Civil Misc. Appeal No.2750 of 2000

20th February, 2008

Petitioner Counsel: M.V.S. SURESH KUMAR
Respondent Counsel: R. K. SURI

Cases Cited:
V. Bhagat Vs. D. Bhagat, (1994)1 SCC 337 [Para 16]
Shyam Sunder Kohli Vs. Sushma Kohli, (2004)7 SCC 747 [Para 17]
Durga Prasanna Tripathy Vs. Arundhati Tripathy, 2005(5) ALL MR 1012 (S.C.)=(2005)7 SCC 353 [Para 18]
Vinita Saxena Vs. Pankaj Pandit, 2006(5) ALL MR 67 (S.C.)=(2006)3 SCC 778 [Para 19]

JUDGMENT

NOOTY RAMAMOHANA RAO, J.:- This appeal is preferred against the judgment and decree rendered by the Family Court, Hyderabad in OP No.43 of 1997 instituted by the respondent-husband under Section 13 of the Hindu Marriage Act seeking annulment of the marriage that took place between them on 15-11-1989. This tragic case unfolds the grave impact, an otherwise innocuous piece of information not being put forth at the very beginning, will have, upon the conjugal life of two highly qualified individuals.

2. The respondent-husband who hails from Hyderabad City has pursued his career in a performing art - a dance form of India. His mastery over this Fine Art has taken him to shores as far as New York City where he settled down in 1981 and eventually became a citizen of the United States of America. Upon an informal introduction by a common friend, they came in close contact with each other facilitating exchange of views and then agreed to get united in wedlock. By then both the parties are beyond their prime of age. The appellant, being equally qualified was working as a Lecturer with one of the institutes of higher learning in the city of Hyderabad. The appellant could persuade her parents in agreeing to this marriage and ultimately the marriage took place at Hyderabad on 15-11-1989. It is the assertion of the appellant that they lived merrily at the residence of the parents of the respondent-husband in the immediate aftermath of the wedding, but, however, it is an admitted position that they visited Tirupati, Delhi and later Janakpur in Nepal. Due to the acute winter prevailing in the Himalayan Kingdom, the appellant-wife became sick and consequently needed immediate medical attention at the hands of Dr. Thapa there at Nepal. The respondent-husband left for New York on 4-1-1990 promising that he will be sending the necessary travel documents for enabling the appellant to join him at New York. Discounting the allegations levelled against the appellant herein. with the solicitous assistance rendered by the respondent, the appellant had joined him at New York on 19-7-1990. Even during her stay at New York she needed medical attention and consequential hospitalization, for she was suffering from Bronchial Asthma. She underwent treatment for a while, but, however, she had been advised by the respondent-husband to move out of New York and join a cousin of the appellant at Los Angeles. Ultimately from Los Angeles she had returned to India in the 1st week of January, 1991. A tragic event of death of her father occurred immediately thereafter. There is no reunion between the parties thereafter. Thus the joint enterprise undertaken by the appellant and the respondent by their union in wedlock on 15-11-1989 had hardly lasted for one year's time and from 1991 they were living separately in India and USA respectively. The appellant made an abortive attempt by instituting OP No.311 of 1991 on the file of IV Additional Judge, seeking restitution of conjugal rights, but, however, the same had been allowed to be dismissed for want of necessary zeal to pursue the same (on her part). As noticed supra, the respondent-husband has instituted OP No.43 of 1997 in January, 1997 which was ultimately decreed by the Family Court dissolving the marriage (that took place between the parties on 15-11-1989). Apart from examining himself as PW-1, one more witness was examined on behalf of the respondent-husband as PW-2 and he got marked Exs.A1 to A33 while the appellant herein has examined herself as RW-1, but did not choose to lay any documentary evidence on her behalf.

3. The parties are fairly honest in setting forth their pleadings and made no attempt to disguise their mutual admiration, love and affection to each other. Refreshingly, in this case, we have been saved of the traumatic experience of sifting through the evidence of interminable and inexhaustible allegations of bitter relationship between the parties, which is becoming a common feature nowadays in cases relating to matrimonial disputes. Both PW-1 the husband and RW-1, the appellant-wife, have deposed that they still have love and affection towards each other notwithstanding few discordant notes voiced on a low key.

