16 16 Hindu Marriage Act Judgments Full Details

8/13/2019 16 16 Hindu Marriage Act Judgments Full Details

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Voluntary consent of both parities required for valid marriage

Usha vs. Abraham

Filed under: Sections 18 & 19 of the Indian Divorce Act, 1869

Appellant: UshaRespondent: AbrahamCitation: AIR 1988 Kerala 96Court: In the i!h "o#rt of KeralaJudges: K$ %ohn athe' and K$($ )ala*rishnan

This is an appeal filed challenging the order of the same Court allowing the petition for annulmentof marriage on grounds of mental disorder and incapacity to give valid consent for marriage.

Facts

Usha and Abraham, both Christians married in a church in Kerala. It was an arranged marriage

and both had visited each other before marriage. Abrahams parents had also visited Usha andthey had an engagement ceremony before marriage.

Abrahams case was that on the day of the marriage he noticed symptoms of mental retardationin Usha. He claimed that when they were signing in the church records he noticed that Ushassister was prompting the spelling.

After marriage, he realied that Usha was suffering from severe mental retardation! therefore, heapproached the ecclestial tribunal see"ing directions for dissolution of their marriage, where hisre#uest was turned down.

After two years he left for $har%ah and returned after one year when he realied that his wifescondition was not going to improve and that he was not able to lead a normal married life with

her. &n learning about the civil remedy he filed a petition before the $ingle 'udge.

Usha however denied all the allegations made against her and stated that they had lived togethernormal married couples till her husband left for $har%ah. He also used to write letters and sendgifts to her from there.

However, his behavior changed after a few years of his return which eventually culminated in hisfiling the petition for annulment of the marriage.

$everal witnesses were e(amined on both the sides and the $ingle 'udge appointed Ushasmother as her guardian. )he Court passed an order of annulment based on evidence and statedthat Usha was a *lunatic or *idiot from the time of marriage and that she was incapable of givingconsent for marriage.

However, the Abrahams allegation that his consent was obtained by fraud was not accepted.

Usha filed the present appeal challenging the order of the single 'udge. $he denied all theallegations and stated that she was neither a lunatic nor an idiot and that the medical certificateand the letters could prove the same.
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)o clarify the point as to whether she was lunatic or idiot at the time of marriage, she waspresented for e(amination before a medical board. )he medical board opined that she wascongenitally an *idiot and that she did not suffer from lunacy.

Her intelligence was found below average. $he was found not to be congenitally impotent andthat there was no gynecological defect. Abraham filed ob%ections to the findings of the medical

board and e(amined a psychiatrist to support his case.

Observations of the Court

After e(amining the evidence given by the psychiatrist and analying the relevant literature on*idiocy *mental retardation etc., the Court observed that the important #uestion that arose in acase of this nature was that whether the parties were in a position to understand theconse#uences of their acts.

In this case, Court proceeded to e(amine if Usha possessed the capacity to understand theconse#uences of the marriage entered with Abraham. &n this point, the Court opined that it wasclear from Ushas evidence and the letters e(changed between her and her husband that she"new the conse#uences of the marriage.

+urther, after analying some of the previous %udgments in this light, the Court held that voluntaryconsent of both parties was necessary for a valid marriage but the contract of marriage did notre#uire high degree of intelligence. In order to ascertain the nature of the contract of marriage aperson must be mentally capable of appreciating that it involves responsibilities normallyattaching to marriage.

In a case where such an issue was raised, it was the responsibility of the other party to show thatbecause of the mental disorder the other spouse was unable to "now the nature andconse#uences of hisher acts.

After considering all the relevant %udgments and evidence in this case, the Court held that Usha"new that ob%ect and purpose of marriage when she entered into the marriage and that her*lunacy or *idiocy was also not proved and held that the marriage between Usha and Abrahamwas perfectly valid in the eye of the law.

)herefore, the %udgment of the $ingle 'udge was set aside and held that their marriage could notbe declared null and void under $ection - of the Indian /ivorce Act and the appeal was allowed.

Sections Referred:

$ections -01-of the Indian /ivorce Act, -02

Cases Referred:

I. 'ayara% vs. I. 3 +lorence AI4 -50 Kant 2. 3alimath '

). $aro%a /avid vs. Christie +rancis AI4 -22 Andh 6ra -50

4an%u" 4an%an /as vs. 6ranati Kumari 7erera 8-09:- /3C ;54 ?-52: 9 Ker ;@5

3s. 'ordan /iengdeh vs. $. $. Chopra AI4 -0@ $ C ;@
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unsoundeness of mind concealed at the time of marriage

Smt. Kiran Bala Asthana and another vs. Bhaire

Prasad Srivastava

Filed under:Sections 1+ 1- c- and .ii- of the ind# arria!e Act, 199.

Appellant:Smt$ Kiran )ala Asthana and anotherRespondent:)haire /rasad SrivastavaCitation:AIR 198+ Allahabad +0+Court:In the i!h "o#rt of AllahabadJudge:Deo*i andan

Facts

Kiran 7ala filed this appeal against the decree dissolving her marriage with 7haire 6rasad$rivastava by a decree of divorce under the Hindu marriage Act on the ground that she was of an

incurably unsound mind. Her husband, 7haire had filed an appeal in a lower Court and hadclaimed the relief of declaration that their marriage was null and void.

)he )rial Court had also recorded the finding that the consent of the husband to the marriage wasobtained by fraud because he was not informed of the fact that Kirans former marriage had beendeclared null on the ground that she was of unsound mind at the time of marriage.

At the outset of the hearing of the case, it was suggested that Kiran was of sound mind and it wasimpossible to say that she was incurably of unsound mind. $he had applied for a medicale(amination. After considering the material placed before the Court, the Court had referredKirans case to the >uc"now 3edical College for e(amination and observation.

/r. 6rabhat $itholey, acting for /r. ' K )rivedi had prepared a report. )his report stated that assuch Kiran did not seem to have any mental disorder, which may result in abnormally aggressiveor seriously irresponsible conduct on her part. It was further stated that she was suffering frommild neurotic depression, which re#uired medical treatment.

&n receiving this report, the Court made an attempt to bring about reconciliation between theparties. &n the Courts persuasion it was agreed that Kiran would get herself treated at the>uc"now 3edical College and obtain and submit a report of her mental condition after threemonths. )he Court further directed that it would be upto 7haire to loo" after Kirans treatment tothe best of his ability and inclination in order to assure himself that her disease was in fact curableand cured, or otherwise.

)hereafter, 7haire agreed to ta"e Kiran bac" with him as a measure of trial in order to ma"e sure

that she was free from the disorder he had complained about. Kiran was also willing to go withhim and the Court ordered that after three months this appeal would be ta"en up. >iberty washowever given to the parties to apply to the Court for any directions or orders in the meanwhile.

However, about a month later, 7haire appeared with Kiran in the Court for a direction that Kiransparents may ta"e her away to loo" after her since he found it impossible to do so in view of hermental condition. otice was served to Kirans lawyer and her father appeared in the Court. +romKirans conduct and appearance the Court made a note of the fact that she was not "eeping fit inthose days. It was clear that she was of an unsound mind.


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)he Court accordingly directed that Kiran should stay with her father for the time being and a datewas fi(ed for the hearing of the appeal. )hereafter, /r. 'K )rivedi of the >uc"now 3edical Collegewas summoned in the Court as a witness in order to elucidate the facts and to give his e(pertopinion about Kirans mental condition.

&n the issue of the earlier report, /r. )rivedi stated that he himself had e(amined Kiran earlier but

/r. 6rabhat $itholey submitted the report because he had gone for leave. 7efore going on leave,he had e(amined Kiran on %ust three occasions and had opined that she was suffering fromresidual schiophrenia.

He further stated that he had e(amined the records of her treatment and the diagnosis was thatshe was suffering from schiophrenia. According to him, this disease was curable if the treatmentwas continuous and prolonged provided she stayed in a congenial environment.

Kirans lawyer contended that the finding of the )rial Court was based entirely on documentsproduced from the earlier case between Kiran and her first husband, /6 Asthana. )hesedocuments showed that Kiran was an *idiot at the time of marriage with /6 Asthana and it wason this basis that the marriage between them had been annulled.

According to the lawyer, this evidence was inadmissible and could not be referred to at all since itwas irrelevant. According to him $ection -; 8-: 8iii: re#uired that the mental disorder must notonly be incurable, but should also have e(isted at the time of marriage.

According to the lawyer there was no evidence to show that Kiran was of an unsound mind orwas suffering from a mental disorder at the time of her marriage and that the mental disorder wassuch that it could not be cured.

&n the other hand the main argument raised by 7haires lawyer was that 7haire should begranted a decree of nullity of marriage on the ground that his consent for marriage was obtainedby fraud. )he fraud was that the fact of the annulment of Kirans earlier marriage with /r. /6

Asthana was concealed from him. According to the lawyer, if 7haire had "nown that Kirans firstmarriage had been annulled on the ground that she was mentally ill, he would never have married

her.

