Saturday, November 21, 2015

Divorce on ground of mental disorder.

 Section 13(1)(iii) provides that, the respondent suffers from incurably unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Therefore, it is clear that mere unsound mind is not a ground for divorce. It should be incurably unsound mind. Similarly, if a person is suffering from a mental disorder, that by itself is not a ground for divorce. The mental disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation to the said proviso explains the meaning of mental disorder. The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder of disability of mind and includes schizophrenia. It is in this background when he look at the material on record, the respondent for about 15 days did not have sleep, she was dull and depressed, she was not feeling happy, she was not active as before and she was getting fearful dreams. Once, the psychiatrist gave treatment, in a span of 15 days she attained normality. Therefore, she is not suffering from any mental disorder which justifies to grant a decree for divorce.

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
           Dated this the 25th day of March 2014
                         PRESENT
            The Hon'ble Mr. Justice N. KUMAR
                            AND
         The Hon'ble Mrs. Justice B.S. INDRAKALA
       Miscellaneous First Appeal No.3224/2012 (FC)

BETWEEN:

Shivajigouda,
S/o Nagappgouda, Aged about 43 years,
R/at Hosahalli Village, Anavatti - Hobli,
Taluk: Sorab - 577 413.                     ... Appellant

                (By Sri S.V.Desai, Advocate.)

AND:

Smt.Sunitha,
W/o Shivajigouda, Aged about 34 years,
C/o Kotrappagouda, Ground Floor,
Katavi Village, Telagadde-Post,
Jade-Hobli, Sorab Taluk - 577 419.              ... Respondent

      This Miscellaneous First Appeal is filed under Section
28 of Hindu Marriage Act against the judgment and decree
dated:15.06.2011 passed in M.C.No.36/2009 on the file of
Senior Civil Judge, JMFC, Soraba, dismissing the petition
filed under Section 13(1)(ia)(3) of Hindu Marriage Act for
dissolution of marriage.

       This appeal coming on for orders this day, N.Kumar J.,
delivered the following:
                                2


