Manoj v. Seema (Mat.Appeal Nos.1004 & 1005 of 2010)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939 Mat.Appeal.No. 1004 of 2010 -------------------------- AGAINST THE ORDER IN OP 709/2009 of FAMILY COURT,KOZHIKODE APPELLANT/APPELLANT: ------------------- MANOJ, AGED 35 YEARS, S/O.KUNHIRAMAN, PALAKURUMBIL MEETHAL, OLAVANNA AMSOM & DESOM, KOZHIKODE. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT/RESPONDENT: ---------------------- SEEMA, AGED 30 YEARS, D/O.VALIYEDATH BHASKARAN, REPRESENTED BY GUARDIAN, VALIYEDATH BHASKARAN, VALIYEDATH VEEDU P.O.CHALAPPURAM, KOZHIKODE - 673 002. R BY ADV. SRI.MANJERI SUNDERRAJ THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2017, ALONG WITH MA. 1005/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE & ANU SIVARAMAN, JJ.** ## **= = = = = = = = = = = = = = = = = = = =** ## **Mat.Appeal Nos.1004 & 1005 of 2010 = = = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of June, 2017** ## **JUDGMENT** ## **Anu Sivaraman, J.** - 1.These appeals are filed against the judgment of the Family Court, Kozhikode dated 01.07.2016 in O.P.Nos.709 of 2009 and 648 of 2009. - 2.O.P.No.709 of 2009 was filed by the appellant/husband seeking divorce under Section 13(1)(ia) and (iii) of the Hindu Marriage Act (hereinafter referred to as 'the Act'). O.P.No.648 of 2009 was filed by the respondent-wife for restitution of conjugal rights. It is submitted that the marriage of the petitioner and respondent was on 4.5.2003 as per Hindu religious rites. The appellant/husband, who is the petitioner in O.P.No.709 of 2009, alleged that the wife had started exhibiting unusual and strange behaviour even immediately after marriage by refusing any social contacts with the members of his family and showed impulsive behaviour. He contends that he asked the respondent's family about this M.A.1004 & 1005/10 **2** conduct of the respondent and he was told that it was only due to change of residence. Later on further enquiries he was told by the family of the respondent that the respondent had some mental health issues from childhood onwards and that it was due to interruption in treatment during the marriage and thereafter that the condition had aggravated. It is contended that the petitioner had tolerated the respondent's behaviour and a child was born to them on 12.01.2007. It is stated that thereafter her mental illness got aggravated and she started exhibiting violent and maniac behaviour. The parties were forced to reside at the wife's house due to her incapacity to look after the affairs of the child in a proper manner. It is further stated that when her illness was aggravated the respondent would not allow the petitioner to even go for employment. On 29.3.2009 the mother of the petitioner reached at the house of the respondent to enquire about the well-being of the petitioner and the respondent and family showered abusive words on her and ejected her from the house. When the petitioner told the respondent that their behaviour towards his mother was unwarranted and M.A.1004 & 1005/10 **3** undesirable, she scolded him and insulted him. At about 11.45 p.m., the petitioner heard some sound and woke up to see the respondent standing with a chopper aiming to cut on his neck. He made hue and cry and pushed her. The family members of the respondent caught hold of her and restrained her. Thereafter the parties have been living separately from 30.03.2009 onwards. 3.The respondent-wife denied all allegations of mental illness and cruelty. O.P.No.648 of 2009 was filed seeking restitution of conjugal right. The averment was that the husband and his mother had appropriated all of the wife's gold ornaments weighing about 50 sovereigns and had threatened and ill treated her demanding more money as dowry. The wife had filed M.C.No.215/2004 claiming maintenance, which was allowed granting Rs.2000/- as maintenance to her. In the said M.C., a mediation was conducted and on the assurance that there would be no ill treatment, the parties had resided together again in a rented house arranged by the wife's father. However, it is alleged that the husband, stating that there is a M.A.1004 & 1005/10 **4** ghost in the house, refused to live there and they had again shifted residence to the wife's house. A child was born to them on 12.01.2007. Thereafter, it is alleged that the appellant started picking up quarrels with wife. On 29.03.2009, it is alleged that the wife saw a pawn ticket pledging gold ornaments belonging to her mother and the child and she questioned him. The appellant being confronted with this became angry and left the place. A man missing complaint was lodged by the respondent-wife and a paper publication was also effected. It was in the meanwhile that the lawyer notice demanding divorce was sent to her. It is stated that the appellant is living separately from the wife without any sufficient reason and she is willing to live with him. On these pleadings, a decree for restitution of conjugal right was sought. - 4.The appellant examined PWs.1 and 2. The respondent-wife examined herself and her father as RWs.1 and 2 and produced Exhibit B1 pledge card dated 24.02.2009. PW2 was a psychiatrist attached to Viveka Hospital, Kozhikode. Exhibit M.A.1004 & 1005/10 **5** X1 treatment records of the respondent-wife at the hospital were marked through him. After considering the oral and documentary evidence adduced, the Family Court came to the conclusion that there was no evidence of any pre existing mental illness. Accepting the contention raised by the respondent that no guardian had been appointed for the person of the wife who was allegedly having an incurable mental illness and since no reason has been stated for not appointing anybody as the guardian of the wife, as also relying on the evidence of the psychiatrist to the effect that paranoid schizophrenia is controllable by medication, the Family Court found that the appellant had not established mental illness justifying the grant of a decree of divorce. The original petition filed by the appellant for divorce was therefore dismissed and accepting the contentions of the respondent, the original petition for restitution of conjugal right was allowed. - 5.Heard the learned counsel for the appellant and the learned counsel for the respondent. M.A.1004 & 1005/10 **6** 6.The learned counsel for the appellant submits that though no legal guardian had been appointed to represent the respondent-wife as provided in Order XXXII Rule 3 C.P.C, the respondent had been