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CASE NO.: Appeal (civil) 5028  of  1999

PETITIONER: R. LAKSHMI NARAYAN

       Vs.

RESPONDENT: SANTHI

DATE OF JUDGMENT:       01/05/2001

BENCH: D.P. Mohapatra & U.C. Banerjee

JUDGMENT:

D.P.MOHAPATRA ,J. L...I...T.......T.......T.......T.......T.......T.......T..J

   On  analysis  of  the  case  of  the  parties  and   the contentions  raised by learned counsel on their behalf,  the question  that  arises  for  determination  is  whether  the appellant  has established a case for declaring the marriage null and void under section 12(1)(b) read with Section 5(ii) of the Hindu Marriage Act, 1955 ?

   The  appellant  is the husband of the respondent.   They were  married according to Hindu rites and rituals on  1-11- 1987.   It is relevant to note here that it was an  arranged marriage  and the decision was taken after the appellant had met  the  respondent  and talked with  her.   After  staying together  for  about  25  days the  couple  parted  company. Thereafter  the  appellant  filed a petition  under  section 5(ii)  read  with  section 12(1)(b) on 12.2.1988  seeking  a declaration  that  the  marriage  is null and  void  as  the respondent  suffers  from  chronic   and  incurable   mental disorder  and is not in a fit mental state to lead a married life.   In  support of his case the appellant alleged  inter alia  that on the night of the marriage he found  respondent to  be drowsy;  she refused to have cohabitation;  on  being questioned  by him she said that she has been suffering from mental  disorder  since her childhood;  she did not want  to have  any marriage relationship, but under pressure from her parents  the marriage with the appellant was performed.  The appellant further alleged that when father of the respondent was  informed  about  her physical and mental  condition  he disclosed  that  his daughter has been under  treatment  for some  mental disease and gave the prescription given by  the doctor.   The appellant pleaded that he and his father  made attempts  for curing the respondent of the ailment  suffered by  her  but  such  attempts   proved  futile.   Under  such compelling  circumstances he filed the petition seeking  the declaration that the marriage was null and void.

   Respondent   in  her  written   statement  refuted   the allegations  made  in the petition/plaint.  She denied  that she suffered from any mental disorder, far less of a chronic

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and  incurable  nature.   She also denied that  she  had  no cohabitation with her husband or that she had expressed that she  was  not  interested  in  leading  married  life.   She asserted  that  immediately after the marriage she  and  her husband  lead a happy married life;  they went to  different places  and visited temples.  She also asserted that she has all  along  been ready and willing to lead a normal  marital life with the appellant;  but the appellant is interested in having  a  second  marriage so that he may get  more  dowry. According to the respondent the reason for which she has not been  able  to  lead a normal family life is on  account  of refusal  of the appellant to share the marital  relationship with her.

   The  trial  court  on assessing the evidence  on  record dismissed the petition filed by the appellant holding, inter alia,  that  he had failed to establish that the  respondent was  suffering from any mental disorder or that there was no cohabitation  or that the respondent was not in a fit mental state to lead a married life.  The trial court which had the privilege  of  observing  the respondent as  a  witness  and watching her demeanor made the following observations in the judgment:

   The  respondent  was examined in this court from  11.25 a.m.   to  1.25 p.m.  During the enquiry, it did not  appear from her activities that her mental condition and activities had been affected.  She has given answer very clearly to the questions posed by the petitioners advocate.  This court is not a medical expert.  But there was an opportunity to watch the activities and movements of the respondent.  Since it is not  proved  from  the  activities and the  letters  of  the respondent  that she had incurable mental disease and  since the  marital  relationship is fulfilled by the  cohabitation between  the  petitioner and the respondent, it  is  decided that  the respondent is fit for marital relationship and she is  not  affected  by mental disease Since the  petition  is filed  within  a year from 1.11.1987, the date of  marriage, this petition is not sustainable under law and it is decided that this marriage is not fit to be declared null and void.

   On  appeal  by the appellant the appellate  court  found fault  with  the judgment of the trial court on  the  ground that  the  trial  judge had not considered  the  documentary evidence  in  the case including the prescription issued  by Dr.   Papa Kumari of Chennai.  The Court held that within  a few  days of the marriage the spouses had parted company and thereafter  there  has  been no meeting between  them.   The appellate  court  accepted  the case of the  appellant  that there  was  no  cohabitation  between  the  parties  to  the marriage.   Taking  note of certain statements made  by  the respondent  in  her evidence the appellate court found  that she  has admitted that she has been suffering from a  mental disorder  from her childhood;  that she was given  injection once  in  a  month and used to take drugs whenever  she  had headache.  On such findings the appellate court reversed the judgment  of the trial court and allowed the petition  filed by the appellant.

   The second appeal filed by the respondent was allowed by the  High  Court, the judgment of the first appellate  court was  reversed  and  the  judgment of  the  trial  court  was restored.   The  High  Court, as appears on perusal  of  the judgment,  mainly  considered  the   question  whether   the appellant  was aware of the physical and mental disorder  of

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the  respondent  before the marriage.  The High  Court  held that   the   marriage  was  not   vitiated   by   fraud   or misrepresentation.   The appellant (husband) had opportunity to  meet the respondent (wife) and to know her physical  and mental  condition.  The Court did not accept the case of the appellant that the respondent was suffering from chronic and incurable mental disorder and that there was no cohabitation between the parties.

