HONBLE SRI JUSTICE V.RAMASUBRAMANIAN AND HONBLE SRI JUSTICE N.BALAYOGI
Family Court Appeal Nos.105 of 2014 and BATCH
24-01-2018
Tallam Suresh Babu, S/o Late Satyanarayana, Aged about 32 years, Software Engineer, R/o. D.No.15/77, P.B. Street, Kadapa Ci
T.Swetha Rani, D/o S.Chandrasekhar, Aged 26 years, Occ: House Wife, R/o. Habeebullah Street, Opp. Balaji Temple, Kadapa Ci
Counsel for Appellant: Mr. Y.V.N. Narayana Rao
Counsel for Respondent:Mr. P.Veera Reddy,
Senior Counsel, representing
Mr. Karri Murali Krishna
<Gist:
>Head Note:
? Cases referred:
1. 2007 (1) ALT 177
2. AIR 2016 Kant 169
3. (1970) 2 MLJ 429
4. (1938) 3 A.E.R.185
5. (1938) 4 A.E.R 696
6. (1954) 3 A.E.R 502
7. 1959) 3 A.E.R 389
8. (1961) 1 W.L.R 1481
9. AIR 1981 Del. 253
10. (1988) 4 SCC 247
11. 2005 (43) Civil CC (S.C.)
12. (2006) 3 SCC 778
13. (2011) 12 SCC 1
14. (2014) 1 SCC 225
15. 2017 (1) ALD 134
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE N.BALAYOGI
Family Court Appeal Nos.105 of 2014 and 134 of 2015
Common Judgment: (per V.Ramasubramanian, J.)
Aggrieved by the dismissal of his own petition for
annulment of marriage and the grant of a decree for
restitution of conjugal rights at the instance of his wife, the
husband has come up with the above appeals.
2. We have heard Mr. Y.V.N. Narayana Rao, learned
counsel appearing for the appellant (husband) in both the
appeals and Mr. P.Veera Reddy, learned Senior Counsel
appearing for the respondent (wife).
3. The marriage of the petitioner and the respondent
was solemnized on 31-01-2007 according to Hindu customary
rites. Within 18 months of the solemnisation of the marriage,
the appellant/husband filed a petition in O.P.No.95 of 2008
seeking annulment of the marriage on the ground that the
respondent/wife did not allow him to have conjugal
relationship and that when he took her for treatment, she was
found to be suffering from Schizoform illness and that the
enquiries revealed that the respondent/wife had been taking
treatment for schizoid, making her unfit for sexual
relationship and that the suppression of the same
tantamounted to fraud, making the marriage liable to be
annulled under Section 12 of the Hindu Marriage Act, 1955.
4. The respondent/wife resisted the petition for
annulment on the ground that the families of the appellant
and the respondent were known to each other for more than
50 years; that they were also related on the maternal side of
the appellant; that right from the childhood, both families had
decided to have them married; that the respondent even
stayed in the house of the appellant when she was studying
Intermediate; that after the death of the appellants father,
the mother and brother of the appellant started looking for
an alliance elsewhere, which resulted in some sort of
a depression for the respondent; that in that connection, the
respondent was taken to Apollo Hospitals, Chennai, for
treatment; that some time later, the attitude of the brother
and mother of the appellant changed and they came forward
to perform the marriage; that the betrothal took place in May,
2006 and the marriage was solemnized on 31-01-2007; that
during this interregnum of about 7 to 8 months, the appellant
used to talk to the respondent regularly on phone and they
also used to attend parties and functions; that after marriage,
the appellant was not interested in regular sexual
relationship, but was interested only in oral sex; that the
behaviour of the appellant again created disturbances in the
mind of the respondent and hence her parents took both of
them to a Neuro Psychiatrist by name Dr. Seshadri Harihar
on 06-12-2007 and 07-12-2007 for consultation; that the
appellant and the respondent were subjected to clinical
examination by one Dr. Sabiha Sultana and they were also
advised to consult a Sexologist; that the appellant refused to
have any consultation; that the abnormal behaviour of the
appellant resulted in the revival of her Schizoform illness;
that Schizoform illness is a curable disease and hence it
cannot be a ground for annulment of marriage.
5. Before the Family Court, the appellant examined
himself as P.W.1. He examined his elder brother as P.W.2, his
paternal uncle as P.W.3 and a Psychiatrist working as
Assistant Professor in Kurnool Medical College as P.W.4.
The Wedding Card and Wedding photographs were marked on
the side of the appellant as Exs.A-1 and A-2. The treatment
record of the respondent issued by Apollo Hospitals, Chennai,
was filed as Ex.A-3. The Neuro Psychological Report, dated
07-12-2007, of the respondent was filed as Ex.A-4. The Death
Certificate of the appellants father was filed as Ex.A-5.
6. On the side of the respondent, she was examined as
R.W.1, her father was examined as R.W.2 and a Psychiatrist
from Channai by name Dr. S.Nambi was examined as R.W.3.
15 documents were marked on the side of the respondent.
Ex.B-1 was a prescription given by Dr. Seshadri Harihar on
01-4-2006. Two referral letters issued by Dr. Seshadri
Harihar on 06-12-2007, one addressed to Dr. Sabiha Sultana
and another addressed to Dr. Reddy were filed as Exs.B-2
and B-3. The Neuro Psychological reports issued by
Dr. Sabiha Sultana in respect of the appellant and the
respondent were marked as Exs.B-4 to B-6. The call data
relating to the mobile phone number of the respondent
for the month of November, 2006 was filed as Ex.B-7.
The photographs taken in the house of the appellant, on the
occasion of a birthday party when the respondent was
a student of Intermediate, were filed as Ex.B-14. Another set
of photographs taken at the time of marriage of one Veena
Kumari were filed as Ex.B-15.
7. The Certificate issued by Dr. S.Nambi (R.W.3) on
08-6-2009 was taken on record as Ex.X-1. The Discharge
Summary issued by St. Isabels Hospital on 08-6-2009, was
taken on record as Ex.X-2. The investigation record was filed
as Ex.X-3.
8. On the basis of the pleadings and the oral and
documentary evidence, the Family Court came to the
conclusion that the families of the appellant and the
respondent were known to each other very closely for a long
time and that there were even money transactions between
the families and that therefore it cannot be said that the ill
health of the respondent was not known to the appellant.
On the basis of Ex.A-4, the Family Court also came to the
conclusion that though the respondent was treated for
depression at Apollo Hospitals, Chennai, in March, 2004, she
became better by November, 2004 and that there was
development in the health of the respondent within a month
as per Ex.A-4. Hence, the Family Court concluded that the
ailment suffered by the respondent cannot be said to be
incurable.
9. The Family Court held that the appellant ought to
have had knowledge about the mental health of the
respondent even before marriage, as otherwise he could not
have taken her to the very same hospital for treatment after
marriage.
10. On the evidence of P.W.4, the Family Court
concluded that P.W.4 had prior acquaintance with the
appellant and that the failure of the appellant to take steps to
examine the doctor who treated the respondent was fatal to
his case.
11. After rejecting the evidence of P.W.4, the Family
Court analysed the evidence tendered by R.W.3 and the
documents produced by him Exs.X-1 to X-3 and came to the
conclusion that there was no mental illness as on 08-6-2009.
The Family Court also concluded that even the appellant
exhibited abnormal behaviour as per Ex.B-4.
12. Ultimately, placing reliance upon the decision of
a Division Bench of this Court in Dr. Kollam Padma Latha
v. Dr. Kollam Chandra Sekhar , the Family Court
concluded that Schizophrenia has to be put on par with
diseases like hypertension and diabetes and that therefore it
cannot be taken to be incurable so as to enable the appellant
to seek annulment of the marriage. The non-examination of
Dr. Seshadri Harihar and Dr. Sabiha Sultana was also put
against the appellant and the Family Court dismissed the
petition for annulment.
13. After the dismissal of the petition for annulment of
marriage, the respondent/wife filed F.C.O.P.No.41 of 2012 for
restitution of conjugal rights. The said petition was allowed by
the Family Court by a judgment dated 13-4-2014.
14. As against the dismissal of his petition for
annulment, the husband filed F.C.A.No.105 of 2014.
As against the order for restitution of conjugal rights, the
husband has come up with the other appeal F.C.A.No.134 of
2015.
15. We think that a decision on the appeal arising out of
the petition for annulment of marriage, would naturally
decide the fate of the appeal arising out of the petition for
restitution of conjugal rights. Therefore, we shall take up
F.C.A.No.105 of 2014 for consideration first. As we have
indicated earlier, the appellant sought annulment of marriage
on the sole ground that the respondent had been suffering
from schizoid for about three years prior to the marriage and
that by playing fraud upon the appellant and his family, the
parents of the respondent got her married to him.
