F.A. No.76 of 2009

28th October, 2009

Petitioner Counsel: D.C.S. RAWAT
Respondent Counsel: Ms. PRABHA NOLIYAL

Cases Cited:
Ram Narain Gupta Vs. Rameshwari Gupta, II (1988) DMC 364 [Para PARA7]

JUDGMENT

-This appeal preferred under Section 19 of Family Courts Act, 1984, is directed against the judgment and order dated 5-5-2009 passed by the Principal Judge, Family Court, Dehradun in suit No.51 of 2007, whereby the decree of divorce has been granted on the petition filed by the husband.

2. Heard learned counsel for the parties and perused the lower Court record.

3. Brief facts of the case, giving rise to this appeal, are that the petitioner (present respondent) Baldev Singh got married to Smt. Sheela (appellant) on 23-4-2002 according to Hindu rites. A son was born out of wedlock on 12-2-2003. The present respondent Baldev Singh filed a petition under Section 13 of Hindu Marriage Act, 1955 against his wife Sheela (present appellant) before the trial Court, alleging that the appellant suffers from mental illness. He has further pleaded that his wife used to beat him and his son. It is also pleaded that many times the appellant made attempts to commit suicide. Due to her mental illness, she had to take leave time and again from the school where she was in job. It also alleged that she used to cry in the night. The husband has further pleaded that this made it impossible for him to live with his wife and since 17-6-2006. The parties to the matrimony money are living separately. As such on the ground of the mental disorder alleged in the petition, the petitioner has sought decree of divorce.

4. The appellant contested the suit before the trial Court and filed her written statement in which she admitted having married to the present respondent and also that a son was born out of the wedlock. She has pleaded that at the time of marriage, she was on job and the husband (present respondent) was unemployed. She has further pleaded that after he got a job as Junior Engineer, her husband is not ready to live with the appellant. It is also alleged that he is living with one concubine. However, she has admitted that she was under depression and pleaded that after treatment her condition has improved.

5. The trial Court, on the basis of the pleadings of the parties, framed the following issues :-

(i) Whether the respondent (wife) was suffering from illness as alleged in the petition and unable to perform the conjugal duties, if so its effect.

(ii) Whether the respondent (wife) deserted her husband, if so its effect.

(ii) Whether the respondent (wife) has treated the petitioner with cruelty, if so its effect.

(iv) Whether the petitioner is entitled to the guardianship of his son.

(v) To what relief, if any, the petitioner is entitled.

6. After recording the evidence and hearing the parties, the trial Court found that the petitioner has successfully proved that the appellant was suffering from obsessive compulsive disorder and she treated her husband and son, with cruelty. Therefore on the ground of cruelty and the mental illness the trial Court granted the decree of divorce and also ordered that the petitioner shall be the guardian of minor son of the parties. Aggrieved by said judgment and order dated 5-5-2009, this appeal is preferred by the wife.

7. Learned counsel for the appellant drew attention of this Court to the case of Ram Narain Gupta Vs. Rameshwari Gupta, II (1988) DMC 364 and argued that even if the mental disorder is proved, it is not the very mental disorder on the basis of which decree of divorce can be granted. We have considered the submission of learned counsel for the appellant and also went through the aforesaid case law. It is true that every mental disorder or every degree of mental disorder cannot be said to be a sufficient ground for granting a decree of divorce but where the petitioner successfully proves that the mental disorder is of such kind due to which he/she cannot reasonably be expected to live with his/her other spouse, it does make out a ground for decree of divorce as mentioned in clause (iii) of sub-section (1) of Section 13 of Hindu Marriage Act, 1955, read with the explanation to the said clause. In the present case, the petitioner has successfully proved that his wife (present appellant) was suffering from serious mental disorder which made difficult for him to live with her and he had to ultimately leave the company of his wife. P.W.1 Baldev Singh has further proved that his wife used to beat him and his son. It is also stated by P.W.1 Baldev Singh that the appellant used to cry in the night and also made attempts to commit suicide. With this kind of behaviour in the house, it cannot be said that the petitioner could have reasonably lived with the appellant. Even D.W.1 Sheela herself has admitted in her examination-in-chief that she was suffering from mental illness. Her illness is also proved from the medication prescriptions brought on record, before the trial Court. Therefore, having reassessed the evidence on record, we concur with the findings recorded by the trial Court that the petitioner had successfully proved the ground of mental illness and that of cruelty for granting a decree of divorce.

8. Learned counsel for the appellant contended that the petitioner was happily living with the appellant so long as he was unemployed but after he got a job as Junior Engineer, he left the company of his wife. Assuming for a moment, that the husband left the company of his wife only after getting job as Junior Engineer, that by itself does not dilute the evidence on record relating to illness and conduct of the appellant which practically made difficult for the husband to live with his wife (appellant).

9. Having considered submissions of learned counsel for the parties and after going through the Lower Court Record, for the reasons as discussed above, we do not find force in this appeal. Therefore, no interference is required with the impugned order passed by the trial Court.

10. The appeal is dismissed. No order as to costs.

Appeal dismissed.