Badshah V Sou Urmila Badshah Godse&Anr-Second Wife entitled for maintenance U/S 125 Crpc

Badshah Vs Sou.Urmila Badshah Godse & Anr- Supreme Court of India judgement :

                                 

 Important Points in the Judgement :

1. Application filed by Second Wife for the purpose of claiming maintenance under Section 125 of criminal Procedure Code , will be treated as "Legally Wedded  Wife" for the purpose of interpretation of the section .
2. The principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution.The manifest purpose is to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups.
3. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.
4. The Court has impressed that if man and woman have been living together for a long time even without a valid marriage, as in that case, term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125,Cr.P.C

             

                                                                                                                 REPORTABLE  : 
        
             IN THE SUPREME COURT OF INDIA

             CRIMINAL APPELLATE JURISDICTION

             CRIMINAL MISCELLANEOUS PETITION No.19530/2013

                                            IN

             SPECIAL LEAVE PETITION (CRL.) No.8596/2013

 Badshah ….                                                                             ..Petitioner

 Versus

 Sou.Urmila Badshah Godse & Anr.                                  …Respondents

J U D G M E N T

 A.K.SIKRI, J.

1. There is a delay of 63 days in filing the present Special Leave Petition and further delay of 11 days in refilling Special Leave Petition. For the reasons contained in the application for condonation of delay, the delay in filing and refilling of SLP is condoned.

2. The petitioner seeks leave to appeal against the judgment and order dated 28.2.2013 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Writ Petition No.144/2012. By means of the impugned order, the High Court has upheld the award of maintenance to respondent No.1 at the rate of Rs.1000/- per month and to respondent No.2 (daughter) at the rate of Rs.500/- per month in the application filed by them under Section 125 of the Code of Criminal Procedure (Cr.P.C.) by the learned Trial Court and affirmed by the learned Additional Sessions Judge. Respondents herein had filed proceedings under Section 125, Cr.P.C. before Judicial Magistrate First Class (JMFC) alleging therein that respondent No.1 was the wife of the petitioner herein and respondent No.2 was their daughter, who was born out of the wedlock.

3. The respondents had stated in the petition that respondent No.1 was married with Popat Fapale. However, in the year 1997 she got divorce from her first husband. After getting divorce from her first husband in the year 1997 till the year 2005 she resided at the house of her parents. On demand of the petitioner for her marriage through mediators, she married him on 10.2.2005 at Devgad Temple situated at Hivargav-Pavsa. Her marriage was performed with the petitioner as per Hindu Rites and customs. After her marriage, she resided and cohabited with the petitioner. Initially for 3 months, the petitioner cohabited and maintained her nicely. After about three months of her marriage with petitioner, one lady Shobha came to the house of the petitioner and claimed herself to be his wife. On inquiring from the petitioner about the said lady Shobha, he replied that if she wanted to cohabit with him, she should reside quietly. Otherwise she was free to go back to her parents house. When Shobha came to the house of petitioner, respondent No.1 was already pregnant from the petitioner. Therefore, she tolerated the ill-treatment of the petitioner and stayed along with Shobha. However, the petitioner started giving mental and physical torture to her under the influence of liquor. The petitioner also used to doubt that her womb is begotten from somebody else and it should be aborted. However, when the ill-treatment of the petitioner became intolerable, she came back to the house of her parents. Respondent No.2, Shivanjali, was born on 28.11.2005. On the aforesaid averments, the respondents claimed maintenance for themselves.

4. The petitioner contested the petition by filing his written statement. He denied his relation with respondent Nos.1 and 2 as his wife and daughter respectively. He alleged that he never entered with any matrimonial alliance with respondent No.1 on 10.2.2005, as claimed by respondent No.1 and in fact respondent No.1, who was in the habit of leveling false allegation, was trying to blackmail him. He also denied co-habitation with respondent No.1 and claimed that he was not the father of respondent No.2 either. According to the
petitioner, he had married Shobha on 17.2.1979 and from that marriage he had two children viz. one daughter aged 20 years and one son aged 17 years and Shobha had been residing with him ever since their marriage. Therefore, respondent No.1 was not and could not be his wife during the subsistence of his first marriage and she had filed a false petition claiming her relationship with him.

5. Evidence was led by both the parties and after hearing the arguments the learned JMFC negatived the defence of the petitioner. In his judgment, the JMFC formulated four points and gave his answer thereto as under:

1.   Does applicant no.1 Urmila proves that she is  a wife  and applicant No.2  Shivanjali is daughter of non applicant? Yes

2.    Does applicant No.1 Urmila proves that non-applicant has deserted and  neglected them to maintain them through having sufficient  means? Yes.

3.   Whether applicant No.1 Urmila and Applicant  No.2 Shivanjali are entitled to get maintenance from non-applicant? –Yes.

4.   If yes, at what rate? Rs. 1,000/- p.m. to Applicant No. 1 and Rs. 500/- p.m. to Applicant No. 2.

6. It is not necessary to discuss the reasons which prevailed with the learned JMFC in giving his findings on Point Nos.1 and 2 on the basis of evidence produced before the Court. We say so because of the reason that these findings are upheld by the learned Additional Sessions Judge in his judgment while dismissing the revision petition of the petitioner herein as well as the High Court. These are concurrent findings of facts with no blemish or perversity. It was not even argued before us as the argument raised was that in any case respondent No.1 could not be treated as “wife” of the petitioner as
he was already married and therefore petition under Section 125 of the Cr.P.C. at her instance was not maintainable. Since, we are primarily concerned with this issue, which is the bone of contention, we proceed on the basis that the marriage between the petitioner and respondent No.1 was solemnized; respondent No.1 co-habited with the petitioner after the said marriage; and respondent No.2 is begotten as out of the said co-habitation, whose biological father is the petitioner. However, it would be pertinent to record that respondent No.1 had produced overwhelming evidence, which was believed by the learned JMFC that the marriage between the parties took place on 10.2.2005 at Devgad Temple. This evidence included photographs of marriage. Another finding of fact was arrived at, namely, respondent No.1 was a divorcee and divorce had taken place in the year 1997 between her and her first husband, which fact was in the clear knowledge of the petitioner, who had admitted the same even in his cross-examination.