The petition filed by the appellant in O.P.No.95 of 2008
contained certain averments, which formed the foundation for
him to seek annulment. These averments, in brief, were:
(i) that after marriage, the respondent never allowed the
appellant to have sexual intercourse;
(ii) that she was not even able to cook food and kept
herself inside the bedroom by bolting the door;
(iii) that suspecting her behaviour, the appellant took
her to Apollo Hospitals, Chennai and got her examined by
a Neuro Psychiatrist by name Dr. Seshadri Harihar;
(iv) that it was at that time that the appellant came to
know that the respondent was taking treatment for schizoid
from March, 2004; and
(v) that since the disease is incurable and it was
suppressed at the time of marriage, the appellant was forced
to seek annulment.
16. Therefore, the appellant will have to stand or fall
only on the strength of the above averments. Hence, it is
necessary for us to see, both in terms of the art of law and the
science of medicine, as to whether an annulment of marriage
could be granted on the above pleadings.
17. Under Section 12(1) of the Hindu Marriage Act,
1955, the annulment of marriage can be sought only on any
of the following grounds viz.,
(i) the non-consummation of the marriage owing to the
impotence of the respondent,
(ii) the contravention of any of the conditions specified
in Section 5(ii) of the Act,
(iii) the consent for the marriage was vitiated by force or
fraud and
(iv) the pregnancy of the respondent through some other
person at the time of marriage.
18. There is complete lack of clarity in the petition filed
by the appellant in O.P.No.95 of 2008 as to the specific
provision under which he was seeking annulment of the
marriage. In paragraph-5 of the petition, the appellant
claimed that the respondents parents suppressed the
treatment taken by the respondent in March, 2004 for
Schizoid and that the same tantamounted to a fraud upon the
appellant. This averment was followed by yet another
averment to the effect that the respondent was not fit for
sexual intercourse on account of Schizoid and that the same
tantamounted to impotence of the respondent. These
averments were followed by another averment to the effect
that the disease suffered by the respondent is incurable.
19. Therefore, the appellant was not sure as to whether
his case would fall under Clause (a) or Clause (b) or Clause (c)
of sub-section (1) of Section 12. Section 12(1) reads as
follows:
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) that the marriage has not been consummated
owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the
condition specified in Clause (ii) of Section 5; or
(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) that the respondent was at the time of the
marriage pregnant by some person other than the
petitioner.
20. Certainly the case of the appellant would not come
within Clause (d) of sub-section (1) of Section 12.
Unfortunately for the appellant, his case would not also fall
under Clause (a), since the entire evidence, oral and
documentary was focussed only on the mental health
condition of the respondent and the non-consummation of
the marriage. There was no attempt to prove that the
non-consummation of the marriage was due to the impotence
of the respondent. There is no proof, oral or documentary,
to establish the impotence of the respondent. Therefore, the
case of the appellant would not fall under Clause (a).
21. To make the case fall under Clause (c), the appellant
had to prove that his consent for the marriage was obtained
by force or by fraud. This is not a case where the appellant
pleads that his consent was obtained by force. At the most
the case may fall only under the category of fraud.
22. But the fraud pleaded by the appellant so as to
make the case come under Clause (c), should be either as to
the nature of the ceremony or as to any material fact or the
circumstance concerning the respondent.
23. If a case is sought to be brought within the
parameters of Clause (c), then the person attempting to do so,
should also satisfy the conditions prescribed in Clause (a) of
sub-section (2) of Section 12. This is why the appellant pleads
that the fraud was discovered in December, 2007 and that
within one year, he presented the petition for annulment of
marriage in June, 2008.
24. The claim of the appellant that he discovered the
fraud as to a material fact or as to a circumstance concerning
the respondent only in December 2007, after 11 months of
marriage, is belied by circumstances. In paragraph-4 of his
petition, the appellant claimed that he took the respondent to
Apollo Hospitals, Chennai and got her examined by a Neuro
Psychiatrist by name Dr. Seshadri Harihar and that it was
only then that he came to know about the ailment suffered by
the respondent. This averment was reiterated by the appellant
in paragraph-3 of the Affidavit filed in lieu of chief-
examination as P.W.1.
25. Even according to the appellant, the respondent
took treatment for schizoid from the very same Neuro
Psychiatrist viz., Dr. Seshadri Harihar at Apollo Hospitals,
Chennai. Therefore, the decision of the appellant to take the
respondent in December, 2007 to the very same Neuro
Psychiatrist at the very same hospital, cannot be by mere
coincidence. Considering the fact that the families of the
appellant and the respondent were known to each other for
decades and that they were also related to each other, the
claim that the discovery took place only in December, 2007 is
completely unbelievable. As rightly pointed out by the Court
below, the appellant completely denied the friendship/
relationship between the two families, even in the Affidavit
filed in lieu of chief-examination. But in the course of cross-
examination, the close connections between the two families
were elicited from the appellant as P.W.1. Therefore, the
appellants claim that he discovered the past history of the
respondent only in December 2007, has to be taken with
a pinch of salt, as he had completely denied even the
relationship and friendship between the families for a long
time.
26. As seen from Section 12(1)(c), the fraud that vitiated
the consent of the petitioner to the marriage, should be in
connection with the nature of the ceremony or as to any
material fact or circumstance concerning the respondent.
Even if we go by the pleadings and evidence let in by the
appellant, a solitary instance of the respondent taking
treatment in March, 2004 from Dr. Seshadri Harihar of Apollo
Hospitals, Chennai, may not be a material fact or
circumstance concerning the respondent, so as to assume the
character of fraud that could vitiate the consent of the
appellant.
27. The material fact or circumstance concerning the
respondent, the suppression of which could tantamount to
a fraud in terms of Section 12(1)(c) should be of such a nature
that the respondent thought fit to suppress the same from the
petitioner, lest it may affect his consent. One solitary instance
of a treatment in March, 2004 cannot assume such
a proportion. Moreover, the respondent filed Ex.B-1
Certificate dated 01-4-2006 issued by Dr. Seshadri Harihar of
Apollo Hospitals, Chennai. It was recorded therein that the
respondent did not have any complaints. Therefore, it was
possible that the respondent did not consider this as
a material fact or circumstance, the suppression of which
may tantamount to fraud. Hence, we do not think that the
case on hand would fall under Clause (c) of sub-section (1) of
Section 12.
28. Having excluded Clauses (a), (c) and (d), what
remains, is only Clause (b) of sub-section (1) of Section 12.
Under Clause (b), the annulment of a marriage can be sought
if the marriage was in contravention of the condition specified
in Section 5(ii). Section 5(ii) reads as follows:
5. Conditions for a Hindu marriage: A marriage may be
solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
(i) ...........................................................................;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering
from mental disorder of such a kind or to such an extent as to
be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;
29. To make a case fall within Section 5(ii), the party
seeking annulment should establish any of the following:
(i) that either of the parties was incapable of giving
a valid consent to the marriage, in consequence of
unsoundness of mind,
(ii) that either of the parties, though capable of giving
a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage
and procreation of children, or
(iii) that either of the parties has been subject to
recurrent attacks of insanity.
30. In the case on hand, it is not the case of the
appellant that he was suffering from any one of the above.
It is not the case of the appellant that the respondent was
incapable of giving a valid consent to the marriage in
consequence of unsoundness of mind. Therefore, the case
would not fall under Section 5(ii)(a).
31. It is not the case of the appellant that the
respondent has been subject to recurrent attacks of insanity.
Therefore, the case would not fall under Section 5(ii)(c).
32. To make the case fall under Section 5(ii)(b), the
appellant should have pleaded and proved two things viz.,
(a) that the respondent was suffering at the time of marriage
from a mental disorder and (b) that the mental disorder was
of such a kind and to such an extent that made her unfit for
marriage and the procreation of children.
33. Let us assume for the sake of argument that the
respondent had been suffering from mental disorder, at the
time of marriage. But even then the appellant failed either to
plead or to prove that the mental disorder suffered by the
respondent was of such a kind and to such an extent as to
make her unfit for marriage and the procreation of children.
34. Therefore, the appellant could not even make the
case come under Section 5(ii)(b), so as to invoke Section
12(1)(b) for its annulment.
35. It must be remembered that the tests for
annulment of a marriage are more stronger than the
tests for dissolution of a marriage. To make a case fall
under Section 12(1)(b), a person should establish either
unsoundness of mind affecting consent or mental disorder of
such a kind and extent that made the respondent unfit for
marriage and procreation of children or the recurrent attacks
of insanity. To make a case fall under Section 13(1)(iii), it is
enough if the petitioner proves that the respondent has been
incurably of unsoundness of mind or that the respondent had
been suffering continuously or intermittently, a mental
disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the
respondent.
