TMI Blog2021 (12) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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. Marriage is not made of only happy memories and good times, and two people in a marriage have to face challenges and weather the storm together. It is not easy to live with a partner who has mental health issues, and such ailments come with their own challenges for the person facing the problem, and even more so for the spouse. There needs to be an understanding of the problems in a marriage, and communication between the partners especially when one of the two partners in a marriage is facing challenges of their own. Treatment of any mental ailment requires acceptance of the same, not only by the family members but, most importantly, by the person suffering therefrom. 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 rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant from seeking annulment of marriage on the ground contained in Section 12(1)(b) of the Hindu Marriage Act. That is not the defence set up by her, or established by her. The failure on the part of the respondent to disclose her mental disorder before her marriage with the appellant as alleged by him, constituted a fraud perpetrated upon the appellant - the marriage between the appellant and the respondent is annulled on the ground contained in Section 12(1)(b) of the Hindu Marriage Act. Appeal allowed. - MAT. APP. (F.C.) 142/2020 - - - Dated:- 24-12-2021 - HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE JASMEET SINGH For the Petitioner : Mr. Asutosh Lohia, Advocate. For the Respondent : Mr. Mohan Lal, Advocate. JUDGMENT JASMEET SINGH, J 1. The present appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 read with Section 19 of the Family Courts Act, 1984 on behalf of the appellant (husband) against the impugned judgment and order dated 24.12.2019 passed by the Family Court, Dwarka, wherein the petition under Section 12 of the Hindu Marriage Act filed by the appellant was dismissed. 2. The brief fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to her parental home (after 9 weeks of marriage) on 17.02.2006 and, since then the respondent is living with her parents in their house. The appellant also averred that the marriage between the appellant and the respondent was not consummated. 10. The respondent filed her written statement wherein she denied that the marriage between the appellant and the respondent was not consummated. The respondent averred that she has never suffered from any mental or physical ailment, but she did suffer headaches during her college days due to which her studies were discontinued, and the said fact was clearly told to the appellant, the mediator, and all other persons concerned. 11. She further averred that the appellant, his family members, friends and relatives had met the respondent prior to marriage many a times, and there were numerous telephonic calls. Therefore, there was no question of respondent suffering from any mental ailment, much less, Schizophrenia either prior to the marriage or during subsistence of the marriage. 12. She further stated that the appellant met her prior to the ring ceremony with his family members at Lakshminarayana (Birla) Mandir, where he spent arou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to marriage was obtained by playing fraud and suppressing material fact concerning the illness of the respondent. b) The Family Court also relied upon the behaviour of the Respondent during cross-examination to hold the conduct of the respondent exhibited by her during cross-examination does not show that she was not a normal lady or was suffering from schizophrenia or any other mental disorder. She understood all the questions put to her during cross-examination and answered these questions appropriately. c) Another factor which weighed with the Family Court was that the appellant, as well as his family members, had extensively interacted with the respondent for 4 months after the Sagai. The PW-4 Bharat Aggarwal (brother of the Appellant) also admitted that in the God Bharai ceremony, the respondent even danced and behaved properly and there was nothing unusual about the behaviour of the Respondent. d) The allegations of respondent‟s behaviour in Goa and other small instances at the house have also been considered by the Family Court in detail. However, the same are not relevant for the purpose of adjudication in the present appeal, for the reasons disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant took us through the medical literature on Schizophrenia and Hebephrenia, as well as the literature on the medicines prescribed. He also relied on the statements of Dr. Inderjeet Sharma PW-6, Dr. Rajiv Mehta PW-5 and Dr. Mamta Sood PW-7. 20. The testimonies of doctors and medicines prescribed by them, relied upon by the Appellant are as under: a) PW-5 Dr. Rajiv Mehta testified that the prescription dated 28.01.2006, Ex. PW-1/B is in his handwriting. He stated that the provisional diagnosis of the patient Priyanka was pertaining to Schizophrenia, and the patient was called on three occasions. b) PW-8 Dr. Jitender Kumar, Psychiatry Department, Hindu Rao Hospital, Delhi proved the OPD card, Ex. PW-1/D and stated that the said exhibit was prepared by him and bears his signature at point A‟. He further stated that he had examined the patient and prescribed the medicines mentioned in OPD card, EX PW-1/D. As per the prescription, the Respondent was prescribed medicines Arip MT 15 and Resperidone, which are listed as Antipsychotic Drugs. She was also prescribed Risperidone including Sizodon, also in another prescription. Respondent was even prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd respondent. Learned counsel for the appellant has relied on the judgment in Sharda v. Dharmpal MANU/SC/0260/2003. tosubmit that that the Court can always direct examination by a medical expert, to call for the medical opinion to arrive at the truth. 24. Mr. Lohia has submitted that even today, he is ready that the respondent be examined by a Medical Board to ascertain the mental condition of the respondent as to: a) Whether she is suffering from Schizophrenia? and; b) Since how long she has been suffering from the said ailment, if at all. 25. In addition the appellant has also submitted: i. That the parties have not stayed together for longer than two months, and the marriage is not consummated. ii. They have been separated for 16 years. iii. The Respondent admitted to attempting suicide in her testimony. iv. She also admitted to getting headaches and ear infections. 