Can the court annul the marriage if the wife suppresses her mental illness before her wedding?

  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 was made aware of the mental disorder suffered by the respondent, which was passed-off by her as mere “headaches”. Headaches–by themselves are not a disease. They are only symptoms of a disease. The Respondent does not state what caused her such serious and frequent headaches, which debilitated her from completing her studies. {Para 49}

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

 MAT. APP. (F.C.) 142/2020

 SANDEEP AGGARWAL Vs PRIYANKA AGGARWAL

CORAM:  MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE JASMEET SINGH

 Author: JASMEET SINGH, J

Dated: Pronounced on: 24.12.2021 

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Whether Insurance Company is bound to give coverage for mental illness along with physical illness?

Can mental illness be treated differently from physical illness for medical insurance purposes, is the question that arises in the present petition.

3. The petition raises an important issue relating to insurance coverage for mental illnesses and the provision of non-discrimination qua such illnesses as enshrined in Sections 21(1)(a) and 21(4) of the Mental Healthcare Act, 2017 (hereinafter, ‘MHA, 2017’).

27. It is clear from a perusal of the provisions of MHA, 2017, as also the provisions of the IRDAI Act, 1999 that immediately upon the MHA, 2017 coming into force, all insurance products ought to have extended the same treatment for mental and physical illnesses and remove any clause that discriminate between the same. The Insurance Ombudsman’s order which holds that the provisions of the MHA are not relevant to the present Petitioner is untenable. The MHA, 2017 has come into effect from May/July, 2018, and thus the exclusion in the Healthcare Policy of NICL with respect to “all psychiatric and psychosomatic disorders/diseases”, under Clause 4.10 as noted above, is contrary to law.

31. The Insurance Ombudsman’s order failed to consider the fact that the MHA, 2017 recognised the rights of the Petitioner and the conclusion of the Insurance Ombudsman that the provisions of the MHA, 2017 are not relevant, is completely contrary to law and is untenable. The MHA, 2017 and the provisions thereof, are absolutely relevant for a person who was suffering from Schizoaffective Disorder. Thus, the Petitioner was entitled for reimbursement of her claim as per the provisions of the MHA, 2017.

33. It is made clear that NICL and all insurance companies are liable to give effect to Section 21(4) of the MHA, 2017 with effect from the date when it has come into force i.e., 29th May, 2018. Mental illnesses ought to be covered without any discrimination. IRDAI would circulate a copy of this order in order to enable compliance by all the insurance companies.

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 3190/2021

SHIKHA NISCHAL Vs NATIONAL INSURANCE COMPANY LIMITED

CORAM:

JUSTICE PRATHIBA M. SINGH

Date of decision: 19th April, 2021

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Bombay HC: Procedure to be followed by Court if accused is suffering from mental illness.

 In terms of sub-section (2) of Section 330 of the

Code of Criminal Procedure, if the case is one in which, in the

opinion of the Magistrate or Court, as the case may be, the

bail cannot be granted, it shall order the said accused to be

kept in such a place where regular psychiatric treatment can

be provided and shall report the action taken to the State

Government.{Para 12}

13. In terms of sub-section (1) of Section 103 of the

Mental Healthcare Act, 2017, if any order is passed under

Section 330 of the Code of Criminal Procedure directing

admission of the prisoner with mental illness into any

suitable mental health establishment, shall be suffcient

authority for the admission of such person in such

establishment to which such person may be lawfully

transferred for care and treatment therein. The learned A.P.P.

has suggested that the applicant may be referred to the

Regional Mental Hospital, Yerwada, Pune for admission, care

and further treatment.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

901 BAIL APPLICATION NO.1426 OF 2020

Shankar Sopan Shikare Vs  The State of Maharashtra

CORAM : V.K. JADHAV, J.

DATE : 10.12.2020

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Whether it is mandatory for court to hold enquiry in petition for annulment of marriage if wife is suffering from mental illness?