7. The learned JMFC proceeded on the basis that the petitioner was  married to Shobha and was having two children out of the wedlock. However, at the time of solemnizing the marriage with respondent No.1, the petitioner intentionally suppressed this fact from her and co-habited with respondent No.1 as his wife.

8. The aforesaid facts emerging on record would reveal that at the time when the petitioner married the respondent No.1, he had living wife and the said marriage was still subsisting. Therefore, under the provisions of Hindu Marriage Act, the petitioner could not have married second time. At the same time, it has also come on record that the petitioner duped respondent No.1 by not revealing the fact of his first marriage and pretending that he was single. After this marriage both lived together and respondent No.2 was also born from this wedlock. In such circumstances, whether respondents could filed
application under Section 125 of the Cr.P.C., is the issue. We would like to pin point that in so far as respondent No.2 is concerned, who is proved to be the daughter of the petitioner, in no case he can shun the liability and obligation to pay maintenance to her. The learned counsel ventured to dispute the legal obligation qua respondent No.1 only.

9. The learned counsel for the petitioner referred to the judgment of this Court in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhay & Anr.[1] In that case, it was held that a Hindu lady who marred after coming into force Hindu Marriage Act, with a person who had a living lawfully wedded wife cannot be treated to be “legally wedded wife” and consequently her claim for maintenance under Section 125, Cr.P.C. is not maintainable. He also referred to later judgments in the case of Savitaben Somabai Bhatiya vs. State of Gujarat & Ors.[2] wherein the aforesaid judgment was followed. On the strength of these two judgments, the learned counsel argued that the expression “wife” in Section 125 cannot be stretched beyond the legislative
intent, which means only a legally wedded-wife. He argued that Section 5(1) (i) of the Hindu Marriage Act, 1955 clearly prohibits 2nd marriage during the subsistence of the 1st marriage, and so respondent No.1 cannot claim any equity; that the explanation clause (b) to Section 125 Cr.P.C. mentions the term “divorce” as a category of claimant, thus showing that only a legally wedded-wife can claim maintenance. He, thus, submitted that since the petitioner had proved that he was already married to Shobha and the said marriage was subsisting on the date of marriage with respondent No.1, this
marriage  was void and respondent No.1 was not legally wedded wife and therefore had no right to move application under Section 125 of the Cr.P.C.

10. Before we deal with the aforesaid submission, we would like to refer two more judgments of this Court. First case is known as Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Anr.[3] In this case it was held:

“The validity of the marriage for the purpose of summary proceeding under s.125 Cr.P.C. is to be determined on the basis of the evidence brought on record by the parties. The standard of proof of marriage in such proceeding is strict as is required in a trial of offence under section 494 of the IPC. If the claimant in proceedings under s.125 of the Code succeeds in showing that she and the respondent have lived together as husband and wife, the court can presume that they are legally wedded spouse, and in such a situation, the party who denies the marital status can rebut the presumption. Once it is admitted that the marriage procedure was followed then it is not necessary to further probe into whether the said procedure was complete as per the Hindu Rites in the proceedings under S.125,Cr.P.C. From the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of
marriage in proceedings under S.125, Cr.P.C. which are of summary nature strict proof of performance of essential rites is not required.

It is further held:

It is to be remembered that the order passed in an application under section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed Civil Suit which is spending before the trial court. In such a situation, this Court in S.Sethurathinam Pillai vs. Barbara alias Dolly Sethurathinam, (1971) 3 SCC 923, observed that maintenance under section 488, Cr.P.C. 1898 (similar to Section 125, Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It
was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal Court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties.”

11. No doubt, it is not a case of second marriage but deals with standard of proof under Section 125, Cr.P.C. by the applicant to prove her marriage with the respondent and was not a case of second marriage. However, at the same time, this reflects the approach which is to be adopted while considering the cases of maintenance under Section 125,Cr.P.C. which proceedings are in the nature of summary proceedings.

12. Second case which we would like to refer is Chanmuniya vs. Virendra Kumar Singh Kushwaha & Anr.[4] The Court has held that  the term “wife” occurring in Section 125, Cr.P.C. is to be given very wide interpretation. This is so stated in the following manner:

“A broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for reasonably long period of time, and strict proof of marriage should not be a pre- condition for maintenance under Section 125 of the Cr.P.C. so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125.”

13. No doubt, in Chanmuniya (supra), the Division Bench of this Court took the view that the matter needs to be considered with respect to Section 125,Cr.P.C., by larger bench and in para 41, three questions are formulated for determination by a larger bench which are as follows:

“1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125,Cr.P.C.?

2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125,Cr.P.C. having regard to the provisions of the Domestic Violence Act, 2005?

3. Whether a marriage performed according to the customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to
maintenance under Section 125,Cr.P.C.?”

14. On this basis, it was pleaded before us that this matter be also tagged along with the aforesaid case. However, in the facts of the present case, we do not deem it proper to do so as we find that the view taken by the courts below is perfectly justified. We are dealing with a situation where the marriage between the parties has been proved. However, the petitioner was already married. But he duped the respondent by suppressing the factum of alleged first marriage. On these facts, in our opinion, he cannot be permitted to deny the benefit of maintenance to the respondent, taking advantage of his own wrong. Our reasons for this course of action are stated hereinafter.

15. Firstly, in Chanmuniya case, the parties had been living together for a long time and on that basis question arose as to whether there would be a presumption of marriage between the two because of the said reason, thus, giving rise to claim of maintenance under Section 125,Cr.P.C. by interpreting the term “wife” widely. The Court has impressed that if man and woman have been living together for a long time even without a valid marriage, as in that case, term of valid marriage entitling such a woman to maintenance should be drawn and a woman in such a case should be entitled to maintain application under Section 125,Cr.P.C. On the other hand, in the present case, respondent No.1 has been able to prove, by cogent and strong evidence, that the petitioner and respondent No.1 had been married each other.