In response to this argument Kirans lawyer contended that it was not Kirans or her parents dutyto go out of their way to inform 7haire of this fact. He himself should have found out whatever hewanted to "now. He had "nown Kiran for some time before the marriage and it was on account ofher good loo"s that he had agreed to marry her. According to the lawyer, if 7haire had not madeany further en#uiries it was not for Kiran or her parents to tell him why Kirans earlier marriagehad been dissolved.


)he Court e(amined the arguments and held that the facts regarding the nullity of Kirans

previous marriage on grounds of unsoundness of mind had been concealed from 7haire.Accordingly the marriage between the parties was fit to be annulled by a decreeof nullity undersection -9 8-: 8c: of the Hindu 3arriage Act.

)he Court also held that even though it was not necessary to establish whether or not Kiran wassuffering intermittently or continuously from a mental disorder of a serious degree, the facts andcircumstances of the case clearly showed that 7haire could not be e(pected to live with her sinceshe was suffering from schiophrenia, which was of a serious degree.


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Held: )he appeal was accordingly dismissed.

Sections Referred:

$ections -9 8-: 8c:and @8ii:of the Hindu 3arriage Act, -@

R. Sanarnara!anan vs. Anandhavalli

Filed under:Sections 1+ 1- b-, c- and . ii- c- of the ind# arria!e Act, 19..Appellant:R$ San*arnara2ananRespondent:AnandhavalliCitation:AIR 1998 adras 198Court:In the i!h "o#rt of adras

Judge:S$ $ Abd#l 3ahab

Facts

4. $an"arnarayanan had filed a petition in the /istrict Court for the dissolution of his marriagewith Anandhavalli on the grounds of mental disorder. According to him, he had not "nownanything about Anandhavallis family prior to the marriage and during the marriage ceremony,

Anandhvallis father had concealed the fact that his daughter suffered from recurrent attac"s ofinsanity. )hus, $an"arnarayanan alleged that his consent for the marriage had been obtained byfraud. He further stated that their wedding reception also could not be carried out because of

Anandhavallis behavior, which was strange, uncommon and odd.

After the wedding, $an"arnarayanan stated that Anandhavalli did not ta"e any food, nor did she

tal" to anybody. Her relatives and family members were the only ones who too" care of her andadministered some medicine to her without consulting the doctor. According to $an"arnarayanan,a local e(orcist was also brought in and he smeared white ashes on Anandhvallis forehead todrive out the evil spirit that was haunting her.

However, when she was ta"en to $an"arnarayanans house, her behavior became violent. Bhen#uestioned, her father confessed that he had concealed the fact that his daughter was undertreatment for recurrent attac"s of insanity. After learning this, $an"arnarayanan sent a notice forthe dissolution of the marriage.

In the counter, Anandhavalli denied these allegations and contended that she was not sufferingfrom insanity or any mental disease. According to her, the marriage was conducted in thepresence of two advocates who were $an"arnarayanans friend s.

$he further submitted she had been upset since her mother had suffered from a paralytic attac"and also because she was leaving her home. According to her, the treatment had not been forany mental disease but only for the grief that she was e(periencing.

After e(amining the evidence, the )rial Court found that Anandhavalli was suffering from acuteschiophrenia and had suppressed the material facts regarding the disease she was sufferingfrom prior to her marriage. Accordingly, the )rial Court allowed the petition for the dissolution ofthe marriage.
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However, on appeal, the /istrict Court reversed the order of the )rial Court $an"arnarayananthen filed the present appeal challenging the order of the /istrict Court.


)he Court observed that the /istrict Court had approached the case from a very narrow

perspective and had concluded that Anandhavalli was not suffering from $chiophrenia at anytime. However, it was held that this conclusion of the /istrict Court was contrary to the evidenceavailable on record.

7ased on the opinion of doctors, the Court held that Anandhavalli was indeed suffering from$chiophrenia, which was bound to recur at any time and her behavior could not be deemed asnormal. Hence, it was held that there was ample evidence to prove that Anandhavalli was ill.

+urther, the Court held that there was no evidence to show that the facts about Anandhavallismental state had been disclosed to $an"arnarayanans parents or to him at the time of marriage.)hus after a thorough scrutiny of the evidence, both oral and documentary, it was also concludedthat the fact that Anandhavalli was afflicted with $chiophrenia was suppressed and$an"arnarayanans consent for the marriage had been obtained by fraud.

+or these reasons, the appeal was allowed and the decree of the /istrict Court was set aside.

Sections Referred:

$ections -9 8-: 8b:, 8c: and @ 8ii: 8c: of the Hindu 3arriage Act, -@@

Cases Referred:

4a%inder $ingh vs. 6omilla, AI4 -05 /elhi 90@

3ini vs. 'ames Koshy Ale(ander 8-'


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C.J.Jo! v. Shill!

Filed under:Section 19 of the Indian Divorce ActAppellant:"$%$%o2Respondent:Shill2

Citation:199. A I " 6414Court:In the i!h "o#rt of KeralaJudges:/$5$ara2anan ambiar

This is a petition filed by C.J.Joy for declaring his marriage to Shilly null and void on the groundsthat she was impotent and suffered from mental disorder during the time of and after themarriage.

Facts

C.'.'oy and $hilly married in a church in Kottappady, Kerala. According to 'oy, $hilly and herparents had made a representation before marriage stating that she was of good physical andmental health. 7ased on such a representation 'oy had agreed to marry her. He then claimedthat during the marriage and immediately after it $hilly had shown serious symptoms of psychoticdisorder. 7oth of them had lived together at her place and during this period, they has beenunable to have intercourse due to her mental disorder.

)hereafter, they left for 'oys house where they lived together for few more days. /uring her staythere, $hilly had allegedly tried to commit suicide following which she was treated for mentaldisorder as an inDpatient in a hospital for about 2 days during intermittent periods. He alsoclaimed that all his attempts to have se(ual intercourse with her had failed due to her frigidity.

$ubse#uently, 'oy had approached the Eparchial )ribunal for declaring his marriage null and voidand later he also got the order affirmed by the Appellate )ribunal. He was however advised toprocure a decree of nullity from the Court as well. )herefore, he filed the present petition in theCourt see"ing directions for annulment of his marriage.

$hilly also filed her ob%ections to the petition. $he denied all the allegations regarding her mentaldisorder, attempt to suicide etc. made by 'oy. &n the other hand, she alleged that after themarriage 'oy and his family members had ill treated her which had caused her some mentaldisorders and that the marriage had not been consummated because he had never ta"en interestin cohabitation and for the above reason she as"ed the Court to dismiss the petition.

$everal family members, psychiatrists and doctors were e(amined as witnesses to prove that shewas suffering from mental disorder during the time of and after the marriage. Bitnesses were also


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e(amined from her side who stated that she was fine before marriage and that she starteddeveloping signs of mental disorder only after marriage.

Observations of the Court:

After e(amining the relevant documents, the Court loo"ed into several issues such as whether

$hilly was impotent and *lunatic at the time of marriage, and if the consent for marriage had beenobtained by fraud. )he Court observed that it was admitted by both the parties that the marriagewas not consummated and the evidence showed that $hilly was responsible for this.

After e(amining several previous %udgments and evidence, the Court held that continuous refusalof the wife to have the marriage consummated could be perceived as impotency. +urther, it washeld that she was suffering from a mental disorder at the time of marriage and thus it was heldthat the consent had been obtained by fraud.

+or the above reasons, the Court allowed the petition and declared the marriage between 'oyand $hilly null and void on the ground that she was impotent at the time of marriage and at thetime of filing the case and that she was *lunatic at the time of marriage and that the consent formarriage had been obtained by fraud.

Sections Referred:

$ection -of the Indian /ivorce Act

Sarah S!la vs. "van #homas $eorge and Others

Filed under:Section 19 of the Indian Divorce ActAppellant:Sarah S2laRespondent:Ivan homas (eor!e and 7thersCitation:199. A I " 88Court:In the i!h "o#rt of adrasJudge:Srinivasan, Ra# & A$R$ a*shmanan

Facts

$arah $yla was married to Ivan )homas Feorge. $he claimed that Ivan had been cruel to herand that he was violent and abusive without any reason. +urther, she claimed that respondents91; 8names not mentioned: had suppressed the facts about Ivans mental condition 8paranoidschiophrenia 1 chronic maniac depression: and the information about the treatment meted outto him. )he /istrict 'udge had allowed $arahs petition for dissolution of the marriage. Aggrievedby the order, the present appeal was made before the High Court of 3adras.
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Ivan had filed a counter affidavit and denied all allegations. $arah had mentioned about thetreatment given to him by /r. Kuruvilla to prove that he was suffering from paranoidschiophrenia. $everal documents were also filed to show that he was admitted to the hospital fortreatment and that he was advised to continue drugs.

After going through the documents and the evidence submitted by $arah, the Court confirmed the

order of the /istrict 'udge and allowed the appeal.

