedman. `The
Theory and Practice of Psychiatry' [1966] Edn. William Alanson White, New York,
The Autobiography of a Purpose'-- PG NO 915 Doubleday & Co. 1938 p. 53, Karl
Menninger `Communication and Mental Health', The Menninger Quarterly, [1962],
p. 1., Richard C. Allen, Elyce Zennott Ferster, Jassee C. Rubin `Readings in
Law and Psychiatry', Revised & Expanded edn. (1975), p. 38 relied on.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2377 of 1987.
From
the Judgment and Order dated 29.10.1986 of the Allahabad High Court in F.A. No.
493 of 1984.
J.P. Goyal,
Rajesh and V.K. Verma for the Appellant.
Mrs. Rani
Chhabra for the Respondent.
The
Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, in a
matrimonial cause, is by the husband, and is directed against the Judgment and
Decree, dated 29.10.1986, of High Court of Allahabad in First Appeal No. 493 of
1984, allowing the Respondent- wife's appeal and reversing the decree of
dissolution of marriage dated 31.7.1984 granted by the Second Additional
District Judge, Jhansi, in Original Suit No. 34 of 1983 of his file.
Appellant's
suit for a decree of dissolution of his marriage with the respondent on the
ground envisaged in Section 13(1)(iii) of the Hindu Marriage Act, 1955 (Act)
that respondent suffered from a mental-disorder of such a kind that rendered
Respondent unfit for married-life and that petitioner could not reasonably be
expected to live with her had been decreed by the Court of first instance but
dismissed by the High Court in appeal. Appellant-husband has come-up by Special
Leave.
2. The
marriage between appellant, Ram Narain Gupta, and respondent, Rameshwari Gupta,
was solemnised on 17.6.1979 at Jhansi. The
suit for the dissolution of the marriage was filed on 14.7.1983 on the
allegation that the wife was a schizophrenic. The High Court, while holding it
probable that the wife did suffer from some such mental-disorder, however, was
persuaded to the view that appellant had not established the requisite extent
and degree of the mental- disorder recognised by law as constituting a legal
justification for the dissolution of the marriage. In the suit appellant had
also alleged that the respondent was of PG NO 916 unsound mind even before the
marriage and that this fact had been concealed from him at the time of the
marriage. This alternative case that the marriage was itself induced by the
suppression of the material facts pertaining to the mental- state of the bride
and that, accordingly, the marriage required to be annuled was, however, not
pressed before the High Court.
3. In
his suit appellant pleaded that the respondent suffered from a mental-disorder,
psychiatrically recognised as `schizophrenia', which was of such severeity as
to render Respondent unsociable and given to violent propensities, that the
wife had been treated by the doctors at the Department of Psychiatry at the
Medical College, Jhansi, and that despite competent professional treatment the
mental condition of respondent continued to deteriorate to the point of making
manifest in her suicidal tendencies and aggressive violent behaviour towards
others. Appellant, therefore, averred that the mental-disorder of the
respondent was of such a kind and to such extent that appellant could not
reasonably be expected to live with respondent as man and wife.
Respondent
in her written-statement denied the imputation of insanity and commission of
several overt acts indicative of mental-disorder alleged against her and
contended that appellant's determination to get rid of her was attributable to
the domestic discord between her on the one side and the mother and sisters of
the appellant on the other. Indeed, she also entered the witness-box to testify
to and substantiate her defence. She was subjected to searching cross-examination
.
4. The
Trial Court framed the necessary and material issues stemming from the
pleadings. On his side, appellant called a certain Dr. Ganesh Datt Shukla, (PW.
l) Head of the Diptt. of Psychiatry. Maharani Laxmi Bai Medical College to support his version. Appellant himself tendered evidence
as PW 2. He also examined a certain Gyasi Ram (PW 3) said to be an artisan who
claimed that during one of his visits to appellant's house for some odd job. he
had seen respondent beating-up small children and conducting herself in a
disorderly manner. Appellant also called a certain Janki Prasad (PW 4) said to
be the private-home-teacher of appellant's nephews. PW 4 spoke to what,
according to him, were oddities in the behaviour of the respondent and of her
violent propensities. Appellant in order to show that Respondent was a
violent--lunatic relied upon the medical- certificates at Exhibits P3, P4 and
A2,--the first two issued by PW 1 and the third by a certain -Dr. S.A. Khan.
PG NO
917 Appellant also relied upon certain incidents which occurred on 1.7.1983 in
which the respondent is alleged to have exhibited unprovoked violence towards
appellant's sisters and inflicted injuries on their person.
