Smt. Sona vs Karambir

Court: Punjab-Haryana High Court

Bench: JUSTICE S Saksena

Smt. Sona vs Karambir on 15 March, 1995

Law Point:
Wife is not able to discharge her marital obligations. Evident that it has become impossible for the Husband to reside with the her. Divorce granted.

JUDGEMENT

1. Appellant wife has filed the appeal under Section 28 of the Hindu Marriage Act (in short the Act) assailing the decree of divorce granted against her under Section 13 of the Act.

2. Admittedly appellant was married with the respondent on 30.5.1980 at village More, Tehsil Charkhi Dadri according to Hindu rites. After marriage the appellant lived with the respondent-husband in his village Gahli.

3. The respondent-husband contended that after the marriage the appellant lived with him only for 3/4 days. During her stay he came to know that she is of unsound mind. Once she poured Lassi on the ground and then tried to smear it on her head. She could neither bear clothes properly not could look after any household chore. She used to laugh or weep without any rhyme or reason. Thus, he was convinced that her unsoundness of mind is incurable. When this fact was brought to the notice of appellant’s father he told him that he (respondent) is at liberty to remarry because the appellant is of unsound mind. Earlier on 2.2.1989 he filed petition for divorce but it was withdrawn due to a compromise arrived at between the parties that she will be examined by Medical Board of Rohtak and they will act according to their opinion. Thereafter she was examined by a Medical Board of three Doctors of Medical College and Hospital Rohtak. They admitted her in Psychiatric Ward for a couple of days for observation and finally opined that she is a lady of mental retardation. Psychological tests were done to test her intelligence and she was found to be having I.Q. 38. Thus according to them she falls under Moderate Range of Mental Ratardation. According to the respondent her unsoundness of mind is incurable. She cannot discharge her marital obligations. This has caused mental cruelty to him. It is difficult for him to live with her in harmony in the matrimonial home. Hence he claimed divorce on these grounds.

4. The appellant denied the alegations that she is having incurable unsoundness of mind or her behaviour is abnormal. According to her when she lived in the matrimonial home she performed all her duties. She has not caused any mental cruelty to her husband. Even the Medical Board has not opined that she suffers from incurable unsoundness of mind. According to her she was turned out of the matrimonial home by her husband and therefore, she is residing with her parents.

5. Parties examined themselves. Respondent-petitioner examined Doctor P.K. Paliwal, and Hira Nand and appellant examined her father also. The Trial Court on appraisal of the evidence on record came to the conclusion that the petitioner-husband has proved the ground of divorce and accordingly decree of divorce was granted in his favour.

6. The appellant’s learned Counsel contended that the respondent-petitioner has utterly failed to prove that she is a lady of unsound mind or further that it incurable. He commented that even Doctor P.K. Paliwal has not stated that the appellant is a lady of unsound mind. He alongwith two other Doctors examined Sona (appellant). She was kept under observation for 10th May, 1989 to 31st May, 1989. Their opinion is that she is a case of mental retardation but its range is Moderate as she is having I.Q. 38. The medical report is Ex. P.W. 2/A. Relying on Bimla v. Baldev Raj, 1987(2) H.L.R. 424 and Harpreet Singh v. Surinder Kaur, 1994 (3) 108 P.L.R. 312 = I (1994) DMC 497, he contended that even if it is to be believed that the appellant sometimes behave in an abnormal way, that will not prove that she is of unsound mind and her mental disorder is of such a kind and to such an extent that the respondent cannot reasonably be expected to live with the appellant. Advancing this argument he further stressed that there is no an iota of evidence on record to prove that the respondent cannot reasonably be expected to live with the appellant. Since the respondent has not proved this second parameter of the ground of divorce under Section 13(i)(iii) of the Act, no decree could have been passed in his favour. To strengthen his argument he relied upon Ram Narain Gupta v. Smt. Rameshwai Gupta, A.I.R. 1988 S.C. 2260 = II (1988) DMC 364.

7. The respondent-petitioner’s learned Counsel submitted that Dr. P.K. Paliwa (P.W. 2) has stated in cross-examination that her mental retardation is moderate but that condition is incurable. He has further clarified that the term unsoundness of mind covers the retardation of mind too. He further pointed out that even her father admitted that fact and executed the writing Ex. P.A. whereby he gave his consent for his remarriage. Sher Singh R.W. 2 had admitted on oath that he has written letter Ex.P.A. and had given it to the petitioner-respondent. If Sona would not have been of unsound mind her father would not have consented for respondent’s remarriage. Further a plain perusal of the statement of Sona (R.W. 1) is enough to arrive at a conclusion that she is of unsound mind. She is unable to give rational answers to the questions put to her. She has admitted that her father got her treated many a times but when asked as to who was the Doctor she pointed out towards her Counsel. She does not know the distinction between the name of her sister-in-law and name of the village. She is not at all educated. She has also admitted that she does not understand what is right and what is wrong. When she was asked that respondent-petitioner’s mother died because of her unsound mind she answered that she will sleep. She has admitted that her husband and father-in-law are upset because of her mental behaviour. She has also admitted that there is no other member in the petitioner’s family to look after the family members.

8. The authorities relied upon by the appellant’s Counsel are distinguishable on facts. From a bare perusal of the statement of the appellant it becomes evident that she is not a lady of sound mind. Her behaviour is abnormal. She is unable to discharge the marital obligations. She has lived with the petitioner only for 3/4 days. Even during that period her behaviour was very much abnormal. The details of abnormal behaviour are given by the petitioner-respondent. She herself has admitted many facts. Her father wrote letter Ex.P.A. to the respondent and expressed that he has no objection if he marries again and his daughter will not even claim maintenance. This further lends support to the petitioner’s case. Dr. P.K. Paliwal (P. 2) has categorically stated that she is a case of mental retardation as her I.Q. is 38. She falls under moderate range but it is incurable. Mental retardation also falls within the ambit of unsound mind. The Doctor’s report is Ex. P.W. 2/A.

9. The appellant-wife could not assign any other reason why she is not living in the matrimonial home. She cannot be believed that she was turned out of the house by the husband. Admittedly earlier on 2.2.1989, he filed a divorce petition but he withdrew that petition on the ground that she will be examined by a Medical Board of Doctors of Medical College and Hospital Rohtak and thereafter if need be he may again file a divorce petition. Both the parties admitted compromise in their statements recorded on 11.4.1989 and on that very day his petition was dismissed as withdrawn. Thereafter on Court order dated 12.4.1989 a Medical Board was constituted and she was admitted in Psychiatry Ward on 10th May, 1989. Thus the petitioner-respondent’s bona fides are evident. If she would have been a normal lady he would not have filed divorce petition again.

10. From the proved facts it is evident that it has become impossible for the respondent-husband to reside with the appellant. She is not able to discharge her marital obligations. She does not understand the ways of the world. By her this type of abnormal behaviour she has treated him with mental cruelty. In the petition the respondent-petitioner has pleaded that his mother died because of the shock of her unsound mind and his father is aged 70/75 years. There is no other member in his family to look after his family. Under these circumstances it has become impossible for him to live with his wife. No doubt respondent has not stated so on oath in clear words but from the tenor of his evidence it is evident that it has become impossible for him to live with his wife in the matrimonial home. He has pleaded so specifically. Under Section 20(2) of the Act this statement in his petition can be referred to as evidence.

11. Hence I find that the Trial Court has not fallen into any error in granting decree in favour of respondent on the ground that she is a lady of unsound mind which is incurable. By her abnormal behaviour she has treated him with mental cruelty.

12. Accordingly appeal being meritless, is hereby dismissed.