Sections Referred:

$ection -of the Indian /ivorce Act

r ! ! Padma "ao vs. S#ara$ya %a&shmi

Filed under:Section 14 1- iv- ind# arria!e Act, 19..Appellant:/r F F 6adma 4aoRespondent:$wara%ya >a"shmiCitation:AI4 -5 A.6 ;Court:In the High Court of Andhra 6radeshJudges:Fopal 4ao E"bote and 4amchandra 4ao

This is an appeal against the order of the Second Additional Chief Judge, Hyderabad, dismissingthe petition for divorce filed by Dr !ao.

Facts

/r F F 4ao filed a petition under section -; 8-: 8iv: of the Hindu 3arriage Act, see"ing a divorcefrom his wife, $wara%ya >a"shmi, on the ground that she was suffering from a virulent form of>eprosy. )he petition was dismissed by the )rial Court on the ground that the parties had notbeen married for three years as re#uired by law. Against this order, /r 4ao filed this appeal.


Under the provisions of $ection -; 8-:8iv: of the Hindu 3arriage Act, a petition for divorce can befiled by a party to a marriage, if the spouse had been suffering from leprosy for a period of at leastthree years before filing of the divorce petition. $imilarly, under-;8-:8iii:, a party to a marriage canfile a petition for divorce if the spouse was suffering from unsoundness of mind for a period of atleast three years prior to filing of the petition.

Interpreting these provisions of the Hindu 3arriage Act, the High Court held that the provisions of$ection -;8-: 8iii: or 8iv: re#uired that for a petition to be filed under the sections, the spouseshould have been suffering from >eprosy or unsoundness of mind for at least three years, and notthat they should have been married for three years.
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)he High Court thus held that the )rial Court had erred in dismissing /r 4aos petition on theground that he and $wara%ya >a"shmi had not been married for three years prior to filing thedivorce petition.

)he High Court held that $wara%ya >a"shmi had been suffering from a virulent form of leprosy formore than three years prior to the filing of the petition for divorce and hence /r F F 4ao was

entitled to a decree of divorce.

Sections Referred:

$ection -; 8-: 8iv:of the Hindu 3arriage Act, -@@

Permanent Alimony in Special 'ircumstances

(aresh Kumar !upta vs. Smt. )yoti

Filed *nder: Sections 1+ 1- a- and 14 1- iii- of the ind# arria!e Act, 19..Appellant:aresh K#mar (#;taRespondent: Smt$ %2otiCitation: +


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&n the other hand, 'yoti denied the allegation of ill treatment and desertion. According to herwhen she came to her matrimonial house after marriage with her husband, she started hermatrimonial life and the marriage was consummated. Her father had met all the demands ofdowry made by aresh who had been given cash amount of 4s.


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$ection -9 8-: 8a:,-; 8-: 8iii:of the Hindu 3arriage Act, -@@

Cases Referred:

$mt. arinder Kaur vs. 6arshotam $ingh, AI4 -00 /el 999

3uthura% Koilpillai vs. Esther Gictoria Kannammal, AI4 -5 3ad 9;5

+edical ,-amination to est +ental condition /degree of mental illness /0igh court

and supreme court $udgments

Joseph Augusth! vs. %ar! &li'abeth %athe(

Filed under:Section 18 of the Divorce Act, 1869Appellant:%ose;h A#!#sth2Respondent:ar2 =li>abeth athe'Citation:1998 AI" ++.4Court:In the i!h "o#rt of KeralaJudges:AR a*shmanan and K5 San*aranara2anan

Facts

'oseph Augusthy filed this appeal as"ing for a decree of nullity of the marriage between him andhis wife, 3ary Eliabeth 3athew. His main contention was that 3arys neurological disorder andmental illness was concealed from him at the time of marriage and a fraud was played on him.

According to 'oseph, 3ary had been suffering from neurological disorder and had been undertreatment for some time even prior to the marriage and she and her parents purposely concealedthis fact from him.

In the High Court, 3ary resisted the allegations. Bhen the matter was pending before the $ingle'udge, 'oseph suggested the names of two doctors as witnesses, /r 3adhusoodanan and /r

Ananda"umar. However, they had not been e(amined because 'oseph was of the opinion that animpartial opinion could not be obtained by them.

In these circumstances, 'oseph moved a petition praying that 3ary should be e(amined by a7oard of e(perts. 3ary filed a counterDaffidavit stating that there was no need for her to bee(amined by a medical board since there was no evidence to show that she was suffering from aneurological or psychiatric disorder.

)he $ingle 'udge however re%ected 'osephs re#uest to have a 3edical 7oard e(amine 3ary.)he 'udge while passing the order remar"ed that even though several allegations were made inthe affidavit filed in support of the petition, the evidence given by 'oseph and his father did not
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support the allegations and there was no need to get 3ary e(amined by the 3edical 7oard.Challenging that order 'oseph then filed the current appeal before the higher bench at the HighCourt.

)hereafter, 'oseph agreed to suggest names of doctors for constituting the 3edical 7oard fore(amining 3ary. 3arys lawyer also submitted that if a panel was constituted by the Court, then

/r. 3adhusoodanan, who was 3arys doctor, should also be made a member of the 3edical7oard. 'oseph had no ob%ection to that. Bhen the case came up for hearing 'oseph gave thenames of five doctors to constitute the 3edical 7oard.


)he Court observed that in such a case, it was always better if 3ary volunteered for the medicale(amination. However, because a panel had been suggested by 'oseph, 3ary would submitherself to this 3edical 7oard for e(amination.

)he Court further held that out of the five doctors, three doctors would form a #uorum and ofthese three doctors, /r. 3adhusoodanan shall be a member for conducting the medicale(amination. )he Court also directed that the e(penses for this medical e(amination should be

borne by 'oseph. )he Court also re#uested the doctors who constituted the 3edical 7oard tocomplete the e(amination within a period of one month. )he appeal was accordingly allowed.

ifference bet#een +ental 1llness and 1nsanity to be (oted

Mohinder Kaur vs. S.S. Sabharwal

Filed under:Section 14 1- iii- of the ind# arria!e Act, 19.. and R#le 1 of "ode of"ivil /roced#re

Appellant:ohinder Ka#rRespondent:S$S$ Sabhar'al

Citation:?$A$7$ o$ 1 of 199 Decided on 1+$11$9

Court:In the i!h "o#rt of Delhi

Judge:@o!esh'ar Da2al

Facts

Mohinder Kaur and S.S. Sabharwal were married with two male children. Both the

sons however died. S.S. Sabharwal then filed this petition for divorce on the groundthat his wife was suffering from mental illness, which included schizophrenia, and

also on the ground that she had deserted him.

In order to support his case, S.S. Sabharwal stated that his wife had been suffering

from incurable insanity from the very start of their marriage. According to him, hehad continued to provide her treatment with the hope that she might be cured. e

also submitted the tic!ets of various hospitals, which they had visited for hertreatment. It was also alleged that Mohinder could not be left alone in the house

because she used to throw away the goods, cash, and "ewelry from the house.


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e also went on to state that Mohinder#s mental state was so bad that one couldeven suspect death at her hands. According to him, she might !ill while sleeping or

administer poison without understanding the merits or demerits of her actions. Itwas also stated that she was $uite capable of leaving the house during a fit of

insanity.

owever, Mohinder Kaur in response denied all of the above allegations. She statedthat it was her husband who was guilty of e%tending e%treme physical and mentalcruelty towards her. She further alleged that her husband had started neglecting her

immediately after the first year of marriage and that he constantly placedburdensome demands on her threatening that if she did not fulfill those demands she

would be forced to leave the house. She also stated that she was !ept on insufficientdiet even during her pregnancy.

&urthermore, Mohinder claimed that their first child had died within '( hours of birthand her husband or his mother had not even bothered to visit her in the hospital or

en$uire about her health. She also contended that when their second son, who was (years old, had fallen ill, her husband had refused to pay for his medicines and diet.

)he son had then suffered from paralysis and during this time, she had ta!en care ofhim all by herself. e had died at the age of *. +ith respect to the fact that she was

of an unsound mind, Mohinder Kaur denied all the allegations and stated that shewas matriculate and had also wor!ed on a parttime basis before her marriage.

At the )rial -ourt, the husband had presented evidence of psychiatrists who had

treated his wife. ne doctor from AIIMS claimed that he had e%amined MohinderKaur and had diagnosed her as suffering from schizophrenia. In the cross

e%amination however, he had stated that he had only seen her twice but had made

the diagnosis of schizophrenia on the basis of the symptoms. e had also broughtthe records wherein these symptoms were listed. In order to support the claims

made by him, S.S. Sabharwal had also presented the evidence of neighbors andother doctors.

n the other hand, Mohinder Kaur#s lawyer e%amined the evidence given by anotherdoctor of AIIMS who stated that he had treated her some time bac! but he did not

clearly remember her condition. e did not have any records with him. )he wife#sbrother also stated that his sister was perfectly all right. /uring crosse%amination,

Mohinder admitted that her husband had never given her beatings, but she deniedthe fact that she had been treated at the +illington hospital by a private doctor as

claimed by her husband.