4. The essential gravamen of the allegation thrown by the husband against the wife is that he has not been taken into complete confidence at the very beginning of their relationship, in that, he had not been informed of the Bronchial Asthma, bouts of which afflict the appellant wife. No doubt, the respondent-husband would like to characterize it as "an act of suppression" of a very important piece of information relating to the state of health of the appellant, but the fact remains that the said information is not brought to the notice of the respondent-husband pointedly, till such time he had witnessed the suffering of the appellant-wife in one such asthmatic attack suffered by the appellant during their honeymoon at Nepal. It is quite probable that the appellant wife may not have considered her allergic reaction and the consequential asthmatic bouts as a grave disease or even as an important issue which can have an impact upon her leading a normal life or that it would incapacitate her from living up to the expectations of a husband arising out of matrimony. Therefore, we would like to accord the benefit of doubt to the appellant-wife in not informing her medical history to the prospective husband to be anything more than a mere act of inconsequence or an act of mis-judgment rather than accept it as an act of wanton suppression. There may not have been a pre-meditation in that regard on the part of the appellant.

5. Asthma is an inflammatory disorder of the airways, which causes attacks of wheezing, shortness of breath, chest tightness, and coughing. When an asthma attack occurs, the muscles surrounding the airways become tight and the lining of the air passages swell. This reduces the amount of air that can pass by, and can lead to wheezing sounds. Most people with asthma have wheezing attacks separated by symptom-free periods. Some patients have long-term shortness of breath with episodes of increased shortness of breath. Still, in others, a cough may be the main symptom. Asthma attacks can last minutes to days and can become dangerous if the airflow becomes severely restricted. In sensitive individuals, asthma symptoms can be triggered by breathing in allergy-causing substances, called allergens or triggers. Triggers include pet dander, dust mites, cockroach allergens, molds, or pollens. Asthma symptoms can also be triggered by respiratory infections, exercise, cold air, tobacco smoke and other pollutants, stress, food, or drug allergies. Aspirin and other non-steroidal anti-inflammatory medications (NSAIDS) provoke asthma in some patients.

6. The airway constriction responds to bronchodilators. Between episodes, most patients feel well but can have mild symptoms and they may remain short of breath after exercise for longer periods of time than the unaffected individual. Some of the emergency symptoms chronicled of asthma patients are :

Extreme difficulty in breathing

Bluish colour to the lips and face

Severe anxiety due to shortness of breath

Rapid pulse

Sweating

Decreased level of alertness, such as severe drowsiness or confusion, during an asthma attack

Additional symptoms that may be associated with this disease :

Nasal flaring

Chest pain

Tightness in the chest

Abnormal breathing pattern - breathing out takes more than twice as long as breathing in

Breathing temporarily stops.

7. The word 'asthma' is derived from the Greek aazein, meaning 'sharp breath". The word first appeared in Homer's Iliad; Hippocrates was the first to use it in reference to the medical condition, in 450 BC. Hippocrates thought that the spasms associated with asthma were more likely to occur in tailors, anglers, and metalworkers. Six centuries later, Galen wrote much about asthma, noting that it was caused by partial or complete bronchial obstruction. In 1190 AD, Moses Maimonides, an influential medieval rabbi, philosopher, and physician, wrote a treatise on asthma, describing its prevention, diagnosis, and treatment. In the 17th century, Bernardino Ramazzini noted a connection between asthma and organic dust. The use of bronchodilators started in 1901, but it was not until the 1960s that the inflammatory component of asthma was recognized, and anti-inflammatory medications were added to the regimens.

8. Bronchial allergies manifest themselves in different forms. The reaction to an allergic compound could be as much varied amongst men. Bronchial asthma is also considered in Medical science as a manifestation of the bronchial allergic reaction. In Butterworths Medical Dictionary, it has been described as under :