26. In the light of the judgment in Dharam Pal (supra), we asked Mr. Mohan Lal whether the respondent would be ready and willing to subject herself to examination by a Medical Board of specialists. The learned Counsel for the respondent flatly refused and said that subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g continuously or intermittently from mental disorder of such a kind that the petitioner cannot reasonably be expected to live with the respondent. It is beyond any cavil that a marriage in contravention of the aforementioned provisions of the Hindu Marriage Act is per se not void but is merely voidable. 10 .It is trite law that for the purpose of grant of a decree of divorce what is necessary is that the petitioner must establish that unsoundness of mind of the respondent is incurable or his/her mental disorder is of such a kind and to such an extent that he cannot reasonably be expected to live with his/her spouse. Medical testimony for arriving at such finding although may not be imperative but undoubtedly would be of considerable assistance to the court. We may, however, hasten to add that such medical testimony being the evidence of experts would not leave the court from the obligation of satisfying itself on the point in issue beyond reasonable doubt. Relevance of a medical evidence, therefore, cannot be disputed. 15. Having regard to the complexity of the situation, the doctor's opinion may be of utmost importance for granting or rejecting a prayer for a decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... choanalyst 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. For the said purpose, it may not be necessary to submit himself to any blood test or other pathological tests. 53 .Keeping in view of the fact that in a case of mental illness the Court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the Court may take recourse to such a procedure even at the instance of the party to the lis. 54. Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth. 84. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ... 33. Marriage is not made of only happy memories and good times, and two people in a marriage have to face challenges and weather the storm together. It is not easy to live with a partner who has mental health issues, and such ailments come with their own challenges for the person facing the problem, and even more so for the spouse. There needs to be an understanding of the problems in a marriage, and communication between the partners especially when one of the two partners in a marriage is facing challenges of their own. Treatment of any mental ailment requires acceptance of the same, not only by the family members but, most importantly, by the person suffering therefrom. The same has been enunciated by the Department of Health, Australia Government where it has been observed that, .Acceptance is acknowledged to be an important step in developing effective illness management strategies and working effectively with mental health services and complying with medications and treatments (Van Meijel et al 2002a, Van Meijel et al 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a Medical Board. The prayer of the application reads as under: that this Hon ble Court be pleased to issue necessary directions in the matter to enable the respondent being referred to some medical board constituted by this Hon ble Court which may keep the respondent in observation for such period as may be necessary to determine th medical condition or the respondent and also the existence or otherwise of such condition of the respondents AND to pass such other orders/directions which this Hon ble Court may deem fit and proper. 38. The said application was dismissed by a cryptic orderby the Family Court on date 27.08.2009 observing the following: After considering the pleadings of the parties, I am of the opinion that parties have to stand at their own legs in proving their case. It is the case of the respondent/husband that petitioner/wife is suffering from Schizophrenia and in order to prove the case, it is the duty of the respondent/husband to lead evidence and the court cannot provide assistance to the respondent/husband to procure the evidence. The application being devoid of merit is dismissed. 39. As noticed above, the said plea was again made while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous issues in the relationship. The fact that she sought Restitution of Conjugal Rights itself shows that so far as she was concerned, she had no serious complaints with the appellant; or the relationship. 43. In the aforesaid circumstances, in our view, the Family Court was duty bound to direct the medical examination of the respondent. The appellant could not have been left to gather evidence of the respondent‟s mental condition on his own. 44. The above factual matrix leads to an irrefutable assumption that all was not well with the respondent and she has been suffering from some disorder which she did not want to come out. We may also draw an analogy from section 114 illustration (h) of the Evidence Act, 1872. Section 114 of the Indian Evidence Act reads as under: Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (h) reads as under: That if a man refuses to answer a question which he is not compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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) . 49. The fact that the parties could not live together beyond nine weeks itself shows that the mental disorder suffered by the respondent is of a kind, and to such an extent as to be unfit for marriage and the procreation of children. It is not the case of the respondent that either of the conditions enumerated in Section 12(2)(a)(i), or (ii) exists in the present case, which would have debarred the appellant from seeking annulment of marriage on the ground contained in Section 12(1)(b) of the Hindu Marriage Act. That is not the defence set up by her, or established by her. The failure on the part of the respondent to disclose her mental disorder before her marriage with the appellant as alleged by him, constituted a fraud perpetrated upon the appellant. Apart from stating that the parties had met a few times before the marriage, the respondent has not specifically averred, or established, that the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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