At the )rial -ourt, the 0udge considered two main issues1 whether Mohinder Kaur

was insane2 +hether she had left the house of her husband, and if so, to what

effect2 After e%amining the arguments put forth by both the parties, the )rial -ourt

re"ected the plea of desertion but found that Mohinder Kaur was suffering from amental illness, which was of an incurable nature and therefore granted the decree ofdivorce to S.S. Sabharwal.

Mohinder Kaur then filed the present appeal against the order of the )rial -ourt.

Arguments made on behalf of Mohinder Kaur


15/84

)he lawyer on behalf of Mohinder Kaur contended that in the plea submitted by S.S.Sabharwal, it had been stated that his wife was suffering from incurable insanity,

whereas the evidence provided by him showed that she was suffering fromschizophrenia. )he lawyer also argued that the issue considered by the )rial -ourt

was that whether Mohinder was insane but the finding had been that she wassuffering from a mental illness. )herefore, the lawyer contended that the finding was

contrary to the plea ta!en by S.S. Sabharwal.

bservations of the Court

)he -ourt stated that Section 34 536 5iii6 had been amended in the year 3789, butS.S. Sabharwal had filed the case prior to this amendment. )he -ourt then $uoted

Section 34 536 5iii6 of the Act before it had been amended and e%plained that prior toits amendment, this section had not made any distinction between the mental illness

and insanity. According to the -ourt, the )rial 0udge had given the "udgmentaccording to the amendment whereas1 S.S. Sabharwal had framed the petition

according to the Act prior to its .amendment

In this situation, S.S. Sabharwal filed an appeal see!ing permission for amendmentof the petition. )he -ourt allowed the application for amendment and permitted S.S.Sabharwal to file the amended petition. )he appeal was allowed to the e%tent that

the "udgment and decree of the )rial -ourt was set aside and the case was

remanded to the )rial -ourt for trial on the basis of the amended petition. )he casewas accordingly remanded.

Sections Referred:

Section 34 536 5iii6,indu Marriage Act, 37::

'ourt Favours 2ea&er Party / +ental 1llness / 0igh court and Supreme court

$udgemetns

'ourt Favours 2ea&er Party

/ramatha K#mar ait2 vs$ Ashima ait2

R$S$ Sh2amala and other /etitioners vs$ ($ Raase*har

(o;ala*rishnan air vs$ hembatt2 Ramani

Pramatha Kumar +aity vs. Ashima +aity

Filed under:Section 141- iii- of the ind# arria!e Act

Appellant:/ramatha K#mar ait2

"espondent:Ashima ait2

'ourt:In the i!h "o#rt of "alc#tta
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'itation:AIR 1991 "A"UA 1+4

)udges:A$$)hattacharee and A$K$a2a*

Facts

/ramatha K#mar ait2 claimed that his 'ife Ashima ait2 'as s#fferin! from mentaldisorder of an inc#rable nat#re$ /ramatha stated that Ashima 'as violentl2 a!!ressiveand a so#rce of dan!er to himself and his famil2$ herefore, he filed for divorce on the

!ro#nds of mental disorder$

Ashima revealed that she had indeed s#ffered from some sort of a mental disorder a fe'

2ears a!o and 'as admitted for abo#t a month in a ental os;ital in "alc#tta and thatshe 'as no' totall2 c#red$ he rial "o#rt had reected /ramatha ;etition$ herefore, he

filed the ;resent a;;eal$

3bservations of the 'ourt

It 'as noted that /ramatha had failed to collect evidence from his ;arents or an2 doctor to

s#;;ort his alle!ation that Ashima 'as violent to'ards his ;arents and that she 'as

s#fferin! from an inc#rable mental disorder$

?#rther, the "o#rt 'hile eaminin! the relevant ;rovisions observed that he failed to

;rove that her mental disorder 'as of s#ch a nat#re that he co#ld not be e;ected to live

'ith her$ he "o#rt observed that Ashima 'as an #ned#cated ;erson 'itho#t an2 means

of s#;;ort of her o'n, 'hile /ramatha 'as a !overnment servant 'ho 'as not 'illin! tomaintain her$

In vie' of this, it 'as also observed since Ashima 'as the 'ea*er ;art2 loc*ed in an#neB#al fi!ht, therefore, her ;lea sho#ld be acce;ted$ In the ;resent case, the evidence'as a!ainst the h#sband$ herefore, the "o#rt did not interfere 'ith the order of the

lo'er "o#rt$

Sections "eferred:

Section 141- iii- of the ind# arria!e Act +. of 199.-

'ases "eferred:

State )an* of India vs$ Amal K#mar Sen, 1988 ab I" 1.8.: 1988- 9+ "al 3806

Dastane vs$ Dastane, AIR 19. S" 1.40: 19.- + S"" 4+6

Karti* vs$ an#, AIR 194 "al .0.

3hite vs$ 3hite, AIR 19.8 S" 001: 19.8 AII % 61

)i;in "handra vs$ /robha;ati, AIR 19. S" 16: 19. S"" 08

S#dhan!sh# ohan "ha*rabort2 vs$ ife Ins#rance "or;oration of India, 1988-

9+ "al 3 1


17/84

4uotes from the )udgment

Che le!islat#re has not made #nso#ndness of mind or mental disorder, b2 itself, a

matrimonial fa#lt #nless the #nso#ndness is inc#rable and the disorder is s#ch as to

disabled- the ;erson to become a reasonabl2 tolerable matrimonial ;artnerC$

".S. Shyamala and other Petitioners vs. !. "a$ase&har

Filed *nder:Section +0 of the "ivil /roced#re "ode . of 19


18/84

Raase*har had mana!ed to obtain certain medical certificates beca#se of his infl#ence

and for this reason, he had been #r!in! that the case sho#ld be tried in 2sore$

Sh2amala also stated that she 'as #nem;lo2ed and 'as sta2in! 'ith her father beca#se of'hich she 'o#ld not be able to afford the travel e;enses if the case 'as tried at 2sore$

It 'as f#rther stated that bein! a lad2 it 'o#ld be diffic#lt for her to sta2 overni!ht aloneat 2sore$ herefore, accordin! to Sh2amala the cases sho#ld have been tried at

)an!alore$

3bservations of the 'ourt

he "o#rt observed that Raase*har had himself stated that his 'ife 'as s#fferin! from amental disorder, 'hich 'as inc#rable$ In vie' of these alle!ations the "o#rt o;ined that

Sh2amala co#ld not be forced to !o to 2sore for the hearin!$ In vie' of this the "o#rt

allo'ed the a;;eal$ he case filed b2 Raase*har at 2sore 'as transferred to the "o#rtof /rinci;al ?amil2 "o#rt, )an!alore$ he ;etition filed b2 Raase*har for the transfer of

the cases at 2sore 'as accordin!l2 dismissed$

Sections "eferred:

Section+0 of the "ivil /roced#re "ode

!opala&rishnan (air vs hembatty "amani

Filed under:Sections 1+ 1- a- & +. ind# arria!e Act

Appellants:(o;ala*rishnan air

"espondent:hembatt2 Ramani

'itation:AIR 1989 K=RAA 441

'ourt:In the i!h "o#rt of Kerala

)udges:5$Sivaraman air & $?athima )eevi

Facts

(o;ala*rishnan air and hembatt2 Ramani 'ere married to each other$ (o;ala*rishnan

had field a ;etition see*in! an order for n#llit2 of his marria!e on the !ro#nd that he 'ase;ile;tic and im;otent and that the marria!e had not been cons#mmated for the above

reasons$ he ;etition 'as allo'ed and Ramani made an a;;lication #nder Section +. of

the ind# arria!e Act claimin! maintenance at the rate of Rs$ 4


19/84

(o;ala*rishnan filed obections that the a;;lication sho#ld not be allo'ed since the

marria!e 'as n#ll and void$ 7n his behalf, it 'as ar!#ed that maintenance co#ld be

!ranted onl2 in cases of #dicial se;aration or divorce$ he rial "o#rt fo#nd thatmaintenance 'as a;;licable in all cases of divorce, dissol#tion of marria!e, #dicial

se;aration or ann#lment of marria!e$ he "o#rt then ;assed an order that (o;ala*rishnan

sho#ld ;a2 Rs$ 1.


20/84

'ircumstances or ,ssentail For ivorce / 0igh court and supreme court $udgments

/ All 'harges to be substantiated

!rithvi !al Singh vs. Joginder Kaur

Filed *nder:Section 14 1- iii-, ind# arria!e Act, 19..Appellant:/rithvi /al Sin!h

Respondent:%o!inder Ka#rCitation:?$A$7$ o$ 1+1 of 198+G Decided on 0$0$1984 Unre;orted-

Court:In the i!h "o#rt of DelhiJudge:$ (os'am2

Facts

)he marriage between ;rithvi ;al Singh and 0oginder Kaur was solemnized according

to Si!h


21/84

shoc!s. According to him, on the basis of her previous doctor#s prescriptions he haddiagnosed her as suffering from schizophrenia.

