Appeal by husband challenging divorce decree dismissal and restitution for conjugal rights against wife. Court upheld finding that wife's seizure did not constitute incurable unsound mind or cruelty under Hindu Marriage Act.
Appeal dismissed with no order as to costs; decree drawn as per Trial Court judgment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2023:BHC-NAG:14064-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO.19 OF 2017 WITH FAMILY COURT APPEAL NO. 25 OF 2017
APPELLANT : Harish @ Roshan Bhaskar Karnewar, (Original Respondent) Aged about 33 years, Occupation : Service, R/o Plot No.37, Munzebaba Layout, Ambazari, Nagpur - 440013.
.. VERSUS .. RESPONDENT : Leelavati @ Reena W/o Roshan (Original Petitioner) Bhaskar Karnewar, Aged about 32 years, Occu : Pvt R/o C/o. Shankar Katarpawar, Golchha Marg, Near Karachi Stores, Sadar, Nagpur.
Mr Vishwadeep Mate, Advocate for appellant. Ms. Jyoti Dharmadhikari, Advocate for respondent.
CORAM : VINAY JOSHI AND VALMIKI SA MENEZES, JJ. RESERVED ON : 02/08/2023 PRONOUNCED ON : 26/09/2023
JUDGMENT : (PER : VALMIKI SA MENEZES, J.)
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in a petition for dissolution of marriage by decree of divorce bearing Petition No.A-562/2013, and respondent in Family Petition No.A-697/2013, assails common judgment dated 02/12/2016 passed by the Family Court at Nagpur. Petition No.A-697/2013 has been filed by petitioner’s wife Ms. Leelavati @ Reena Karnewar for restitution of conjugal rights; Ms. Leelavati is the respondent in Family Petition No.A-697/2013. For the purpose of these appeals, the parties are being referred to by their original nomenclature “petitioner” (Husband - Harish) and respondent (Wife – Leelavati).
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petitioner; the second ground raised by the petitioner in his pleadings contained in the plaint alleged that the respondent was suffering from fits of epilepsy which was an incurable disease leading to her being of unsound mind, and further, that mental disorder was of a kind that the petitioner could not be expected to live with the respondent.
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Rs.41,753/- p.m., as a Shunting Driver in Central Railways. The respondent has further pleaded that she was under treatment of a Neurologist since she lost consciousness twice (“Mirgi”), which was diagnosed as being a seizure, which was not an incurable mental disorder or disability which would incapacitate her.
the two petitions, heard the matters together, in which
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common evidence was adduced by the parties. The issues,
as framed by the Trial Court in the two petitions, based
upon the pleadings of the parties, are as under :-
ISSUES |
FINDINGS |
|
|---|---|---|
1) |
Does the petitioners prove that therespondent has treated him with cruelty ? |
No |
2) |
Does the petitioner prove that therespondent has been incurably of unsoundmind or has been suffering from mentaldisorder of such a kind and to such anextent that the petitioner cannot reasonablybe expected to live with the respondent ? |
No |
3) |
Whether he is entitled to have a decree ofdivorce ? |
No |
4) |
What order & decree ? |
As per finalorder. |
Res |
titution Petition |
|
1) |
Does the petitioner prove that therespondent has withdrawn himself fromher company without any sufficient reasonor cause ? |
Yes |
2) |
Whether she is entitled to have a decree ofrestitution of conjugal right ? |
Yes |
3) |
What order and decree ? |
As per finalorder. |
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By its common judgment in these petitions, the Trial Court has recorded two findings based upon the evidence before it. The first finding is to the effect that the petitioner had failed to prove that the respondent was suffering from “Epilepsy” or any incurable mental disorder which would make her unsound of mind to such an extent, that the petitioner could not be expected to live with the respondent. The second finding recorded by the Trial Court was to the effect that the respondent lived a normal life and the evidence on record demonstrated no mental disorder of any nature or a behaviour that would constitute of a ground of cruelty meted out by the respondent to the petitioner.
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Consequently, the decree of the Trial Court has dismissed the petitioner’s suit for divorce and has allowed the respondent’s petition for restitution of conjugal rights with maintenance to be paid by the petitioner to the respondent.
POINTS FOR DETERMINATION :-
a] Whether the impugned judgment and decree of the Family Court is vitiated by and contrary to law, on grounds of perversity of findings that the respondent does not suffer from any mental disorder or epilepsy constituting a ground under Section 13(1)(i-a) and under Section 13(1)(iii) of the Hindu Marriage Act, 1955 ?
b] Whether the impugned judgment and decree calls for any interference under Section 96 read with Order
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41 of the Civil Procedure Code ?
counsel for the rival parties and perused the pleadings of the parties, the evidence led by them and the impugned judgment and decree.