After considering the various rulings cited before me and referred herein above, I have no doubt that both the Courts below erred in completely overlooking the provisions of Order 32 Rule 15 which are mandatory in nature. If those provisions are not followed and a decree is passed against a person having mental disorder, it would be nullity. It will not be proper not to interfere even when both Courts below have passed Judgments and orders which amount to nullity. Both the Courts below were bound to hold enquiry as contemplated under Order 32 Rule 15. When any plaint or petition is filed by a person either himself or through next friend, claiming himself to be a person suffering from mental infirmity or suit is filed by a person against a defendant or respondent, who is alleged to be suffering from mental infirmity, it is bounden duty of the Court to hold enquiry in this regard.

17. Giving opportunity of hearing should be meaningful and with a purpose. If a person is too poor to appoint a lawyer, unless legal aid is given to him, he cannot defend himself. Similarly, giving opportunity of hearing to a person suffering from mental illness, is giving him no opportunity unless he is given the assistance of a Guardian-at-litem, who can take care of this defence. It may be that a person may not appear to be mentally insane sometimes, If he is having lucid attacks at intervals. When he is not having such attacks, he may look perfectly normal, but whenever, he is having attack, he would be incapable of defending himself. Even in such cases, Order 32 Rule 15 must be strictly complied. Otherwise, a person looking normal, may contest the proceedings against him, but at any crucial moment, if he suffers from attack of mental disorder, he would not be in a position to take necessary steps to defend himself.

18. It was therefore, necessary for the trial Court to hold enquiry as contemplated under Order 32 Rule 15.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 284 of 2018 and Civil Application No. 5300 of 2018

Decided On: 21.11.2018

Seema Ambadas Khedkar  Vs. Ambadas Jagannath Khedkar

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 384

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Whether the court must appoint Guardian-at-litem to wife prior to passing of decree for annulment of marriage on ground of her mental illness?

The facts referred above, disclose that there are serious allegations of mental disorder of Seema, the respondent in the HMP filed by her husband. In fact, the husband has claimed annulment of marriage on the ground of mental disorder. Even the medical evidence was laid showing that she was taking treatment for mental disorder. In such circumstances, it was bounden duty of the trial Court as well as the First Appellate Court to hold inquiry as to whether she was capable of defending herself or not.

9. In Ramchandra Arya Vs. Mansingh-MANU/SC/0352/1967 : AIR 1968 SC 954, it is held that decree against the lunatic without appointment of Guardian-at-litem is nullity and the sale held in execution of the decree is also void-ab-initio.

10. In Tipanna Vs. Somnath 1990 I BCR 677, it is held that decree against the person of unsound mind, without appointment of Guardian-ad-litem is void ab-initio.

After considering the various rulings cited before me and referred herein above, I have no doubt that both the Courts below erred in completely overlooking the provisions of Order 32 Rule 15 which are mandatory in nature. If those provisions are not followed and a decree is passed against a person having mental disorder, it would be nullity. It will not be proper not to interfere even when both Courts below have passed Judgments and orders which amount to nullity. Both the Courts below were bound to hold enquiry as contemplated under Order 32 Rule 15. When any plaint or petition is filed by a person either himself or through next friend, claiming himself to be a person suffering from mental infirmity or suit is filed by a person against a defendant or respondent, who is alleged to be suffering from mental infirmity, it is bounden duty of the Court to hold enquiry in this regard.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 284 of 2018 and Civil Application No. 5300 of 2018

Decided On: 21.11.2018

 Seema Ambadas Khedkar  Vs. Ambadas Jagannath Khedkar

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: AIR 2019 Bom 22

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Whether defendant can be permitted to examine doctor to ascertain mental condition of plaintiff at the stage of final argument ?