Several of ;rithvi ;al#s friends gave their evidence and stated that they had often

seen 0oginder Kaur in a state during which she would be crying and laughing at thesame time. ;rithvi ;al Singh also alluded to the fact that 0oginder Kaur had written

suicide notes and this had caused him a lot of mental torture.

0oginder Kaur#s lawyer also e%amined several witnesses in order to support herclaims. )he most significant was the evidence given by a 0unior =esident from AIIMS.

According to him, 0oginder had come to him for her e%amination in order to find outwhether she was suffering from any mental disorder.

e further claimed that another senior psychiatrist had also e%amined her andpsychometric tests had been conducted on her in order to find out her mental

condition. e finally stated that, she was not suffering from schizophrenia at the timeshe was e%amined. e also mentioned that schizophrenia was a serious illness but

curable.

)he )rial -ourt did not find that 0oginder Kaur was suffering from a mental disorderof such a degree that ;rithvi ;al Singh could not be e%pected to live with her.

Accordingly, the )rial -ourt dismissed the petition for grant of decree of divorce.

;rithvi ;al Singh then filed the present appeal against the order passed by the )rial0udge.


)he -ourt e%amined the evidence given by both the parties. According to the -ourt,

the doctor who had diagnosed 0oginder as suffering from schizophrenia and hadadministered electric shoc!s to her had "umped to the conclusion without valid

reasoning. e had only e%amined her for one day after which, he had administeredelectric shoc!s to her. According to the -ourt, the psychiatrist had also stated that

schizophrenia was incurable whereas according to the latest Medical literatureindividuals suffering from this disorder could recover with proper treatment.

)he -ourt held that 0oginder Kaur had produced reports of her e%amination from

AIIMS, which showed that she was not suffering from any mental illness at that time.)he -ourt further stated that it had ta!en account of the fact that 0oginder Kaur had

been sub"ected to lengthy and grueling crosse%amination to which she had

responded in an alert and aware manner.

Based on the reasons stated above, the -ourt dismissed the present appeal and

upheld the decision of the )rial 0udge in not granting the decree of divorce to ;rithvi;al Singh. )he appeal was conse$uently dismissed.

Section Referred:

Section 34 536 5iii6of the indu Marriage Act, 37::
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Smriti"ana #ag vs. $ilip Kumar #ag

Filed *nder:Sections 1+, 14 1- iii- and 10 of the ind# arria!e Act, 19..

Appellant:Smriti*ana )a!

Respondent:Dili; K#mar )a!Citation:AIR 198+ "alc#tta .0

Court:In the #!h "o#rt of "alc#ttaJudges:"hittatosh oo*eree and Ram Krishna Sharma

Facts

Smirita!ana Bag and /ilip Kumar Bag got married according to indu rites and

customs. About si% months later /ilip filed a petition for annulment of his marriage

with Smriti!ana under Section 3' of the indu Marriage Act or alternatively fordissolution of the marriage under Section 34 536 5iii6 of the indu Marriage Act. )hispetition was filed in the -ourt of the /istrict 0udge on the ground that his wife was

suffering from a mental disorder.

It was alleged by /ilip that two days after their wedding he realized that Smirita!ana

had >mental infirmity#. It was stated that during one of the ceremonies, that too!place after the wedding, she was found to be of completely unsound mind. She was

e%tremely violent and aggressive. )hereafter she was e%amined by a psychiatrist,who gave her medicines but she continued to suffer from mental disorder.

It was also submitted that a clinical psychologist, also e%amined her. According to

/ilip, since his relatives could not stay with Smirita!ana in the same house, herented a separate flat and too! her there.

Sometime later when her father visited them she abused him because of which he

fainted and had to be ta!en to the hospital. /ilip stated that he was unable to bearliving with his wife and had sent her to her parent#s house. But one day when he had

come bac! from office he had found her in his house.

According to him she had continued to abuse and misbehave. e then got her

admitted in a hospital as an inpatient. +hile she was admitted there, /ilip had fileda petition in the -ourt of the /istrict 0udge.

)he -ourt had re"ected the prayer for annulment of marriage on the ground that/ilip had not satisfactorily proved that at the time of marriage Smirita!ana was

suffering from any mental disorder. owever the -ourt allowed the dissolution ofmarriage under section 34 536 5iii6 of the Act. Smirita!ana filed this petition against

this order of the /istrict -ourt. She denied all the allegations made against her.



23/84

)he -ourt observed that /ilip#s petition for dissolution of marriage under section 34536 5iii6 of the indu Marriage Act was filed prematurely. )he -ourt pointed out that

/ilip had filed the petition even before one year of marriage had elapsed and thelower -ourt was not competent enough to entertain the /ilip#s petition for divorce.

)he -ourt pointed out that a -ourt has the discretion either to direct that the decreefor dissolution shall not have effect till the e%piry of one year from the date of

marriage or to dismiss the petition.

It was also pointed out that not only was /ilip#s petition prematurely filed, but the

evidence about Smirita!ana#s mental condition covered such a short period that itwas not possible to satisfactorily decide whether or not she was really of unsound

mind or suffered from a mental disorder of such an e%tent that /ilip could not bee%pected to live with her.

)he -ourt then went on to e%amine the evidence presented by the parties. Accordingto the -ourt, the allegations made by /ilip could not be ta!en seriously because they

had not been corroborated. &urthermore, apart from /ilip and his father none of theother family members or friends who had attended the wedding had been e%amined

as witnesses.

+ith respect to the medical evidence, the -ourt observed that /r -ha!raborty and

?andi had not been e%amined as witnesses and therefore, the prescriptions given by

them could not be treated as evidence. Similarly the evidence of other psychiatristswas also dismissed because of a number of discrepancies in their evidence.

)he -ourt however too! into account the testimony given by /r K; -hatter"ee who

had been her doctor when she was admitted as an inpatient. According to him nomental disability was detected in her.

Another point that was ta!en up by the -ourt was regarding the evidence given bySmirita!ana. )he -ourt pointed out that she had herself appeared in the -ourt and

had answered the $uestions in a sane manner. )he -ourt also pointed out that shehad been sub"ected to a lengthy crosse%amination and even the lower court had not

recorded anything unusual about her behavior when she appeared before them.

In light of the abovementioned reasons the -ourt set aside the "udgment passed by

the )rial -ourt regarding the dissolution of marriage under S. 34 536 5iii6 of the Act.)he -ourt held that /ilip was not entitled to a decree for dissolution of marriage on

this ground.

According to the -ourt he had not been able to satisfactorily prove that Smirita!ana

was suffering continuously or intermittently from a mental disorder of a seriousdegree. /ilip and his father themselves had no personal !nowledge about her state

of mental health before marriage. )he -ourt also re"ected /ilip#s plea for grant of"udicial separation.

)he appeal was thereby allowed.

Sections =eferred@ Section 3', 34 536 5iii6, 3( of the indu Marriage Act, 37::

Section Referred:


24/84

Section 3', 34 536 5iii6, 3(of the indu Marriage Act, 37::

Cases Referred:

Sawita /evi vs. ;ran ?ath, AI= 3798 0 K *7

Bowman vs. Bowman, 537(76 ' All = 3'8@537(76 ;. 4:44:9

Bamford vs. Bamford, 37:9 -CD '*43

?a!ul -handra vs. Shyamapada Ehose, AI= 37(: -al 4*3

Radhamon% Amma vs. &opinathan !illai

Filed *nder:Section 14 1- iii- of ind# arria!e Act, 19..t

Appellant:Radhamon2 AmmaRespondent: (o;inathan /illai

Citation:I 199mad woman# and this made him $uite upset. Because ofthis, Eopinathan was constrained to en$uire into her peculiar behavior.

)he en$uiry revealed that =adhamony was a >lunatic# and had been under treatmentfor the same for several years. )hereafter, she was ta!en to a psychiatrist who

certified that she was suffering from an incurable mental disease. Eopinathan thenfiled a petition praying that since =adhamony was suffering from incurable

>madness#, he should be granted decree of divorce.

In response to this =adhamony filed a statement and asserted that these allegations

were baseless. )he -ourt however, allowed the petition for decree of divorce.

=adhamony then filed the present appeal against the order of the lower -ourt in theigh -ourt.

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)he -ourt referred to relevant provisions of the law and then proceeded to e%aminethe arguments. )he -ourt considered the statements of the psychiatrists who had

e%amined =adhamony. ne of the psychiatrist had stated that he had treated her forFysterical psychosisG when she was 3( and that proper management had cured her.

e also opined that if one was afflicted with such an illness, he


26/84

Filed *nder:Section 14 1- iii- of the ind# arria!e Act, 19..

Appellant:anishaRespondent:/ramod

Citation: I 199


27/84


Joginder Kaur vs. Sur'it Singh

Filed under: Section 14 and 141- of the ind# arria!e Act, 19.. 7rder 4+ of the "ivil/roced#re "ode$ 19


28/84

as to under what circumstances and in what manner the conversation had beenrecorded.