                        JUDGMENT
This is a husband's appeal challenging the order passed by the Civil Judge (Sr.Dn.) & JMFC, Sorab dismissing his petition for divorce.
2. The appellant/petitioner married the respondent on 14.03.1998 according to the Hindu Custom. After marriage they resided together happily. Two sons by name Sanjay and Sandeep are born. The grievance of the petitioner/husband is that the respondent is suffering from mental disease. Because of her mental illness, she quarrels with him, attempts to assault him and hates him. This behaviour was brought to the notice of her parents. They took her back to their house and they assured that she would be alright. Before marriage itself, she was suffering from these ailments. Suppressing the same, they have performed the marriage. Petitioner also got her treated by a Psychiatrist at Shimoga. Inspite of the same, she is not as before. Thereafter, he took care of his wife with all love and affection, but because of her behaviour, it caused both mental and physical cruelty to him and therefore, he filed a petition for divorce under Section 13(1), (1a) and (3) of the Hindu Marriage Act, 1955. After service of notice, she entered appearance and filed her statement of objections. She admitted the marriage, birth of two sons, she denied that she is suffering from any mental disease. Her younger son Sandeep was not well; he was suffering for months and therefore, he was taken to her parents house and treated at Sirsi and now, he has recovered. She is in no way caused any trouble to the petitioner. Petitioner has not taken her back to his house because he has an illicit relationship with another woman. Petitioner is the head of the family. He was the chairman of the Grama Panchayat. It is he who is suffering from mental pressure. On account of the same, he has treated the respondent with mental and physical cruelty. It is the petitioner who needs treatment from a psychiatrist. For the last one year, they are living separately. Petitioner is addicted to bad habits. He has kept the eldest son away from the respondent. She is ready and willing to live with the petitioner for the sake of the children and therefore, she sought for dismissal of the petition.
3. On the aforesaid pleadings, the trial Court framed the following two issues:
(1) Whether the petitioner is entitled for divorce as prayed for in the petition?
(2) What order?
4. The petitioner in order to substantiate his claim examined himself as PW1. He also examined three witnesses as PWs 2 to 4 and produced 9 documents which are marked as Exs.P.1 to P.9. The respondent was examined as RW1. She also examined 4 witnesses as RWs 2 to 5 and produced 17 documents which are marked as Ex.R.1 to R.17.
5. The trial court on consideration of the aforesaid oral and documentary evidence on record held that the petitioner has failed to establish the cruelty as well as the mental illness of the respondent and therefore, he is not entitled to a decree for divorce. Accordingly, the petition came to be dismissed.
6. Aggrieved by the said order, the petitioner is in appeal before this Court.
7. Learned counsel appearing for the appellant assailing the impugned order contended that the documentary evidence produced by the petitioner coupled with the evidence of the doctor who treated the respondent clearly establishes the unsound mind of the respondent and therefore, the order passed by the trial Court dismissing the petition for divorce requires to be interfered with.
8. We do not find any substance in the said contention. The undisputed evidence on record discloses that after the marriage the husband and wife lived happily and two sons were born i.e., from 1998 till 2008. The first son was born in 2001 and the second son was born in 2004. Though in the pleadings the petitioner accused the respondent of attempting to assault him, in the evidence he has not spoken about the said fact. The evidence on record shows the respondent was treated in Sridhar Nursing Home. The record issued by Sridhar Nursing Home which is marked as Exs.P. 8 and 9 shows that, on 15.07.2009 she was sleepless for 15 days, she was said to be dull and depressed, she did not feel happy, she talks less, she was not active as before, she got fearful dreams. Though the doctor who treated her was not examined, the doctor in the nursing home was examined, who on the basis of the record has deposed that after her examination in the hospital, she was given medicine and she was asked to come back after 15 days. Then when she came on 15.12.2009 she was examined and it was found that she had become normal. Therefore, no further treatment was prescribed. The doctor has also given a brief description of her physical condition, mental condition and the said evidence shows she is not suffering from any mental or physical ailment. Relying on the said legal evidence on record, the learned trial Judge rightly held that, neither the case of cruelty nor case of mental illness is made out by the petitioner/husband and therefore, he dismissed the petition. As the said finding is based on legal evidence, it cannot be found fault with. In fact, the Apex Court in the case of RAM NARAIN GUPTA vs RAMESWARI GUPTA reported in 1988 AIR 2260 has observed as under:
"10. The context in which the ideas of unsoundness of 'mind' and 'mental-disorder' occur in the section as grounds for dissolution of a marriage, require the assessment of the decree of the 'mental- disorder'. Its degree must be such as that the spouse seeking relief cannot reasonably be expected to live with the order. All mental abnormalities are not recognized as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would indeed, survive in law."
9. Section 13(1)(iii) provides that, the respondent suffers from incurably unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Therefore, it is clear that mere unsound mind is not a ground for divorce. It should be incurably unsound mind. Similarly, if a person is suffering from a mental disorder, that by itself is not a ground for divorce. The mental disorder should be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation to the said proviso explains the meaning of mental disorder. The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder of disability of mind and includes schizophrenia. It is in this background when he look at the material on record, the respondent for about 15 days did not have sleep, she was dull and depressed, she was not feeling happy, she was not active as before and she was getting fearful dreams. Once, the psychiatrist gave treatment, in a span of 15 days she attained normality. Therefore, she is not suffering from any mental disorder which justifies to grant a decree for divorce.
10. In the light of the aforesaid law declared by the Apex Court and the statutory provisions, the learned Judge of the Court below on proper appreciation of the evidence on record, rightly held that the petitioner has not made out a ground for divorce.
11. We do not see any ground to interfere with the well considered order of the Court below. Accordingly, appeal is dismissed.
Sd/-
JUDGE Sd/-

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