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APPEAL No.-____/2014
UNDER ARTICLE 227(1) OF THE CONSTITUTION OF INDIA, 1950
Versus
TABLE OF CONTENTS
[1] That, the respondent is justified to get divorce under section 13 of Hindu Marriage
Act, 1955 as he has been kept in dark about the mental disorder of the appellant for
six long years which rendered the marriage a non-consummated one .
[2] That, the Trial Court proved the veracity of the charges of mental illness of the
appellant by carefully examining pertinent medical documents and witnesses, so
the presence of mental sickness cannot be challenged and it’s on record that the
appellant did not bring the doctors who were treating her to refute the charges
and also did not appear herself to give testimony.
[3] That , the question of filing petition after inordinate delay has no rationality as far
as this case is concerned, where the appellant hardly stayed for four to six days
with the respondent, giving him no opportunity to start doubting. Hence, this
allegation should be certified baseless.
[4] That, the propagation of argument that she was non-aggressive cannot be in favor
of the anyone because mere suffering of those kinds of mental illness makes her
straight out uninterested for discharging matrimonial duties , in the absence of
which it is absolutely fair to assume that the other party is not expected to live
with such a lunatic person. Hence divorce decree should be granted as per section
13(iii) of Hindu Marriage Act.
PRAYER .......................................................................................................................................................... 13
A) List of Abbreviations
2. Art. - Article
5. Hon’ble - Honorable
6. Ors. - Others
7. Mad. - Madras
9. Raj - Rajasthan
12. V - Versus
B) Act/Rules/Statutes Referred
C) Books Referred
D) Cases Referred
PAGE
S.NO. CASE LIST
NO.
II. Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260 11,12
STATEMENT OF JURISDICTION
The respondent accepts the jurisdiction of the Honorable High Court of Rajasthan, invoked
by the Petitioner under Article - 227 of the Constitution of India coupled with Sec.100(1) of
Civil Procedure Code .
The respondent most humbly and respectfully submits to the jurisdiction of the Honorable
High Court of Rajasthan. .
STATEMENT OF FACTS
Factual Background:
1. On 6th December 1994, One Suresh Charan (Respondent) got married to one Ms
Vandana(Appellant) and the marriage was solemnized in accordance with Hindu Marriage
Act,1955.
2. It was alleged that even during the marriage the appellant had no control over her body and
was not in a position to perform saptpadi. She was given few tablets during the time when the
rites were being carried out.
3. Thereafter, the marriage was not being consummated as she hardly stayed with the
respondent for four days. Even during that brief period her behavior and conduct was very
abnormal and talks were irrelevant.
4. After about six years, the appellant was brought to her in-law’s village, where she
allegedly used derogatory words towards her husband in presence of many people and this
incident was known to the whole village, which, in totality, led to a conclusion that she was
suffering from mental disorder. It was also admitted by the brother that she was suffering
from mental sickness and that she was undergoing some treatment for the said reason.
5. Thereafter the husband filed a divorce petition which was resisted by the appellant at that
time, citing some reason alluding to the wrong on the part of the defendant that he didn’t try
for taking his spouse from her parental home as he was preparing for some competitive
examinations.
6. It was also alleged that after the marriage, the respondent was unemployed for six years
and was preparing for competitive test and only after clearing the Rajasthan Administrative
Services Examination, he started disliking her and tried to marry a more attractive girl, apart
from allegedly passing satirical remarks to the appellant for not bringing enough dowries to
the husband’s house.
7. The husband, then, sought an amendment to the petition to include the ground to challenge
the marriage itself, as he alleged that his wife was mad at the time of marriage itself and
hence the marriage be declared void due to concealment of material fact under section-12 of
Hindu Marriage Act, 1955. But, this was not allowed by the court as it rightly pointed out the
time barred provision of section-12.
8. Then, however, the Trial court advanced with the divorce petition, and as the trial
continued the wife was found to be suffering from mental disorder and schizophrenia, as
opined by the medical board. Thereafter, considering facts and evidences, the court granted
the decree of divorce.
ISSUES RAISED
I. Whether mental illness of such a kind which leads to non consummation of
marriage inevitably becomes a ground for divorce?
II. Whether the subjectivity of "ascertaining if someone can be expected to live with
his or her mentally ill spouse or not", becomes paramount while deciding a divorce
decree?