"asthma : The term used for a syndrome characterized by paroxysmal attacks of dyspnoea of expiratory type. These are caused by a narrowing of the smaller bronchi and bronchioles due to spasmodic contraction of the circular muscles of the bronchi together with swelling of the mucous membrane and later an exudation of mucus. It is a manifestation of the allergic state, and occurs in persons who have become sensitized to some foreign substance usually of protein nature or a bacterial toxin. The pre-disposition to become sensitized is in many cases, if not in all, inherited. The offending substances or allergens may enter by inhalation, ingestion or injection, the first being the most important. Infection or trauma, e.g., by operation, of the upper respiratory or bronchial tract may aid entrance. The possible allergens are innumerable, but air-borne dusts such as the hairs of animals, finely powered vegetable matter such as flour, face powder, pollens of grasses and trees, and mixed house dust are among the commonest. Ingested and injected allergins are more likely to cause other allergic symptoms, such as urticaria, than asthma. Respiratory infections play an important part either as a primary cause, as opening the path for the entrance of other substances, or as secondary infections after repeated paroxysms. An individual attack may be excited reflexly by, for instance, stimulation of nerve-endings in the nose or stomach, or by psychological disturbances. Status asthmaticus is a more or less continuous state of asthma in which paroxysms occur with very little intermission may be for days. Bronchial asthma and spasmodic asthma are unnecessary synonyms for asthma, as all asthma is bronchial and spasmodic. Asthma due to certain causes has been dignified by special names such as cat asthma, horse asthma, food asthma, rye asthma, flour asthma, hay asthma, and so on, but all these differ in no way except the cause. Bronchitic asthma. Asthma associated with bronchitis; there is usually some expiratory wheezing with bronchitis due to obstruction by sticky mucus but in some cases there may be a spasmodic element. True asthma may of course be associated with bronchitis."

But, it is recognized that damp conditions or cold climatic weather are not the best of the suitable features for an asthmatic patient. In warm conditions and with adequate protection, one can ward off the asthmatic bouts. But, however, some of the patients who suffer from severe asthmatic attacks do require immediate medical attention and may even require hospital stay, Oxygen and intravenous medications. Their suffering and their gaspings for a breath of fresh air, present a horrifying picture. The onlookers, who are not medically trained, would really be shattered of their confidence to handle the suffering of such patients. Some of the patients who suffer acute asthmatic attacks need supply of oxygen very immediately and some of them can recover with the help and administration of certain medicines/drugs in time while some of them may even need immediate hospitalization for short durations. Bronchial Asthma by itself may not be a disease which can render a person unfit for cohabitation and conjugal life. But, however, if the frequency of the asthmatic bouts is occurring in such quick succession, perhaps then the quality of conjugal life would receive certainly an adverse impact. After each bout of asthmatic attack, the patient requires some time to stage a decent recovery therefrom. In these set of circumstances, the fact situation prevailing in the case, which indicates that the respondent-husband who is a citizen of United States of America and has settled down at New York, cannot be lost sight of. The fact that New York enjoys cold climate for most part of the year has, therefore, a vital bearing.

9. It is important to notice here at this stage the general climatic conditions that prevail in New York State.

10. The major portion of the New York State lies generally between latitudes 42º and 45º N and between longitudes 73º 30' and 79º 45'W. Approximately 40 per cent of New York State has an elevation of more than 1,000 feet above sea level. The climate of New York State is broadly representative of the humid continental type, which prevails in the northeastern United States. Lengthy periods of either abnormally cold or warm weather result from the movement of great high pressure (anticyclonic) systems into and through the eastern United States. Cold winter temperatures prevail over New York whenever Arctic air masses, under high barometric pressure, flow southward from central Canada or from Hudson Bay.

11. The winters are long and cold in the Plateau Divisions of the state. In the majority of winter seasons, a temperature of -25º or lower can be expected in the northern highlands (Northern Plateau) and -15º or colder in the southwestern and east-central highlands (Southern Plateau). Winter temperatures are moderated considerably in the Great Lakes Plain of western New York. The moderating influence of Lakes Erie and Ontario is comparable to that produced by the Atlantic Ocean in the southern portion of the Hudson Valley. In both regions, the coldest temperature in most winters will range between 0º and -10º. Long Island and New York City experience below zero minimums in 2 or 3 winters out of 10, with the low temperature generally near -5º. The summer climate is cool in the Adirondacks, Catskills, and higher elevations of the Southern Plateau. The New York City area and lower portions of the Hudson Valley have rather warm summers by comparison, with some periods of high, uncomfortable humidity.

