P. Liji v. K. S. Shaji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939 Mat.Appeal.No. 1084 of 2014 () ------------------------------- AGAINST THE ORDER/JUDGMENT IN OP 1217/2005 of FAMILY COURT, NEDUMANGAD DATED 30-01-2010 APPELLANT(S)/1ST RESPONDENT: --------------------------- P.LIJI, AGED 35, D/O.PRABHAKARAN, CHARINJAVILA VEEDU, KOTTAKORAM, PARIPALLY, KOLLAM. BY ADV. SMT.S.A.SHERLY RESPONDENT/PETITIONER: --------------------- K.S.SHAJI, AGED 30, S/O.DEVAYANI, CHAVARKODU, PLANTHANA P.O., VARKALA, CHIRNAYINKEEZHU TALUK. R1 BY ADV. SRI.K.SIJU R1 BY ADV. SRI.A.MUHAMMED RAFFI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 1306-2017, THE COURT ON 24/7/2017 DELIVERED THE FOLLOWING: ## **MAT.APPEAL NO.1084/2014** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE A: TRUE COPY OF THE ORIGINAL PETITION NO.1217/2005 FILED BY THE RESPONDENT/PETITIONER.** **ANNEXURE B: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE APPELLANT/1ST RESPONDENT IN OP NO.1217/2005 DT 16.1.2007.** **ANNEXURE C: TRUE COPY OF THE LETTER GIVEN BY ADV.A.RAJASIMHAN TO ADV.P.K.THAMBI.** **ANNEXURE D: TRUE COPY OF THE CHEQUE DATED 24.8.2011 GIVEN BY ADV.A.RAJASIMHAN TO ADV.P.K.THAMBI.** **ANNEXURE E: TRUE COPY OF THE MEDICAL CERTIFICATE DATED 29.5.2014 OF THE PETITIONER'S FATHER.** **ANNEXURE F: TRUE COPY OF THE ORDER IN MC NO.152/2004.** **ANNEXURE G: THE ORIGINAL AFFIDAVIT OF THE LOWER COURT ADVOCATE.** ## **//True Copy//** **PS to Judge** **Rp** ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== Mat.Appeal No.1084 of 2014 ================== Dated this, the 24[th] day of July, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the 1[st] respondent in OP No.1217/2005 challenging judgment dated 30/1/2010 by which the Family Court, Nedumangad declared the marriage between the appellant and the 1[st] respondent as null and void under Section 12(1)(b) read with Section 11 of the Hindu Marriage Act, 1955. 2. The short facts arising in the case are as under. For convenience, parties are referred to as shown in the petition, unless otherwise stated. 3. The petitioner married the 1[st] respondent as per Hindu customary rites and ceremonies on 8/2/2004. They resided in the petitioner's house for 16 days. The 2[nd] respondent is the father of the 1[st] respondent, who is impleaded as guardian and next friend of the 1[st] respondent. Petitioner alleges that on the first night of Mat.Appeal No.1084/14 -:2:- the marriage itself, he found her behaviour to be abnormal and on the next day, she behaved violently. She did not sleep nor did she permit the petitioner to sleep and later enquiries revealed that she was suffering from unsoundness of mind even from the age of 15 years and she was under the treatment of Dr.Ramdas, Psychiatrist, Surya Clinic, Kilikollur, Kollam. According to him, she was suffering from recurrent attacks of insanity and was not capable of giving a valid consent to the marriage. It is in the said circumstances that the petition was filed seeking for a declaration that the marriage is null and void. 4. The 1[st] respondent filed objection. She also raised a counter claim. She admits that they resided together only for 16 days in the residence of the petitioner. She had with her 30 sovereigns of gold ornaments which were taken by the petitioner, his parents and his unmarried sister for clearing off their debts. She was harassed on demanding dowry and calling upon her to bring more money. According to her, on a particular day, she was taken on the pretext that they were going for a movie and she Mat.Appeal No.1084/14 -:3:- was taken to a clinic at Kilikolloor for having a check up. She therefore denied the allegation that she behaved abnormally on all these days. She also contended that more than `1 lakh was spent for marriage expenses. She also claimed compensation of `10,000/-. 5. To the counter claim, the petitioner filed objection denying the liability to pay any amount. They also contended that they have not taken any of the gold ornaments as alleged. It is further contended that on 23/2/2004, she became violent and ran away from the house and the petitioner and certain others had to follow her to bring her back. Her parents were informed about the incidents. Later, on 15/3/2004, a mediation took place and it was decided to dissolve the marriage by filing a petition for divorce by mutual consent. During the said settlement, 26 sovereigns of gold ornaments and her presentation articles were returned to her on 15/3/2004 itself and an agreement was executed and signed by all the parties. Hence, it was contended that the claim was totally unsustainable. Mat.Appeal No.1084/14 -:4:- 6. Before the Family Court, petitioner was examined as PW1 and the 1[st] respondent was examined as CPW1. Petitioner placed reliance upon Exts.A1 to A6 and respondent relied upon Exts.B1, B2 and B3. After considering the evidence on record, the Family Court allowed the Original Petition declaring the marriage as null and void and dismissing the counter claim. 7. While impugning the aforesaid judgment, learned counsel for the appellant submits that the Family Court completely erred in appreciating the evidence adduced in the case. There was no material to indicate that the appellant was suffering from any mental disorder of such a nature that she was incapable of understanding the nuances of marriage. Further, it was not appropriate on the part of the Family Court to have allowed the OP without any medical evidence on record. 