36. A clear distinction is maintained between Section
12(1)(b) and Section 13(1)(iii) of the Hindu Marriage Act,
1955. This is in view of the fact that serious consequences
flow out of annulment of marriage.
37. The evidence on record shows that the respondent
received treatment for Schizoid. According to literature,
Schizoid is not the same as Schizophrenia. While
Schizophrenia may manifest itself in the form of persistent
psychotic symptoms, Schizoid does not. Therefore,
Schizophrenia is serious in nature than Schizoid.
38. According to Stedmans Medical Dictionary -
Schizoid means a person who is socially isolated, withdrawn,
having few (if any) friends or social relationships; resembling
the personality features characteristic of schizophrenia, but
in a milder form. In Comprehensive Textbook of
Psychiatry (6th ed, Vol.2) -the learned authors Kaplan and
Sadock point out that Schizoid Personality Disorder is
distinguished from schizophrenia, delusional disorder, and
affective disorder with psychotic features based on periods
with positive psychotic symptoms, such as delusions and
hallucinations. In Psychiatry for Medical students by
Robert J. Waldinger it is stated that Schizoid Personality
Disorder must be differentiated from Schizophrenia. The
presence of a thought disorder with persistent hallucinations
and/or delusions at some time during the course of
schizophrenia differentiates it from the schizoid personality
disorder. Also, schizoid individuals usually function better
than schizophrenic people in work situations.
39. In fact, history is replete with instances of persons
suffering from even paranoid schizophrenia, becoming great
achievers. One such case has found its way even to the law
books (if not to the law courts, about which there are no
records), with the Karnataka High court referring to the same
in one of its judgments. In Para 24 of its decision in Shilpa
vs. Praveen , the Karnataka High Court, recorded the
following:
At this stage, we are reminded of a story of success
portrayed by Sylvia Nasar in the Biography, A Beautiful
Mind (published by Simon & Schuster, as well as a Film
of the same name) of John Forbes Nash Jr., an American
Mathematician, born on June 13, 1928. He started
showing symptoms of mental illness and spent several
years at Psychiatric Hospitals and was treated for
paranoid schizophrenia. After 1970, he refused further
medication and his condition improved. Thereafter he was
never committed to Hospital again. He recovered
gradually with the love and care of his divorced wife
whom he remarried in 2001. He gradually returned to
academic work by mid-1980s. He was awarded the 1994
Nobel Memorial Prize in Economic Sciences for the thesis,
which earned him Ph.D. Degree in 1950. He was both a
Mathematician and Economist. He made groundbreaking
work in the area of real algebraic geometry. He published
number of theorems to his credit and was awarded
prestigious Abel Prize in 2015.
40. One of the earliest cases to come up before
an Indian court, for the dissolution of marriage on the ground
of paranoid schizophrenia, was in Gnanambal vs. O.R.
Selvaraj . In that case, the husband filed an Application for
dissolution of marriage on the ground that the wife was
incurably of unsound mind as she was suffering from
paranoid schizophrenia. The Trial Court granted a decree and
the same was confirmed on appeal by the Additional Judge,
City Civil Court, Madras. The wife filed a second appeal on
the file of the Madras High Court. Tracing the history behind
section 13(1) (iii) of the Hindu Marriage Act, 1955 and the
usefulness of the English precedents on the question, the
Madras High Court made the following observations :
The framers of this Provision have taken into account the
provisions of the English Matrimonial Causes Act, 1950.
The English Act of 1950 reproduced what was contained
in the Matrimonial Causes Act, 1937, and has been
reproduced in the Matrimonial Causes Act, 1965.
According to the English Act, a petition for divorce can be
presented on the ground that the respondent is incurably
of unsound mind and has been continuously under care
and treatment for a period of at least five years
immediately preceding the presentation of the petition. In
as much as important phrases found in the Indian
enactment have been taken from the English enactment,
English decisions would be of valuable guide in
interpreting the Indian enactment, as Indian case law on
the Indian enactment is not much. It would be seen from
a perusal of the Indian enactment that three essential
things should be established by the party seeking
divorce, and they are (1) that the other party to the
marriage is of unsound mind; (2) that the unsoundness of
mind is incurable and; (3) that the incurable unsound
mind was there for a period of not less than three years
immediately preceding the presentation of the petition for
divorce.
41. After pointing out the rationale behind looking
towards the west for precedents in matters of this nature, the
Madras High court took note of the following decisions of the
English Courts. The first case was that of Swettenham vs.
Swettenham . In that case, the parties got married in the
year 1878 and thereafter from time to time the wife was
certified and re-certified to be insane. The husband petitioned
for divorce under the Matrimonial Causes Act, 1937.
The Court held that the wife was incurably of unsound mind
since Inspite of two considerable periods, during which the
wife had been restored to mental health, she continued to be
insane. The next case cited by the Madras High court was
that of Randall vs. Randall , where the court held that it is
not necessary to lay down any test about the degree of
unsoundness of mind for the purposes of the Matrimonial
Causes Act, 1937. The case next in line was of Swymer vs.
Swymer , where one of the important questions considered
was as to what would constitute continuous period of five
years within the meaning of the Matrimonial Causes Act,
1950. There, the husband was admitted to a Mental Hospital
in 1925 and was discharged 26 years later and was later
re-admitted to the same hospital as a voluntary patient.
In 1953, he broke his leg in an accident and owing to lack of
suitable facilities for treatment at the mental hospital he was
sent to a general hospital which was not an institution or
a place approved for the purposes of the Mental Treatment
Act, 1930. He returned to the Mental Hospital in May 1953.
In October 1953, the wife presented a petition for divorce on
the ground that the husband was incurably of unsound mind
and had been continuously under care and treatment for
a period of at least five years immediately preceding the
presentation of the petition. On account of the period during
which the husband was having treatment in a general
hospital, the trial court rejected the wifes petition holding
that the husband was not continuously under the care and
treatment for at least five years immediately preceding the
presentation of the petition. Reversing that decision it was
held in appeal that the word continuously should be read not
merely with a common sense approach but also keeping in
mind the true object and intention of the Act. The fourth
English decision referred to by the Madras High court in
Gnanambal was Whysall vs. Whysall . This decision laid
down the test to be applied in deciding the question whether
a person is incurably of unsound mind. The court held that in
deciding whether a person is incurably of unsound mind,
the test to be applied is whether by reason of his mental
condition he is capable of managing himself and his affairs
and if not, whether he can hope to be restored to a state in
which he will be able to do so. Finally, the Madras High court
also took note of the decision in Chapman vs Chapman
relied upon by the wifes counsel. In that case the husband
was suffering from paranoid schizophrenia. The evidence
established that after the discharge from the hospital he was
no longer subject to any reception order. He was no longer
under any medical treatment or care. He was able
substantially to control his condition by taking drugs. He was
able to work and earn wages and was capable of securing
work. It was therefore, held that the wife had failed to
establish that her husband was incurably of unsound mind.
42. If Madras High court can be said to have taken
a liberal view in the aforementioned judgment, the other High
courts appear to have taken both views. In Asha Srivastava
v. R.K. Srivastava , the husband sought annulment on the
ground of suppression of Schizophrenia by the wife. The Trial
Court granted annulment. The Delhi High Court held that
a marriage cannot be annulled on the basis of any and every
misrepresentation or concealment. But the concealment
about the ailment of Schizophrenia was held by the court as
amounting to fraud, since it was opined by the doctor that the
said mental illness was not curable.
43. In Ram Narain Gupta v. Rameshwari Gupta ,
the husband sought dissolution of marriage under Section
13(1)(iii) on the ground that the wife was suffering from
Schizophrenia. The Trial Court granted dissolution. But the
High Court reversed the decision on the ground that the
husband failed to establish 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 the
appellant to live with the respondent. To come to the said
conclusion, the High Court relied upon a judgment of the
Calcutta High Court in Rita Roy v. Sitesh Chandra (AIR 1982
Cal 138) wherein it was held that each case of Schizophrenia
had to be considered on its own merits. When the matter was
taken to the Supreme Court by the husband, the Supreme
Court pointed out that all mental abnormalities are not
recognized as grounds for the grant of divorce and that if
mere existence of any degree of mental abnormality could
justify the dissolution of a marriage, very few marriages would
indeed, survive in law. Insofar as Schizophrenia is concerned,
the Supreme Court made certain observations in paragraphs-
25 to 27 of its judgment in Ram Narain Gupta. It may be
useful to extract paragraphs-25 to 27 of the decision of the
Supreme Court as follows:
25. Schizophrenia, it is true, is said to be difficult mental
affliction. It is said to be insidious in its onset and has
hereditary predisposing 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 expression of sympathy appear to the victim
as insidious traps. In its worst manifestation, this illness
produces a crude wrench from reality and brings about a
lowering of the higher mental functions.