   The  appellant husband has filed this appeal by  special leave  under Article 136 of the Constitution, assailing  the judgment of the High Court.

   Since the decision in the case depends on interpretation of  sections 5(ii) (a) and (b) and section 12(1)(b) the said sections are quoted hereunder for convenience of reference :

   5.  Conditions for a Hindu marriage  A marriage may be solemnized   between  any  two   Hindus,  if  the  following conditions are fulfilled, namely:-

(i) Xxx         xxx             xxx

(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;

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

   xxx         xxx     xxxx

   (b)that   the  marriage  is  in  contravention  of   the conditions specified in clause (ii) of section 5.

   Section  5  provides that a marriage may  be  solemnized between  any  two Hindus if the conditions specified in  the section  are fulfilled.  Amongst the other conditions stated therein in sub-section (ii) it is laid down that at the time of  marriage  neither party is incapable of giving  a  valid consent  to  it  in consequence of unsoundness  of  mind  or 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. The  clause  lays down as one of the conditions for a  Hindu marriage   that  neither  party   must  be  suffering   from unsoundness  of mind, mental disorder, insanity or  epilepsy and  section  12(1)(b)  refers that any  marriage  shall  be voidable  and  may  be  annulled  if  the  marriage  is   in contravention  of the condition specified in clause (ii)  of section  5.  On a plain reading of the said provision it  is manifest  that the conditions prescribed in that section, if

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established, disentitles the party to a valid marriage.  The marriage  is not per se void but voidable under the  clause. Such conditions in the very nature of things call for strict standard  of proof.  The onus of proof is very heavy on  the party  who  approaches  the Court for  breaking  a  marriage already solemnized.

   An  objection  to  a marriage on the  ground  of  mental incapacity must depend on a question of degree of the defect in  order  to rebut the validity of a marriage which has  in fact  taken place.  As noted earlier, the onus of bringing a case  under  this clause lies heavily on the petitioner  who seeks annulment of the marriage on the ground of unsoundness of  mind  or  mental disorder.  The court will  examine  the matter with all possible care and anxiety.

   Bearing  in  mind the principles which flow from a  fair reading  of the statutory provisions noted above we  proceed to   examine   whether  the   appellant  has  succeeded   in establishing  the  case for declaring the marriage null  and void  on the ground of mental incapacity of his wife at  the time  of marriage.  Even accepting the findings recorded  by the  first appellate court which decided the case in  favour of  the appellant as correct then the position that  emerges is  that  the respondent has been under treatment  for  some mental  problem before the marriage;  and that there was  no cohabitation  between the parties during the period of about one  month  during  which they stayed  together.   On  these findings  can  it  be  held that a case  for  declaring  the marriage  to  be  invalid under section 12(1)(b)  read  with section  5 (ii)(b) has been established.  It is not the case of the appellant that the respondent was incapable of giving valid  consent to the marriage in consequence of unsoundness of  mind  at the time of marriage.  From the facts found  by the  appellate  court it cannot be held that the  respondent 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.  To draw such an inference merely from the fact that  the spouses had no cohabitation for a short period  of about  a  month, is neither reasonable nor permissible.   To brand  the  wife  as unfit for marriage and  procreation  of children  on  account of the mental disorder it needs to  be established  that  the ailment suffered by her is of such  a kind or such an extent that it is impossible for her to lead a  normal married life.  This is the requirement of the  law as appears on fair reading of the statutory provisions.  The appellate  court  has  also not specifically  given  such  a finding.   Merely  giving a finding that the respondent  was suffering  from  some mental disorder and she did  not  have cohabitation  with her husband during the period they stayed together  is  not  sufficient to comply with  the  condition prescribed  under  section 5(ii)(b) of the Act.  We deem  it relevant  to note here that the observations in the judgment of  the trial court about the physical and mental  condition of  the  respondent which have been noted earlier  indicates the  position  that the requirement of section 5(ii)(b)  are far  from  satisfied  from  the   materials  placed  by  the appellant.   In  the circumstances the High Court cannot  be faulted  for  having  dismissed the petition  filed  by  the appellant  under section 12(1)(b) read with section 5(ii)(b) of  the Act.  The judgment of the High Court is no doubt far from  satisfactory.   The High Court has not formulated  any question  of  law  in  the judgment  which  is  a  mandatory requirement  under  section 100 C.P.C.  The High  Court  has also not considered the relevant aspects of the matter other

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than  fraud and misrepresentation about mental condition  of the respondent on the part of her parents at the time of the marriage.  We have considered the submission made by learned counsel  for  the appellant to remit the matter to the  High Court  for  fresh  disposal.  We however, in  the  facts  as above,  do not feel it expedient to do so.Our attention  has not  been  drawn  to  any   material  on  record  which,  if considered,  would have tilted the balance in favour of  the appellant.   It is our considered view that on the facts and circumstances of the case and the materials placed on record this  is not a fit case for interfering with the judgment of the High Court in exercise of jurisdiction under Article 136 of the Constitution.

   Accordingly   the  appeal  is   dismissed,  but  in  the circumstances of the case without any order of costs.