The main plank of the submissions made by the learned counsel for the petitioner was that the respondent suffered from mental disorder of epilepsy, and that the manifestation of this disorder rendered it impossible for the petitioner to live with the respondent. It was further argued by the petitioner that, due to respondent’s unsound state of mind, had exhibited a behaviour of such a nature that it amounted to treating the petitioner with cruelty, rendering the marriage open to grant of a decree of divorce in terms of the grounds specified under Section 13(1)(i-a) and under Section 13(1)(iii) of the Act.
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Learned Counsel for the petitioner took us
through the pleadings contained in the plaint which was specific to these two grounds and the answer thereto which is contained in the written statement. He also took us through the evidence, more particularly of the medical practitioners who had treated the respondent. He contended that the finding of the Court below that “Epilepsy” was not a mental disorder or that the behaviour of the respondent constituting grounds of cruelty, had not been proved, were perverse and contrary to the weight of the evidence on record.
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taking us through the evidence of the petitioner at Exh.24, and the alleged suicide note at Exh.47, the circumstances in which the note at Exh-47 written were explained by the respondent in her cross-examination; it was contended that the letter was written by the respondent as per the dictum of the petitioner, in a moment when he was drunk and threatening the respondent that she should leave his house; it was only as a measure to calm down the petitioner at that moment and to change his behaviour towards the respondent, that the note was written though there was no attempt ever by the respondent to commit suicide.
“13 Divorce. -
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the
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other party.
(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of 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.
Explanation. - In this clause-
(a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression psychopathic disorder means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
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(iv) Deleted.
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;
Explanation. - In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
(1A) …..
(2) A wife may also present a petition …. ”
of marriage in the present case are restricted to the two grounds under Section 13(1)(i-a) and under Section 13(1)
(iii) of the Act. In fact, the pleadings in the petition, more specifically those content at paras 3, 4, 7 and 9 of the plaint
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alleging the respondent’s aggressive behaviour of shouting or threatening to commit suicide and writing a suicide note, connect this behaviour to be an abnormal mental condition on the part of the respondent, putting the petitioner under mental pressure, amounting to a ground of cruelty for divorce. Thus, the ground of cruelty, as pleaded in the plaint appears to be intrinsically connected with the allegations contained in the plaint that the respondent’s abnormal behaviour was due to the fact that she suffered from frequent attacks of epilepsy for which, despite taking treatment, her behaviour rendered the atmosphere impossible for the petitioner to live with the respondent.
The specific pleadings alleging grounds of incurable unsoundness of mind under Section 13 (1)(iii) of the Act have been specifically pleaded in paragraphs 3, 4 and 9 of the plaint, which have been specifically denied by
the respondent in the written statement.
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Section 13 (1)(iii), the petitioner would be required to
plead and to prove by leading evidence the following :
a) That the respondent has been incurably of unsound mind or
b) has suffered continuously or intermittently from a mental disorder of a kind and extent that the petitioner cannot reasonably be expected to live with the respondent.
The explanation to Section 13 (1)(iii) of the Act further clarifies that under Clause (a) thereof “mental disorder” is :
i) a mental illness or
ii) an incomplete development of the mind or
iii) a psychopathic disorder or
iv) a disorder or disability of the mind.
All the above four parts of the explanation
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clarifying the word “mental disorder” may include schizophrenia.
i) a persistent disorder or disability of the mind including subnormal intelligence
ii) such disorder results in abnormally aggressive or seriously irresponsible conduct which may or may not require medical treatment.
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Two facts are clear from this evidence; the first is
that the respondent only suffered from a brain seizure and
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not from epilepsy. The second fact as deposed by an Expert, a Neurologist by profession was that epilepsy itself is a medical condition in which a person suffering from it can lead a normal life. Thus clearly, even assuming the respondent was suffering from epilepsy, this was certainly not a mental disorder or a psychopathic disorder or for that matter can be even considered as leaving the respondent incurably of unsound mind.