The
respondent-wife, as stated earlier, tendered evidence as D W 1. She also
produced a copy of the order passed by the Magistrate in proceedings under the
Lunacy Act initiated by the appellant for her committal to a mental- asylum. In
those proceedings, it would appear, the Magistrate, after examining the
respondent, is stated have found no abnormality in her, requiring institutionalised
treatment.
5. The
trial court on an appreciation of the evidence accepted appellant's case and
recorded a finding that respondent was afflicted with schizophrenia which was
dangerous for her as well as for those who lived with her and granted a decree
for the dissolution of the marriage.
This
decree, as stated earlier, has been reversed by the High Court.
The
point that commended itself to the High Court was that though the evidence
indicated the possibility of some mental-disorder, however, the requirement of
the law as to the existence of the requisite degree and the nature of the
disorder that could alone justify a reasonable apprehension in the mind of the
appellant that he could not live with the respondent-wife had not been
established. This implied that the High Court partly accepted the appellant s
case that respondent did suffer from a mental-disorder which in this case was
described as schizophrenia. The High Court stated:
"The
case of the plaintiff is that the defendant remained under the treatment of the
psychiatrist Dr. G.D Shukla, in Maharani Laxmi Bai Medical College, Jhansi. Exts.
1 and 2 are the prescription and discharge certificates issued by Dr. G.D. Shukla,
Ext. 4. is the medical certificate dated 18.5.1983, which was issued by Dr. Shukla,
in which he certified that the defendant suffered from schizophrenia since 26th
March, 1983. There is no counter certificate of any expert from the side of the
defendant. I, therefore, do not see any cogent reason to brush aside this
certificate of Dr. G.D. Shukla, who examined himself as P.W.1." The High
Court proceeded to refer to certain medical literature on 'schizophrenia' and
felt pursuaded to the view PG NO 918 that having regard to the various kinds of
schizophrenia or rather the various ways in which that mental illness is known
to manifest itself, it would be necessary for the appellant to go further and
establish the degree and severity of the mental illness which would alone
satisfy the requirement of the ground for dissolution of marriage envisaged in
Section 13(1)(iii) of the Act. In substance, the High Court held that appellant
had not shown that the mental-illness of the wife was of such a kind and
intensity as to justify a reasonable apprehension that it would not be possible
or safe for appellant to live with the respondent.
The
High Court posited the proposition which required its consideration thus:
"So
it is only when the schizophrenia is of the third variety i.e. catatonia, that
the patient is in a state of wild excitement destructive violent and abusive.
Let us
see whether the defendant suffers from schizophrenia and whether there is any
unassailable and cogent evidence to establish that the schizophrenia is of
third variety, namely, catatonia, when the patient becomes destructive, wild
and abusive." Dealing with this, High Court noticed what according to it
were certain shifts in emphasis in the two certificates Exhibit 4 dated noticed
18.5.1983 and Exhibit 3 dated 2.7.1983 issued by P.W. 1. High Court that while
the earlier certificate dated 18.5.1983 did not contain any specific reference
to the severity of the disease or to the violent propensities attributed to
respondent which tended to endanger safety of others, the later certificate
dated 2.7.1983, how-ever, sought to supply this element. The High Court allow
noticed certain events of 1.7.1983, in the wake of which the certificate
Exhibit- 3 dated 2.7.1983 came into existence. High Court referred to the
evidence on record which disclosed that at 11.45 AM on 1.7. 1983, respondent-
wife had lodged the first-information, as per Exhibit 11, with the
jurisdictional police complaining that she had been assaulted, first, by her
husband's nephew and then by the members of the family of the appellant. She
also had occasion to complain that appellant's mother, sisters etc.
had
threatened to extinguish respondent's life by setting her ablaze.