Besides, none e%cept Sur"it himself had proved that the recorded female voice was

that of 0oginder. ven assuming that the voice was 0oginders, the voice in the tapeonly mentioned having undergone an electric shoc! after which some in"ections had

been given as treatment

Before the )rial -ourt 0oginder had claimed that her husband had coo!ed up thestory that she was mentally unsound and she volunteered to have herself medically

e%amined by the Mental ospital at Amritsar. She was admitted as an indoor patientin the hospital for about ': days.

)he Medical Superintendent of the hospital had opined that she was not sufferingfrom insanity of any form. )he senior clinical psychologist also gave his opinion that

no signs of insanity were found e%cept that 0oginder was e%cessively neurotic and attimes got confused while conducting the tests.

)he )rial -ourt had however, doubted the validity of the evidence given by theMedical Superintendent and the senior clinical psychologist but the igh -ourt heldthat the )rial -ourt had incorrectly re"ected the said evidence. )he )rial -ourt had

instead relied on the evidence of /r. =.C. ?arang, /r. A"ay Kohli and /r. Sarab"it

Singh.

)he igh -ourt however was not satisfied with their testimony, as they could not

even properly identify 0oginder as the patient they had treated. ven otherwise, theigh -ourt felt that based on their testimony, it was not possible to conclude that

0oginder Kaur was suffering from Schizophrenia.

)he igh -ourt also observed that even the )rial -ourt had found that 0oginder was

recovering from the disease and that under continued treatment she would recover.)he -ourt thus held that the decree of divorce granted by the )rial -ourt was wholly

un"ustified.

(eld:)he appeal was allowed.

Sections Referred:

Section 34 and 34536of the indu Marriage Act, 37::

rder 4'of the -ivil ;rocedure -ode. 37*

Section 3(:of the Indian vidence Act

Re"ha vs. Ravinder Kumar
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Filed *nder:Sections 14 1- iii- and +8 of ind# arria!e Act, 19..

Appellant:Re*haRespondent:Ravinder K#mar

Citation:II 1994- D" 441

Court:In the i!h "o#rt of adh2a /radesh

Judge:r$ R$D$ Sh#*la

Facts

=e!ha and =avinder Kumar were married according to indu rites. )hey livedtogether as husband and wife and a girl child was born out of their con"ugal

relationship.

=avinder however, filed a petition for divorce in the )rial -ourt on the ground that

=e!ha was suffering from a psychopathic disorder, which was later diagnosed asschizophrenia. It was also stated that she was intermittently suffering from mental

disorder of such a degree that he could not be e%pected to live with her.

e submitted the following facts to show that she was suffering from mental

disorder@ According to =avinder, a few days after the consummation of marriage,=e!ha had suffered from a psychopathic disorder had lasted for * hours. It was

alleged that at that time, she had been tal!ing incoherently and her behavior hadbeen irresponsible and aggressive. er parents had been called and her elder brother

had ta!en her to her father#s house.

)hereafter, she had come bac! to her husband#s house after 3: days and had stayed

with him for ' months. It was stated that it was at this time that she had conceived.owever, she had suffered from recurrent depression and during her pregnancy she

had started behaving aggressively and abnormally.

)hereafter she was ta!en to a doctor who had treated her and had also administered

electric shoc!s to her during the course of the treatment. It was further alleged thatafter the delivery of the child, =e!ha had not ta!en care of the infant and her

behavior had continued to be irrational and abnormal. )hereafter she was admittedin a hospital at Jellore where it was discovered that she was suffering from

Schizophrenia.

It was further alleged that even after her treatment at Jellore she had not recovered

fully and was still suffering intermittently from the disorder. =avinder thus statedthat he wanted a divorce on the ground that she was still suffering from an incurable

mental disorder.

In response to these allegations =e!ha had accepted the fact that the doctor

mentioned by her husband and the hospital at Jellore had treated her. She however,denied the contention raised by her husband that she was suffering from

schizophrenia. She further pleaded that her behavior during pregnancy had becomeslightly abnormal because her husband at that time was living elsewhere and her in

laws had mistreated her.


30/84

)his had caused her irritation. She further contended that she had obtained a degreeof B.d as a regular student from a college and was presently ta!ing tutorial and

coaching classes.

)he )rial "udge had held that =e!ha#s behavior was abnormal. Accordingly, the -ourthad allowed the petition and had granted the decree of divorce to =avinder. =e!ha

had contested this order by filing the present appeal.


)he -ourt e%amined the evidence submitted by both the parties and also referred to

the provisions of Section 34 536 5iii6 of indu Marriage Act, 37::. Based on thestatements of the psychiatrists and other people, the -ourt opined that =e!ha had

not suffered from mental depression and had not been aggressive.

After e%amining the evidence given both by the doctor and the psychiatrist who had

treated =e!ha while she was at Jellore, the -ourt had concluded that someabnormalities of =e!ha#s behavior could be attributed to the electric shoc!s

administered to her by the doctor. )he -ourt held that these electric shoc!s hadbeen given to =e!ha without any rhyme or reason.

According to the -ourt, the testimony given by the doctor did not inspire confidencesince he had claimed the he had not maintained any records related to =e!ha and

had claimed to remember =e!ha#s blood pressure that had been recorded ( yearsago.

)he -ourt also considered the point forwarded by =avinder#s lawyer that =e!ha hadnot got herself e%amined at AIIMS and that this should be interpreted unfavorably

for her. )he =e!ha#s lawyer had responded to this by stating that =e!ha had wantedto get herself e%amined at AIIMS but =avinder had not given her the travel

e%penses.

=avinder#s lawyer had also contended that since there had been a delay on =e!ha#s

part in filing the present appeal, =avinder had married a second time and for thisreason, the present appeal should be held invalid. )he -ourt however ruled out both

these contentions.

)he -ourt also observed that =avinder had not visited his wife in the hospital, nor

had he visited her at her parents# house where she had been living for many years.)herefore, according to the -ourt, =avinder Kumar was in no position to !now

whether or not =e!ha was suffering intermittently from mental disorder.

)he -ourt also too! view of the fact that =e!ha had finished her education after she

had gone to her parents# house and had also been ta!ing tuition for students. It wasalso stated that during crosse%amination =e!ha had answered all $uestions

reasonably and there was no evidence that she was suffering from a mental disorder.

In light of the abovementioned facts the -ourt, $uashed the order given by the )rial

-ourt and held that =avinder had not been able to show that =e!ha was stillsuffering intermittently from mental disorder. )herefore, the appeal was allowed


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Sections Referred:

Section 34 536 5iii6of indu Marriage Act, 37::

A'it !aul vs. #ess% #ab%

Filed under: Sections 1


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loo!ed into several previous "udgments of various -ourts and concluded that a wifecould see! a decree of divorce in a case of annulment on the ground of cruelty.

In the above circumstances, the -ourt held that in the petition filed by A"it for nullity

of marriage there was no valid ground for allowing the petition and that the claim ofthe wife that her husband had sub"ected her to cruelty was proved. )herefore, the

petition for nullity was re"ected and the decree for divorce granted to the wife ongrounds of cruelty.

Sections Referred:

Section 3, 3:, 3* 37of the Indian /ivorce Act, 3*97

Cases Referred:

=eynold ="amani vs. nion of India, 5AI= 37*' S- 3'936

Mary Sonia Lachariah vs. nion of India, 377: 536 KC) 9(( 5&B6

Mary Sonia Lachariah vs. nion of India, 377: 536 KC) 9(( 5&B6

Sm. Meera Euha, AI= 378 -alcutta '99 5/B6

Abbas Ali vs. Mt. =abia Bibi, AI= 37:' Allahbad 3(:

Sarah Abraham, AI= 37:7 Ker 8: 5/B6

Smt. Kamala /evi vs. Amar ?ath, AI= 3793 0K 44 5/B6

;rem ;ra!ash =ubin vs. Smt Sarla =ubin AI= 37*7 M; 4'9



Mu"esh Mathur vs. Smt. )eena Mathur

Filed *nder:Sections 1+, 14 1- iii- and +. of the ind# arria!e Act, 199.

Appellant:#*esh ath#r

Respondent:Smt$ 5eena ath#rCitation:AIR 1989 Raasthan 9

Court:In the i!h "o#rt of Raasthan

Judges:%S 5erma and ?arooB asan

This is an appeal against the order of the Family Court to pay a permanent alimonyp.m. to Veena. They had been granted divorce on the ground that his Veena was

mentally disabled.

Facts
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)his is an appeal against the "udgment of the &amily -ourt, 0aipur on a petition fordivorce filed by Mu!esh Mathur. Mu!esh was granted divorce on the ground that his

wife, Jeena was suffering from a mental disorder. A permanent alimony at =s. 4:


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Section 3', 34 536 5iii6and ':of the indu Marriage Act, 377:

Mamata Mishra vs. Subhas Chandra Mishra

Filed *nder:Sections 1+ 1- c- and .ii- c- of the ind# arria!e Act, 199. Section

19 of the ?amil2 "o#rts Act

Appellant:amata ishraRespondent:S#bhas "handra ishra

Citation:1


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Mamata filed her written statement denying these allegations and stated that herhusband had illtreated her and demanded additional funds by way of gifts after

marriage. She also made an allegation of termination of her pregnancy by Subhas.