moment that the respondent was in fact suffering from epilepsy (which the medical evidence suggests she was not), the question as to whether epilepsy, even if considered a disease or mental disorder could be claimed as a ground for divorce has been dealt with by a Single Judge of this Court in Raghunath Gopal Daftardar vs Sau, Vijaya Raghunath
Daftardar , reported in AIR 1972 Bombay 132. In that case, the petitioner alleged that the respondent wife did not disclose, before their marriage, that she was suffering from epilepsy, which according to the petitioner was an incurable
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disease, and was not disclosed by the wife prior to solemnization of the marriage. The petitioner in that case claimed a decree of nullity of marriage on grounds of fraud and in the alternative for a decree for judicial separation on grounds of cruelty. Adverting to the medical evidence led in the matter, the following observations have been made
by this Court in Raghunath Gopal Daftardar (supra) :
“5. The most important piece of evidence on this point is that of Dr. Sardesai, P. W. 5. The witness is an M. D. of the Bombay University and has also passed M. R. C. P. examination of the Edinborough Royal College of Physicians. Since February 1959 he is attached to the Sassoon Hospital as an Honorary consulting physician. He is both a physician and neurologist practising as a consulting Physician at Poona since August 1960. He is also practising in Neurology since then. Admittedly, the respondent is being treated by this Doctor since about February 1961 for epilepsy. Now, he says that it would not be correct to say that the type of epilepsy the respondent is suffering from, is incurable. He has prescribed 'Dilantin Sodium' to the respondent for this disease and the Doctor says that he has prescribed it with a view to keep her malady under control. When he was asked whether it could be said that the respondent was cured of the disease, he replied that it would not be possible for him to say whether he epilepsy had been cured, because this could only be said if the drug is withdrawn. Later on, he has stated thus :-
"It would be wrong to say that epilepsy is a disease which cannot be cured.
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The latest publication on 'Therapeutics' by Goodamn and Gillam is the standard book on the Science of Treatment. An older view which believed in the past was that epilepsy was incurable. It would not be correct to say and it is also not to my knowledge that at the present day, there are some authorities in medical science of treatment, who believe that epilepsy is incurable."
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controlled. Dr. Sardesai also told him that the disease could only be kept under control by regular treatment and if the treatment is discontinued, the patient would again start getting epileptic fits. But later on, he admits that Dr. Sardesai also said that the patients suffering from epilepsy were required to take medicines for a very long time and continue the same treatment for about three years after they cease getting any epileptic fits. Now, I have already pointed out that Dr. Sardesai, who was examined by the petitioner himself, nowhere says that epilepsy does not admit of any cure. On the contrary, he says that it is not an incurable disease. But Dr. Otturkar, perhaps to oblige the father of the petitioner, who is his friend, told the Court something different from what the opinion of Dr. Sardesai was. It is material to note that no question was put to Dr. Sardesai regarding the version given by Dr. Otturkar. Coming to the evidence of the petitioner, he says that he came to know from Dr. Otturkar that the disease was incurable and hereditary. There is nothing in the evidence of Dr. Otturkar to show that the disease is hereditary. He only says that what he came to know from Dr. Sardesai was that it was incurable. But I have already pointed out that that was never the opinion of Dr. Sardesai much less he gave that opinion to Dr. Otturkar. The petitioner's father, who is also examined in this case (P. W. 1), repeats the same story. When the petitioner took the respondent to the house of the latter's sister on 6th July 1962, his father was not at home. He was on tour in Nagpur. He, therefore, contacted the petitioner on telephone and what he came to know from the petitioner was that the opinion of Dr. Sardesai was that the disease was incurable and hereditary. Thus the evidence adduced by the petitioner not only does not show that the disease is incurable, but on the contrary it shows that the disease of epilepsy can be cured.
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Contract Act cannot apply to fraud as understood in Section 12(1)(c) of the Hindu Marriage Act. It is necessary to bear in mind that there is a difference between the marriage under the Special Marriage Act, 1954 and the marriage under the Hindu Marriage Act, 1955. The Special marriage Act, 1954 provides a special form of marriage in certain cases. It is permissible to a Hindu, by virtue of this Act, to have his marriage with another Hindu or a person belonging to any other community solemnized in accordance with the requirements of the Act: The rights, obligations and status of the parties to such civil marriage in matters relating to restitution of conjugal rights, judicial separation, nullity of marriage and divorce are regulated by the provisions contained in that Act. The succession to property of two Hindus married under that Act as also to the property of the issues of such marriage is governed by the relevant provisions of the Indian Succession Act, 1925 and not by the Hindu Law of succession. It is significant to notice that no ceremonies are necessary for the marriage being valid under that Act. Obviously, therefore, the marriage under the Special Marriage Act, 1954, is a contract. The position under the Hindu Marriage Act, 1955, however, is different. It is needless to say that marriage under the Hindu Law is treated as a samskara or a sacrament. Hindu Marriage Act, 1955, contemplates a ceremonial marriage which must be solemnized in accordance with the customary rites and ceremonies of one of the two parties. Non-observance of the essential customary rites and ceremonies of at least one of the parties would amount to failure to solemnize the marriage. In other words, a marriage under the Hindu Marriage Act, 1955 which is not solemnized by performance of the essential ceremonies is, under the Act, no marriage at all: It is true that the conditions laid down in Section 5 of the Hindu Marriage Act must also be fulfilled before a marriage under that Act is gone through. But the nonfulfilment of every one of the conditions and requirements enacted in Section 5 does not ipso facto render the marriage null and void or even voidable: It
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seems to me, therefore, that under the Hindu Marriage Act, the marriage which is a ceremonial marriage which is a ceremonial marriage is essentially a sacrament (Samskara).