16. Secondly, as already discussed above, when the marriage between respondent No.1 and petitioner was solemnized, the petitioner had   kept the respondent No.1 in dark about her first marriage. A false representation was given to respondent No.1 that he was single and was competent to enter into martial tie with respondent No.1. In such circumstances, can the petitioner be allowed to take advantage of his own wrong and turn around to say that respondents are not entitled to maintenance by filing the petition under Section 125,Cr.P.C. as respondent No.1 is not “legally wedded wife” of the
petitioner? Our answer is in the negative. We are of the view that at least for the purpose of Section 125 Cr.P.C., respondent No.1 would be treated as the wife of the petitioner, going by the spirit of the two judgments we have reproduced above. For this reason, we are of the opinion that the judgments of this Court in Adhav and Savitaben cases would apply only in those circumstances where a woman married a man with full knowledge of the first subsisting marriage. In such cases, she should know that second marriage with such a person is impermissible and there is an embargo under the Hindu
Marriage Act and therefore she has to suffer the consequences thereof. The said judgment would not apply to those cases where a man marriages second time by keeping that lady in dark about the first surviving marriage. That is the only way two sets of judgments can be reconciled and harmonized.

17. Thirdly, in such cases, purposive interpretation needs to be given to the provisions of Section 125,Cr.P.C. While dealing with the application of destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Preamble to the Constitution of India clearly signals that we have chosen the democratic path under rule of law to
achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the Courts to advance the cause of the social justice. While giving interpretation to a particular provision, the Court is supposed to bridge the gap between the law and society.

18. Of late, in this very direction, it is emphasized that the
Courts have to adopt different approaches in “social justice
adjudication”, which is also known as “social context adjudication”
as mere “adversarial approach” may not be very appropriate. There
are number of social justice legislations giving special protection
and benefits to vulnerable groups in the society. Prof. Madhava
Menon describes it eloquently:

“It is, therefore, respectfully submitted that “social context judging” is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are
called upon to dispense equal justice. Apart from the social- economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker   party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication.”[5]

19. Provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour.

20. The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases,
however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs. In both Constitutional and statutory interpretation, the Court is supposed to exercise direction in determining the proper relationship between the subjective and objective purpose of the law.

21. Cardozo acknowledges in his classic[6]

“….no system of jus scriptum has been able to escape the need of it”, and he elaborates: “It is true that Codes and Statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if not avoided. Interpretation is  often spoken of as if it were nothing but the search and the discovery of a meaning which, however, obscure and latent, had none the less a real and ascertainable pre- existence in the legislator’s mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a judge’s troubles in ascribing meaning to a stature.”

Says Gray in his lecture[7]

“The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what is would have intended on a point not present to its mind, if the point had been present.”

22. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision—“libre recherché sceintifique” i.e. “free Scientific research”. We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances.

23. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano[8] to Shabana Bano[9] guaranteeing maintenance rights to Muslim women is a classical example.

24. In Rameshchandra Daga v. Rameshwari Daga[10], the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not ‘immoral’ and hence a financially dependent woman cannot be denied maintenance on this ground.

25. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon’s Case[11] which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, Cr.P.C., such a woman is to be treated as the legally wedded wife.

26. The principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution. The manifest purpose is to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Its foundation spring is humanistic. In its operation field all though, it lays down the permissible categories under its benefaction, which
are so entitled either because of the tenets supported by clear public policy or because of the need to subserve the social and individual morality measured for maintenance.

27. In taking the aforesaid view, we are also encouraged by the following observations of this Court in Capt.Ramesh Chander Kaushal  vs. Veena Kaushal [12]:

“The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause the cause of the derelicts.”

28. For the aforesaid reasons, we are not inclined to grant leave and dismiss this petition.

J.Ranjana Prakash Desai

J.A.K.Sikri
New Delhi,
October 18, 2013
______________________________________________________
[1] (1988) 1 SCC 530
[2] (2005) 3 SCC 636
[3] (1999) 7 SCC 675
[4] (2011) 1 SCC 141
[5] Delivered a key note address on “Legal Education in Social Context”
[6] The Nature of Judicial Process
[7] From the Book “The Nature and Sources of the Law” by John Chipman
Gray
[8] AIR 1985 SC 945
[9] AIR 2010 SC 305
[10] AIR 2005 SC 422
[11] (1854) 3 Co.Rep.7a,7b
[12] (1978) 4 SCC 70

Schizophrenia is manageable disease-Petition for divorce dismmised -A.P High order upheld by S.C

Key points in Judgements :Schizophrenia is manageable&treatable disease like Diabetes and High B.P , Petition for divorce by filed on insanity ground under Section 13 (1) (iii) of the Hindu Marriage Act, 1955 dismissed -A.P High judgement upholded ,appeals in Supreme Court  fails,O.P filed for the Restitution of conjugal rights  by wife, upheld -prevails.

Full Text of Hon'ble Supreme Court Judgement

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8264 OF 2013

(Arising out of SLP (C) No. 3544 of 2007)

KOLLAM CHANDRA SEKHAR ... APPELLANT

Vs.

 KOLLAM PADMA LATHA ... RESPONDENT

J U D G M E N T

V. Gopala Gowda, J.

Leave granted.

This appeal is directed against the common  judgment and order dated 28.09.2006 passed in CMA No. 2858 of 2002 and CMA No. 2859 of 2002 of the High Court of Andhra Pradesh as it has set aside the judgment and decree of divorce granted in favour of the appellant-husband dissolving the marriage between the appellant and respondent by dismissing the Original Petition No. 203 of 2000 filed by the appellant for dissolution of their marriage under Section 13 (1)(iii) of the Hindu Marriage Act, 1955 (in short ‘the Act’) and allowing the Original Petition No. 1 of 1999 filed by the respondent-wife against the appellant by granting restitution of conjugal rights urging various facts and legal contentions. The factual and rival legal contentions urged on behalf of the parties are adverted to in this judgment with a view to examine the tenability of the appellant's submissions.

