Mat.Appeal No. 104/2017 & Cross Objection No. 53/2017, High Court of Kerala, Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 MAT.APPEAL NO. 104 OF 2017** **AGAINST THE JUDGMENT IN OPDIV 318/2013 OF FAMILY COURT, PALA, KOTTAYAM** ## **APPELLANT/S:** 'X' BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.ANN MALU ALBI SMT.K.M.SUNU SRI.THOMAS T.VARGHESE ## **RESPONDENT/S:** 'Y' BY ADVS. SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR SRI.SHYAM PADMAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2021, ALONG WITH CO 53/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 CO NO. 53 OF 2017 IN Mat.Appeal 104/2017 OF HIGH COURT OF KERALA, ERNAKULAM** ## **PETITIONER/S:** **'Y'** **BY ADVS. SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR** ## **RESPONDENT/S:** **'X'** ## **BY ADV SRI.PHILIP T.VARGHESE** THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2021, ALONG WITH MA 104/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ. ========================= Mat. Appeal No.104/2017 & Cross Objection 53/2017 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 3[rd] day of September, 2021 ## J U D G M E N T A.Muhamed Mustaque, J. This appeal is filed at the instance of the wife. She challenges divorce granted to the respondent-husband on the ground of cruelty under the Divorce Act, 1869. The respondent-husband's claim for divorce on the ground of unsound mind of the appellant and desertion was rejected by the Family Court. The respondent filed cross objection raising a challenge to rejection of divorce on the grounds unsound mind and desertion. **MA 104/2017 & CO 53/2017** ## **-:2:-** 2. On 1/9/2001, the marriage between the appellant and the respondent was solemnized as per the Christian rites and ceremonies. 3. The appellant is a qualified nurse. The respondent is an Ayurvedic Doctor. The appellant was employed in Visakhapatnam. The parties spent their initial phase of married life at Visakhapatnam. Two daughters were born in the wedlock. The date of birth of the eldest child is 2/12/2002 and the youngest is 31/3/2009. 4. On 16.07.2012, the divorce petition was filed. The Family Court noted that the appellant left the matrimonial home only during February, 2011 and, therefore, no case was made out for divorce on the ground of desertion. **MA 104/2017 & CO 53/2017** ## **-:3:-** 5. The Court also did not accept the unsound mind of the appellant as a ground for divorce for the reason that the Court did not find anything wrong in the mental condition of the appellant while she was examined. 6. The Family Court, however, found that a case for divorce was made out on the ground of cruelty. This was mainly attributable to the behaviour of the appellant. The Court also found that the appellant suffers from Paranoid Schizophrenia. 7. Having gone through the impugned judgment, pleadings and evidence, we affirm the findings for rejection of divorce on the ground of unsound mind and desertion. Absolutely, there were no materials worth consideration to grant divorce on the aforesaid grounds. **MA 104/2017 & CO 53/2017** ## **-:4:-** 8. The cruelty narrated and alleged in the petition and the oral testimony of the respondent, who was examined as PW1 will have to be considered in the background of the imputed illness to the appellant, ‘Paranoid Schizophrenia’. The appellant never admitted or acknowledged the fact that she suffers from the aforesaid disease. 9. PW1, in support of the case for divorce gave evidence in tune with his pleadings. In the petition itself he has stated the nature of abnormal behaviour and consequence of such behaviour. It is stated by him that the appellant threatened committing suicide on a couple of occasions. It is appropriate to refer para.11 of the impugned judgment, where the Family Court referred to various instances of her abnormal behaviour. 11. First ground, “incurable unsoundness of mind of the respondent”: According to PW1 after the first delivery his wife showed signs of mental illness and she woke up during the night and started talking to him as is he was her brother, Stanly. 1[st] child was **MA 104/2017 & CO 53/2017** ## **-:5:-** born to them on 02/12/2002. The next incident that is spoken to by PWI occurred during 2005 when his wife telephoned his father and threatened to commit suicide. PWI has not stated any incident that took place in between the above two periods. The next incident was in the year 2008 when she was pregnant for the second time. PWI stated that his wife ran out of the house and threatened to jump into the well. During 2009 she flashed a knife and threatened to kill herself. Then during May 2010 she locked herself in a room with her younger child and threatened to kill herself and her child. During the same month she ran away from the house without intimating him. PWI stated that his wife was admitted and treated for 42 days in the Govt. Mental hospital, Vishakapatanam. It is also his case that his wife had consulted other Psychiatrists also. The wife when examined as DWI denied the above alleged incidents. 10. The Family Court relied on the evidence of PW2, who was examined on the side of the husband. PW2 was the priest of Visakhapatnam Diocese. He had interfered on a couple of occasions. On one occasion when the appellant closed the room along with the child, it was intimated to him by the respondent that the appellant threatened to kill herself after slaying the child. He deposed that he spoke with the appellant and felt that the appellant had some mental problem. He also had advised the appellant. He narrated about another incident wherein the appellant abused everyone at home in his presence. **MA 104/2017 & CO 53/2017** ## **-:6:-** 11. PW3 is a member of Muralinagar parish in which the appellant and the respondent were members while they were residing at Visakhapatnam. He claimed that he was close to the family. He deposed that the appellant used to abuse the respondent. He further deposed that the appellant did not like the parents of the respondent. He was of the opinion that the appellant is having a rough character. He also said that he had occasion to mediate between the appellant and the respondent. He narrated about an incident where the appellant was found with a knife threatening to kill herself. He said that the appellant wanted a psychiatric treatment without the knowledge of the respondent. He further stated that he accompanied the appellant and the respondent to consult a Psychiatrist, Dr.Syamala Chrishtie of Syamala Nursing Home, a Private Mental Hospital. He also spoke about an incident at the hospital where he found the appellant shouting in the Doctor’s room. He said that the **MA 104/2017 & CO 53/2017** ## **-:7:-** appellant refused to undergo inpatient treatment. He narrated many other incidents referring to the violent behaviour of the appellant. 