P. Sundaran v. Sajina P.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935** **Mat.Appeal.No. 914 of 2010 ( C) -------------------------------** **AGAINST THE JUDGMENT IN OP 324/2008 of FAMILY COURT, PALAKKAD DATED 26-04-2010** ## **APPELLANT/PETITIONER:** **--------------------------------------** **P.SUNDARAN, AGED 43 YEARS, S/O. LATE P.VELAN, PONNETH HOUSE, VETTEKKARA.P.O. ALANGAD AMSOM, VETTEKKARA DESOM, OTTAPALAM TALUK PALAKKAD DISTRICT.** **BY ADVS.SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY** ## **RESPONDENT/RESPONDENT:** **-------------------------------------------** **SAJINA.P.V., AGED 35 YEARS, D/O. P.VELAYUDHAN, RESIDING AT PULIKKAL VEETTIL HOUSE THEKKEPOTTA.P.O., ALATHUR TALUK, PALAKKAD DT. INSANE PERSON REP. BY GUARDIAN & FATHER P.V.VELAYUDHAN, AGED 65, RESIDING AT PULIKKAL VEETTIL(H) THEKKEPOTTA.P.O-678687, ALATHUR TALUK, PALAKKAD DT.** **R1 BY ADV. SRI.SAJAN VARGHESE K. R1 BY ADV. SRI.LIJU. M.P** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== Mat. Appeal No. 914 OF 2010 =======================** ## **Dated this the 12[th] day of November, 2013** ## **J U D G M E N T** ## Antony Dominic, J. The appeal is filed against the judgment of the Family Court, Palakkad dismissing OP No.324/2008. The appellant and the respondent are husband and wife. Their marriage was solemnized on 9/12/2001. They have two children who were born on 13/3/2003 and 11/10/2006. Since 2008, the parties are residing separately and it was while so that the appellant filed the OP before the Family Court seeking divorce urging ground under Section 13(1)(iii) of the Hindu Marriage Act, 1955. 2. Before the Family Court, the appellant and a Doctor were examined as PWs 1 and 2. Respondent was examined as RW1. The appellant also produced Exts.A1 to A8. The Family Court by its judgment dated 26[th] April, 2010 dismissed the O.P, mainly on the ground that the appellant failed to establish the ingredients of Section 13(1)(iii) of the Act and that the appellant is guilty of delay and latches dis-entitling him for a decree in view of **Mat.Appeal No.914/10** **: 2 :** Section 23(1)(d) of the Hindu Marriage Act. It is this judgment which is challenged in the appeal. 3. We heard the learned counsel for the appellant and the learned counsel appearing for the respondent and were also taken through the lower court records including the oral and documentary evidence. 4. The case of the appellant is that the respondent is a paranoid schizophrenic. According to him, on account of the said ailment, he cannot reasonably be expected to live with the respondent. He has also stated that he realised the ailment of the respondent soon after the marriage and that after the birth of the first child, the situation was aggravated and that the respondent did not even look after the child and even harmed the child. He has also alleged that the respondent attempted to kill him. It is stated that in such circumstances, when the disease aggravated, she was admitted for treatment in 2005 by PW2 and that after discharge, the appellant and the respondent resided together. It was while so that the second child was born in 2006. Again, in **Mat.Appeal No.914/10** ## **: 3 :** 2008, the situation got aggravated, which required her second inpatient treatment by PW2. 5. The above allegations raised by the appellant were denied by the respondent. According to her, though she was treated by PW2 as claimed by the appellant, she did not suffer from any ailment, which disqualified her from leading a matrimonial life. She also denied the various instances alleged by the appellant, including neglect of the children, cruelty to the children, indifference in matrimonial life and attempt to physically harm the appellant. She also contended that the appellant is a flourishing businessman having several bakeries in Coimbatore. It is stated that during her life with him, he was demanding more and more money from her and was harassing her. She also alleged that at a later point of time, he had a feeling that she was not sufficiently good looking to match his status in life. She says that it was on account of the stress and strain in the matrimonial life that the disease developed, but however, she reiterated that she was fit enough to continue the married life. She also pleaded **Mat.Appeal No.914/10** ## **: 4 :** that the children were being looked after by her and that they are being educated by her. 6. Both the appellant and the respondent stuck to their versions as PW1 and RW1. PW2 is the Psychiatrist who treated the respondent. In his evidence, he has explained various attributes of paranoid schizophrenia and has confirmed that respondent is a paranoid schizophrenic. He has also stated about the illusions and delusions that go with paranoid schizophrenics, but however, in his cross examination, he has stated that all schizophrenic characteristics of the disease need not be present in one person. He has also stated that the disease is controllable by medicines. Exts. A1 to A8 also confirmed the fact that the wife was undergoing treatment under PW2. 7. The above materials available before the Family Court therefore left no doubt that the wife was suffering from paranoid schizophrenia. But however, the petitioner, who approaches the Family Court, can obtain a decree of divorce under Section 13(1) (iii) of the Hindu Marriage Act, only if he succeeds in establishing that the mental disorder is of such a kind and to such an extent **Mat.Appeal No.914/10** **: 5 :** that the petitioner cannot reasonably be expected to live with the respondent. This legal position has come up for consideration of a Full Bench of this Court in _**Lissy v. Jaison**_ (2000(1) KLT 589), where examining this very issue, it has been held thus; 7. Expression ‘incurably of unsound mind’ cannot be so widely interpreted as to cover feeble minded persons or persons of weak and/or dull intellect who understand nature and consequences of their acts and are able to control themselves, their affairs, reactions in the normal way. S. 5(ii) of the Hindu Act lays down as