26. Schizophrenia is described thus:
A severe mental disorder (or group of disorders)
characterized 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).
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.
27. But the point to note and emphasise is that the
personality disintegration that characterises this illness
may be of varying degrees. Not all schizophrenics are
characterised by the same intensity of the disease. F.C.
Redlich and Daniel X. Freedman in The Theory and
Practice 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 nonetheless favourable psychosocial
stimuli other than specific therapeutic activity . (p. 465)
(emphasis supplied)
44. Therefore, it is clear from the earliest decision of the
Supreme Court on this issue that not all Schizophrenics
are characterised by the same intensity of the disease
and that some patients recover, apparently completely.
45. In Princy v. Dominic , the Supreme Court was
concerned with yet another case of Schizophrenia. The Court
held that Schizophrenia, commonly but not inevitably, runs
a progressive course and that the prognosis has been
improved in recent years with drugs and by vigorous,
psychological and social management and rehabilitation.
46. In Vinita Saxena v. Pankat Pandit , the wife
sought dissolution of marriage on the ground that the
husband suffered from insanity and was guilty of mental and
physical cruelty. The Supreme Court devoted a full paragraph
expounding what Schizophrenia is about, its causes,
symptoms and how the same may affect the marital tie. But
eventually, the Supreme Court granted dissolution of
marriage on certain humane considerations listed out in the
fourth last paragraph of the report.
47. In Pankaj Mahajan v. Dimple , the husband
sought divorce on the ground that the wife was suffering from
incurable form of Schizophrenia. The Trial Court granted
divorce, but the High Court reversed the same. When the
husband appealed to the Supreme Court, the Supreme Court
predominantly went by the evidence relating to cruelty and
granted dissolution of marriage.
48. In Kollam Chandra Sekhar v. Kollam Padma
Latha , the husband sought divorce on the ground of
Schizophrenia. The Supreme Court refused relief on the
ground that there was no sufficient evidence and that any
person may have bad health, for no fault of theirs. However,
this decision turned down facts and not really on the purport
of Schizophrenia.
49. In Challa Surya Prabha v. Challa Diwakar
Venkata Ram , the husband sought divorce both on the
ground of cruelty and on the ground that the wife was
suffering from Schizophrenia. The Trial Court granted
a decree of dissolution of marriage. While confirming the
same, a Division Bench of this Court held on facts that the
wife was suffering from an aggravated form of Schizophrenia
causing injuries to the body of the petitioner and that
therefore he cannot reasonably be expected to live with the
wife.
50. As we have pointed out elsewhere, the statutory
prescription in the Hindu Marriage Act is a replica of the
English Matrimonial Causes Act, 1937 (which later got
revamped in 1950 and 1965). This is why our courts have
cited the English precedents where some useful tests were
laid. In Whysall v. Whysall, (which was cited by the Madras
High court as well as the Supreme court) the husband who
was suffering from Paranoid Schizophrenia, was certified to
be insane and he entered a mental hospital in 1952. In 1958,
the wife filed a petition for divorce on the ground that the
husband was incurably of unsound mind. Relying upon the
decision in Randall v. Randall, the Court held in Whysall
that the test to be applied to the word incurably is to see
whether that spouse could hope to be restored to a state in
which he/she was capable of managing his/her self and
his/her affairs. The decision in Whysall was followed in
Chapman v. Chapman.
51. Keeping the principles of law laid down in the
English as well as Indian decisions, if we come back to the
case on hand, it could be seen that the appellant/husband
did not produce any convincing evidence to show that the wife
was suffering from a Schizophrenic disorder of such an extent
that the case would pass the test in Whysall and Chapman.
In fact, the evidence of the wife as R.W.1 in the petition for
annulment, is cogent and appears to be that of a person who
was on the path to recovery.
52. In an article titled Schizophrenia and Divorce,
Prof. P.M.Bakshi, has stated the following:
One type of mental ill health is called " schizophrenia "
a much misunderstood word. It is derived from Greek
schizein = to divide -rphren - mind. It comprises a group of
diseases identified by symptoms of emotional abnormality,
thought disorder, disturbances of motivation, stupor or
catatonia and delusions often associated with hallucinations.
Its causes are unknown and it is not curable. Schizophrenia
is not fatal, but about 20 per cent of all schizophrenics
attempt suicide and life expectancy amongst schizophrenics
is probably less than half of that of the general population.
Roughly one quarter of all schizophrenics suffer only one
acute attack and are thereafter normal. In about one half,
there are remissions or symptom-free periods, but the illness
recurs. After the third or fourth recurrence, the patient is
usually chronically ill for the rest of his life. The remaining 25
per cent of schizophrenics are chronically ill from the outset
and must be continuously hospitalised (Richard B. Fisher,
Dictionary of Medical Health 217,218 (1980))
Schizophrenia can be diagnosed only because of its
symptoms. Despite its relative severity, there are borderline
cases of people with schizoid characteristics who are able to
carry on relatively normal lives given a measure of support
from those close to them. Schizophrenia was identified by
Kraepel in 1896. He called it "dementia praccox (early
madness), because the symptoms appear more often in
adolescents and young adults than in other age groups. In
1911, Bleuler established the name schizophrenia. He
compared studies of many patients by various doctors in
different countries, and found that one symptom, the splitting
of intellectual activity from emotional response, seemed to be
almost, if not absolutely, universal. Typically, the patient s
intellect is relatively unclouded. He is aware of the nature of
pain, fear, anger or love, and when he senses these emotions
himself, he is alive to their content and object. But he cannot
feel the emotions of others. Inflicting pain on others is
meaningless. Only a minority of schizophrenics are
aggressive or dangerous, and those few act only
occasionally. But when they strike, they do so with utter
ruthlessness. Schizophrenia means a division of facets of a
normal mind, rather than the presence of two or more
personalities, though multiple-personality may also betoken
the disease.
On the whole, the incidence of the disease is higher in
fraternal twins than in the general population, and much
higher in identical twins. Fraternal twins develop from two
ova and are likely to develop the same traits as any other
siblings. Identical twins develop from a single ovum and can
be genetically identical individuals. Thus, if a characteristic is
inherited, both the identical twins are likely to have acquired
it, and fraternal twins are about as likely to inherit it as any
other brother or sister. One more curious extraneous fact has
never been explained: a majority of schizophrenics are born
in the first half of the year, (At Pg. 223 of Richard B. Fisher,
Dictionary of Medical Health (1980)
It is thus clear that schizophrenia, speaking medically,
can, at times, be a serious disease. Nevertheless, to enable a
spouse to obtain matrimonial relief on the ground of this or
any other type of mental ill health, the law (as incorporated in
Hindu Marriage Act) requires that the disease should be of
such a quality that the petitioning spouse cannot be
reasonably expected to live with the person suffering from the
disease. This legislative approach has a rationale.
Matrimonial law is concerned with human conduct or human
situation, only if, and insofar as, it affects matrimonial
happiness. In assessing the effect on matrimonial happiness
the legislature has adopted the test of reasonableness. This
keeps the statute free from rigid, mechanical tests. It also
leaves the judiciary an element of elasticity which, inter alia,
enables the court to adjust the relief according to
(i) developments in medical science;
(ii) appearance of new or aggravated disease; and
unexpected or unusual mental symptoms.
The context in which the idea of unsoundness of mind as "
mental disorder " occur in matrimonial law as grounds for
dissolution of a marriage, requires the assessment of the degree of
the " mental disorder". Its degree must be such that the spouse
seeking relief cannot reasonably be expected to live with the other.
All mental abnormalities are not recognised as grounds for the
grant of divorce.
53. Therefore, we are of the considered view that the
appellant failed to establish any of the grounds mentioned in
Section 12 of the Hindu Marriage Act, 1955, to enable him to
get a decree of annulment. Hence, the husbands appeal
F.C.A.No.105 of 2014 is dismissed confirming the judgment
and decree of the Family Court in O.P.No.95 of 2008.
54. Coming to F.C.A.No.134 of 2015 arising out of the
decree for restitution of conjugal rights, it is seen that the
main ground on which the husband refused to take the wife
was that she was suffering from Schizoid and that the same
made her incapable of performing conjugal obligations.
But the petition for annulment filed by the husband on the
very same ground has been rejected by us. Therefore, there is
no alternative but to confirm the decree for restitution of
conjugal rights. Hence, F.C.A.No.134 of 2015 is dismissed.
The miscellaneous petitions, if any, pending in these appeals
shall stand closed. No costs.
___________________________
V.RAMASUBRAMANIAN, J.
________________
N.BALAYOGI, J.
24th January, 2018.