 In view of the own admission of the plaintiff/petitioner No. 2 in the plaint that she had instituted the suit for cancellation of sale deed in the year 2012 being next friend of plaintiff No. 1 as noted above, this Court is of the view that no further enquiry was required to be made by the Court under Order XXXII, Rule 1 to 15 of the Code of Civil Procedure. The scope of enquiry under the provisions of Order XXXII, Rule 1 to 15 is limited for the purpose of appointment of next friend to represent a plaintiff. Plaintiff No. 1 is properly represented by his wife. As per the plaint averments, plaintiff No. 2 (wife) is capable of protecting the interest of the plaintiff No. 1 (her husband) and her interest in the subject-matter of suit cannot be said to be adverse to that of the plaintiff No. 1.

17. In view of the above discussion, the argument of learned Counsel for the petitioner that the enquiry required to be made under Order XXXII, Rule 15 (Rule 1 to 15) of the Code of Civil Procedure has not been done by the Court, below, is wholly misconceived.

 In the instant case, the Appellate Court has considered the prayer of the appellant to adduce additional oral evidence of Doctor at the stage of final argument in appeal and has opined that the documentary evidences filed by the appellant during the course of hearing in the appeal had already been taken on record vide order dated 6.7.2017. In view of the available evidence taken on record, there was no further requirement of additional oral evidence of Doctor.

25. Further, an enquiry has already been made by the First Appellate Court regarding the mental condition of Sri Vinod Kumar (plaintiff No. 1) who was present before it on 6.7.2017. The exercise of discretion by the First Appellate Court at the stage of final disposal of the appeal in holding that no further evidence was required, cannot be said to be an improper exercise of judicial discretion.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Petition No. 4468 of 2017 and Matters Under Article 227 No. 3194 of 2017

Decided On: 28.07.2017

Vinod Kumar  Vs. Tarachand

Hon'ble Judges/Coram:

Sunita Agarwal, J.

Citation: AIR 2018(NOC) 703 ALL

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What is difference between mental illness and mental retardation?

The three-Judge Bench referred to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, '1995 Act') and opined that in the said Act also "mental illness" has been defined as mental disorder other than mental retardation. The Court also took note of the definition of "mental retardation" under the 1995 Act. The definition read as follows:

2(r) 'mental retardation' means a condition of arrested or incomplete development of mind of a person which is specially characterised by subnormality of intelligence.

31. The Court also apprised itself that the same definition of "mental retardation" has also been incorporated Under Section 2(g) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. Analysing the provision of Act. The Court opined that while a guardian can make decisions on behalf of a "mentally ill person" as per Section 3(4)(a) of the 1971 Act, the same cannot be done on behalf of a person who is in a condition of "mental retardation". Thus, the difference between the 'mental illness' and 'mental retardation' as recognized in law, was emphasised.

32. The three-Judge Bench proceeded to address the 'best interest' of the victim and invocation of the doctrine of parens patriae. In that context, it held:

As evident from its literal description, the "best interests" test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court's decision should be guided by the interests of the victim alone and not those of the other stakeholders such as guardians or the society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.

33. After so stating, the Court adverted to the facts of the case and came to hold that though the victim had been described as a person suffering from mild mental retardation, that did not mean that she was entirely incapable of making decision for herself. It discarded the 'substituted judgment' test, which requires the Court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10463 of 2017

Decided On: 17.08.2017

 Z  Vs  The State of Bihar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ.

Citation: ( 2018) 11 SCC 572

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Whether ‘Mentally challenged’ man can donate kidney to sibling?

Petitioner no. 3 is adjudged as mentally challenged and, in view of section 9(1-C) there is prohibition for removal of organs or tissues. Section 9(1-C) of the Act reads thus:

9. Restrictions on removal and transplantation of [human organs or tissues or both]

(1-C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of transplantation.