The relevant facts are stated as hereunder:

The marriage between the appellant and the respondent was solemnized on 31.05.1995 at Kakinada (Andhra Pradesh) as per Hindu rites and customs and their marriage was consummated. It is the case of the appellant that at the time of marriage, he was working as Senior Resident at the All India Institute of Medical Sciences in New Delhi. After marriage, the respondent-wife joined the appellant at New Delhi and secured employment in the said Institute.. It is the case of both the parties that when

they were living at New Delhi, the brother of the appellant died in an accident. At that point of time, the appellant herein came to Yanam (Andhra

Pradesh) leaving the respondent at Delhi, who gave birth to a female child on 07.07.1997. It is contended by the learned senior counsel for the appellant, Mr.Jaideep Gupta, in the pleadings that dispute arose between the appellant and his parents on the one hand and the in-laws of the deceased brother of  the appellant on the other.There were threats to kill the appellant. Duringthat period, respondent’s father stayed in the company of the appellant and his parents at Yanam.At that time, both the appellant and the respondent suffered tensions and they were restless on account of the situation created by the in-laws of the appellant’s deceased brother. Both of them received medical treatment and due to depression, appellant submitted his resignation and the respondent also resigned from her job at AIIMS.

The appellant then joined as Assistant Professor in Gandhi Hospital at Secunderabad.The respondent  and the child also joined him at Hyderabad. It is their further case that while they were in Hyderabad, the appellant used to receive threatening calls from the in-laws of his deceased brother which used to create tension in their family. The respondent was treated for hypothyroidism problem.  In the counter statement filed by the respondent, she contended that after one year of their marriage, the appellant and his parents started harassing her by demanding colour television, refrigerator etc. In May 1998, after the death of the father of the respondent, the appellant went on insisting that the respondent gets the house situated at Rajahmundry registered in his name and when she refused, he started to torture her. The respondent applied for post-graduate entrance examination, which was scheduled to be held on 13.08.1998, and the appellant was making arrangements to go to Madras on 12.08.1998 in connection with FRCS admission. On 11.08.1998, the appellant picked up a quarrel with the respondent insisting that she must get the house at Rajahmundry registered in his name to which she did not agree. The respondent also requested him not to go to Madras as she has to appear for the Post- Graduate entrance examination on 13.08.1998 for which the respondent alleged that the appellant badly tortured her  both physically and mentally. A telegram was sent to her mother with false allegations of her mental illness with a view to create evidence as he could have as well conveyed the message through telephone as there was  to appear for FRCS examination and would spend most of his time in the libraries and the respondent and their child would be left alone without help, he suggested that the appellant should go to Rajahmundry and stay with her parents to which she agreed and went to Rajahmundry and joined Chaitanya Nursing Home  and Bhavani Nursing Home to work as a doctor. In the second week of November, 1998, the appellant came to Rajahmundry and asked the respondent to go to Yanam and stay with his parents saying that she can have the company of his parents and she can carry on the medical profession along  with his father who was also a doctor to which she agreed.Thereafter, the appellant got issued a notice dated 25.11.1998 to the respondent making certain false allegations saying that  she was suffering from schizophrenia and she had suicidal tendencies etc., with the object of marrying again for fat dowry. The respondent has denied thatshe suffered from schizophrenia or suicidal tendencies and further stated that during her delivery days and subsequently on account of thethreats received from in-laws of the appellant’s deceased brother, there was some depression for which the respondent was treated and the appellant never  allowed her to go through the prescriptions of her treatment at anytime and she was also not allowed to see the medicines given to her as part of treatment for her depression. It is stated by her that she believes that as part of the ill motive of the appellant, he might have administered some medicines to build up a false case against her with a view to file petition for dissolution of marriage. The respondent got issued a reply notice to the lawyer of the appellant mentioning the above facts on 18.12.1998.

It is further contended by the learned senior counsel for the respondent, Mr. Pallav Sisodia, that the appellant never cared for her and encouraged his

parents to dislodge her from the family house. She filed O.S. No.53 of 1998 on the file of District Munsif’s Court, Yanam for permanent injunction against the parents of the appellant and filed Interlocutory Application No. 237 of 1998 for temporary injunction against them not to evict her from the residential house where she was staying.  

It is further stated that the appellant has no right to withdraw from her society and demand for divorce and that she is entitled for restitution of conjugal rights. It is contended by the respondent that the impugned judgment is a well-considered judgment both on facts and in law and the Division Bench of theHigh Court rightly allowed the appeals filed by the respondent refusing to grant a decree of divorce infavour of the appellant and granting a decree forrestitution of conjugal rights in favour of the respondent.

Therefore, the respondent has prayed for dismissal of the petition filed by the appellant praying for grant of decree of divorce against her.The appellant filed the counter statement to the petition for  restitution of conjugal rights denyingthe allegations made in the petition. He contended that  the behaviour of the respondent even when they were staying at New Delhi was marked by emotional disturbances and she also received treatment from a psychiatrist there. He has further stated that he underwent severe mental stress due to irrational behavioural pattern of the respondent. Her erratic behaviour started increasing as time passed by. She started manifesting symptoms of schizophrenia like violent or aggressive behaviour and a tendency to be harsh and hostile towards other members of the family without any reason whatsoever which were notvisible earlier. For that reason, she was kept withher parents’ family so that she can develop a senseof security which is required for patientssuffering from schizophrenia.