8. On the other hand, learned counsel appearing for the respondent supported the stand taken by the Court below. It is stated that there was an agreement between the parties to have a divorce by mutual consent on account of the immediate issues Mat.Appeal No.1084/14 -:5:- that had arisen between the parties. The marriage lasted only for 16 days and the fact that an agreement was executed between the parties by itself would show that the attempt was to peacefully settle the matter rather than taking the matter before a Court. It is submitted that the Family Court had correctly appreciated the factual circumstances involved in the matter and granted a decree and there is no necessity to take a different view. 9. The question to be considered in the case is whether the evidence adduced in the case is enough to declare the marriage as null ad void. 10. The main contention urged by the petitioner/husband is that the respondent/wife was incapable of giving a valid consent for solemnization of the marriage in consequence of unsoundness of mind, and was subject to recurrent symptoms of insanity. In the pleading, he has stated that after the marriage, petitioner and 1[st] respondent resided together for 16 days. In para 5, it is stated that on the first night itself, respondent showed Mat.Appeal No.1084/14 -:6:- some abnormal behaviour. On the next day, she became violent and did not sleep at night and she did not allow the petitioner to sleep. On enquiry, it was reveled that she has unsoundness of mind and was under the treatment of Dr.Ramdas from her 15 years of age. In the objection filed by the 1[st] respondent, she having admitted that she was taken to a clinic at Kilikollor denies the allegation in para 5. However, she states that “if that be so, it has to be proved by the petitioner.” 11. Subsequent to the filing of the objection, counter claim was raised by amending the objection to which the respondent filed written statement. 12. Section 12(1)(b) and (c), (2) (a) (i) and (ii) of the Hindu Marriage Act read as under:- “12. Voidable marriages(1) Any marriage solemnised, 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 (b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5: or Mat.Appeal No.1084/14 ## -:7:- (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 (2) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage. (a) on the ground specified in clause (c) of subsection (1), shall be entertained if - (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (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.” 13. Taking into account the aforesaid pleadings, we have to consider whether the evidence in the case is sufficient to prove the allegation. Learned counsel for the appellant placed before us the judgment of the Apex Court in _**Sharda v. Dharmpal**_ [(2003) Mat.Appeal No.1084/14 -:8:- 4 SCC 493] wherein the Apex Court had highlighted the necessity for obtaining medical evidence. Paras 32 to 34, 50 and 52 are relevant, which read as under:- _**“32.** Yet again the primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit._ _**33.** Discretionary power under Section 151 of the Code of Civil Procedure, it is trite, can be exercised also on an application filed by the party._ _**34.** In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms.”_ _**“50.** We wish to point out that the question as to whether a person is mentally ill or not although may be a subject-matter of litigation, the court having regard to the provisions contained in Order 32 Rule 15 of the Code of Civil Procedure, Section_ Mat.Appeal No.1084/14 -:9:- _41 of the Indian Lunacy Act as also for the purpose of judging his competence to examine as a witness may issue requisite directions. It is, therefore, not correct to contend that for the aforementioned purposes the court has no power at all. The prime concern of the court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to a test which would invade his right of privacy and may in some case amount to battery; but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified psychiatrist. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests.”_ _**“52.** Even otherwise the court may issue an appropriate direction so as to satisfy itself as to whether apart from treatment he requires adequate protection inter alia by way of legal aid so that he may not be subject to an unjust order because of_ Mat.Appeal No.1084/14 ## -:10:- _his incapacity. Keeping in view of the fact that in a case of mental illness the court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the court may take recourse to such a procedure even at the instance of the party to the lis.”_ 14. As already indicated, the evidence in the case consisted of the oral testimony of the petitioner as PW1 and the 1[st] respondent as CPW1. Ext.A2 is an agreement dated 15/3/2004 executed between the parties to the marriage-petitioner and respondent, by which they agreed to file a joint petition for divorce before the Family Court. By the said agreement, they have agreed to return the gold ornaments and dresses and accordingly thali chain dresses etc were stated to have been returned. Ext.A3 is the certified copy of the application under Section 13B signed by the petitioner, respondent and the respective counsel. Ext.A4 is the lawyer's notice dated 5/3/004 sent by the counsel for petitioner to the respondent. PW1 in his chief examination had given evidence on the basis of his contentions. In cross examination, he had stated that she had Mat.Appeal No.1084/14 -:11:- problem during the first night. When he asked her about it, she went underneath the cot. After sometime, she came back, but he was unable to consummate the marriage. In the first day itself, she had shown unsoundness of mind and on all the 16 days, she had shown attacks of insanity. She does not sleep and when he asked her to sleep, she turned violent. According to him, he did not take her to hospital and he had stated what was informed to him. She wanted a medicine which he had purchased and given. After 3-4 days, she informed him about her disease and that she was