Explanation - For the purpose of this subsection,-

(i) the expression “mentally challenged person” includes a person with mental illness or mental retardation, as the case may be;

(ii) the expression “mental illness” includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled;

(iii) the expression “mental retardation” shall have the same meaning as assigned to it in clause(r) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)]

As has been recorded above, the principles in Common Law jurisdiction based upon “best interest test” cannot be made applicable in view of specific provisions in Transplantation of Human Organs and Tissues Act, 1994. Section 2(f) of the Act defines donor as the person not less than eighteen years of age, who voluntarily authorises removal of his organ or tissues. In the instant matter, petitioner no. 3 is not an individual who is in a position to voluntarily authorise removal of his organ or tissues. Apart from this, section 9(1-C) puts bar on removal of human organ or tissues or both from body of a mentally challenged person. In the instant matter, petitioner no. 3 is adjudged as suffering from mental retardation and he is reported to be a person not capable of making decision for himself. We, with a view to find out whether petitioner no. 3 has a minimum level of understanding, interviewed him by calling him in chamber in presence of the counsel of both the sides. We have noticed that petitioner no. 3 even was not in a position to understand the questions put to him and is incapable of understanding the consequences of his act. His decision making power is severely impaired and we do not doubt the opinion of the Consultant Psychiatrist.

20. The restriction on removal and transplantation of human organs or tissues or both contained in sub-section (1-C) of section 9 of the Act in respect of mentally challenged person is an absolute prohibition. The Statutory provision is couched in negative language and as such shall have to be construed mandatory. In this connection reference can be made to the judgment of the Honourable Supreme Court in the matter of Vijay Narayan Thatte v. State of Maharashtra reported in(2009) 9 SCC 92 The proviso to section 6 of the Land Acquisition Act which puts prohibition for making a declaration under section 6 after expiry of one year from the date of publication of notification was a matter of consideration before the Court. The Honourable Supreme Court recorded that since the statute is couched in negative language, it is referred as peremptory and mandatory in nature. While interpreting the negative prohibition, in paragraphs 5 to 16 of the judgment, the Honourable Supreme Court has observed thus:

“5. As stated by Crawford:

“263. Affirmative, negative, prohibitory and exclusive words.- Prohibitive or negative words can rarely, if ever, be directory…. And this is so, even though the statute provides no penalty for disobedience.”

(See Crawford: Statutory Construction, p. 523; see also in this connectionHaridwar Singh v. Bagun Sumbrui, SCC p. 895, para 13, Lachmi Narain v. Union of India; Mannalal Khetan v. Kedar Nath Khetan).
In the High Court of Bombay at Aurangabad

(Before R.M Borde and Vibha Kankanwadi, JJ.)

Ganpatrao S/o Sambhajirao Pawar. v. State of Maharashtra 

Writ Petition No. 13918 of 2017

Decided on December 21, 2017,
Citation: 2017 SCC OnLine Bom 9419, 

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Whether husband can be granted divorce on ground of mental illness of wife amounting to cruelty?

 The respondent in para 22 of his cross examination has stated that he had earlier filed petition No. A-1235/2003 only on the ground of unsoundness of mind of the appellant. He claims that the said petition was withdrawn as he wanted to add the ground of cruelty also. It is obvious that the respondent filed the earlier petition only on the ground of unsoundness of mind, when the alleged acts of cruelty had preceded the filing of the aforesaid petition. That petition was also not amended to incorporate the ground of cruelty and on the contrary the said petition was unilaterally withdrawn.

20. The learned Judge of the Family Court while considering issue No. 1 had divided the period of married life of the parties into three phases as under:

I. Between 5th December 2001 till September 2002,

II. Between 2nd October 2002 till 18th March 2003,

III. Between 18th March 2003 till 1st February 2004.

21. The learned Judge has thereafter went on appreciating the evidence about the various incidents for the aforesaid period. In so far as the first phase is concerned, the learned Judge of the Family Court has noticed that during the respondent's cross examination (the petitioner before the Family Court), the appellant's cross examiner had admitted both the incidents that is dated 1.2.2002 and the one which took place in the first week of August 2002. However, on careful perusal of the cross examination, it does not appear that these incidents as such, as claimed by the respondent have been admitted. On the contrary, a suggestion is given in para 10 that it was the respondent who assaulted the appellant because of which the appellant attempted to leave the house with bag and baggage. We find that the cross examination will have to be read a whole. The Family Court has thereafter considered the mental and physiological symptoms of the appellant and has referred to the prescriptions (Exh. 49) of Dr. Bhadwadekar and a report (Exh. 50) issued by Ms. M. Sule, a clinical psychologist. In so far as the report Exhibit 50 is concerned the Family Court has refused to go into the details, because it was highly technical in nature. In so far as the prescriptions at Exh. 49 are concerned, issued by Dr. Bhadawadekar, the Family Court has found that the symptoms noticed were fearfulness, irritability, low functional tolerance, incensory hearing and disturbance affecting stability. It may be mentioned that while answering issue No. 2 in the negative, (about the appellant suffering from any mental disorder) the learned Judge of the Family Court has observed that the psychiatrist was not examined and no serious attempts were made to prove this allegation. It has been held that there is no sufficient evidence to hold that the appellant was suffering from mental disorder, to such an extent that the respondent could not have lived with her. It can thus be seen that once the Family Court had found that in the absence of the evidence of the psychiatrist, no reliance could be placed on the allegations about the mental disorder, the same material could not have been referred or relied upon, in order to find, that the appellant had treated the respondent with cruelty. The learned Judge of the Family Court while refusing to accept the case of mental disorder, has observed that the appellant should have got herself treated by a psychiatrist and then approached the respondent for resumption of cohabitation. It has also been found that instead of getting herself treated, the appellant and her family members tried to take help of the police machinery to force the respondent to resume cohabitation. Then again, it has been observed that it was possible due to the disturbed emotional state that she was throwing tantrums and that probably had provoked the respondent (petitioner before the Family Court) and "he too could have at times lost his temper". In our considered view the said reasoning cannot be accepted once the very basis for the erratic behavior of the appellant is found to be not substantiated. In the opinion of the Family Court the attempt to approach the police instead of getting herself treated was "equally illogical approach to the problem" which according to the Family Court was an act of cruelty. This is regarding the second phase. At the cost of repetition, we may state, that the evidence and the case about mental disorder and unsoundness of mind having been discarded, the subsequent finding that instead of getting herself treated having resort to police machinery and the foisting of the appellant in the matrimonial home cannot be accepted.

22. In so far as the third phase is concerned, again the Family Court has discussed about the attempt by the appellant and her family members to resort to the police machinery. Lastly in so far as the incident dated 24/10/2003 is concerned in which the appellant was found locked in the bath room, the Family Court observed that "this happened probably because of mutual distrust and hatred and in the heat of the moment but this could not be held as an act of cruelty on the part of the respondent". Thus in so far as this incident is concerned the Family Court is not with the respondent. In para 26 of the judgment the Family Court has found that the filing of the complaint under section 498 of I.P.C. was "itself an act of cruelty and fortunately for the respondent and his family members, the learned Metropolitan Magistrate acquitted them". The learned Judge of the Family Court has noticed that the Magistrate has not recorded a finding that the complaint was false. However, according to the family Court the filing of the complaint was wrong.

23. We are unable to subscribe to the reasoning as aforesaid. As noticed earlier, in order to succeed in getting a decree for dissolution of marriage the allegations about cruelty have to be clearly made out and substantiated which is not done in this case. For this reason the appeal is allowed.

IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 137 of 2007

Decided On: 13.07.2016

 Mansi Mohan Chandarkar Vs. Mohan Vishnu Chandarkar

Hon'ble Judges/Coram:

C.V. Bhadang and Abhay Shreeniwas Oka, JJ.

Citation: AIR 2017(NOC)694 Bom

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When court should not give divorce on ground of unsoundness of mind of other spouse?

