Judgment:
G.C. Garg, J.
1. This appeal is directed against the order dated January 13, 1992 whereby a petition under Section 13 of the Hindu Marriage Act filed by the appellant-husband has been dismissed.
2. The case as set up by the appellant in the petition is as under :
The parties were married at Hoshiarpur on October 14, 1988. On the very first night at about 10.30 p.m. the young couple went to their bed on the second floor of their house, but the respondent came running to the ground floor and expressed her desire to sleep in a separate room. The appellant noticed abnormality in her behaviour and temperament, She used to be extremely happy at one time and depressed the next moment without any reason. Two days after the marriage, the couple was travelling in a bus for going to Sukhna Lake when the respondent jumped out of the bus when it was in motion. In February, 1989 the respondent told the appellant that she was against her marriage but her parents had forcibly married her off. The respondent was found to be having short memory as she would not switch off the press after ironing the clothes and would bolt the door from outside when the family members were sitting in. Once she was taken to the Health Centre in connection with some gynae problem and was advised some oral pills which were not to be consumed but she was swallowed the whole stock of tablets. The mental illness and erratic behaviour were brought to the notice of her parents who admitted this fact and told that one Jyotshi had informed then that she would be alright after the marriage. While under attach, she used to be very excited, restless, emotional quarrelsome and violent. She also used to damage furniture, crockery and other articles lying in the house. The respondent was taken to CMC Hospital on December 10, 1988 and to the Post-graduate Institute, Chandigarh on December 12, 1988 and despite regular treatment there was no change in her behaviour and she could not distinguish between right and wrong. She used to run out of the house very late in the night and in the month of February, 1989, she was brought back from outside at about mid-night by the appellant and his parents in the presence of R.K. Puri and Surinder Khanna. She threatened to commit suicide and to involve the appellant and his family members which caused mental torture to the appellant. On April 5, 1989, she was taken to Hoshiarpur by her parents. The matter was taken to the Saini Sabha Nawanshahar in June, 1989 and after recording the evidence, the Sabha concluded that the respondent was suffering from mental disorder. It had, therefore, become impossible for the appellant to live with the respondent because of her conduct and behaviour. On the above facts, the petition for divorce had been filed by the appellant-husband on December 22, 1990.
3. The respondent by filing a written statement asserted that the above allegations were baseless and had been levelled in order to get a decree of divorce. The respondent specifically denied that she is suffering from any mental disorder. She specifically took a stand in the written statement that she was taken to the CMC Hospital and the Post-graduate Institute by the appellant just to create evidence. She further stated that she was perfectly a normal human being and, therefore, there was no question of any abnormal behaviour on her part. Appellant controverted the allegations of the respondent by filing replication.
On the respective pleadings of the parties, the following issues were framed :
(1) Whether the respondent is suffering from mental disorder of such a kind and to such an extent that the petitioner cannot be expected to live with her OPP.
(2) Whether the respondent has deserted the petitioner for a continuous period of two years proceeding the presentation of the present petition OPP.
(3) Relief.
The Trial Court after considering the evidence led before it, answered both the issues against the appellant. Issue No. 1 was decided by observing that the evidence as had come on the record failed to prove that the respondent was suffering from mental disorder of such a kind and to such an extent that it was not safe for the appellant to live with the respondent. Under issue No. 2, it was found that the statutory period of desertion of two years was not over when the petition for divorce was filed. Resultantly, the petition was dismissed. Feeling aggrieved thereby, the husband-appellant has filed the present appeal.
4. From the pleadings in the divorce petition, it is apparent that the petition is one falling under the second limb of Clause (iii) of Sub-section (1) of Section 13 of the Hindu Marriage Act. Before going ahead, it will be appropriate to notice the provisions aforesaid, which read as under :
'13. Divorce--(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband of the wife, be dissolved by a decree of divorce on the ground that the other party--
(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;'
Before going into the merits of the case, it is necessary to construe the second limb of Clause (iii) of Sub-section (1) of Section 13 ibid, vis-a-vis the facts of the present case. Accordingly, it is necessary for the appellant to show in the first place that the wife has been suffering continuously or intermittently from mental disorder. Secondly, it must also be shown by him that the mental disorder of the respondent is of such a kind and to such an extent that he cannot reasonably be expected to live with her. So, only one element is sufficient and both conditions must be satisfied to get a decree of divorce.