The
attempt on the part of the appellant, the High Court noticed, to commit her to
an asylum was made on the PG NO 919 very next day viz., 2.7.83. The medical
certificate ex. 3 is also of that date. The Magistrate who was moved by the
appellant under the provisions of the Lunacy Act rejected the application
observing that respondent whom he had occasion to examine talked "in a
sensible manner and is not at all hostile." Referring to the setting in
which Dr. Shukla's (PW. 1) certificate dated 2.7.1983 was required to be
appreciated the High Court observed:
".....The
second certificate (Ext. 3) by Dr. G.D. Shukla dated 2nd July, 1983, has to be seen in the sequence of
the above events. There is nothing on record to show that the defendant lodged
false report with the police in the morning of 1st July, 1983, against the plaintiff inter alia. It is after the said
report was lodged the plaintiff made efforts to collect all the evidence with
the aim of sending the defendant to the mental asylum and filed the suit for
dissolution of marriage by the decree of divorce. The above evidence were
collected in quick succession. Keeping in view the above events, the
reliability of the second medical certificate (ext. 3) dated 2.7.1983 has to be
tested ......" "........Neither in the first certificate (Ext. 4) nor
in the second certificate (Ext. 3) Dr. G.D. Shukla stated that the
schizophrenia, the defendant is suffering from, was of the third variety,
namely, Catatona, when the patient becomes wild, destructive and violent. In
this statement also, Dr. G . D . Shukla (PW. 1) does not state that the
schizophrenia was of Catatonia variety. He does not say even a word about the
danger, arising from the mental disorder of the defendant. The certificate Ext.
3 does not bear the thumb impression or signature of the defendant and,
therefore, it cannot be said with certainty that the said certificate was
issued by Dr. G.D. Shukla after having examined the defendant."
6. The
High Court also evaluated the evidence of PW 3 & 4 and pointed out the
intrinsic improbabilities of the evidence and the consequent unacceptability of
their versions. The High Court, in particular, noticed that PW 4 in his
cross-examination "expressed total inability to give description of the
defendant's Physique i.e. her complexion, height etc." The High Court
observed:
PG NO
920 " .... The inability of this witness in giving the physical
description of the defendant shows that his entire statement is tutored one.
This is the state of affairs of the evidence of the plaintiff."
7. The
High Court also referred to the respondent's grievance that the environment of
hostility and harassment to which she was subjected by appellant's parent and
sisters etc. had taken its toll and rendered her apprehensive and irritable.
High Court observed:
".......
Cruelty inflicted by the in-laws culminated in the first information report
which the defendant lodged in the morning of 1st July, 1983, for which no
convincing evidence has been given by the plaintiff that the said report was
false and that was filed by the defendant without any grave provocation. The
case of the defendant is that the ill-treatment extended to her by her in-laws
throughout right from the time of marriage told upon her mental state and she
became very irritable and apprehensive. The case of the defendant has to be
seen in this background." Concluding the High Court said:
.....................I
accept the contention of learned counsel for the defendant-appellant that the
decree of the divorce cannot be sustained, as the plaintiff failed to adduce
any evidence that could prove beyond reasonable doubt that the mental disorder
of the defendant was of such a kind and to such an extent that the plaintiff
cannot live safely with the defendant."
8. Shri
Goel, learned senior counsel appearing in support of the appeal, assailed the
correctness of the approach of and the conclusions reached by the High Court.
Learned
counsel submitted that the High Court having, on the basis of overwhelming
medical evidence, rightly accepted that part of the appellant's case that the
respondent did suffer from 'schizophrenia', however, fell into an error in
weighing the possible manifestation of that insidious disease in golden scales
and in its conclusion that appellant could yet live with her. Learned counsel
submitted that if the evidence of the conduct of the respondent is assessed in
the background of the fact that she was a confirmed 'schizophrenic', there
would be no room for any PG NO 921 speculative allowance to be made for any
possibility of any alternative hypothesis for that behaviour. Learned counsel
submitted that in assessing the reasonableness of the apprehension of the
husband that he could not be expected to spend the rest of his life with a
'schizophrenic', due acknowledgment had to be made to the subjective
susceptibilities of the husband also. Smt. Rani Chhabra for the respondent,
however, soughtto support the judgment under appeal.
9. The
point, however, to note is that Section 13(1)(iii) does not make the mere
existence of a mental- disorder of any degree sufficient in law to justify the
dissolution of a marriage. Section 13(1)(iii) provides:
"Sec.
13. Divorce: (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-- (i) ] (ii) ] Omitted as unnecessary (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;" (b) Omitted as
unnecessary.
(Emphasis
Supplied)
10.
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-dis-order. Its degree must be such as
PG NO 922 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.
The
answer to the apparently simple--and perhaps misleading--question as to
"who is normal?" runs inevitably into philosophical thickets of the
concept of mental normalcy and as involved therein, of the 'mind' itself.
These
concepts of 'mind', 'mental-phenomena' etc., are more known than understood and
the theories of "mind" and "ment~on" do not indicate any
internal consistency, let alone validity, of their basic ideas. Theories of
'mind' with cognate ideas of 'perception' and 'consciousness' encompass a wide
range of thoughts, more ontological than epistemological. 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 the 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 recognise, 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 broken-marriage 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 non-material dimensions of 'being'.