 From the above evidence, we are of the view that, it is difficult to assume that a case of unsoundness of mind as required by the statute, has been made out. As has been pointed out by the Hon'ble Supreme Court, mere unsoundness of mind cannot by itself constitute a ground for divorce. The unsoundness of mind should be to such an extent that it should be incurable that other spouse cannot be reasonably expected to live with the person who is alleged to be mentally unsound.

22. We have examined the evidence on record and the cumulative effect of the evidence on record leads us to believe that the husband has not made out a case for grant of divorce on the ground of unsoundness of mind. There might have been hiccups in the family but that by itself cannot lead to a presumption that the wife is of unsound mind, which is incurable and it is of such gravity that the husband cannot be expected to live with her. Even the doctor, examined by the husband namely, P.W. 2 has deposed that the disease can be controlled. He would further depose that the wife is capable of discharging her marital obligations. He would also state that with medication she can lead normal life. The husband has also admitted that he had led a normal family life, as a result a male child was born on 12.07.2002. These vital admissions, according to us, would go against the claim of the husband that the wife is suffering from incurable unsoundness of mind.

IN THE HIGH COURT OF MADRAS

C.M.A. No. 990 of 2008 and Crl. R.C. No. 1353 of 2007

Decided On: 20.12.2016

 T. Jagedeeswari and Ors.

Vs.

 Anand

Hon'ble Judges/Coram:

Pushpa Sathyanarayana and R. Subramanian, JJ.

Citation:AIR 2017 (NOC) 415MAD

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Whether court should grant annulment of marriage on ground that wife is suffering from mental illness?

The Hon'ble Supreme Court in R. Lakshmi Narayan v. Santhi (supra) held that Section 9 provides that a marriage may be solemnised between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein in Clause (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and Section 12(1)(b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in Clause (ii) of Section 5. On a plain reading of the said provision it is manifest that the conditions prescribed in that section, if established disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the court for breaking a marriage already solemnised. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety.

22. In our opinion, the Family Court was justified in denying the decree of annulment of marriage on the ground of Section 12(2) of the Act that even after coming to know of such illness, the appellant husband continued to live with the respondent wife and cohabit as husband and wife and, therefore, on the ground of fraud or on the ground of such mental disorder he could not be awarded the decree of annulment of marriage.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

Decided On: 23.01.2007

Prakash Kumar Bachlaus
Vs.
 Smt. Chanchal @ Jaya

Hon'ble Judges/Coram:
Gyan Sudha Misra and Vineet Kothari, JJ.

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Whether husband is entitled to get annulment of marriage on ground of concealment of mental illness of wife?

Taking into consideration all the circumstances, it is very clear that the mental illness, which requires continuous medica-lion and due to which there was irritability, unco-operativeness and hostility on the part of the appellant/wife and which is incurable, is something which is a material fact or the circumstance concurring the present appellant. In the clinical history given at Exh. 31, it was mentioned that the appellant had come to the hospital of Dr. Barhale as she was overtalkative, abusive, irritable, angry, biting to any one, not mixing with people, talking on one topic, crying, shouting, trying to run away, biting to mother, laughing to herself, not working at home. If these were the symptoms of the mental illness, we cannot say that the mental illness of the appellant was a fact, which need not have been disclosed or which was not material. Therefore, concealment of such thing is definitely a fraud within the meaning of Section 12(l)(c) of the Act of 1955. Such bahaviour materially affects the marital life, so also tranquillity and happiness in the home.

22. The learned Counsel for the respondent cited the case of Smt. Kiran Bala Ashthana v. Bhaire Prasad Shrivastava . In that case, it Is observed that:

If it is shown that the facts and circumstances about one of the parties were such that the other party could not have readily consented to marry the other, and there was an element of deception or misrepresentation in bringing about the marriage at the instance of a party, such as to amount to fraud, a Hindu marriage could surely be annulled under Section 12(1)(a) of Hindu Marriage Act, notwithstanding its sacramental character.