12. PW4 is a Psychiatrist of Government Hospital, Visakhapatnam. He diagnosed the appellant suffering from Paranoid Schizophrenia. According to him, such patients ''falsely believe someone would plan to do away with such persons”. He also spoke about the behaviour of such patients. 13. The appellant was examined as RW1. She refused to take psychiatric treatment. She had also denied all allegations of cruelty attributable to her behaviour. 14. RW2 is the Principal of the institute where the appellant worked. She stated that she has not noticed any mental disorder or illness with the appellant. **MA 104/2017 & CO 53/2017** ## **-:8:-** 15. On analysing the oral evidence of PW1 to PW4, we are of the view that the evidence is trustworthy and believable. As we already observed, the appellant is mentally capable and does not suffer from any unsound mindness. PW2 to PW4 are independent witnesses. Their testimony clearly shows the pattern of behaviour of the appellant. PW4 is a Psychiatrist identifying the appellant’s illness as Paranoid Schizophrenia. Exts.A2, A3, A4 are the medical records relating to the appellant. These records clearly show that the appellant suffers an acute form of Paranoid Schizophrenia. The Doctor also opined about such behaviour. PW2 and PW3 witnessed the instance of cold behaviour of the appellant. Absolutely they have no other interest in the matter. The behaviour of the appellant is attributable to the illness she suffers, 'Paranoid Schizophrenia'. **MA 104/2017 & CO 53/2017** ## **-:9:-** ## 16. In Shrikant Anandrao Bhosale v. State of Maharashtra ## [( 2002) 7 SCC 748] the Apex Court at paras 10 and 11 referred to about Paranoid Schizophrenia which reads thus: 10 . What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but afterwards change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He belives that his food is being poisoned, some noxious gases are blown into his room, and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his memory and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others. (Modi's Medical Jurisprudence and Toxicology (22nd Edn.)). 11 . Further, according to Modi, the cause of schizophrenia is still not known but hereditary plays a part. The irritation and excitement are effects of illness. On delusion affecting behaviour of a patient, he is a source of danger to himself and to others. **MA 104/2017 & CO 53/2017** ## **-:10:-** 17. In Vinitha Saxena v. Pankaj Pandit [2006 (2) KLT 150 (SC)], the Apex Court also adverted to cruel behaviour attributable to Schizophrenia and concluded at para.18 as follows: 18. The appellant filed a petition for divorce under S.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. 18. In same judgment at paras.22 to 25, the Apex Court referred to about the disease Schizophrenia and its causes as follows: ## A RESEARCH ON THE DISEASE “Schizophernia 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 hospitalization." ## What is the disease and what one should know? * A psychotic lacks insight, has the whole of his personality distorted by illness, and constructs a false environment out of his subjective experiences. **MA 104/2017 & CO 53/2017** ## **-:11:-** * It 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 influences. • Apophanuous 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 psychogenic reactions. ## Causes The causes of schizophrenia are still under debate. A chemical imbalance in the brain seems to play a role, but the reason for the imbalance remains unclear. One is a bit more likely to become schizophrenic if he has a family member with the illness. Stress does not cause schizophrenia, but can make the symptoms worse. ## Risks Without medication and therapy, most paranoid schizophrenics are unable to function in the real world. If they fall victim to severe hallucinations and delusions, they can be a danger to themselves and those around them. ## What is schizophrenia? Schizophrenia is a chronic, disabling mental illness characterized by: **MA 104/2017 & CO 53/2017** **-:12:-** - Psychotic symptoms - Disordered thinking - Emotional blunting How does schizophrenia develop? Schizophrenia generally develops in late adolescence or early adulthood, most often: - In 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). Initial symptoms appear gradually and can include: - Feeling tense - Difficulty concentrating - Difficulty sleeping - Social withdrawal What are psychotic symptoms? Psychotic symptoms include: **MA 104/2017 & CO 53/2017** **-:13:-** - 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. ## A 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. 1 9 . Ailment of a spouse cannot be a reason to grant a decree of divorce even if it results in unusual behaviour which is not expected in normal marital life. The Apex Court in Kollam **MA 104/2017 & CO 53/2017** ## **-:14:-** Chandra Sekhar v. Kollam Padma Latha [(2014) 1 SCC 225] opined that divorce cannot be granted merely for the reason of suffering of Schizophrenia. However, in the present case, this Court cannot ignore the fact that the appellant refused to acknowledge having illness. The appellant was also not prepared to undergo treatment and come out of such illness. The appellant is mentally sound. The appellant can very well identify her problem. In fact, the doctor diagnosed her problem. But still she refused to acknowledge and undergo treatment. In such circumstances, the husband cannot be forced to live with a spouse who refused to undergo treatment. The consequence of refusal to undergo treatment would determine the fate of a normal relationship. If one spouse refuses to acknowledge illness and undergo treatment, and as a result of such refusal, the other spouse is deprived of normal conjugal relationship, that act would amount to cruelty. The disruptive behavioural disorder becomes **MA 104/2017 & CO 53/2017** ## **-:15:-** 'cruelty' to canvass as a ground for divorce not for the reason that it is attributed to the ailment one suffers, but for the reason one refuses to acknowledge ailment and was unwilling to treat the ailment. In that background, we are of the view that the Family Court was justified in granting a decree of divorce on the ground of cruelty. We, therefore, affirm the finding of the Family Court and dismiss the appeal filed by the appellant. In the result, the appeal and cross objection fail. The parties are directed to suffer their respective costs. Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/- DR.KAUSER EDAPPAGATH, JUDGE ms