12. The average length of the freeze-free season in New York State varies from 100 to 120 days in the Adirondacks, Catskills, and higher elevations of the Western Plateau Division to 180 to 200 days on Long Island. Moisture for precipitation in New York State Is transported primarily from the Gulf of Mexico and Atlantic Ocean through circulation patterns and storm systems of the atmosphere. Distribution of precipitation within the state is greatly influenced by topography and proximity to the Great Lakes or Atlantic Ocean. The climate of New York State is marked by abundant snowfall. With the exception of the Coastal Division, the state receives an average seasonal amount of 40 inches or more. The average snowfall is greater than 70 inches over some 60 percent of 'New York's area. The moderating influence of the Atlantic Ocean reduces the snow accumulation to 25 to 35 inches in the New York City area and on Long Island. About one-third of the winter season precipitation in the Coastal Division occurs from storms, which also yield at least 1 inch of snow. The great bulk of the winter precipitation in upstate New York comes as snow.

13. Since cold climatic conditions are considered to be adverse, if not ill-suited to the interests of the asthmatic patients, perhaps if the information in this regard about the state of health of the appellant is known to the respondent-husband well before, surely it would have provided him a certain opportunity to consider and assess carefully the suitability of engaging the appellant herein in a holy wedlock. In that context, perhaps the respondent-husband has been alleging that the appellant had concealed this vital information.

14. The parties who are living in different climatic zones and are likely to be engaged in a marriage, are certainly entitled to know more about each other in greater detail. Each of the parties being fairly educated and articulate must have had a blue print drawn for their future activities of life. As is made out in the instant case, the respondent-husband had been disappointed by the asthmatic attack suffered by the appellant at Nepal, in the immediate aftermath of their marriage and even during her short stay at New York when the appellant joined the respondent-husband. Therefore, the respondent is justified partly in terming the appellant herein as not a healthy person fit for conjugal cohabitation in such climatic conditions like those that prevail in New York. The fact remains that he had exhibited Ex.A9 to A27, in the form of medical prescriptions and bills vouching for the medical attention paid to the appellant-wife by him. This apart Ex.A28 is the letter dated 1-10-1990 written by the appellant-wife to Sri G. Nagendra of Vivekananda Kendra at Bangalore, India. The contents of Ex.A28 letter make it abundantly clear about the poor medical history of the appellant relating to the bronchial asthma being suffered by her since 1976 onwards. Therefore, in our opinion, the respondent-husband is fully justified in considering the appellant as not fit for matrimonial life to be led at New York.

15. Section 13 of the Hindu Marriage Act authorizes annulment of the marriage between the parties for certain reasons. Since it will have an impact upon the present case, we consider it appropriate to extract the same herein below :

"13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary sexual intercourse, with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.- xxxxxxxxxxxx.

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation.- xxxxxxxxx

Upon an analysis it becomes clear that break down of a marriage irretrievably is not one of the factors listed out for dissolving the marriage. But however, the Supreme Court has considered this aspect of the matter, for the purposes of granting a decree of divorce, in the following manner :"

16. In V. Bhagat Vs. D. Bhagat, (1994)1 SCC 337 at Paragraph Nos.20 and 21, (Paras 22 & 23 of AIR), the Supreme Court held as follows :

"20. xxxxxxxx. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(i-a) of Hindu Marriage Act and we do so accordingly. xxxxx

21. xxxx Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the Court finds it in the interests of both the parties."

17. In Shyam Sunder Kohli Vs. Sushma Kohli, (2004)7 SCC 747 at Paragraph No.12 (Para 13 of AIR) it is held as follows :

"12. On the ground of irretrievable breakdown of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances that the Court may use this ground for dissolving a marriage. xxxxxxxxxxxxxxxxxxx."

18. Likewise, in Durga Prasanna Tripathy Vs. Arundhati Tripathy, (2005)7 SCC 353 : [2005(5) ALL MR 1012 (S.C.)], at paragraph Nos.16 and 28, to the following effect :

"16. This is a most unfortunate case where both the parties could not carry on their marital ties beyond a period of 7 months of their marriage. The marriage between the parties took place on 5-3-1991 and it is the specific case of the appellant that the respondent deserted him on 22-10-1991 and never again returned to her matrimonial home. Today the position is that the parties have been living separately for almost 14 years which means that there is an irretrievable breakdown of marriage and that because of such breakdown of marriage, the marriage between the parties has been rendered a complete dead wood. xxxxxxxx."