He has further stated that she also started developing the symptoms like sudden withdrawal and being silent for long periods without any communication.Further, he has stated that after the death of hisbrother, he brought his wife and child to Hyderabad where he had secured a job as Assistant Professor of Orthopaedics in Gandhi Medical College. He further contended that on account of the death of his brother, tension developed in his family and that neither he nor his family members harassed the respondent demanding goods etc. He also stated that at the time of marriage, mental status of the respondent was not known to him. Further, the  respondent tried to evict his parents from their house at Yanam and when she failed in her attempt,she filed O.S. No. 53 of 1998 at District Munsif’sCourt, Yanam which shows her erratic attitude towards the parents of the appellant.

The respondent  fell seriously ill due to whichthe appellant sent her mother a telegram to come and take care of her. She went to live with her motherat Rajahmundry as she consulted some psychiatrists who advised her to live with her mother. The appellant visited her after two weeks and found that her mental condition had aggravated to such a pointhat it would be impossible for  him to live with her as her husband. He contended that she was showing all the classical symptoms of schizophrenia including violence, psychotic behaviour, suicidal tendencies,withdrawal symptoms and abnormal and irrational behaviour including in the matter of her speech andher conversation. She also used to say that shewould like to commit suicide and he was, thus,worried about her and the child.

The respondent was continuously on psychiatric treatment. The above facts were narrated by the appellant in his divorce petition filed before the trial court. He has further contended that under the circumstances narrated above, it was impossible for him to resume cohabitation with the respondent as he was afraid of danger to his life and that of his daughter and therefore, he requested the Court for grant of a decree of divorce and that the respondent’s petition for restitution of conjugal rights be dismissed as she is not entitled to the relief prayed for by her.

The learned trial Judge in his judgment held that the appellant is entitled to a decree of divorce if not annulment of marriage and that since the disease of the respondent was not disclosed to the appellant before marriage, she is not entitled to a decree of restitution of conjugal rights. As a result, O.P. 1/99 filed by the respondent for restitution of conjugal rights was dismissed and O.P.203/2000 filed by the appellant for grant of divorce was allowed by dissolving the marriage between the appellant and the respondent and decree of divorce was granted.

The trial court relied on the certified copy of report from Institute of Mental Health, Government Hospital for Mental Care, Sanjeeva Reddy Nagar, Hyderabad, bearing No. A and D/402/99 submitted to the Registrar (Judicial) High Court of Andhra Pradesh, Hyderabad, marked as Exh. B-10, given as per procedure and by conducting chemical examination etc.

It is stated that the report clearly showed that the respondent is suffering from schizophrenia. The trial court relied on the case of Tarlochan Singh Vs. Jit Kaur,[1 AIR 1986 P & H 379] where it was held that since the fact of the wife being a patient of schizophrenia was  amount to matrimonial fraud and therefore it was held the husband was entitled to decree of divorce if not annulment of marriage.

Being aggrieved by the common judgment and decree of the trial court passed in O.P. Nos. 1/99 and 203/2000 the respondent filed appeals before the High Court of Andhra Pradesh questioning the correctness of the same urging various grounds. The High Court on re-appreciation of pleadings and evidence held that  there is no positive evidence to show that the respondent has suffered schizophrenia and even in the case that she suffered from schizophrenia, it cannot be said that she was suffering from such a serious form of the disease that it would attract the requirements of Section 13 (1) (iii) of the Act for grant of decree for dissolution of marriage between the parties. On perusal of the facts and legal evidence on record and hearing rival legal contentions urged by both the parties,  the points that would arise for consideration of this Court are:

(1) Whether the respondent is suffering from a serious mental disorder i.e. schizophrenia or incurable unsoundness of mind, and can this be considered as a ground for divorce under Section 13 (1) (iii) of the Hindu

Marriage Act, 1955?

 (2) Whether the High Court has correctly reappreciated the facts pleaded and evidence on record while dismissing the divorce petition of the appellant and allowing the petition for restitution of conjugal rights of the respondent?

(3) Whether the appeal filed by the appellant has to be allowed and we must restore the judgment and decree of trial court  and dismiss the petition for conjugal rights filed by the respondent?

(4) What order?

Answer to point nos.1 to 3:

These points are answered together as they are interrelated. On careful scrutiny of the pleadings and evidence on record and the decision of this

Court referred to above, the provision of Section 13(1) (iii) of the Act is interpreted and the meanings of 'unsound mind' and 'mental disorder' as

occurring in the above provisions of the Act are examined and referred to in the impugned judgment. The High Court, while examining the correctness of the findings recorded in the common judgment of the trial court, has placed reliance on Ram Narain Gupta vs. Rameshwari Gupta, (1988) 5 SCC 247, wherein this Court has interpreted the provision of Section 13(1)(iii) of the Act and laid down the law regarding mental disorder or unsound mind as a ground available to a party to get dissolution of the marriage. The relevant portions with regard to ‘unsoundness of mind’ and ‘mental disorder’ from the case referred to supra are extracted hereunder:

The context in which the ideas of unsoundness of “mind” and “mental disorder” occur in the Section as grounds for dissolution of a marriage, require the assessment of the degree of the “mental disorder”. Its degree must be such that the spouse seeking relief cannot reasonably  be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law.

The answer to the apparently simple and perhaps misleading question as to “who is normal?” runs inevitably into philosophical thickets of the concept of mental normalcy and as involved therein, of the ‘mind’ itself. These concepts of “mind”, “mental phenomena” etc., are more known than understood and the theories of “mind” and “mentation” do not indicate any internal consistency, let alone validity, of their basic ideas.

Theories of “mind” with cognate ideas of “perception” and “consciousness” encompass a wide range of thoughts, more ontological than enistemological. Theories of mental phenomena are diverse and include the dualist concept shared by Descartes and Sigmund Freud of the separateness of the existence of the physical or the material world as distinguished from the non-material mental world with its existence only spatially and not temporally. There is, again, the theory which stresses the neurological basis of the “mental phenomenon” by asserting the functional correlation of the neuronal arrangements of the brain with mental phenomena.