Family Court Appeal Nos.105 of 2014 and BATCH
24-01-2018
Tallam Suresh Babu, S/o Late Satyanarayana, Aged about 32 years, Software Engineer, R/o. D.No.15/77, P.B. Street, Kadapa Ci
T.Swetha Rani, D/o S.Chandrasekhar, Aged 26 years, Occ: House Wife, R/o. Habeebullah Street, Opp. Balaji Temple, Kadapa Ci
Counsel for Appellant: Mr. Y.V.N. Narayana Rao
Counsel for Respondent:Mr. P.Veera Reddy,
Senior Counsel, representing
Mr. Karri Murali Krishna
<Gist:
>Head Note:
? Cases referred:
1. 2007 (1) ALT 177
2. AIR 2016 Kant 169
3. (1970) 2 MLJ 429
4. (1938) 3 A.E.R.185
5. (1938) 4 A.E.R 696
6. (1954) 3 A.E.R 502
7. 1959) 3 A.E.R 389
8. (1961) 1 W.L.R 1481
9. AIR 1981 Del. 253
10. (1988) 4 SCC 247
11. 2005 (43) Civil CC (S.C.)
12. (2006) 3 SCC 778
13. (2011) 12 SCC 1
14. (2014) 1 SCC 225
15. 2017 (1) ALD 134
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE N.BALAYOGI
Family Court Appeal Nos.105 of 2014 and 134 of 2015
Common Judgment: (per V.Ramasubramanian, J.)
Aggrieved by the dismissal of his own petition for
annulment of marriage and the grant of a decree for
restitution of conjugal rights at the instance of his wife, the
husband has come up with the above appeals.
2. We have heard Mr. Y.V.N. Narayana Rao, learned
counsel appearing for the appellant (husband) in both the
appeals and Mr. P.Veera Reddy, learned Senior Counsel
appearing for the respondent (wife).
3. The marriage of the petitioner and the respondent
was solemnized on 31-01-2007 according to Hindu customary
rites. Within 18 months of the solemnisation of the marriage,
the appellant/husband filed a petition in O.P.No.95 of 2008
seeking annulment of the marriage on the ground that the
respondent/wife did not allow him to have conjugal
relationship and that when he took her for treatment, she was
found to be suffering from Schizoform illness and that the
enquiries revealed that the respondent/wife had been taking
treatment for schizoid, making her unfit for sexual
relationship and that the suppression of the same
tantamounted to fraud, making the marriage liable to be
annulled under Section 12 of the Hindu Marriage Act, 1955.
4. The respondent/wife resisted the petition for
annulment on the ground that the families of the appellant
and the respondent were known to each other for more than
50 years; that they were also related on the maternal side of
the appellant; that right from the childhood, both families had
decided to have them married; that the respondent even
stayed in the house of the appellant when she was studying
Intermediate; that after the death of the appellants father,
the mother and brother of the appellant started looking for
an alliance elsewhere, which resulted in some sort of
a depression for the respondent; that in that connection, the
respondent was taken to Apollo Hospitals, Chennai, for
treatment; that some time later, the attitude of the brother
and mother of the appellant changed and they came forward
to perform the marriage; that the betrothal took place in May,
2006 and the marriage was solemnized on 31-01-2007; that
during this interregnum of about 7 to 8 months, the appellant
used to talk to the respondent regularly on phone and they
also used to attend parties and functions; that after marriage,
the appellant was not interested in regular sexual
relationship, but was interested only in oral sex; that the
behaviour of the appellant again created disturbances in the
mind of the respondent and hence her parents took both of
them to a Neuro Psychiatrist by name Dr. Seshadri Harihar
on 06-12-2007 and 07-12-2007 for consultation; that the
appellant and the respondent were subjected to clinical
examination by one Dr. Sabiha Sultana and they were also
advised to consult a Sexologist; that the appellant refused to
have any consultation; that the abnormal behaviour of the
appellant resulted in the revival of her Schizoform illness;
that Schizoform illness is a curable disease and hence it
cannot be a ground for annulment of marriage.
5. Before the Family Court, the appellant examined
himself as P.W.1. He examined his elder brother as P.W.2, his
paternal uncle as P.W.3 and a Psychiatrist working as
Assistant Professor in Kurnool Medical College as P.W.4.
The Wedding Card and Wedding photographs were marked on
the side of the appellant as Exs.A-1 and A-2. The treatment
record of the respondent issued by Apollo Hospitals, Chennai,
was filed as Ex.A-3. The Neuro Psychological Report, dated
07-12-2007, of the respondent was filed as Ex.A-4. The Death
Certificate of the appellants father was filed as Ex.A-5.
6. On the side of the respondent, she was examined as
R.W.1, her father was examined as R.W.2 and a Psychiatrist
from Channai by name Dr. S.Nambi was examined as R.W.3.
15 documents were marked on the side of the respondent.
Ex.B-1 was a prescription given by Dr. Seshadri Harihar on
01-4-2006. Two referral letters issued by Dr. Seshadri
Harihar on 06-12-2007, one addressed to Dr. Sabiha Sultana
and another addressed to Dr. Reddy were filed as Exs.B-2
and B-3. The Neuro Psychological reports issued by
Dr. Sabiha Sultana in respect of the appellant and the
respondent were marked as Exs.B-4 to B-6. The call data
relating to the mobile phone number of the respondent
for the month of November, 2006 was filed as Ex.B-7.
The photographs taken in the house of the appellant, on the
occasion of a birthday party when the respondent was
a student of Intermediate, were filed as Ex.B-14. Another set
of photographs taken at the time of marriage of one Veena
Kumari were filed as Ex.B-15.
7. The Certificate issued by Dr. S.Nambi (R.W.3) on
08-6-2009 was taken on record as Ex.X-1. The Discharge
Summary issued by St. Isabels Hospital on 08-6-2009, was
taken on record as Ex.X-2. The investigation record was filed
as Ex.X-3.
8. On the basis of the pleadings and the oral and
documentary evidence, the Family Court came to the
conclusion that the families of the appellant and the
respondent were known to each other very closely for a long
time and that there were even money transactions between
the families and that therefore it cannot be said that the ill
health of the respondent was not known to the appellant.
On the basis of Ex.A-4, the Family Court also came to the
conclusion that though the respondent was treated for
depression at Apollo Hospitals, Chennai, in March, 2004, she
became better by November, 2004 and that there was
development in the health of the respondent within a month
as per Ex.A-4. Hence, the Family Court concluded that the
ailment suffered by the respondent cannot be said to be
incurable.
9. The Family Court held that the appellant ought to
have had knowledge about the mental health of the
respondent even before marriage, as otherwise he could not
have taken her to the very same hospital for treatment after
marriage.
10. On the evidence of P.W.4, the Family Court
concluded that P.W.4 had prior acquaintance with the
appellant and that the failure of the appellant to take steps to
examine the doctor who treated the respondent was fatal to
his case.
11. After rejecting the evidence of P.W.4, the Family
Court analysed the evidence tendered by R.W.3 and the
documents produced by him Exs.X-1 to X-3 and came to the
conclusion that there was no mental illness as on 08-6-2009.
The Family Court also concluded that even the appellant
exhibited abnormal behaviour as per Ex.B-4.
12. Ultimately, placing reliance upon the decision of
a Division Bench of this Court in Dr. Kollam Padma Latha
v. Dr. Kollam Chandra Sekhar , the Family Court
concluded that Schizophrenia has to be put on par with
diseases like hypertension and diabetes and that therefore it
cannot be taken to be incurable so as to enable the appellant
to seek annulment of the marriage. The non-examination of
Dr. Seshadri Harihar and Dr. Sabiha Sultana was also put
against the appellant and the Family Court dismissed the
petition for annulment.
13. After the dismissal of the petition for annulment of
marriage, the respondent/wife filed F.C.O.P.No.41 of 2012 for
restitution of conjugal rights. The said petition was allowed by
the Family Court by a judgment dated 13-4-2014.
14. As against the dismissal of his petition for
annulment, the husband filed F.C.A.No.105 of 2014.
As against the order for restitution of conjugal rights, the
husband has come up with the other appeal F.C.A.No.134 of
2015.
15. We think that a decision on the appeal arising out of
the petition for annulment of marriage, would naturally
decide the fate of the appeal arising out of the petition for
restitution of conjugal rights. Therefore, we shall take up
F.C.A.No.105 of 2014 for consideration first. As we have
indicated earlier, the appellant sought annulment of marriage
on the sole ground that the respondent had been suffering
from schizoid for about three years prior to the marriage and
that by playing fraud upon the appellant and his family, the
parents of the respondent got her married to him.