In order to support his contentions, on behalf of Subhas three witnesses weree%amined, including the Assistant ;rofessor of ?eurology who had treated his wife.

Si% documents, which included medical prescriptions and a letter, which was said tohave been written by Mamata, were also submitted. n behalf of Mamata as wellthree witnesses were three witnesses but no documents were filed in support of her

case.

After considering the evidence on record, the 0udge of the &amily -ourt came to the

conclusion that Mamata was suffering from recurrent attac!s of epilepsy with mentaldisorder and this fact was concealed from Subhas and his family prior to the

marriage. According to the -ourt the marriage had been solemnized by playing afraud. )herefore, the 0udge annulled the marriage by passing the decree of nullity.

Mamata then filed this appeal in the igh -ourt.

Arguments made on behalf of Mamata

Mamata#s lawyer contended that the 0udge of the &amily -ourt had concluded thatfraud was played by Mamata and her family members at the time of marriage,

without appreciating the evidence on record. e further argued that a petition for theannulment of marriage could be entertained if this petition was filed within one year

from the date of discovery of the fraud.

According to him, in this case the socalled fraud was detected on ':.9.3778 but the

petition was filed on 34.8.377*, i.e. beyond one year from the date of discovery ofthe fraud. Castly, he also argued that the term >epilepsy# had been omitted from

Section : 5ii6 5c6 of the indu Marriage Act by recent amendment. )herefore, the0udge of the &amily -ourt was wrong in holding that the marriage was solemnized by

playing fraud.

Arguments made on behalf of Subhas

Subhas#s lawyer on the other hand, contended that marriage was solemnized on3*.9.3778 by suppressing the fact that Mamata was suffering from epilepsy.

Subse$uently, on '9.9.3778, on suspicion, she was ta!en to the Assistant ;rofessorof ?eurology for treatment and after investigation, it was confirmed that she was

suffering from epilepsy.

)hus, the fraud was detected on 3.3.3778 and the petition for the annulment of

marriage was filed on 34.8.377*, which was within one year from the date ofdiscovery of the fraud. e further argued that the amendment came into force at the

time when the matter was pending before the -ourt while the petition had been filedmuch before that. According to the lawyer, it was settled by the principle of law that

an amendment would run prospectively and not retrospectively. )herefore, noillegality had been committed by the 0udge of the &amily -ourt.



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)he -ourt e%amined the evidence on record and held that there was no material,either oral or documentary, before the 0udge, &amily -ourt that Mamata was

suffering from epileptic fits prior to or at the time of marriage. According to the-ourt, in order toestablish that Mamata played fraud, the onus lay with Subhas to

collect convincing evidence.

According to the pleadings of Subhasand the evidence of other witnesses, thedisease was detected on ':.9.3778 and there was no material on record to showthat Mamata was suffering from epilepsy prior to the time of marriage. n the other

hand, a witness e%amined on behalf of Mamata had stated that he !new her fromchildhood and had been present at the time of her marriage. After marriage, he had

also been to Subhas#s house and had observed that both Subhas and Mamata wereleading a happy married life.

)he -ourt also observed that in his crosse%amination, the doctor had not stated thatepilepsy was noncurable. n the other hand he had admitted that 9 of the

patients who suffered from this disease were curable. )he -ourt held that Mamatawas not suffering from incurable epilepsy. )herefore, it could not be construed that

she had played fraud on Subhas and his family.

)he -ourt also e%amined the other two arguments e%tended by Mamata#s lawyer.

+ith respect to the first contention that the petition for annulment of marriage was

not filed within one year from the date of detection of the disease, the -ourt heldthat the petition was in fact presented within the specified time and thus this

argument was dismissed.

)he -ourt also held that the amendment to the Act would have no effect on thepresent proceedings since the case was pending before the -ourt at the time of the

amendment. Accordingly, the -ourt dismissed this argument e%tended by Mamata#slawyer, as well.

A careful analysis of the facts and circumstances led the -ourt to conclude thatthough the petition of annulment of marriage was filed within time and the

amendment in $uestion had no bearing on the case, it was found that no fraud hadbeen committed by Mamata prior to or at the time of the marriage. As a result, the

appeal was allowed and the "udgment given by the 0udge of the &amily -ourt was setaside.

Sections Referred:

Section 3' 536 5c6and :5ii65c6of the indu Marriage Act, 377:

Section 37of the &amily -ourts# Act
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)C *homas vs. An *homas alias Kun'umol

Filed *nder:Section 18 of the Divorce Act, 1869

Appellant:5" homas

Respondent:An homas alias K#n#molCitation:AIR 1999 Kerala 1

Court:In the i!h "o#rt of KeralaJudges:KS Radha*rishnan and S San*ars#bban

This is a petition filed by VC Thomas for the annulment of this marriage on the

ground that his wife was mentally ill at the time of marriage.

Facts

J- )homas filed this petition under Section 3* of the Indian /ivorce Act to declare

that his marriage to An )homas was null and void on the ground that she was ofunsound mind at the time of marriage. )heir marriage had been solemnized at a

-hurch following which they lived together for 4 days. According to )homas duringthis period his wife e%hibited abnormal behavior and mental illness.

)hereafter she was admitted in a hospital and was treated there for about '9 daysby /r A"ith )homas. Cater, she was ta!en to the Medical -ollege, Kottayam where

she was admitted for about 38 days under the treatment of /r. 0ohn Mathai.According to )homas, his wife, Kun"umol, had been suffering from mental illness for

about a year and a half prior to their marriage. e also claimed that she wasimpotent. Aggrieved on these grounds he filed an appeal for nullity of their marriage

in the /istrict -ourt.

)he /istrict -ourt issued a notice to Kun"umol but she did not appear in the -ourt.Cater an application was filed for appointment of her father as her guardian and a

notice was issued to him. owever, her father also did not appear. Subse$uently the-ourt appointed Smt. K Bhagyam, advocate as her -ourt Euardian.

She contacted Kun"umol and filed her ob"ection stating that after marriage the

parties had lived together for 9 days and Kun"umol was not suffering from any

mental illness as alleged by )homas.

It was also stated that after marriage, while )homas and Kun"umol were traveling ona scooter, Kun"umol happened to see a road accident and due to this shoc! she

became withdrawn and had to undergo some treatment. She denied the allegationsof impotency and unsoundness of mind that were made against her.


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)he /istrict -ourt e%amined the oral and documentary evidence. ?o evidence wasproduced by Kun"umol in her defense. )he /istrict -ourt re"ected the ground of

impotency but allowed the petition after finding that Kun"umol was of unsound mind.mphasis was laid on the oral evidence of the doctor who had treated Kun"umol in

the Medical -ollege, Kottayam as well as on the evidence given by )homas#sneighbor. )he case was then referred to the igh -ourt.

+hen the matter came up for hearing at the igh -ourt, the -ourt appointed A00ose, Advocate, as -ourt Euardian. e had met Kun"umol at her residence.

According to him she was capable of leading a normal life1 she was ta!ing care of herparents, coo!ing food and behaving properly.

)homas#s lawyer on the other hand contended that in the absence of oral ordocumentary evidence on the side of Kun"umol, it should be presumed that the

allegations raised by )homas for annulment of the marriage were proved. e alsorelied heavily on the oral evidence given by /r 0ohn Mathai who had treated her.


)he -ourt e%amined the arguments e%tended by )homas#s lawyer and held that eventhough according to the evidence of the doctor it had been stated that Kun"umol had

a previous history of a similar mental illness one and half years bac!, there was no

oral or documentary evidence to prove that.

ven though a neighbor who had been e%amined in the -ourt had stated that

Kun"umol showed signs of mental illness at the time of marriage, nobody from the-hurch or any other independent witness was e%amined to establish that. )he -ourt

also referred to a previous decision of the Supreme -ourt in a similar case.

Based on the available material the -ourt stated that it was not in a position to hold

that Kun"umol was suffering from a mental illness at the time of or before hermarriage. owever, since Kun"umol had failed to appear in the -ourt, )homas was

given an opportunity to collect more evidence in order to establish that Kun"umolwas suffering from a mental illness prior to or at the time of her marriage. In order

to enable )homas to do so the -ourt remitted the matter bac! to the /istrict -ourt,Kottayam. )he reference was disposed of accordingly.

Sections Referred:

Sections 3*of the /ivorce Act, 3*97

Cases Referred:

=am ?arian vs. =ameshwari, AI= 37** S- ''9
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$evi Sharma vs. Chander Mohan Sharma

Filed *nder:Sections 1+, 14 1- iii- and 14 1- ia- of ind# arria!e Act, 1 9..