taking medicines. According to him, he did not go to the clinic along with her. Later, he went to the Doctor and made enquiries and he understood that she was under treatment from the age of 15 years and he had informed that medicine should not be stopped. In fact, there is not much cross examination of the petitioner. He had only described the manner in which the respondent had behaved while she was with him. 15. CPW1 filed an affidavit in support of her contentions. She entered the box and she was cross examined. The main crux Mat.Appeal No.1084/14 -:12:- of her evidence was regarding the financial implications in the case. In her evidence she denied having filed an application under Section 13B. She denied the signature in Ext.A3. Though she admits that she knew the counsel who signed on behalf of her, she denied having filed the joint petition. She later admits having received the notice and the contents thereof. When she was asked about her treatment, her answer was that she was never treated. She denies having gone to Surya Clinic. Again she was asked regarding her statement in the objection that she was forcefully taken to Surya Clinic and according to her, it is not correct. During cross examination, she was asked whether it was knowing about her disease that her father had given her in marriage to the petitioner, her answer was that, it was believing that she would have a good life that her father had given her in marriage. During cross examination, she reiterates that she has no such mental illness. 16. The Family Court, on the basis of the oral evidence, had arrived at a conclusion that the petitioner succeeded in Mat.Appeal No.1084/14 -:13:- proving that the 1[st] respondent, at the time of marriage was suffering from unsoundness of mind and she was incapable of giving valid consent to the marriage. It is further observed that the marriage was conducted by suppressing material facts and hence petitioner is entitled for a decree as sought for. 17. All along, the respondent was denying the fact of unsoundness of mind. Of course, there is no medical evidence. But, when there is a specific allegation which is not denied, the said fact is deemed to be admitted. In para 5 of the petition, it is clearly stated that she was under treatment of a particular doctor from the age of 15 years. This fact has not been denied in the written statement. The 2[nd] respondent who is the 1[st] respondent's father has not been examined. In the evidence of CPW1, she denies even the execution of an agreement. Apparently, her answers to various questions and her demeanour before Court have prompted the Family Court to arrive at a conclusion that she was suffering from mental illness. When a specific allegation is made that she was suffering from unsoundness of mind from the Mat.Appeal No.1084/14 -:14:- age of 15, her father, the 2[nd] respondent ought to have entered the box and should have explained, whether she was suffering from any such problems. In the absence of any such evidence, the natural inference would be that the respondent was suffering from a mental disorder which was not brought to the notice of the petitioner at the time of marriage. 18. In matrimonial cases, evidence has to be adduced in such a manner that the Court will be in a position to believe the version of either of the parties. Of course, in a case where allegation is that of mental illness, it is always better that the Court should insist for a medical report regarding the illness. But merely for the reason that medical report is not available, it does not mean that the Court cannot form an opinion taking into consideration the pleadings and evidence in the case. Ultimately the Court has to decide the case on preponderance of probabilities. 19. In _**Sharda**_ (supra), the Court was concerned with a question as to whether a party to a divorce proceedings can be Mat.Appeal No.1084/14 -:15:- compelled to a medical examination. Contention raised is that a person cannot be compelled to undergo medical examination by an order of Court as it would be violative of the right to personal liberty guaranteed under Article 21 of the Constitution of India and in the absence of a specific provision, whether a Court dealing with matrimonial cases, can subject a party to the lis to undergo medical examination against his/her consent. It is considering the aforesaid factual scenario that the Apex Court had laid down the law on the point which may not have relevance to the case on hand. 20. In the present case, the question is regarding sufficiency of evidence. As already indicated, even in the absence of a medical evidence, from the pleadings and evidence available in the case, if the Court can form an opinion regarding the averments made in the petition based on preponderance of probabilities, there is nothing wrong in the Court arriving at such a finding. This position is well settled and it has been held so by this Court in _**Mohandas Panicker v. Dakshayani**_ (2014 (1) KLT Mat.Appeal No.1084/14 -:16:- 397) which refers to the judgment of the Apex Court in _**Jayachandra v. Aneel Kaur**_ [2005 (1) KLT 26 (SC)]. The Family Court in the present case had clearly given reasons for arriving at a finding based on the manner in which CPW1 had answered various questions. The Family Court had the advantage of seeing the demeanour of the witness and how she reacted to various questions and thereafter when a decision is taken, we do not think that there will be justification for us to exercise the appellate jurisdiction to render a different finding. We are of the view that no grounds are made out for interference by exercising the appellate jurisdiction. Mat.appeal is, therefore, dismissed. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //True Copy// P.S to Judge