The petition filed by the appellant in O.P.No.95 of 2008
contained certain averments, which formed the foundation for
him to seek annulment. These averments, in brief, were:
(i) that after marriage, the respondent never allowed the
appellant to have sexual intercourse;
(ii) that she was not even able to cook food and kept
herself inside the bedroom by bolting the door;
(iii) that suspecting her behaviour, the appellant took
her to Apollo Hospitals, Chennai and got her examined by
a Neuro Psychiatrist by name Dr. Seshadri Harihar;
(iv) that it was at that time that the appellant came to
know that the respondent was taking treatment for schizoid
from March, 2004; and
(v) that since the disease is incurable and it was
suppressed at the time of marriage, the appellant was forced
to seek annulment.
16. Therefore, the appellant will have to stand or fall
only on the strength of the above averments. Hence, it is
necessary for us to see, both in terms of the art of law and the
science of medicine, as to whether an annulment of marriage
could be granted on the above pleadings.
17. Under Section 12(1) of the Hindu Marriage Act,
1955, the annulment of marriage can be sought only on any
of the following grounds viz.,
(i) the non-consummation of the marriage owing to the
impotence of the respondent,
(ii) the contravention of any of the conditions specified
in Section 5(ii) of the Act,
(iii) the consent for the marriage was vitiated by force or
fraud and
(iv) the pregnancy of the respondent through some other
person at the time of marriage.
18. There is complete lack of clarity in the petition filed
by the appellant in O.P.No.95 of 2008 as to the specific
provision under which he was seeking annulment of the
marriage. In paragraph-5 of the petition, the appellant
claimed that the respondents parents suppressed the
treatment taken by the respondent in March, 2004 for
Schizoid and that the same tantamounted to a fraud upon the
appellant. This averment was followed by yet another
averment to the effect that the respondent was not fit for
sexual intercourse on account of Schizoid and that the same
tantamounted to impotence of the respondent. These
averments were followed by another averment to the effect
that the disease suffered by the respondent is incurable.
19. Therefore, the appellant was not sure as to whether
his case would fall under Clause (a) or Clause (b) or Clause (c)
of sub-section (1) of Section 12. Section 12(1) reads as
follows:
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) that the marriage has not been consummated
owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the
condition specified in Clause (ii) of Section 5; or
(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) that the respondent was at the time of the
marriage pregnant by some person other than the
petitioner.
20. Certainly the case of the appellant would not come
within Clause (d) of sub-section (1) of Section 12.
Unfortunately for the appellant, his case would not also fall
under Clause (a), since the entire evidence, oral and
documentary was focussed only on the mental health
condition of the respondent and the non-consummation of
the marriage. There was no attempt to prove that the
non-consummation of the marriage was due to the impotence
of the respondent. There is no proof, oral or documentary,
to establish the impotence of the respondent. Therefore, the
case of the appellant would not fall under Clause (a).
21. To make the case fall under Clause (c), the appellant
had to prove that his consent for the marriage was obtained
by force or by fraud. This is not a case where the appellant
pleads that his consent was obtained by force. At the most
the case may fall only under the category of fraud.
22. But the fraud pleaded by the appellant so as to
make the case come under Clause (c), should be either as to
the nature of the ceremony or as to any material fact or the
circumstance concerning the respondent.
23. If a case is sought to be brought within the
parameters of Clause (c), then the person attempting to do so,
should also satisfy the conditions prescribed in Clause (a) of
sub-section (2) of Section 12. This is why the appellant pleads
that the fraud was discovered in December, 2007 and that
within one year, he presented the petition for annulment of
marriage in June, 2008.
24. The claim of the appellant that he discovered the
fraud as to a material fact or as to a circumstance concerning
the respondent only in December 2007, after 11 months of
marriage, is belied by circumstances. In paragraph-4 of his
petition, the appellant claimed that he took the respondent to
Apollo Hospitals, Chennai and got her examined by a Neuro
Psychiatrist by name Dr. Seshadri Harihar and that it was
only then that he came to know about the ailment suffered by
the respondent. This averment was reiterated by the appellant
in paragraph-3 of the Affidavit filed in lieu of chief-
examination as P.W.1.
25. Even according to the appellant, the respondent
took treatment for schizoid from the very same Neuro
Psychiatrist viz., Dr. Seshadri Harihar at Apollo Hospitals,
Chennai. Therefore, the decision of the appellant to take the
respondent in December, 2007 to the very same Neuro
Psychiatrist at the very same hospital, cannot be by mere
coincidence. Considering the fact that the families of the
appellant and the respondent were known to each other for
decades and that they were also related to each other, the
claim that the discovery took place only in December, 2007 is
completely unbelievable. As rightly pointed out by the Court
below, the appellant completely denied the friendship/
relationship between the two families, even in the Affidavit
filed in lieu of chief-examination. But in the course of cross-
examination, the close connections between the two families
were elicited from the appellant as P.W.1. Therefore, the
appellants claim that he discovered the past history of the
respondent only in December 2007, has to be taken with
a pinch of salt, as he had completely denied even the
relationship and friendship between the families for a long
time.
26. As seen from Section 12(1)(c), the fraud that vitiated
the consent of the petitioner to the marriage, should be in
connection with the nature of the ceremony or as to any
material fact or circumstance concerning the respondent.
Even if we go by the pleadings and evidence let in by the
appellant, a solitary instance of the respondent taking
treatment in March, 2004 from Dr. Seshadri Harihar of Apollo
Hospitals, Chennai, may not be a material fact or
circumstance concerning the respondent, so as to assume the
character of fraud that could vitiate the consent of the
appellant.
27. The material fact or circumstance concerning the
respondent, the suppression of which could tantamount to
a fraud in terms of Section 12(1)(c) should be of such a nature
that the respondent thought fit to suppress the same from the
petitioner, lest it may affect his consent. One solitary instance
of a treatment in March, 2004 cannot assume such
a proportion. Moreover, the respondent filed Ex.B-1
Certificate dated 01-4-2006 issued by Dr. Seshadri Harihar of
Apollo Hospitals, Chennai. It was recorded therein that the
respondent did not have any complaints. Therefore, it was
possible that the respondent did not consider this as
a material fact or circumstance, the suppression of which
may tantamount to fraud. Hence, we do not think that the
case on hand would fall under Clause (c) of sub-section (1) of
Section 12.
28. Having excluded Clauses (a), (c) and (d), what
remains, is only Clause (b) of sub-section (1) of Section 12.
Under Clause (b), the annulment of a marriage can be sought
if the marriage was in contravention of the condition specified
in Section 5(ii). Section 5(ii) reads as follows:
5. Conditions for a Hindu marriage: A marriage may be
solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
(i) ...........................................................................;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering
from mental disorder of such a kind or to such an extent as to
be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;
29. To make a case fall within Section 5(ii), the party
seeking annulment should establish any of the following:
(i) that either of the parties was incapable of giving
a valid consent to the marriage, in consequence of
unsoundness of mind,
(ii) that either of the parties, though capable of giving
a valid consent, has been suffering from mental disorder of
such a kind or to such an extent as to be unfit for marriage
and procreation of children, or
(iii) that either of the parties has been subject to
recurrent attacks of insanity.
30. In the case on hand, it is not the case of the
appellant that he was suffering from any one of the above.
It is not the case of the appellant that the respondent was
incapable of giving a valid consent to the marriage in
consequence of unsoundness of mind. Therefore, the case
would not fall under Section 5(ii)(a).
31. It is not the case of the appellant that the
respondent has been subject to recurrent attacks of insanity.
Therefore, the case would not fall under Section 5(ii)(c).
32. To make the case fall under Section 5(ii)(b), the
appellant should have pleaded and proved two things viz.,
(a) that the respondent was suffering at the time of marriage
from a mental disorder and (b) that the mental disorder was
of such a kind and to such an extent that made her unfit for
marriage and the procreation of children.
33. Let us assume for the sake of argument that the
respondent had been suffering from mental disorder, at the
time of marriage. But even then the appellant failed either to
plead or to prove that the mental disorder suffered by the
respondent was of such a kind and to such an extent as to
make her unfit for marriage and the procreation of children.
34. Therefore, the appellant could not even make the
case come under Section 5(ii)(b), so as to invoke Section
12(1)(b) for its annulment.
35. It must be remembered that the tests for
annulment of a marriage are more stronger than the
tests for dissolution of a marriage. To make a case fall
under Section 12(1)(b), a person should establish either
unsoundness of mind affecting consent or mental disorder of
such a kind and extent that made the respondent unfit for
marriage and procreation of children or the recurrent attacks
of insanity. To make a case fall under Section 13(1)(iii), it is
enough if the petitioner proves that the respondent has been
incurably of unsoundness of mind or that the respondent had
been suffering continuously or intermittently, a mental
disorder of such a kind and to such an extent that the
petitioner cannot reasonably be expected to live with the
respondent.