The “behaviourist” tradition, on the other hand, interprets all reference to mind as “constructs” out of behaviour. “Functionalism”, however, seems to assert that mind isthe logical or functional state of physical systems.But all theories seem to recognise, in varying degrees, that the psychometric controlover the mind operates at a level not yet fully taught to science. When a person is oppressed by intense and seemingly insoluble  moral dilemmas,or when grief of loss of dear ones etch away all the bright colours of life, or where a broken marriage brings with it the loss of emotional security,what standards of normalcy of behaviour could be formulated and applied?

The arcane infallibility of science has not fully pervaded the study of the non-material dimensions of “being”. Speaking of the indisposition of science towards this study, a learned Author says: “...we have inherited cultural resistance to treating the conscious mind as a biological phenomenon like any other. This goes back to Descartes in the seventeenth century. Descartes divided the world into two kinds of substances:mental substances and physical substances. Physical substances were the proper domain of science and mental substances were the property of religion.Something of an acceptance of this division

exists even to the present day. So, for example,consciousness and subjectivity are often regarded as unsuitable topics for science. And this reluctance to deal with consciousness and subjectivity is part of a persistent objectifying tendency.People think science must be about objectively observable phenomena. On occasions when I have lectured to audiences of biologists and neurophysiologists,I have found many of them very reluctant to treat the mind in general and consciousnessin particular as a proper domain ofscientific investigation....the use of the noun “mind” is dangerously inhabited by the ghosts of old philosophical theories.It is very difficult to resist the idea that the mind is a kind of a thing, or at least an arena, or at least some kind of black box inwhich all of these mental processes occur. Lord Wilberforce, referring to the psychological basis of physical illness said that the area of ignorance of the body-mind relation seems to expand with that of knowledge. In McLoughlinv. O’ Brian, the learned Lord said, though in a different context: (All ER p. 301)“Whatever is unknown about the mind-body relationship(and the area of ignorance seems to expandwith that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system maybe caused by the impact, through the senses, of external events on the mind. There may thus be produced what is as identifiable an illness as any that may be caused by direct physical impact. It is safe to say that this, in general terms, is understood by the ordinary man or woman who ishypothesised by the courts...”

 But the illnesses that are called “mental”are kept distinguished from those that ail the“body” in a fundamental way. In “Philosophy and Medicine”, Vol. 5 at page X the learned Editorrefers to what distinguishes the two qualitatively:“Undoubtedly, mental illness is so disvalued because it strikes at the very roots of our person-hood. It visits us with uncontrollable fears, obsessions,compulsions, and anxieties..... . . This is captured in part by the language we use in describing the mentally ill. One is an hysteric, is a neurotic, is an obsessive, is aschizophrenic, is a manic-depressive. On the other hand, one has heart disease, has cancer,has the flu, has malaria, has smallpox...”The principle laid down by this Court in the aforesaid case with all fours is applicable to the fact situation on hand wherein this Court has rightly referred to Section 13 (1) (iii) of the Act and explanation to the said clause and made certain pertinent  observations regarding “unsound mind” or“mental disorder” and the application of the same as grounds for dissolution of marriage. This Court cautioned that Section 13 (1) (iii) of the Act does not make a mere existence of a mental disorder of any degree sufficient in law to justify the dissolution of marriage. The High Court in the present case stated that a husband cannot simply abandon his wife because she is suffering from sickness and relied on the evidence of RW-2, Dr. Krishna Murthy,Superintendent, Institute of Mental Health,Hyderabad, where in it is stated by him that schizophrenia can be put on par with diseases like hypertension and diabetes on the question of treatability meaning that constant medication is required in which event the disease would be under control. The High Court also relied on the evidence

of PW-4, Dr. Ravi S. Pandey, Professor and Head of Department of Psychiatry at NIMHANS, Bangalore, who had examined the respondent and stated that the team could not find any evidence suggesting that she has been suffering from schizophrenia at the time of examining her and also stated in his cross examination that no treatment including drugs were

given to her at NIMHANS as they did not find any abnormality in her behaviour. He also stated that it is true that psychiatrically there is no contraindication in leading a normal conjugal life. Thus,they gave her a certificate, which is marked as Exh.B-11, based on clinical examination and in the absence of any abnormal behaviour including psychiatric features in the past history of respondent. The High Court has not accepted the finding of fact recorded by the trial court on the contentious issue and further stated that “schizophrenia” does not appear to be such a dangerous disease and it can be controlled by drugs and in the present case, this finding is supported by evidence of RW-2, who has stated in his examination in- chief that the appellant herein has not made any  reference to any of the acts of the respondent that can constitute “schizophrenia” ailment. It is further held by the High Court that there is no positive evidence to show that the respondent has suffered from schizophrenia and even in the case she has suffered from some form of schizophrenia, it can not be said that she was suffering from such a serious form of the disease that would attract the requirement as provided under Section 13 (1) (iii) of the Act and that it is of such a nature that it would make life of the appellant so miserable that hecannot lead a marital life with her.

We are of the opinion that the High Court has rightly examined the entire evidence on record and correctly found fault with the findings of fact recorded by the trial court with regard to the ailment attributed to the respondent for seeking dissolution of marriage under the ground of 'unsound mind' which is a non-existent fact.

In the case of Vinita Saxena v. Pankaj Pandit3 (2006)3 SCC 778 this Court has examined in detail the issue of schizophrenia where in the facts are different and the facts and evidence on record are not similar to the case on hand.Therefore, the observations made in the judgment for grant of decree for dissolution of marriage under Section 13 (1) (ia) and Section 13(1) (iii) of the Act cannot be applied to the fact situation of the case on hand. But, we would like to examine what was said in that case on the issue of this disease,schizophrenia -:

“What is the disease and what one should know?