Speaking
of the indisposition of science towards this study, a learned author says:
"....
We have inherited cultural resistence to treating the conscious mind as a
biological phenomenon like any other. This goes back to Descartes in the
seventeenth century. Descartes divided th,e world into two kinds of sub-
stances; mental substances and physical substances. Physical PG NO 923
substances were the proper domain of science and mental substances were the
property of religion. Something of an acceptance of this division exists even
to the present day.
So,
for example, consciousness and subjectivity are often regarded as unsuitable
topics for science. And this reluctance to deal with consciousness and
subjectivity is part of a persistent objectifying tendency. People think
science must be about objectively observable phenomena. On occasions when I
have lectured to audiences of biologists and neurophysiologists, I have found
many of them very reluctant to treat the mind in general and consciousness in
particular as a proper domain of scientific investigation.
"
.... the use of the noun mind' is dangerously inhabited by the ghosts of old
philosophical theories. It is very difficult to resist the idea that the mind
is a kind of a thing, or at least an arena, or at least some kind of black box
in which all of these mental processes occur." (See: John Searle Minds,
Brains And Science 1984 Reith Lectures, p. 10 & l l) 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 McLoughlin
v. O'Brian, [ 1983] 1 Law Reports 410 at 418 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 damage to the human body and system may
be caused by the impact, through the senses, of external events on the mind. There
may thus be produced what is as identifiable an 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 But the illnesses that are called mental' are kept distinguished from
those that ail the 'body' in a fundamental way. In Philosophy and
Medicine", Vol. 5 at PG NO 924 page-X the learned Editor refers to what
distinguishes the two qualitatively:
"....
Undoubtedly, mental illness is so disvalued because it strikes at the very
roots of our personhood. It visits us with uncontrollable fears, obsessions,
compulsions, and anxieties .." " .... This is captured in part by the
language we use in describing the mentally ill. One is an hysteric, is a
neurotic, is an obsessive, is a schizophrenic, is a manic- depressive. On the
other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox
.. " (emphasis supplied)
12.
'Schizophrenia', it is true, is said to be difficult mental-affliction. It is
said to be insidious in its onset and has hereditary pre-disposing factor. It
is characterized by the shallowness of emotions and is marked by a detachment
from reality. In paranoid-states, the victim responds even to fleeting
expressions of disapproval from others by disproportionate reactions generated
by hallucinations of persecution. Even well meant acts of kindness and of
expression of sympathy appear to the victim as insidious traps. In its worst manifes-tation,
this illness produces a crude wrench from reality and brings about a lowering
of the higher mental functions.
"Schizophrenia"
is described thus:
"A
severe mental disorder (or group of disorders) charac-terized by a
disintegration of the process of thinking, of contact with reality, and of
emotional responsiveness. Delusions and hallucinations (especially of voices)
are usual features, and the patient usually feels that his thoughts,
sensations, and actions are controlled by, or shared with, others. He becomes socially
withdrawn and loses energy and initiative. The main types of schizophrenia are
simple, in which increasing social withdrawal and personal ineffectiveness are
the major changes; hebephrenic, which starts in adolescence or young adulthood
(see hebephrenia); paranoid; characterized by prominent delusion; and
catatonic, with marked motor disturbances (See catatonia).
PG NO
925 Schizophrenia commonly--but not inevitably--runs a progressive course. The
prognosis has been improved in recent years with drugs such as phenothiazines
and by vigorous psychological and social management and rehabilitation. There
are strong genetic factors in the causation, and environmental stress can
precipitate illness." (See Concise Medical Dictionary at page 566:
Oxford
Medical Publications, 1980) But the point to note and emphasise is that the
personality-disintegration that characterises this illness may be of varying
degrees. Not all schzophrenics are characterised by the same intensity of the
disease. F.C. Redlich & Daniel X. Freedman in "The Theory and Practice
of Psychiatry" ( 1966 Edn.) say:
"...............
Some schizophrenic reactions, which we call psychoses, may be relatively mild
and transient;
others
may not interfere too seriously with many aspects of everyday living
......." (p. 252) "Are the characteristic remissions and relapses
expressions of endogenous processes, or are they responses to psychosocial
variables, or both? Some patients recover, apparently completely, when such
recovery occurs without treatment we speak of spontaneous remission. The term
need not imply an independent endogenous process; it is just as likely that the
spontaneous remission is a response to non deliberate but none-the-less favourable
psychosocial stimuli other than specific therapeutic activity . ......"