36. A clear distinction is maintained between Section
12(1)(b) and Section 13(1)(iii) of the Hindu Marriage Act,
1955. This is in view of the fact that serious consequences
flow out of annulment of marriage.
37. The evidence on record shows that the respondent
received treatment for Schizoid. According to literature,
Schizoid is not the same as Schizophrenia. While
Schizophrenia may manifest itself in the form of persistent
psychotic symptoms, Schizoid does not. Therefore,
Schizophrenia is serious in nature than Schizoid.
38. According to Stedmans Medical Dictionary -
Schizoid means a person who is socially isolated, withdrawn,
having few (if any) friends or social relationships; resembling
the personality features characteristic of schizophrenia, but
in a milder form. In Comprehensive Textbook of
Psychiatry (6th ed, Vol.2) -the learned authors Kaplan and
Sadock point out that Schizoid Personality Disorder is
distinguished from schizophrenia, delusional disorder, and
affective disorder with psychotic features based on periods
with positive psychotic symptoms, such as delusions and
hallucinations. In Psychiatry for Medical students by
Robert J. Waldinger it is stated that Schizoid Personality
Disorder must be differentiated from Schizophrenia. The
presence of a thought disorder with persistent hallucinations
and/or delusions at some time during the course of
schizophrenia differentiates it from the schizoid personality
disorder. Also, schizoid individuals usually function better
than schizophrenic people in work situations.
39. In fact, history is replete with instances of persons
suffering from even paranoid schizophrenia, becoming great
achievers. One such case has found its way even to the law
books (if not to the law courts, about which there are no
records), with the Karnataka High court referring to the same
in one of its judgments. In Para 24 of its decision in Shilpa
vs. Praveen , the Karnataka High Court, recorded the
following:
At this stage, we are reminded of a story of success
portrayed by Sylvia Nasar in the Biography, A Beautiful
Mind (published by Simon & Schuster, as well as a Film
of the same name) of John Forbes Nash Jr., an American
Mathematician, born on June 13, 1928. He started
showing symptoms of mental illness and spent several
years at Psychiatric Hospitals and was treated for
paranoid schizophrenia. After 1970, he refused further
medication and his condition improved. Thereafter he was
never committed to Hospital again. He recovered
gradually with the love and care of his divorced wife
whom he remarried in 2001. He gradually returned to
academic work by mid-1980s. He was awarded the 1994
Nobel Memorial Prize in Economic Sciences for the thesis,
which earned him Ph.D. Degree in 1950. He was both a
Mathematician and Economist. He made groundbreaking
work in the area of real algebraic geometry. He published
number of theorems to his credit and was awarded
prestigious Abel Prize in 2015.
40. One of the earliest cases to come up before
an Indian court, for the dissolution of marriage on the ground
of paranoid schizophrenia, was in Gnanambal vs. O.R.
Selvaraj . In that case, the husband filed an Application for
dissolution of marriage on the ground that the wife was
incurably of unsound mind as she was suffering from
paranoid schizophrenia. The Trial Court granted a decree and
the same was confirmed on appeal by the Additional Judge,
City Civil Court, Madras. The wife filed a second appeal on
the file of the Madras High Court. Tracing the history behind
section 13(1) (iii) of the Hindu Marriage Act, 1955 and the
usefulness of the English precedents on the question, the
Madras High Court made the following observations :
The framers of this Provision have taken into account the
provisions of the English Matrimonial Causes Act, 1950.
The English Act of 1950 reproduced what was contained
in the Matrimonial Causes Act, 1937, and has been
reproduced in the Matrimonial Causes Act, 1965.
According to the English Act, a petition for divorce can be
presented on the ground that the respondent is incurably
of unsound mind and has been continuously under care
and treatment for a period of at least five years
immediately preceding the presentation of the petition. In
as much as important phrases found in the Indian
enactment have been taken from the English enactment,
English decisions would be of valuable guide in
interpreting the Indian enactment, as Indian case law on
the Indian enactment is not much. It would be seen from
a perusal of the Indian enactment that three essential
things should be established by the party seeking
divorce, and they are (1) that the other party to the
marriage is of unsound mind; (2) that the unsoundness of
mind is incurable and; (3) that the incurable unsound
mind was there for a period of not less than three years
immediately preceding the presentation of the petition for
divorce.
41. After pointing out the rationale behind looking
towards the west for precedents in matters of this nature, the
Madras High court took note of the following decisions of the
English Courts. The first case was that of Swettenham vs.
Swettenham . In that case, the parties got married in the
year 1878 and thereafter from time to time the wife was
certified and re-certified to be insane. The husband petitioned
for divorce under the Matrimonial Causes Act, 1937.
The Court held that the wife was incurably of unsound mind
since Inspite of two considerable periods, during which the
wife had been restored to mental health, she continued to be
insane. The next case cited by the Madras High court was
that of Randall vs. Randall , where the court held that it is
not necessary to lay down any test about the degree of
unsoundness of mind for the purposes of the Matrimonial
Causes Act, 1937. The case next in line was of Swymer vs.
Swymer , where one of the important questions considered
was as to what would constitute continuous period of five
years within the meaning of the Matrimonial Causes Act,
1950. There, the husband was admitted to a Mental Hospital
in 1925 and was discharged 26 years later and was later
re-admitted to the same hospital as a voluntary patient.
In 1953, he broke his leg in an accident and owing to lack of
suitable facilities for treatment at the mental hospital he was
sent to a general hospital which was not an institution or
a place approved for the purposes of the Mental Treatment
Act, 1930. He returned to the Mental Hospital in May 1953.
In October 1953, the wife presented a petition for divorce on
the ground that the husband was incurably of unsound mind
and had been continuously under care and treatment for
a period of at least five years immediately preceding the
presentation of the petition. On account of the period during
which the husband was having treatment in a general
hospital, the trial court rejected the wifes petition holding
that the husband was not continuously under the care and
treatment for at least five years immediately preceding the
presentation of the petition. Reversing that decision it was
held in appeal that the word continuously should be read not
merely with a common sense approach but also keeping in
mind the true object and intention of the Act. The fourth
English decision referred to by the Madras High court in
Gnanambal was Whysall vs. Whysall . This decision laid
down the test to be applied in deciding the question whether
a person is incurably of unsound mind. The court held that in
deciding whether a person is incurably of unsound mind,
the test to be applied is whether by reason of his mental
condition he is capable of managing himself and his affairs
and if not, whether he can hope to be restored to a state in
which he will be able to do so. Finally, the Madras High court
also took note of the decision in Chapman vs Chapman
relied upon by the wifes counsel. In that case the husband
was suffering from paranoid schizophrenia. The evidence
established that after the discharge from the hospital he was
no longer subject to any reception order. He was no longer
under any medical treatment or care. He was able
substantially to control his condition by taking drugs. He was
able to work and earn wages and was capable of securing
work. It was therefore, held that the wife had failed to
establish that her husband was incurably of unsound mind.
42. If Madras High court can be said to have taken
a liberal view in the aforementioned judgment, the other High
courts appear to have taken both views. In Asha Srivastava
v. R.K. Srivastava , the husband sought annulment on the
ground of suppression of Schizophrenia by the wife. The Trial
Court granted annulment. The Delhi High Court held that
a marriage cannot be annulled on the basis of any and every
misrepresentation or concealment. But the concealment
about the ailment of Schizophrenia was held by the court as
amounting to fraud, since it was opined by the doctor that the
said mental illness was not curable.
43. In Ram Narain Gupta v. Rameshwari Gupta ,
the husband sought dissolution of marriage under Section
13(1)(iii) on the ground that the wife was suffering from
Schizophrenia. The Trial Court granted dissolution. But the
High Court reversed the decision on the ground that the
husband failed to establish 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 the
appellant to live with the respondent. To come to the said
conclusion, the High Court relied upon a judgment of the
Calcutta High Court in Rita Roy v. Sitesh Chandra (AIR 1982
Cal 138) wherein it was held that each case of Schizophrenia
had to be considered on its own merits. When the matter was
taken to the Supreme Court by the husband, the Supreme
Court pointed out that all mental abnormalities are not
recognized as grounds for the grant of divorce and that if
mere existence of any degree of mental abnormality could
justify the dissolution of a marriage, very few marriages would
indeed, survive in law. Insofar as Schizophrenia is concerned,
the Supreme Court made certain observations in paragraphs-
25 to 27 of its judgment in Ram Narain Gupta. It may be
useful to extract paragraphs-25 to 27 of the decision of the
Supreme Court as follows:
25. Schizophrenia, it is true, is said to be difficult mental
affliction. It is said to be insidious in its onset and has
hereditary predisposing 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 expression of sympathy appear to the victim
as insidious traps. In its worst manifestation, this illness
produces a crude wrench from reality and brings about a
lowering of the higher mental functions.