Appellant:Smt$ Devi Sharma

Respondent:"hander ohan Sharma

Citation:AIR +


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In response to these allegations, /evi Sharma submitted a reply in which she deniedall the allegations leveled against her by -hander Mohan. She stated that her

husband and his family had not been satisfied by the dowry she had got with her andwere harassing her because of this reason.

She further claimed that the marriage ceremony had ta!en place in a proper manner

and her husband had made up stories in order to nullify the marriage. /evi Sharmaalso stated that she had filed a case against her husband and his family in the )rial-ourt against the demand for dowry. ven her father had made a complaint against

the dowry demands to higher authorities.

)he )rial -ourt had ta!en up the following issues@

+hether the marriage performed between the two parties was complete as

per the indi rites and customs or was it voidable2

If the preceding issue was not proved, could the marriage be dissolved on the

grounds that /evi Sharma had treated -hander Mohan Sharma with cruelty2

+hether /evi Sharma was suffering from such degree of unsoundness of

mind that he could not e%pected to live with her2

In order to support the claims the lawyer on behalf of -hander Mohan Sharmae%amined the evidence given by a psychiatrist who stated that /evi was suffering

from Schizophrenia. n account of this the )rial 0udge had held that since herdisorder was incurable, the decree of grant of divorce could be allowed as per

Section 34 536 5iii6 of the indu Marriage Act, 37::. owever, he had dismissed thefact that the marriage was void and that /evi had treated her husband in a cruel

manner.

/evi Sharma then filed the present petition against this order of the )rial 0udge. She

also prayed that since the marriage had been dissolved on the grounds that she wassuffering from a mental disorder she should be allowed to get herself e%amined at

AIIMS or ;EI, -handigarh. Subse$uently, the Medical Board in ;EI, -handigarh,e%amined her.


)he -ourt e%amined the arguments given by both the parties. )he -ourt too! into

consideration the report given by the Medical Board, ;EI. /evi Sharma had beene%amined using psychometric tools, and case history. Based on these tests and her

medical history the Board had concluded that she was not suffering from any mentalillness at the time of the e%amination.

According to the -ourt, the previous evidence given by the psychiatrist that /evi wassuffering from Schizophrenia was not based on any tests, reports or e%amination of

previous history. )he -ourt also stated that /evi had been sub"ected to a lengthycrosse%amination on many occasions.

According to the -ourt, she had not displayed any peculiar behaviors during thattime, which also proved that she was not suffering from a ma"or mental illness.

&urthermore, the -ourt opined that -handra Mohan and his family had mistreatedher.


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In view of these findings, the -ourt reversed the "udgments passed by the )rial0udge. )he -ourt also dismissed the other two arguments made by -hander Mohan

viz., the marriage was void and that /evi had treated him with cruelty. )he appealwas thereby allowed.

Sections Referred:




Al"a Sharma vs. Abhinesh Chandra Sharma

Filed *nder: Sections ., 1+ 1-, 14 and 14 1- ind# arria!e Act,19.., ind#arria!e Amendment- Act, 196

Appellant: Smt$ Al*a Sharma

Respondent: Abhinesh "handra Sharma

Citation: ?irst A;;eal o$ + of 1989G Decided 7n:


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)he main contention made by Al!aNs lawyer was that according to Section 3' of theAct the mental disorder should be of such a serious nature that the person would be

unfit for procreation of children. It was further stated that there was no evidence toshow that Al!aNs alleged mental disorder was of such an e%tent that she would not be

able to procreate. )herefore it was contended that the )rial -ourt had committed anerror in granting the decree of nullity of marriage.

AbhineshNs lawyer stated that the mental disorder in a spouse was a condition thatwould ma!e him


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attempted to assault Abhinesh in the early hours of the morning for no apparentreason.

AbhineshNs mother and brother supported these allegations. )he psychiatrist who had

e%amined and treated Al!a also gave his evidence. e stated that prior to hermarriage she had come to him for consultation. e had also presented the relevant

entry made in his patientNs register.

)he psychiatrist had testified that during her first visit he had found her to be in ane%cited state and had diagnosed her illness as Schizophrenia of paranoid type. e

also confirmed that he had paid her a visit after her marriage at AbhineshNs house. Atthat time he had found her to be in a frenzied state, violent and crying.

)he psychiatrist had also been crosse%amined by Al!aNs lawyer. )o specific$uestions regarding the degree of mental disorder his reply was that Al!a was a

3 schizophrenic patient. e however also admitted that when he had ree%amined her he had found that she had improved by at least :.

It was further stated that some electric shoc!s were also given to patients sufferingfrom this disorder and he had administered such shoc!s to Al!a in the past. e alsobelieved that if proper environment and guidance were provided then she could

improve.

In response to these allegations, Al!a claimed that on the first night of thehoneymoon she had been terribly upset because her husband had confessed to her

that his father had left his wife and was living with another woman. She also statedthat Abhinesh had further stated that in case a remarriage or such an incident

happened with him, Al!a would have to mee!ly submit.

According to her these disclosures had upset her and as a result she had been

nervous and fearful that night. owever, in her written submission, Al!a hadadmitted that she had been getting treatment from the psychiatrist.

Al!aNs lawyer had strongly criticized the testimony given by the psychiatrist. e hadargued that the psychiatristNs testimony should not be given much weight because of

two reasons.

&irstly, because he was distantly related to Abhinesh and secondly because he had

shown overzealousness by creating false evidence in the form of a prescription thathad Al!aNs name on it. It was further argued that the psychiatrist had !nown both

the parties and since he was distantly related to Abhinesh he should have told himabout her illness.

It was also contended that since the couple had lived together only for 37 days,there would not have been enough time for Abhinesh to reach the conclusion that

Al!a was suffering from a mental disorder of a serious nature. )he lawyer alsoargued that Al!a had attained a postgraduate degree and was therefore highly

educated. According to him the allegations of a mental disorder were not true.


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In favor of this point he also stated that since Al!a had been able to withstand thecrosse%amination and $uestioning in the -ourt, it was in his opinion $uite clear that

she was not suffering from the alleged mental disorder.

After analyzing these arguments the -ourt opined that they could not re"ect thepsychiatristNs evidence "ust because he was distantly related to Abhinesh. )he -ourt

further held that Al!a had been suffering from some !ind of mental illness and theerratic behaviors described by Abhinesh were not mere trivialities.

Accordingly, the -ourt affirmed the decision of the )rial -ourt and granted the

decree of nullity of marriage to Abhinesh.

Sections Referred:

Sections :, 3'536, 34536of the indu Marriage Act, 37::

Cases Referred:

A"itrai Shiv ;rasad Mehta vs. Bai Jasumati, AI= 3797 Eu" (*

Mand!ishore Shaligram Jyas vs. Munnibai, 3787 M;C0 3:, AI= 3787 Madh

;ra (: Madhusudan vs. Smt. -handri!a, AI= 378: Madh ;ra 38(

Smt. Asha Shrivastava vs. =.K. Shrivastava, AI= 37*3 /el ':4

=a"inder Singh vs. Smt. ;omilla, AI= 37*8 /el '*:

=am ?arayan Eupta vs. Smt. =ameshwari, AI= 37** S- ''9

+hysall vs. +hysall, 537:76 4 All = 4*7 54796

Bennet vs. Bennett, 537976 3 All = :47

;ronab Kumar Ehose vs. Krishna Ehose, AI= 378: -al 37

S.M. Anima =oy vs. ;robodh Mohan =oy, AI= 3797 -al 4(

Madhusudan /as vs. Smt. ?arayani Bai, AI= 37*4 S- 33(

+uotes from the Judgement

O In conte%t of Section : of the Act and the sub"ect dealt with therein, namely to lay

down conditions for a valid indu marriage, the word NprocreateN has to be assigneda wider legal meaning that is, according to me, capacity of a spouse Nto give birth as

also to rear up and bring up children.N A spouse although not sterile and medically fit

to give birth to children may still be unfit, due to his or her mental disorder, to loo!after and bring up children.O

&eorge Joseph vs. Alphonsa alias ,ovel% Mathew and another
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Filed *nder:Section 19 of the Divorce Act 0 of 1869-

Appellant:(eor!e %ose;hRespondent:Al;honsa alias ovel2 athe' and another

Citation:AIR 1999 Kerala +.

Court:In the i!h "o#rt of Kerala

Judges:rs$ K K Usha and ( Sivaraan

This is a case where in )eorge (oseph approached the *cclesiastical Tribunal for the

nullity of his marriage on the ground that his wife suffered from mental illness at the

time of marriage

Facts

Eeorge 0oseph and Covely Mathew#s marriage was solemnized as per the rites and

ceremonies prevailing in the Syrian -hristian -ommunity. +ithin a year of marriage,Eeorge 0oseph approached cclesiastical )ribunal of )halachery /iocese for nullity of

his marriage. )he )ribunal declared the marriage between them as null and void.

Ma"or Archbishop#s )ribunal then sent the order for confirmation.

)he main contention of Eeorge was that Covely#s family members were well aware ofthe fact tha

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