*A psychotic lacks insight, has the whole of hispersonality distorted by illness, and constructsa false environment out of his subjective experiences.*It is customary to define ‘delusion’ more orless in the following way. A delusion is a false unshakeable belief, which is out of keeping with the patient’s social and cultural background.German psychiatrists tend to stress the morbid origin of the delusion, and quite rightly so. Adelusion is the product of internal morbid processes and this is what makes it unamenable to external influences.*Apophanous experiences which occur in acute schizophrenia and form the basis of delusions of persecution, but these delusions are also the result of auditory hallucinations, bodily hallucinations and experiences of passivity. Delusions of persecution can take many forms. In delusions of reference, the patient feels that people are talking about him, slandering him or spying onhim. It may be difficult to be certain if the patient has delusions of self-reference or if hehas self-reference hallucinosis. Ideas of delusions or reference are not confined to schizophrenia, but can occur in depressive illness and psychogenic reactions.

Causes

The causes of schizophrenia are still under debate.A chemical imbalance in the brain seems toplay a role, but the reason for the imbalance remains

unclear. One is a bit more likely to becomes chizophrenic if he has a family member with the illness. Stress does not cause schizophrenia, but can make the symptoms worse.

Risks

Without medication and therapy, most paranoid schizophrenics are unable to function in the realworld. If they fall victim to severe hallucinations

and delusions, they can be a danger tothemselves and those around them.

What is schizophrenia?

Schizophrenia is a chronic, disabling mental illness

characterised by:

*Psychotic symptoms

*Disordered thinking

*Emotional blunting

How does schizophrenia develop?

Schizophrenia generally develops in late adolescence

or early adulthood, most often:

*In the late teens or early twenties in men

*In the twenties to early thirties in women

What are the symptoms of schizophrenia?

Although schizophrenia is chronic, symptoms may

improve at times (periods of remission) and worsen at other times (acute episodes, or period of relapse).

Initial symptoms appear gradually and can include:

*Feeling tense

*Difficulty in concentrating

*Difficulty in sleeping

*Social withdrawal

What are psychotic symptoms?

*Psychotic symptoms include:

*Hallucinations: hearing voices or seeing things.

*Delusions: bizarre beliefs with no basis in reality

(for example delusions of persecution or delusions of grandeur).

These symptoms occur during acute or psychotic phases of the illness, but may improve during periods of remission.

A patient may experience: *A single psychotic episode during the course of the illness *Multiple psychotic episodes over a lifetime…”As  per evidence of RW-2, schizophrenia is a treatable, manageable disease, which can be put on par with hypertension and diabetes. So also, PW-4, who had examined the respondent at NIMHANS, Bangalore stated that the team could not find any evidencesuggesting schizophrenia at the time of theirexamining the  respondent and he had stated in hiscross-examination that no treatment  including drugs was given to her at NIMHANS as they did not find any abnormality in her. They thus gave her a certificateof normal mental status, based on the absence of anyabnormal findings in her medical report includingpsychiatric features in the past history and normalpsychological test. We have carefully perused theReport marked as Exh. B-10 dated 24.4.1999 given bythe Doctors of Institute of Mental Health, Hyderabad before the trial court.

The learned trial Judge has misread the contents of the said report and alsowrongly interpreted the same and recorded the findingthat the respondent is suffering from the ailment of‘schizophrenia’ and therefore he has accepted thecase of the appellant who has made out a ground underSection 13(1) (iii) of the Act wherein it is stated that a spouse suffering from schizophrenia or incurably unsound mind is a ground for dissolution of the marriage between the parties.

The High Court has thus rightly set aside the decree of dissolution of marriage granted in favour of the appellant and dismissed his petition and

granted a decree of restitution of conjugal rights in favour of  the respondent by allowing her petition. The High Court has recorded the finding of fact on re-appreciation of material evidence on record and has rightly held that the trial court has erroneously come  to the conclusion that the respondent was suffering from schizophrenia by relying on the evidence of PW-1, who is the appellant  herein and as per the opinion given by the Committee of Doctors in Ex.B-10. In the deposition by witness RW-2, Dr.K.Krishna Murthy, he has stated in his examination in-chief  that Schizophrenia has become eminently treatable with the advent of many new psychiatric drugs. He further stated that many patients with schizophrenia are able to lead a near normal life with medication.

The trial court has erroneously relied on certain cases referred to and applied the principle laid down in those cases to the facts of this case even though they are not applicable to the case on hand either on facts or in law as the appellant has not proved the allegations made in the petition against the respondent by adducing positive and substantive evidence on record to substantiate the same and that the alleged ailment of the respondent  would fall within the provision of Section 13(1)(iii) of the Act. Therefore, he has not made out a case for grant of decree for dissolution of marriage. We have carefully examined Ex. Nos. X-6 toX-11, which are the prescriptions of medicine prescribed to her by Dr. Mallikarjuna Rao, Dr. PramodKumar and Dr.M.Kumari Devi. The above prescriptions mention the symptoms of the ailment of the respondent, which were in the nature of delusions, suspicious  apprehensions and fears, altered behaviours, suicidal tendency and past history of depression. Reliance is placed by PW 1 on the abovedocumentary evidence to prove that the respondent was suffering from the mental disorder of schizophrenia  and therefore it squarely falls within the provisionof Section 13(1)(iii) of the Act for grant of decreeof dissolution of marriage in his favour. The High Court has rightly held that the trial court haserroneously accepted the same and recorded its finding of fact on the contentious issues to pass decree of divorce in favour of the appellant, which is contrary to the decision of this Court in the caseof Ram Narain Gupta vs. Rameshwari Gupta supra. Thes ame decision has been relied upon by the respondent before the High Court, wherein the said decision wascorrectly accepted by it to set aside the erroneousfinding of fact recorded by the trial court on the contentious issue.