26. Schizophrenia is described thus:
A severe mental disorder (or group of disorders)
characterized 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).
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.
27. But the point to note and emphasise is that the
personality disintegration that characterises this illness
may be of varying degrees. Not all schizophrenics are
characterised by the same intensity of the disease. F.C.
Redlich and Daniel X. Freedman in The Theory and
Practice 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 nonetheless favourable psychosocial
stimuli other than specific therapeutic activity . (p. 465)
(emphasis supplied)
44. Therefore, it is clear from the earliest decision of the
Supreme Court on this issue that not all Schizophrenics
are characterised by the same intensity of the disease
and that some patients recover, apparently completely.
45. In Princy v. Dominic , the Supreme Court was
concerned with yet another case of Schizophrenia. The Court
held that Schizophrenia, commonly but not inevitably, runs
a progressive course and that the prognosis has been
improved in recent years with drugs and by vigorous,
psychological and social management and rehabilitation.
46. In Vinita Saxena v. Pankat Pandit , the wife
sought dissolution of marriage on the ground that the
husband suffered from insanity and was guilty of mental and
physical cruelty. The Supreme Court devoted a full paragraph
expounding what Schizophrenia is about, its causes,
symptoms and how the same may affect the marital tie. But
eventually, the Supreme Court granted dissolution of
marriage on certain humane considerations listed out in the
fourth last paragraph of the report.
47. In Pankaj Mahajan v. Dimple , the husband
sought divorce on the ground that the wife was suffering from
incurable form of Schizophrenia. The Trial Court granted
divorce, but the High Court reversed the same. When the
husband appealed to the Supreme Court, the Supreme Court
predominantly went by the evidence relating to cruelty and
granted dissolution of marriage.
48. In Kollam Chandra Sekhar v. Kollam Padma
Latha , the husband sought divorce on the ground of
Schizophrenia. The Supreme Court refused relief on the
ground that there was no sufficient evidence and that any
person may have bad health, for no fault of theirs. However,
this decision turned down facts and not really on the purport
of Schizophrenia.
49. In Challa Surya Prabha v. Challa Diwakar
Venkata Ram , the husband sought divorce both on the
ground of cruelty and on the ground that the wife was
suffering from Schizophrenia. The Trial Court granted
a decree of dissolution of marriage. While confirming the
same, a Division Bench of this Court held on facts that the
wife was suffering from an aggravated form of Schizophrenia
causing injuries to the body of the petitioner and that
therefore he cannot reasonably be expected to live with the
wife.
50. As we have pointed out elsewhere, the statutory
prescription in the Hindu Marriage Act is a replica of the
English Matrimonial Causes Act, 1937 (which later got
revamped in 1950 and 1965). This is why our courts have
cited the English precedents where some useful tests were
laid. In Whysall v. Whysall, (which was cited by the Madras
High court as well as the Supreme court) the husband who
was suffering from Paranoid Schizophrenia, was certified to
be insane and he entered a mental hospital in 1952. In 1958,
the wife filed a petition for divorce on the ground that the
husband was incurably of unsound mind. Relying upon the
decision in Randall v. Randall, the Court held in Whysall
that the test to be applied to the word incurably is to see
whether that spouse could hope to be restored to a state in
which he/she was capable of managing his/her self and
his/her affairs. The decision in Whysall was followed in
Chapman v. Chapman.
51. Keeping the principles of law laid down in the
English as well as Indian decisions, if we come back to the
case on hand, it could be seen that the appellant/husband
did not produce any convincing evidence to show that the wife
was suffering from a Schizophrenic disorder of such an extent
that the case would pass the test in Whysall and Chapman.
In fact, the evidence of the wife as R.W.1 in the petition for
annulment, is cogent and appears to be that of a person who
was on the path to recovery.
52. In an article titled Schizophrenia and Divorce,
Prof. P.M.Bakshi, has stated the following:
One type of mental ill health is called " schizophrenia "
a much misunderstood word. It is derived from Greek
schizein = to divide -rphren - mind. It comprises a group of
diseases identified by symptoms of emotional abnormality,
thought disorder, disturbances of motivation, stupor or
catatonia and delusions often associated with hallucinations.
Its causes are unknown and it is not curable. Schizophrenia
is not fatal, but about 20 per cent of all schizophrenics
attempt suicide and life expectancy amongst schizophrenics
is probably less than half of that of the general population.
Roughly one quarter of all schizophrenics suffer only one
acute attack and are thereafter normal. In about one half,
there are remissions or symptom-free periods, but the illness
recurs. After the third or fourth recurrence, the patient is
usually chronically ill for the rest of his life. The remaining 25
per cent of schizophrenics are chronically ill from the outset
and must be continuously hospitalised (Richard B. Fisher,
Dictionary of Medical Health 217,218 (1980))
Schizophrenia can be diagnosed only because of its
symptoms. Despite its relative severity, there are borderline
cases of people with schizoid characteristics who are able to
carry on relatively normal lives given a measure of support
from those close to them. Schizophrenia was identified by
Kraepel in 1896. He called it "dementia praccox (early
madness), because the symptoms appear more often in
adolescents and young adults than in other age groups. In
1911, Bleuler established the name schizophrenia. He
compared studies of many patients by various doctors in
different countries, and found that one symptom, the splitting
of intellectual activity from emotional response, seemed to be
almost, if not absolutely, universal. Typically, the patient s
intellect is relatively unclouded. He is aware of the nature of
pain, fear, anger or love, and when he senses these emotions
himself, he is alive to their content and object. But he cannot
feel the emotions of others. Inflicting pain on others is
meaningless. Only a minority of schizophrenics are
aggressive or dangerous, and those few act only
occasionally. But when they strike, they do so with utter
ruthlessness. Schizophrenia means a division of facets of a
normal mind, rather than the presence of two or more
personalities, though multiple-personality may also betoken
the disease.
On the whole, the incidence of the disease is higher in
fraternal twins than in the general population, and much
higher in identical twins. Fraternal twins develop from two
ova and are likely to develop the same traits as any other
siblings. Identical twins develop from a single ovum and can
be genetically identical individuals. Thus, if a characteristic is
inherited, both the identical twins are likely to have acquired
it, and fraternal twins are about as likely to inherit it as any
other brother or sister. One more curious extraneous fact has
never been explained: a majority of schizophrenics are born
in the first half of the year, (At Pg. 223 of Richard B. Fisher,
Dictionary of Medical Health (1980)
It is thus clear that schizophrenia, speaking medically,
can, at times, be a serious disease. Nevertheless, to enable a
spouse to obtain matrimonial relief on the ground of this or
any other type of mental ill health, the law (as incorporated in
Hindu Marriage Act) requires that the disease should be of
such a quality that the petitioning spouse cannot be
reasonably expected to live with the person suffering from the
disease. This legislative approach has a rationale.
Matrimonial law is concerned with human conduct or human
situation, only if, and insofar as, it affects matrimonial
happiness. In assessing the effect on matrimonial happiness
the legislature has adopted the test of reasonableness. This
keeps the statute free from rigid, mechanical tests. It also
leaves the judiciary an element of elasticity which, inter alia,
enables the court to adjust the relief according to
(i) developments in medical science;
(ii) appearance of new or aggravated disease; and
unexpected or unusual mental symptoms.
The context in which the idea of unsoundness of mind as "
mental disorder " occur in matrimonial law as grounds for
dissolution of a marriage, requires the assessment of the degree of
the " mental disorder". Its degree must be such that the spouse
seeking relief cannot reasonably be expected to live with the other.
All mental abnormalities are not recognised as grounds for the
grant of divorce.
53. Therefore, we are of the considered view that the
appellant failed to establish any of the grounds mentioned in
Section 12 of the Hindu Marriage Act, 1955, to enable him to
get a decree of annulment. Hence, the husbands appeal
F.C.A.No.105 of 2014 is dismissed confirming the judgment
and decree of the Family Court in O.P.No.95 of 2008.
54. Coming to F.C.A.No.134 of 2015 arising out of the
decree for restitution of conjugal rights, it is seen that the
main ground on which the husband refused to take the wife
was that she was suffering from Schizoid and that the same
made her incapable of performing conjugal obligations.
But the petition for annulment filed by the husband on the
very same ground has been rejected by us. Therefore, there is
no alternative but to confirm the decree for restitution of
conjugal rights. Hence, F.C.A.No.134 of 2015 is dismissed.
The miscellaneous petitions, if any, pending in these appeals
shall stand closed. No costs.
___________________________
V.RAMASUBRAMANIAN, J.
________________
N.BALAYOGI, J.
24th January, 2018.
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