one of the conditions for a Hindu Marriage that neither party must be incapable of giving valid consent in consequence of unsoundness of mind or has been suffering from mental disorder. S. 12(1)(b), renders, at the instance of the other party a marriage voidable, which is in contravention of this condition. Clause (iii) of sub-s. (1) of S. 13, deals with incurable unsoundness of mind which may occur even subsequent to the marriage. Onus of proving that the other party to the marriage is of incurably unsound mind or that he/she is suffering from mental disorder is on the person alleging it. It must be proved by cogent and clear evidence. ‘Mental’ means pertaining to mind. ‘Unsoundness of mind’ has to be understood as lack of state of mind or capacity to understand one’s affairs, or marital obligations, or implications of marital relationship. Clause (iii) has been substituted by Marriage Laws (Amendment) Act, 1976 for the original clause (iii) which was as under: “has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition”. **Mat.Appeal No.914/10** **: 6 :** 8. Simple expression ‘of incurably unsound mind’ appearing in the original clause is replaced by a very complicated one with definition of two expressions therein. It is a pedantic rigmarole, meaning nothing except unsoundness of mind. Section makes a distinction between “unsoundness of mind” and “mental disorder”. Besides, mental disorder may be continuous or intermittent. But unsoundness of mind must be incurable, which continuous. A spouse is ‘incurably of unsound mind’ if he or she is of such mental incapacity as to make normal married life impossible and there is no prospect of any improvement in mental health, which would make this possible in future. (See _Whysall v. Whyshall:_ (1959) 3 All.E.R. 389. A person of unsound mind is either an idiot or lunatic in a more serious stage. Clause (ii) of S. 5 of the Hindu Act has also been substituted by the 1976 Amendment Act. Original clause reads as follows: “neither party is an idiot or lunatic at the time of marriage”. Term 'unsound mind' is more comprehensive. Idiocy and lunacy are species of unsoundness of mind. Mental defectiveness falls chiefly under three grades known as idiocy, imbecility and feeble mindedness. Any state of mind which falls short of lunacy or idiocy cannot be a ground for annulment of marriage. Persons differ from one another in the degree of intelligence possessed by them; it would be a dire calamity if it could be said as a matter of law that a marriage entered into by a person who is neither a lunatic nor an idiot in a serious stage, because he or she lacks intelligence, although otherwise capable of understanding the nature of the bonds of matrimony into which he or she is entering or has entered. 'Unsound mind' or insane memories, which all persons must understand to be **Mat.Appeal No.914/10** **: 7 :** a depravity of reason, or want of it. (Per Hardwicke in _C. Barnsley's_ case:2 Eq. Co.Ab 580). “There is an important difference between, 'unsoundedness of mind' and 'dullness of intellect'. Unsoundness of mind may arise from perversion of the mental power and may exhibit itself by means of delusion or strong antipathies, which is called 'Mania', or it may arise from what may termed a defect of mind, as where the mind was originally incapable of directing itself to anything requiring judgment, which is 'idiocy' or where a mind, originally strong, has become weakened by illness or age though producing no such insanity as to amount to mania. 'Idiocy' in general is very easily proved. It is manifested in a variety of ways by impropriety or indecency of conduct, dirtiness in the habits or by vacancy of aspect, though this last test can only be appreciated by those who have seen the party. Another test is by means of numbers, ie., by showing that the party cannot understand the commonest rules of arithmetic.” (Per Wood V.C. In _Harrod v. Harrow_ , 23 LTOS 243). 8. Again in the recent judgment of the Apex Court in _**Kollam Chandra Sekhar v. Kollam Padma Latha**_ (2013(11) Scale 617), examining the scope of Section 13(1)(iii) of the Hindu Marriage Act and referring to the judgment in the case of **V** _**initha Saxena v. Pankaj Pandit**_ (2006(2) KLT 150), the Apex Court held that Section 13(1)(iii) of the Act does not make a mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of marriage. A reading of the principles laid **Mat.Appeal No.914/10** ## **: 8 :** down by the Full Bench in the case of _**Lissy**_ ( _supra_ ) and the Apex Court judgment referred to above, it can therefore be seen that when a person is claiming divorce under Section 13(1)(iii) of the Hindu Marriage Act, it is for such a person to adduce positive evidence to substantiate the allegation that he cannot reasonably be expected to live with the respondent. 9. In so far as this case is concerned, facts show that the appellant has not given any of the details of the incidents alleged by him in the pleadings. He therefore did not satisfy the requirements of Rule 7 of the Hindu Marriage (Kerala) Rules, specifying the nature of the pleadings that are required of a petition. Further, though he has realised that the respondent is suffering from mental ailment soon after his marriage, he continued to live with the respondent till 2008, during which period, she begotten two children. All these facts, which are taken note of by the Family Court, would certainly suggest that the appellant failed in establishing the ingredients of Section 13(1)(iii) of the Hindu Marriage Act. We also find substance in the finding of the Family Court that the appellant is also guilty of delay, which ## **Mat.Appeal No.914/10** **: 9 :** also dis-entitled him for relief, in view of Section 23(1)(d) of the Hindu Marriage Act. For the aforesaid reasons, we do not find our way to accept the contentions of the learned counsel for the appellant and interfere with the judgment of the Family Court. The judgment will stand confirmed and the appeal is therefore dismissed. ## **ANTONY DOMINIC, JUDGE** **P.D.RAJAN, JUDGE** Rp