The legal question that arises for our consideration is whether the marriage between theparties can be dissolved by granting a decree of divorce on the basis of one spouse's mental illness which includes schizophrenia under Section 13 (1)(iii) of the Act. In the English case of Whysall v.Whysall , (1959) 3 All ER 389  it was held that a spouse is ‘incurably of unsound mind’ if he or she is of such mental incapacity as to make normal married life impossible and there is no prospect of any improvement in mental health, which would make this possible in future. The High Court of Judicature at Calcutta, in PramathaKumar Maity v Ashima Maity  AIR 1991 Cal 123  has held that mental disorder of the wife, even if proved, cannot, byitself, warrant a decree of divorce and it must be further proved that it is of such a nature as the husband could not be expected to live with the wife.The Allahabad High Court, in Mt. Tilti Vs. AlfredRebert Jones66 AIR 1934 All 273 has held that where it has come on record that the wife has improved her educational qualifications and has been looking after her children, the apprehension of the husband that there is danger to his life or to his children is not borneout is the finding recorded in the said case.Inability to manage his or her affairs is an essential attribute of an “incurably unsound mind”.

The facts pleaded and the evidence placed on recordproduced by the appellant in this case does not establish such inability as a ground on which dissolution of marriage was sought for by him beforethe trial court.

The High Court has rightly set aside the said finding and allowed the appeal of the respondent after careful scrutiny of Exh.B-10. The correctness of the finding of the High Court in the impugned judgment is seriously challenged by the learned senior counsel on behalf of the appellant in this appeal. We have examined this contention, aftercareful perusal of the contents of Exh.B-10. In our considered view, the contents  of the report as stated by the team of doctors do not support the case of the appellant that the respondent is suffering from a serious case of schizophrenia, in order to grant  the decree of divorce under Section 13(1) (iii) of the Act. The report states that the respondent, although suffering from ‘illness of schizophrenic type’, does not show symptoms of psychotic illness at present and has responded well to the treatment from the acute phases and her symptoms are fairly under control withthe medication which had been administered to her.It was further stated that if there is good compliance with treatment coupled with good social and family support, a schizophrenic patient can continue their marital relationship. In view of the aforesaid findings and reasons recorded, we have to hold that the patient is not suffering from the symptoms of schizophrenia as detailed above. We are of the view that the High Court in exercise of its appellate jurisdiction has rightly come to a different conclusion that the respondent is not suffering from the ailment of schizophrenia or incurable unsoundness of mind. Further, the High Court has rightly rejected the finding of the trial court which is based on exh.B-10 and other documentary and oral evidence by applying the ratio laid down by this Court in the case of Ram NarainGupta vs. Rameshwari Gupta referred to supra. A pertinent point to be taken into consideration isthat the respondent had not only completed MBBS but also did a post graduate diploma in Medicine and was continuously working as a Government Medical Officer and had she been suffering from any serious kind of mental disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work in the said post. The appellant-husband can not simply abandon his wife because she is suffering from sickness. Therefore, the High Court allowed both the CMAs and dismissed O.P. No. 203/2000 filed by the appellant for divorce and allowed O.P.No.1/99 filed by the respondent for restitution of conjugal rights wherein the High Court granted decreeof restitution of conjugal rights in favour of therespondent.

It is thus clear that the respondent, even if she did suffer from schizophrenia, is in a much better health condition at present. Therefore, this Court cannot grant the dissolution of marriage on the basis of one spouse's illness. The appellant has not proved the fact of mental disorder of the respondent with reference to the allegation made against her that she

has been suffering from schizophrenia by producing positive and substantive evidence on record and on the other hand, it has been proved that the respondent is in much better health condition and does not show signs of schizophrenia as per the most recent medical report from NIMHANS, as deposed by PW-4 in his evidence before the trial court.

For the aforesaid reasons, we are of the firm view that the findings and reasons recorded insetting aside the judgment and decree of the trial

court is neither erroneous nor does it suffer from error in law which warrants our interference and calls for setting aside the impugned judgment and

decree of the first appellate court. Therefore, this Court cannot  interfere with the impugned judgment of the High Court as the same is well-reasoned and based on cogent reasoning of facts and evidence on record and accordingly, we answer point no.4 in favour ofthe respondent.

Under Hindu law, marriage is an institution, ameeting of two hearts and minds and is something that can not be taken lightly. In the Vedic period, the sacredness of the marriage tie was repeatedlydeclared; the family ideal was decidedly high and it was often realised [ Vedic Index, I, 484,485; CHI,I,89 as in Ranganath Misra J. Revised., Mayne’s Treatise on Hindu Law and Usage, Fifteenth Edition, 2003, Bharat Law House at p.97] . In Vedic Index I it is stated that “The high value placed on the marriage is shown by the long and striking hymn”. In Rig Veda, X, 85;“Be, thou, mother of heroic children, devoted to the Gods, Be, thou, Queen in thy father-in-law’shousehold. May all the Gods unite the hearts of us“two into one” as stated in Justice Ranganath Misra’s   ‘Mayne’s Treatise on Hindu Law and Usage’. Fifteenth Edition, 2003, Bharat Law House at p.97 Marriage is highly revered in India and we are a Nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine.Life is made up of good times and bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case, the respondent was unwell and was taking treatment for the same.

The illness had its fair share of problems.Can this be a reason for the appellant to abandon her and seek dissolution of marriage after the child is born out of their union? Since the child is now a grown up girl, her welfare must be the prime consideration for both the parties. In view of the foregoing reasons, we are of the opinion that the two parties in this case must reconcile and if the appellant so feels that the respondent is still suffering, then she must be given the right treatment. The respondent must stick to her treatment plan and make the best attempts to get better. It is not in the best interest of either the respondent or  her daughter who is said to be of adolescent age for grant of a decree of dissolution of marriage as prayed for by the appellant. Hence, the appeal is liable to be dismissed. Accordingly, we dismiss the appeal and uphold the judgment of the High Court in not granting a decree of divorce and allowing the petition for restitution of conjugal rights. Therefore, we grant a decree for restitution of conjugal rights under Section 9 of the Act in favour of the respondent.

J.[G.S. SINGHVI]

J.[V. GOPALA GOWDA]

New Delhi,

September 17, 2013