We agree with the said observations in para 11 in the above case.

23. In this case, the respondent, who is a normal young man, graduate working as an accountant and earning, would not have consented to marry a girl having background of such mental illness, had he known about the said fact before the marriage. No special reason was disclosed. We are more inclined to believe the words of the respondent/husband that the papers regarding prescriptions and discharge card were handed over to him by Dr. Barhale, rather than by the father of the appellant/wife prior to the marriage. In our opinion, the said theory put forward by the appellant was unnatural and improbable.

Bombay High Court

Vandana J. Kasliwal vs Jitendra N. Kasliwal on 28 September, 2006

Equivalent citations: AIR 2007 Bom 115, II (2007) DMC 227

Bench: N Dabholkar, P Borkar

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Procedure to be followed by plaintiff in suit for specific performance of contract if deft is suffering from mental illness

The Court finds that instead of instituting a suit for specific performance of
the agreement, the plaintiff preferred to intervene in the MHA proceedings.
However, it abandoned its interim application on 23.04.2001. Perusal of the
orders passed in the said proceedings reveals that on at least 10 occasions,
the counsel representing the plaintiff was not present and on 6 occasions,
he/she did not press the interim application.
28.The Court also finds merit the argument of the defendants that while
instituting the suit, the plaintiff never preferred an application under Order
XXXIX, CPC since the same would have resulted in the plaintiff
paying/depositing the balance sale consideration or at least a substantial partof it. It is settled law that the plaintiff must, at all times, be ready and willing
to pay the sale consideration to be entitled to the discretionary relief of

specific performance

IN THE HIGH COURT OF DELHI AT NEW DELHI
 Date of decision: 01.09.2015
CS(OS) 335/2005
SEWA INTERNATIONAL
versus
KALAWATI MATHRANI & ORS.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
Citation;AIR 2016 (NOC)163 Delhi

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Whether court should grant decree for divorce on ground of mental illness of spouse?

 Merely branding a spouse as a schizophrenic is not
sufficient. The degree of mental disorder of the spouse must

be proved to be such that petitioning spouse cannot
reasonably be expected to live with the other. The Supreme
Court in the case of Ram Narain Gupta Vs. Rameshwari Gupta;
reported in AIR 1988 S.C. 2260, has held that the degree of
mental disorder must be proved. It should be such that the
petitioning spouse cannot reasonably be expected to live with
the other. The context in which the ideas of unsoundness of
"mind" and "mental disorder" occur in the section as grounds
for dissolution of a marriage, require the assessment of the
degree of the "mental disorder". Its degree must be such that
the spouse seeking relief cannot reasonably be expected to live
with the other. All mental abnormalities are not recognized as
grounds for grant of decree. If the mere existence of any
degree of mental abnormality could justify dissolution of a
marriage, few marriages would, indeed, survive in law. But the
personality disintegration that characterizes this illness may be
of varying degrees. Not all schizophrenics are characterized by
the same intensity of the disease. The mere branding of a
person as schizophrenic therefore, will not suffice. For the
purpose of Section 13(1)(iii) "schizophrenia" is what
schizophrenia does. According to clause (iii), two elements are

necessary to get a decree. The party concerned must be of
unsound mind or intermittently suffering from schizophrenia or
mental disorder. At the same time that disease must be of
such a kind and of such an extent that the other party cannot
reasonably be expected to live with him. So only one element
of that clause is insufficient to grant a decree."
23 As stated earlier, the respondent has denied that he
was suffering from any such mental illness and according to
him, he was taking medication as he was suffering from stress
and sleeplessness. The respondent has been cross-examined
at length. This averment of the respondent that he did not
suffer from "paranoid schizophrenia" has not been dislodged in
the cross-examination. The respondent has also stated that he
had not given any mental or physical cruelty to the appellant
by giving her abuses and beating. No dent has been created in
this averment in the cross-examination. In view of the above
discussion, in our opinion, the appellant failed to prove that the
respondent-husband treated her with cruelty and her husband
i.e. the respondent is suffering from any mental disorder of
such nature that she cannot be reasonably expected to live