(p. 465) (Emphasis Supplied)
13.
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 the Sri Goel to the contrary notwithstanding.
The
High Court referred to and relied upon the decision of the Calcutta High Court
in Smt. Rita Roy v. Sitesh Chandra, AIR 1982 (Cal.) 138. In; that case the
Division Bench of the Calcutta High Court observed:
PG NO
926 " ... each case of schizophrenia has to be considered on its own
merits ......" ".........According to the aforesaid clause (iii), two
elements are necessary to get a decree. The party concerned must be of unsound
mind or intermittently suffering from schizophrenia or mental disorder. At the
same time that disease must be of such a kind and of such an extent that the
other party cannot reasonably be expected to live with her. So only one element
of that clause is insufficient to grant a decree . " Considering the
evidence in that case, the High Court reached the conclusion:
"
.... We are clearly of the opinion that she only has slight mental disorder and
she has been suffering intermittently from the same. But after considering the
totality of the evidence and the impact on the husband, we must hold that such
mental disorder is not of such a kind and to such an extent that the husband
cannot reasonably be expected to live with her, within the meaning of the
second portion of clause (iii) of Sec. 13(1) of the Act ......" We approve
this approach of the High Court of Calcutta.
Indeed,
the following observations of Ormrod J. in Bennett v. Bennett, [1969] 1 All
E.R. 539 with reference to 'mental- disorder' in Section 4 of the Mental Health
Act, 1959, are opposite in the context of Sec. 13(1)(iii) of the` Act':
"
..... Now, the definition of `mental disorder' in sec. 4 of the Mental Health
Act, 1959, is in very wide language indeed. It includes mental illness,
arrested or incomplete development of mind, psychopathic disorder, and any
other disorder or disability of mind and so, for the moment to turn to medical
language it clearly includes, or one would suppose it clearly includes, not only
psychotic illness but neurotic illnesses as well and thus begins by enormously
enlarging the field. The way in which this very large field is cut down in the
Act of 1965, s.
9(1)(b),
is by the use of this phrase "of such a kind or to such an extent as to be
unfitted for marriage and the procreation of children." PG NO 927 The
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.
14.
Indeed the caution of a learned author against too readily giving a name to a
thing is worth recalling:
"Giving
something a name seems to have a deadening influence upon all our relations to
it. It brings matter to a finality. Nothing further seems to need to be done.
The disease has been identified. The necessity for further understanding of it
has ceased to exist." (See "The Auto- biography of a purpose":
William Alanson White New York:
Double-day
& Co., 1938, p. 53) It is precisely for
this reason that a learned authority on mental health saw wisdom in eschewing
the mere choice of words and the hollowness they would bring with them. He
said:
"I
do not use the word 'schizophrenia' because I do not think any such disease
exists .... I know it means widely different things to different people. With a
number of other psychiatrists, I hold that the words 'neurosis',
'psychoneurosis', 'psychopathic personality', and the like, are similarly
valueless. I do not use them, and I try to prevent my students from using them,
although the latter effort is almost futile once the psychiatrist discovers how
conveniently ambiguous these terms really are ......" "In general, we
hold that mental illness should be thought and spoken of less in terms of
disease entities than in terms of personality disorganization. We can precisely
define organization and disorganization; we cannot precisely define disease
......." "Of course, one can describe a 'manic' or a 'depressed' or a
'schizophrenic' constellation of symptoms, but what is most important about
this constellation in each case? Not, we think, its curious external form, but
rather what it indicates in regard to the process of disorganization and
reorganization of a personality which is in a fluctuant state of attempted
adjustment to environmental reality. Is the imbalance increasing or decreasing?
To what is the stress related? What psychological factors are accessible to
external modification? What latent capacities for PG NO 928 satisfaction in
work, play, love, creativity, are discoverable for therapeutic planning? And
this is language that can be understood. It is practical language and not
language of incantation and exorcism. " (Emphasis Supplied) (See Karl Menninger,
"Communication and Mental Health", "The Menninger Quarterly
(1962) p. 1--Readings in Law and Psychiatry: Richard C.
Allen, Elyce Zenott Ferster, Jessee C. Rubin: Revised & Expanded Edn. 1975:
page 38).
15.
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.
The
appeal is dismissed. There will be no order as to costs.
G.N.
Appeal dismissed.
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