shown in the cause title itself as being represented by her father and guardian. It is therefore contended that the finding of the Family Court was erroneous. It is further contended that though the appellant had a specific case that the respondent was mentally ill and that he could not reasonably be expected to live with her, the contention was never that she was a completely insane person incapable of conducting her affairs on her own. The learned counsel argued that there is a distinct difference between mental infirmity which requires the party to be represented by a legal guardian in court proceedings and mental illness as a ground for divorce under Section 13(1) (iii) of the Act. The learned counsel also relied on the decision of the Apex Court in **Samar Ghosh v. Jaya Ghosh** [(2007) 4 SCC 511 to contend that mental cruelty by refusing to sever the marriage tie in spite of the irretrievable break down of the marital relationship would also be a ground for divorce under Section 13(1)(ia) of the Act. M.A.1004 & 1005/10 **7** 7.The learned counsel appearing for the respondent submitted that no pre existing mental illness had been properly pleaded or proved by the appellant. It is contended that the records would only show that she had undergone treatment after the marriage. The respondent having pleaded that she had suffered mental tension due to the cruelty suffered by her after marriage, the treatment records could not be relied upon to find that the respondent-wife had any mental illness much less an incurable mental illness of such a kind as is required to be proved under Section 13(1)(iii) of the Act. It is also contended that cruelty on her part having been specifically denied and an alternate version for the cessation of cohabitation having been provided in her pleadings and evidence, the Family Court was fully justified in having denied divorce. - 8.We have considered the rival contentions. The original petition had been filed for a divorce on the ground of mental illness of such a nature that the petitioner could not reasonably be expected to live with the respondent as well as on the ground of cruelty. The petition was not one for nullity of marriage on M.A.1004 & 1005/10 **8** the ground that the appellants consent to the marriage was vitiated on account of pre existing mental illness which was suppressed from him. It would be pertinent in this context to extract the relevant clauses of Section 12 and 13 of the Act. ## **Section 12.Voidable marriages** :- 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:- - (a)xxx xxxx xxxx - (b)xxx xxxx xxxx - (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) xxxx xxx xxx - (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- - (a)on the ground specified in clause (c) of sub-section (1) shall be entertained if- - i. the petition is presented more than one year after the force had M.A.1004 & 1005/10 **9** ceased to operate or, as the case may be, the fraud had been discovered ; or - 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; (b)xxxx xxxxx xxxx **Section 13. Divorce** - (1) Any marriage solemnized, whether before or after the commencement of the 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)xxx xxxxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) xxxx xxxx - (ii) xxxxx xxxx (iii)has been incurably of unsound mind, or has 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 include 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 M.A.1004 & 1005/10 **10** on the part of the other party and whether or not it requires or is susceptible to medical treatment.” 9. It is therefore clear that the requirement in Section 13 (1)(iii) of the Act is of mental illness of such a nature and extent that the petitioner could not reasonably be expected to continue the cohabitation. In the instant case, divorce was sought for on the ground of incurable mental illness as well as on the ground of cruelty. Going by the evidence of PW2 and the treatment records produced through him as Exhibit X1 coupled with the oral testimony of PW1 as to the persistent nature of the ill treatment meted out to him including an attack against his person with a chopper in the dead of night of 29.03.2009, we are of the considered opinion that the appellant had succeeded in establishing that the conduct of the respondent amounted to such mental and physical cruelty which would justify a decree of dissolution of marriage. Even if the aspect of grave mental illness of the respondent is not taken into account, the behaviour of the respondent towards the appellant has been established by the evidence adduced to amount to gross M.A.1004 & 1005/10 **11** cruelty, putting him in fear for his life. This aspect of the matter has evidently been lost sight of the Family Court. Since the Family Court appears to have primarily considered whether there was any pre existing mental illness, we have no hesitation in holding that the pre existence of the mental illness is not a requirement at all for the grant of decree of dissolution of marriage. The Family Court erred in not considering the aspect of cruelty which was a specific ground pleaded and urged by the appellant. 10.On an anxious consideration of the common judgment under appeal in the light of the pleadings let in by the parties and the materials on record, we are of the opinion that the dismissal of the application for dissolution of marriage by the court below is unsustainable in law and is liable to be set aside. Apart from denying the pleadings of cruelty and raising allegations in her pleadings, we are of the opinion that the respondent wife failed to substantiate the contentions raised by her by adducing reliable evidence. We are also not satisfied that OP filed by the respondent for restitution of conjugal rights could M.A.1004 & 1005/10 **12** have been allowed in the facts and circumstances of the instant case. We hold that the appellant had succeeded in establishing such mental cruelty on the part of the respondent as would enable him to obtain a decree of dissolution of marriage. In the result these appeals are allowed. The order passed by the court below in O.P.No.709/2009 and O.P.No.648 of 2009 are set aside. The marriage solemnized between the petitioner and the respondent on 04.05.2003 is hereby dissolved by a decree of dissolution of marriage under Section 13(1) (ia). The parties are directed to bear their respective costs. Sd/- **A.M.Shaffique, Judge** sd/- **Anu Sivaraman, Judge** sj /TRUE COPY/- PA TO JUDGE