5. Advertising to the merits of the case, the appellant has alleged several stray incidents in the petition to show the erratic behaviour of the respondent towards him as also the other family members. In order to prove that the respondent was suffering from mental disorder, the appellant besides appearing as his own witness, examined as many as eight witnesses. The first witness examined by the appellant is Dr. Subho Chakrabarti, Senior Resident, Department of Psychiatry, P.G.I., Chandigarh. It has come in his statement that the respondent was a patient of Psychosis and it was a major mental illness. The symptoms reported were, odd behaviour, social disinhibition, over activity and disturbed sleep, appetite and impaired social and occupational functioning. According to the doctor she was, suffering from major abnormality and was not behaving like a normal man. But in the next breath, the witness stated that she seemed to have recovered but she did not follow up and left the treatment in between. Swaran Singh PW-2 simply deposed about the proceedings having taken place in Saini Sabha for setting the dispute between the parties, Gurmit Singh PW-3 deposed that the appellant and his father came to him and told that the respondent was a mental case and that she was to be operated and treated His evidence is of no help to the appellant, as the version given by him is only a hear-say. In his cross-examination he deposed that he had no occasion to talk to the respondent. He even could not tell the details of the members of appellant's family. Piyara Singh PW-J was examined to prove the allegation that the respondent was suffering from mental disorder much before the marriage and she was being treated by some 'Siyana' and astrologers. In his cross-examination he clearly deposed that he never had any talk with the respondent. A.K. Dhir PW-5 who could not join the marriage of the parties, and had come after 3/4 days of the marriage, to the house of the appellant, stated that he had brought a present for the couple and as he delivered the present to the respondent she started weeping and on inquiry told that she was to weep all through her life. This witness thereafter had no occasion to visit the appellant's house. Surinder Kumar PW-6 who is living in the neighbourhood of the appellant appeared to depose in Court that in February, 1989 at about mid-night, he witnessed that many persons were bringing the respondent to the house from outside. In the next line he deposed that she was keeping silent and did not utter a single word. In cross-examination he clearly stated that except the said incident, he had no other occasion to see the conduct of the respondent. Jaswant Singh PW-7 who was on visiting terms with the appellant's family for the last 12 years appeared in Court and deposed on the basis of information derived from the parents of the respondent. He deposed that in December, 1988 when he went to the house of the appellant, the parents of the respondent as also the respondent were present there and he was told by the parents of the respondent that the was unwell and was suffering from mental disorder. It is very interesting to notice that it has come in cross-examination of this witness that before December, 1988 and after the date of marriage of the parties i.e. October 14, 1988, he had no occasion to go to the house of the appellant. It is difficult to believe his testimony because it does not seem natural that he would visit the appellant's house only on the day and time when respondent's parents were present there. Appellant Harpreet Singh while appearing as his own witness narrated the allegations as levelled in the divorce petition
6, From the evidence as noticed above, it would be seen that there is no direct evidence to prove the primary allegations of the appellant except the testimony of the appellant himself and at the most of a doctor in the shape of medical evidence. Except the appellant, none of the members of the family of the appellant came forward to support his allegations. The mental disorder of the respondent spouse, even if proved, cannot by itself warrant a decree for divorce. It must further be proved on the record that it was of such a kind and to such an extent that the complaining spouse could not reasonably be expected to live with the respondent. The solitary and self-serving statement of the appellant does not inspire any confidence especially coupled with a fact that the appellant has not examined his parents who were also alleged to be the victims of sufferings from the respondent's mental disorder. None of the witnesses produced by the appellant is directly connected with the incidents allegedly having taken place in the house of the appellant. All of them are outsiders and have deposed in the Court whatever they were told by the appellant or his parents. None of the witnesses examined by the appellant deposed that he had any occasion to talk to the respondent. Only two incidents have come in evidence which were directly witnessed by two witnesses, namely. A.K. Dhir PW-5 and Surinder Kumar. P.W. 6. It was stated by A.K. Dhir that when he delivered the present brought by him, to the respondent she started weeping. Surinder Kumar PW-6 simply deposed that once in the mid-night, some persons were bringing the respondent to the house from outside. These two incidents, even is taken to be true, cannot by any means be regarded as the outcome of mental disorder. All the stray incidents mentioned in the divorce petition have been denied and refuted by the respondent while appearing as her own witness. The appellant has not been able to be lie or controvert these allegations by leading any rebuttal evidence. Even otherwise, the incidents on the basis of which the appellant has endeavoured to make out a case of mental disorder, are nothing but the ordinary wears and tears of a wedded life.
7. There is another aspect of the matter as well. It has come on record that the respondent was a graduate. It has come in the cross-examination of the doctor examined by the appellant that details regarding age, qualifications etc. were given by the respondent. The doctor further deposed that he questioned the respondent for about 30 minutes and on the basis of replies given by her, he had written his observations. It may also be noticed from the cross-examination of the doctor, that she had been questioned all alone and it is only her husband the appellant who told the doctor that she was suffering from mental disorder. It was further deposed by the doctor that during those 30 minutes of query from the respondent, he did not himself observe any sign as given out by the appellant. There is in fact, nothing in the medical evidence produced by the appellant to show that the respondent was suffering from a particular disease and she could not be cured. Moreover, all what was told by the appellant to the doctor in the hospital was about her odd behaviour, about her smiling about her not cooking the meals, about her disturbance in sleep and excessive talking.
8. Seen in the totality of the circumstances and the evidence produced by the parties, there is nothing on the record to conclude that the respondent is suffering from any mental illness, or has incomplete development of mind or that her conduct is abnormally aggressive or seriously irresponsible Under these circumstances, it cannot be said that the respondent is continuously or intermittently suffering from mental disorder and thus it is not possible to hold that this alleged mental disorder is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent, his wife.
For the reasons stated above, the appeal fails and is hereby dismissed There shall, however, be no order as to costs.