"Nothing in this section shall affect the
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jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud."
matter claiming a decree of nullity on grounds of fraud, mainly that the respondent was suffering from epilepsy, which was claimed to be an incurable disease, as on the date of passing of that judgment, the grounds contained
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in Section 13(1)(iii) of the Act were not available in their present form. The provisions of Section 13(1)(iii) were amended w.e.f. 27.05.1976, after Raghunath
Gopal Daftardar (supra) was rendered, allowing for claiming of decree of dissolution of marriage on grounds of unsoundness of mind or mental disorder.
However, we find no difficulty in applying the reasoning and the ratio laid down in Raghunath Gopal Daftardar (supra) which we, with the greatest respect, approve of, in holding that the condition of “epilepsy” is neither an incurable disease nor can it be considered a mental disorder or a psychopathic disorder, for making a ground under Section 13(1)(iii) of the Hindu Marriage Act. We are further of the opinion that there is an abundance of medical evidence, as of this date, that such a medical condition could not justify any petitioner’s stand that the condition would be an impediment to the spouses living together.
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On that count, we hold that the petitioner
has failed to prove that the respondent was suffering from epilepsy or even that, if she were suffering from such a condition, the same could be considered as a ground under Section 13(1)(iii) of the Act for claiming a decree of dissolution of marriage.
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the respondent was clearly explained by the respondent in her evidence, where she has stated the circumstances under which she was made to write the note literally under duress from the petitioner, and only to avoid being forced out of the matrimonial home by the petitioner. It is in the respondent’s evidence, that on the relevant day, the petitioner was in a drunken state and threatening to put the respondent out of their home, and for fear of being left without a home, and for the sake of her minor daughter who was hardly one year old, she wrote out the note as dictated by the petitioner. In para 22 of her evidence, she has categorically stated that the letter (Exh-47) was written in her handwriting when the petitioner was under the influence of alcohol. There is no denial to the statement in her crossexamination.
The respondent has also specifically stated
that she was under treatment of Dr. Chandak since she was suffering from “giddiness” (“mirgi”), which was
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actually diagnosed as seizure for which she was prescribed tablet “levera” which is also an anti-epileptic drug. No cross-examination was forthcoming on this evidence led by the respondent, which appears to be fully corroborated by the extensive medical evidence given by Dr. Chandak, who was examined as PW-2 for the petitioner.
conclusion that we can arrive at is, that there was no ground made out by the petitioner in terms of Section 13(1)(i-a) and Section 13(1)(iii) for seeking a decree of dissolution of marriage. The judgment of the Trial Court has considered all the evidence to which we have made a reference and has correctly arrived at its finding, rejecting both grounds for seeking a divorce. The judgment of the Trial Court has considered the medical evidence on record and written a finding that there is no evidence that the respondent had ever attempted to commit suicide or had indulge in behaviour to make
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out a ground of cruelty or, that she was suffering from epilepsy or any form of mental disorder to make out a ground under Section 13(1)(iii) of the Act. We are in complete agreement with the findings of fact arrived at by the Trial Court, which are in consonance with the evidence on record. There is no perversity in any of the findings arrived at by the trial Court in passing a decree of dismissal of the petition.
We are therefore of the considered opinion that both the points for determination formulated by us are required to be answered in the negative. The appeal must therefore fail.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
TAMBE
2 issues framed by the court
Whether the trial court's findings that the respondent does not suffer from mental disorder or epilepsy vitiate the judgment contrary to law?
Whether the appeal against the dismissal of divorce petition and allowance of restitution of conjugal rights calls for interference under Section 96 of the CPC?
Colour shows how this judgement treated each authority
Raghunath Gopal Daftardar vs Sau, Vijaya Raghunath DaftardarRelied on¶16
AIR 1972 Bombay 132 · Who else cites this
Boodapati Ankamma v. Boodapati BamanappaReferred¶12
AIR 1927 Mad 332 · Who else cites this
Harbhajan Singh v. Smt. Brij Balab KaurReferred¶12
Air 1964 Punj 359 · Who else cites this
AIR 1952 Bom 486 · Who else cites this
2 provisions across 1 enactments
Harish @ Roshan Bhaskar Karnewar
Leelavati @ Reena Karnewar
Vinay Joshi
Valmikis A. Menezes
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