SUMMARY OF ARGUMENTS
[5] That, the respondent is justified to get divorce under section 13 of Hindu
Marriage Act, 1955 as he has been kept in dark about the mental disorder of
the appellant for six long years which rendered the marriage a non-
consummated one .
[6] That, the Trial Court proved the veracity of the charges of mental illness of
the appellant by carefully examining pertinent medical documents and
witnesses, so the presence of mental sickness cannot be challenged and it’s
on record that the appellant did not bring the doctors who were treating
her to refute the charges and also did not appear herself to give testimony.
[7] That , the question of filing petition after inordinate delay has no
rationality as far as this case is concerned, where the appellant hardly
stayed for four to six days with the respondent, giving him no opportunity
to start doubting. Hence, this allegation should be certified baseless.
[8] That, the propagation of argument that she was non-aggressive cannot be in
favor of the anyone because mere suffering of those kinds of mental illness
makes her straight out uninterested for discharging matrimonial duties, in
the absence of which it is absolutely fair to assume that the other party is
not expected to live with such a lunatic person. Hence divorce decree
should be granted as per section 13(iii) of Hindu Marriage Act.
ARGUMENTS ADVANCED
ISSUE I
1. The Respondent (husband) is entitled to obtain the decree of divorce because of the
mental illness as per Hindu Marriage Act, 1955.
1. The rationale behind having section 13(1) (iii) in the statute book of Hindu Marriage
Act is to give relief to the plaintiff if the other party is of unsound mind. In a case
where the disease of schizophrenia had been deliberately concealed from the husband
at the time of marriage, the husband was within his legal right under section- 13(1)
(iii) to move the court for a decree of dissolution of marriage, if not for annulment of
the said marriage.1
2. Though the reasoning that “mere branding of a mental illness like schizophrenia is
not sufficient to make a compelling ground for divorce”2 is fully maintainable, we
should also make it amply clear that “the schizophrenic person can be of such a type
that his or her abnormal and erratic behavior may make him or her unfit for being a
life partner”3, which in turn leads to an unsatisfactory non-consummation of
marriage.
3. However, the medical expert opinion cannot be disputed citing some conjecture by
the defendant, unless fails to disprove that. And, “such a 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”4. Hence, the pleading by the appellant-
4. Now, this Honorable court would be fully justified to draw any adverse inference
against the defendant because of her non- appearance in the witness box. Moreover,
no satisfactory explanation has been forwarded for her absence; hence, the court
1
Tarlochan Singh v. Jit Kaur, AIR 1986 P&H 379
2
Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260
3
Alka Sharma v. Chandra Sharma, AIR 1991 MP 205
4
L. Hemalatha v. N.P. Jayakumar, AIR 2008 Mad 98
(II) Whether the subjectivity of "ascertaining if someone can be expected to live with
his or her mentally ill spouse or not", becomes paramount while deciding a
divorce decree?
1: The respondent is fully within law to get divorce decree as the he cannot
reasonably be expected to live with sick women as per section 13 HMA, 1955.
1. As per the language used in section 13(1)(iii), when lunacy gets juxtaposed with
unreasonable expectation to live with a mentally sick person, then it undoubtedly
becomes a ground for divorce, as the marital obligations are not performed in
such a condition and cohabitation becomes extinct.
2. Though cruelty was not meted out to the respondent as such, the very ground that
she was not living with the her husband and after six years insulted him in his
village for whatsoever reason, even if not knowingly, amounts to unkindness and
mental suffering on part of the husband, who may get relief by obtaining a
decree of divorce 5.
3. Inordinate delay to submit the divorce petition, as argued by the appellant, would
be far from truth as the respondent was not given any chance to raise doubt or
check the medical condition himself to establish the facts. The paternal family’s
stand on this question should raise many eyebrows as their stand hasn’t been
consistent; at one time they accepted the mental disorder but were making a
volte-face in the court putting objection to the expert medical opinion.
5
Pankaj Mahajan vs Dimple @ Kajal, 2011 (2) O.J.R. 715 (S.C.)
6
Ram Narain Gupta v. Rameshwari Gupta, AIR 1988 SC 2260
PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and
pleadings advanced, it is most humbly prayed before this Honorable Court that it
may be graciously pleased to:
1. Kindly dismiss the appeal by the defendant who wants to rescind the divorce decree
given by the Trial Court under Hindu Marriage Act.
And, pass any other order that it deems fit in the interest of justice, equity and good
conscience. All of which is respectfully submitted.
Debashish Dash