KOTHARI, J. - (1.) `marriages are made in Heavens and they are only performed here on this earth', is the oft quoted extract from Hindu mythology. Hindu Marriages is a sacrament and not a contract is another tenet. To sustain and endure a marriage, the couple has to sail through various tides in life. Feeling of love, affection, depression, broken heart, unfulfilled desires are some of them. For ultimate good and peace in Society marriages must endure and last and not allowed to be broken easily. Hindu Marriage Act, 1955 was enacted by Parliament with these parameters in mind.
(2.) THIS is husband's appeal having lost before the Family Court, who sought a decree of annulment of his marriage which took place on 30. 11. 1993 according to Hindu rites under Sec. 12 of the Hindu Marriage Act, 1955 (hereinafter referred to 'as the Act') on the ground that a fraud was played upon him and his wife Smt. Chanchal @ Jaya who was suffering from Schizophrenia & Gilbert Syndrome and, therefore, after living with her for about 5 months, the marriage broke down on 14. 5. 1994 when the wife left the matrimonial home and since then the couple is living separately. The Family Court framed 3 issues as under: (i) whether the respondent's wife was suffering from a illness Gilbert Syndrome and whether she was a patient of Schizophrenia even prior to marriage? (ii)Whether the respondent was married to appellant husband by playing a fraud upon him; and (iii)Whether the appellant was entitled to a decree of annulment of marriage under Sec. 12 of the Act? While the first two issues were decided by the Family Court in favour of the applicant husband, the third issue was decided against the applicant husband denying the decree of annulment of the marriage mainly on the ground that even after coming to know of the said mental disorder of the wife admittedly and undisputedly on 24. 4. 94 the applicant husband continued to live and to cohabit with the wife upto 14. 5. 93 and, therefore, he was not entitled to the decree of annulment of the marriage in view of Sec. 12 (2) read with Sec. 12 (1) (c) of the Act. A look at relevant provisions would be apposite here: " 5. Conditions for a Hindu Marriage.-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; (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; or (c) has been subject to recurrent attacks of insanity (iii ). . . . . . . . . . (iv ). . . . . . . . . . (v ). . . . . . . . . . 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:- (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force (or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1), shall be entertained if - (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b ). . . . . . . . . . (i ). . . . . . . . . . (ii ). . . . . . . . . . (iii ). . . . . . . . . . 13. Divorce.- (1) Any marriage solemnized, whether before of after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i ). . . . . . . . . . (ia ). . . . . . . . . . (ib ). . . . . . . . . . (ii ). . . . . . . . . . (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.- In this clause, - (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or (iv ). . . . . . . . . . (v ). . . . . . . . . . (vi ). . . . . . . . . . (vii ). . . . . . . . . . " Being aggrieved by the said judgment and decree refusing the annulment of marriage, the appellant husband has approached this court by way of present appeal. Respondent wife has also filed cross-objections.
(3.) WE have heard learned Senior Advocate Mr. S. M. Mehta, for the appellant husband and Mr. RK Agrawal for the respondent-wife at length. This court even made efforts for reconciliation between the parties after calling the parties to Court but while the wife appeared to be ready and willing to unconditionally go to the matrimonial home and live with the husband, the appellant husband gave a flat refusal and was not at all ready and willing to take back the wife into the matrimonial home. The parties having constantly failed to arrive at a mutual settlement, the court proceeded to hear the present appeal on merits and the same was heard at length. Learned counsel for the appellant Mr. Mehta, Senior Advocate emphasized that the behaviour and attitude of respondent-wife was abnormal right from the beginning and he recounted few incidents referring to the averments made in the plaint and evidence produced before the Family Court. In brief the appellant husband urged that the appellant husband is a highly educated person and is working as a Lecturer in the College and he was not knowing about the mental disorder of respondent-wife who was suffering from Gilbert Syndrome and Paranoid Schizophrenia and had he known about it, he would have never married the said respondent. A fraud was played upon him and the fact of said mental disorder of the wife was concealed from him and his family members. Soon after the marriage on 30. 11. 93 on the very first night, the wife started behaving in an abnormal manner and on the very first night, she spoke in a highpitch tone and asked the husband that why should he not have put on shirt of black or red colour. This caused serious disturbance to the mind of husband. Thereafter also the behaviour of respondent wife continued to be abnormal and she was very sharp tongued with the family Members of the husband. At the time of marriage, the sister of respondent wife said that the colour of eyes of wife was yellow because of Jaundice for which she was taking the medicines. According to the appellant husband, the respondent wife started misbehaving with the husband even at the initial stages of their marriage and on 3. 12. 1993 when the family members were watching T. V. , she suddenly said that your T. V. is a junk. On 11. 3. 1993, when they were sleeping in the bedroom, the respondent wife suddenly jumped on the appellant husband and pressed his throat and the appellant could barely save himself. Similar incidents happened on 23rd and 24th April, 1994. Between 4. 4. 94 to 10. 4. 94 when the appellant husband with his family members and respondent wife went to Alwar to attend the marriage of his cousin sister and on 9. 4. 94, when they were going out for local sight seeing, the respondent wife insisted on riding with the appellant husband on his scooter and when requested to sit with other family members in the accompanying car, she ran towards the local lake and tried to commit suicide and was prevented to do so by the brother-in-law of appellant husband. On 10. 4. 94, when the couple was returning from Railway Station, the respondent wife suddenly in the cycle rickshaw itself kissed the appellant husband which was quite abnormal, which was refused by the appellant husband. All these incidents quoted above created serious doubt in the mind of the appellant husband that the respondent wife was suffering from mental disorder and, therefore, on 30. 4. 1994 he took her to Dr. G. K. Shukla, a famous doctor for such diseases in Jawahar Lal Nehru Hospital, Ajmer who asked for the previous prescriptions and before whom the respondent wife admitted that she was already under the treatment of Dr. Shiv Gautam, Professor of Psychiatric Department, SMS Hospital, Jaipur. On 2. 5. 1994 the appellant husband requested the father of respondent wife to send him the prescriptions of the earlier Dr. Shiv Gautam. However, when they were not sent, on 15. 5. 1994 the appellant husband himself went to Jaipur and brought such prescriptions which clearly established/ showed that the respondent wife was suffering from paranoid schizophrenia even prior to her marriage and was under the treatment. As already stated since 15. 4. 1994 both husband and wife are living separately and the application for annulment was filed by the appellant husband before the Family Court in June, 1994. The respondent wife herself contested the said petition before the Family Court, Ajmer. Both the parties got examined witnesses, four on the side of appellant husband, Aw. 1 Prakash Kumar, husband himself, Aw. 2 Dr. G. K. Shukla, Aw. 3 Shanti Devi, mother and Aw. 4 Satish Kumar, father of the appellant husband whereas NAW. 1 Smt. Chanchal alias Jaya, respondent wife and NAW. 2 Rammurti, mother of the respondent wife were examined. Documentary evidence was also placed before the Family Court in the form of few letters, certificate of Dr. Shiv Gautam, income certificate and doctors prescriptions of the wife respondent. After hearing the parties and taking written submissions, the Family Court decided the case as aforesaid denying the decree of annulment of marriage. ;