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TMI Blog2021 (12) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... ly members as they chose not to disclose a vital and crucial fact regarding the respondent‟s mental health/ailment. 4. According to the appellant, the respondent was, before the marriage, and during the days that she stayed with the appellant, suffering from Acute Schizophrenia. The respondent behaved in a very unusual manner after her marriage in the matrimonial home, as well as during their honeymoon. 5. Consequently, the appellant took the respondent to Dr. Inderjeet Sharma in January, 2006, who after examining her referred her to GB Pant hospital, where Dr. Rajiv Mehta examined the respondent and prescribed certain medicines. Finding no change in respondent‟s behaviour, the appellant took her to a neuro surgeon at Institute of Human Behaviour and Allied Sciences, Delhi where the respondent was examined again and Dr. Harcharan Singh prescribed her medicines. 6. On 11.02.2006, the appellant took the respondent to Hindu Rao Hospital at Delhi, where Dr. Jitender Kumar examined the respondent. As per the appellant, after meeting the said doctor respondent shouted"isi doctor ne mujhe pehle bhi davai di hai." 7. Since the appellant did not find any improvement in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Restitution of Conjugal Rights against the appellant which, vide order dated 30.10.2009 of the Family Court, had been clubbed with the divorce petition. 14. In order to prove his case before the family court, the appellant examined himself as PW-1, and has exhibited medical slip dated 17.01.2006 (exhibit PW-1/B), Out Patient Cards dated 03.02.2006, 11.02.2006 and 07.02.2006 as exhibit PW-1/C, PW-1/D and PW-1/E respectively, and copy of police complaint dated 22.02.2006 as exihibit PW-1/G. Petitioner examined his father Sh. Bal Kishan Aggarwal as PW-2, Smt. Manju Aggarwal, his mother as PW-3, and Sh. Bharat Aggarwal, his brother as PW-4, who reiterated the averments made in the petition. The appellant also examined PW-5 Dr. Rajiv Mehta, PW-6 Dr. Inderjeet Sharma, PW-7 Dr. Mamta Sood and PW-8 Dr. Jitender Kumar. All PWs were extensively cross examined by learned Counsel for the respondent. 15. The respondent, on the other hand, examined herself as RW-1 and exhibited the Film and Report of CT Scan as exhibit RW-1/A, driving licence as exhibit RW-1/B, public notice dated 22.07.2006 in Times of India newspaper as exhibit RW-1/C, information under RTI Act dated 01.02.2006, 03.02.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajeet Sharma, he deposed that the medicines prescribed by him could be given for various purposes, including anxiety and did not know the patient personally, and the medical prescription did not bear the personal identification of the Respondent on the prescription. The testimony of PW-5 Dr. Rajiv Mehta was not relied upon by the Family Court, because no separate test was conducted for diagnosing the respondent provisionally. f) What weighed with the Family Court while passing the impugned order, dismissing the petition, was also that during the span of less than one month, the appellant had taken respondent to 5 different doctors of different hospitals. The Family Court also came to the conclusion that the appellant did not wait to see the result of the treatment given by various doctors to the respondent as per prescription, and had taken respondent to one hospital after another for preparation of prescription and no medicine was given to the respondent. The Family Court was of the view that "it appears that the petitioner was only getting prepared these medical prescriptions to show that respondent was suffering with some ailment without any treatment being provided to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on medical literature and provided a table, classifying the uses of the medicines. Following is the table - Brand name ChemicalSalt/Composition Treatment Of (i) Arip MT 15 Aripiprazole Schizophrenia (ii) Sizodon Plus Risperidone Schizophrenia (iii) Parkin Plus Trifluoperazine + Trihexyphenidyl Schizophrenia and Parkinson (iv) Risdone Risperidone Schizophrenia (v) Bexol Trihexyphenidyl Parkinson (vi) Respid Risperidone Schizophrenia (vii) Pacitane Trihexyphenidyl Parkinson 22. Learned counsel, by relying on medical literature, has shown that Risperidone, Trifluoperazine, and Aripiprazole are Antipsychotic Drugs. The Chapter on "Drugs Used in Mental Illness: Antipsychotic and Antimanic Drugs" in the medical text states that „Antipsychotic (neuroleptic, ataractic, major tranquillizer) useful in all types of functional psychosis, especially schizophrenia.‟ K.D. Tripathi, Essentials of Medical Pharmacology (6th Edition, 2008) Jaypee Brothers Medical (P) Ltd. 23. Learned Counsel for the appellant has submitted that courts are illequipped to weigh, analyse and arrive at definite findings of mental condition/illness of a litigant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e produced before them; the testimonies of expert witnesses produced in Court, and; the submissions advanced before the Court. The Courts, to be able to decide such issues, needs expert opinion from credible persons in the field. The parties are also entitled to grant of opportunity to either support, or challenge the opinion that the experts may give after examination of the person concerned, and all other relevant materials. However, what weighs with us, at the outset is the denial of the respondent to subject herself to evaluation of her condition by an independent Medical Board to be appointed by the Court. This conduct itself raises a presumption against the respondent. The judgment of Dharampal (Supra) is clear and unequivocal in this regard. The relevant extract from Dharampal (Supra) read as under: "9 .Clause 2(b) of Section 5 provides for one of the conditions for a valid Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder or insanity. In terms of Section 12(1)(b) of the Act a marriage may be held to be voidable if the other party was suffering from mental disorder or insanity. Section 13(1)(iii) of the Act provides that a party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moval of misunderstanding between the parties. It may bring the parties to terms. 36. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so. 37. In matrimonial disputes, the court has also a conciliatory role to play- even for the said purpose if may require expert advice. 38. Under Section 75(e) of Code of Civil Procedure and Order 26 Rule 10A the Civil Court has the requisite power to issue a direction to hold a scientific, technical or expert investigation. 45. It was held that nobody can be forced to go to a mental hospital to undergo a medical treatment and it would be for the Court to draw an adverse inference against him for not doing so. 51.....The prime concern of the Court is to find out as to whether a person who is said to be mentally ill could defend himself properly or not. Determination of such an issue although may have some relevance with the determination of the issue in the lis, nonetheless, the Court cannot be said to be wholly powerless in this behalf. Furthermore, it is one thing to say that a person would be subjected to test which would invad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1 SCC 225. by relying on the testimony of a doctor that Schizophrenia "is a treatable, manageable disease, which can be put on a par with hypertension and diabetes." However, the same requires determination by a doctor, and in Dharam Pal (Supra) the court has observed that ".....but it is another thing to say that a party may be asked to submit himself to a psychiatrist or a psychoanalyst so as to enable the Court to arrive at a just conclusion. Whether the party to the marriage requires a treatment or not can be found out only in the event, he is examined by a properly qualified Psychiatrist." Therefore, in such circumstance determination of truth is an important step for us to enable making of a fair decision. 32. In Kollam Chandra Sekhar (Supra), the Supreme Court has aptly described the institution of marriage, wherein the court has observed: "42. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ophrenia. Pertinently, the respondent herself admitted that even in her college days she used to have headache and the said headaches were of such severity, that they interfered with her education, as a result of which, the respondent could not complete her college. There is no explanation or reason, as to what was the nature of those headaches; what caused those headaches; and; what was the treatment given to the respondent for those headaches. 36. A combined reading of the evidence as well as the admission of the respondent, even though, may not conclusively prove that the respondent was suffering from Schizophrenia/Hebephrenia- F-20 prior to her marriage, at the time of her marriage, and; subsequent to her marriage, but definitely raises a serious doubt about the mental health of the respondent, and points to the possibility of the appellant‟s allegations in that regard being true. 37. In these circumstances, the judgment of Sharda v. Dharampal is a clincher, as far as we are concerned. The Counsel for the appellant on one hand voluntarily made a statement that, at his cost and expense, the respondent be evaluated by a Medical Board to arrive at the truth of the mental h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end for himself, and he could not seek a direction from the Court for medical examination of the respondent was erroneous. It is not that this direction was sought by the appellant without any foundation or basis. The appellant had raised a plea that the respondent was suffering from Schizophrenia from day one. The appellant had shown the respondent to several specialists, and the medications prescribed show that they were relevant for treatment of Schizophrenia. The appellant also produced the medical doctors/ specialists and exhibited their prescriptions. The parties lived together for hardly any period, as the respondent was taken away by her father after about nine weeks of marriage from the matrimonial home. The evidence with regard to the respondent‟s medical condition - which related to her mental health, could possibly not have been garnered by the appellant without co-operation of the respondent. Only upon medical examination of the respondent, it could be established, with definiteness whether, or not, she is suffering from Schizophrenia, even though, there were pointers in that direction. 42. Pertinently, the Respondent could not establish any reason as to why, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is something to be taken a note of. The outright refusal by learned counsel of the Respondent to subject the Respondent to such medical examination, leaves the situation at a stalemate and prevents us from arriving at the definite truth. The Respondent has scuttled the effort of the court to arrive at a definite finding of truth. The only way of conclusively determining the mental health of the Respondent is by subjecting the Respondent to an examination by an expert Medical Board. The appellant has significantly discharged the onus by leading cogent evidence, and raise a preponderance of probability, that the Respondent is suffering from Schizophrenia. 47. For the abovesaid reasons, we draw an adverse inference against the Respondent that she is suffering from Schizophrenia. 48. Section 12 of the Hindu Marriage Act deals with voidable marriages. A Hindu marriage shall be voidable and may be annulled by a decree of nullity, inter alia, on the ground that the marriage is in contravention of the condition specified in Clause (ii) of Section 5. Section 5 Clause (ii), insofar as it is relevant, states that a marriage may be solemnized between two Hindus, inter alia, if: "(ii) at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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