"28. The facts and circumstances in the above three cases disclose that reunion is impossible. The case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. xxxxxxxxxxxxx."

19. And, similarly, at paragraph Nos.49 and 50 in Vinita Saxena Vs. Pankaj Pandit, (2006)3 SCC 778 : [2006(5) ALL MR 67 (S.C.)], it is as follows :

"49. x x x x x x x x x x x x x x x x x.

Humane aspects which this Court should consider

The appellant was 24 years of age when she got married.

The marriage lasted for four to five months only when she was compelled to leave the matrimonial home.

The marriage between the parties was not consummated as the respondent was not in a position to fulfill the matrimonial obligation.

The parties have been living separately since 1993. 13 years have passed they have never seen each other.

Both the parties have crossed the point of no return.

A workable solution is certainly not possible.

Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream.

Parties have been fighting the legal battle from the year 1994.

The situation between the parties would lead to an irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wife's stay with the respondent is injurious to her health.

The appellant has done her Ph.D. The respondent, according to the appellant, is not gainfully employed anywhere.

As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court."

20. As noticed supra, between 15-11-1989, the date of marriage between the parties and the 1st week of January, 1991, when the appellant herein returned to India, the parties had hardly any opportunity to lead conjugal life happily. Apart from the distant places at which they were living, even during the period they were together at one place, the evidence discloses that they did not have completely happier times either. Their relationship is marred by asthmatic attacks suffered by the appellant herein requiring medical attention to her. From 1991 onwards they have been living separately, at places, which can perhaps be described as poles apart. In these set of circumstances, the question, which is required to be answered, is whether the Family Court is in error in construing and considering their marriage to have broken down irretrievably. The appellant-wife has not asserted either in her pleadings or in her evidence that she has been completely cured of her bronchial asthmatic allergies. If that be so, would it be fair to command her to live a conjugal life at a place like New York which is considered to be a cold climatic area in most part of a year. If cold climatic zones were ill suited to bronchial asthmatic patients, then would it not amount to an act of cruelty on the part of anyone to insist or solicit the company of such persons to live in cold climatic zones. In this background, the marriage between the parties is liable to be treated to have broken down, unless they both agree to move out of cold climatic zone and go to some warmer or tropical places which may not cause much harm to the asthmatic patients. The career chosen by the respondent-husband is one of a kind of its own. It's a creative art. Pursuing such a career is dependant upon the inclinations and sustained spirit and interest in their pursuit by individuals. What stimulates or enthralls a person to pursue a very refined form of an art is incapable of a precise definition. What may not appear to an ordinary mind, as a great spectacle can be perceived by a brilliantly refined mind of an artist to be one such. What inspires or what makes such a brilliant mind to draw comfort cannot be precisely drawn to a scale or be confined to the boundaries of one particular geographical location or a climatic zone. It is therefore improper to make a demand on the respondent-husband to pursue his career at some other geographical location, which would be more suitable for the appellant-wife to lead a life together with him. In such circumstances, it's wholly appropriate to consider the marriage to have broken down irretrievably. Mutual respect for each other apart, differences of opinion and disagreements even in respect of not so very important matters between spouses, are not an uncommon feature. Nay, they are viewed as adding spice to life, by a few. Great and liberated souls have had experience of such differences of opinion, with their spouses, but brilliant as they are, they could also find ways and means of enjoying and admiring the other viewpoint canvassed as well. The lack of such admiration does not mean anything more, but would merely indicate the irretrievability of the situation lost out. Therefore, we agree in the conclusion that the marriage between the parties herein had been irretrievably broken down warranting its dissolution. It would only enable and help them lead lives of their own on courses chartered by them, instead of being bound in an otherwise fruitless association.

21. In these set of circumstances, we dismiss this appeal, but, however, without costs.

22. With a view to provide permanent alimony to the appellant-wife to enable her lead a life of assured dignity, we direct the respondent-husband to pay her a sum of $ 10,000/- (US Dollars Ten Thousand only) within three months.

Appeal dismissed.