with him. In our view, the evidence of the respondent shows
that there was minor wear and tear of their married life. It is a
settled law that a decree of divorce cannot be granted on
minor wear and tear of married life. Therefore, the appellant is
not entitled to get the decree of divorce on the ground of
cruelty and mental disorder of the respondent as per Section
13(1)(i-a) and 13(1)(iii) of the Hindu Marriage Act, 1955.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 136 OF 2013
Mrs. Hemali Bindesh Kelaiya ]

Vs.
Mr. Bindesh Jayantilal Kelaiya ]

CORAM : SMT.V.K.TAHILRAMANI AND
V.L. ACHLIYA, JJ.

DECLARED ON : JANUARY 21, 2014
Citation; 2015(4) ALLMR313

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When mental illness of spouse can be proved by xerox medical records?

 The appellant is also seeking divorce on the ground of
mental illness of the respondent. In order to prove that the
respondent is suffering from mental illness, the appellant has
examined PW-2 Dr. Mazumdar. Dr. Mazumdar has stated in his
evidence that he is working as Psychiatrist in B.A.R.C. (Bhabha
Atomic Research Centre). The respondent is also working in
the said Research Centre. Dr. Mazumdar knew the respondent
as they were both working in one and same Institution. He has
stated that the respondent was taking treatment from him.
The respondent had come to his department with symptoms of
"paranoid schizophrenia". The Doctor has produced xerox

copies of medical papers of the respondent. It is pertinent to
note that the appellant has not produced the original medical
papers of the respondent. PW-2 Dr. Mazumdar has admitted
that the originals of medical papers of the respondent are with
B.A.R.C. however, they were not produced before the Court and
only xerox copies of the medical papers were produced. Thus,
the medical papers have not been proved according to law. It
is well settled that the burden of proving a fact lies heavily
upon the person who makes the allegations. The appellant has
not complied with the legal requirements to prove the
contents of the xerox copies. Therefore, the medical papers
(Exh. 28) cannot be read in evidence against the respondent.
Admittedly, the medical papers produced by PW-2 Dr.
Mazumdar are not primary evidence but those are secondary
evidence. Admittedly, the appellant has not taken permission
from the Court before leading such secondary evidence. The
appellant was required to comply with Section 65 of the Indian
Evidence Act before leading secondary evidence which has not
been done by the appellant.
16 The Hon'ble Apex Court has observed in the case of
U. Sree Vs. Srinivasi (2003) DMC 91 (S.C.) that:
"Secondary evidence relating to contents of a
document is inadmissible until non production of
original is accounted for, so far as to bring it within
one or other cases provided for under Section 65 of
the Indian Evidence Act."
Admittedly, the medical papers are not the original or
certified copies issued by the B.A.R.C. The medical papers,
pages 1 to 52 are not in the handwriting of PW-2 Dr.
Mazumdar. He is not the author of the documents. He has not
given the proper explanation for non-production of the original
medical papers. The mandatory essential requirements of
Section 65 of the Indian Evidence Act, have not been complied
with by the appellant. Therefore, in this situation and
considering the above observation of the Hon'ble Apex Court in
the above authority, in our opinion, the appellant has failed to
prove the medical papers produced at Exh. 28. Therefore, the
medical papers produced at Exh. 28 cannot be read in evidence
against the respondent.
17 The respondent has specifically stated in his evidence

that due to project work and continuous work pressure he was
not getting proper sleep, and therefore, he used to take
medicines. Dr. Mazumdar has stated in his evidence that the
respondent used to take tablets as per his prescription. He has
also stated in his cross-examination that the respondent
approached B.A.R.C. hospital personally due to work pressure
and sleeplessness. He has stated in his evidence that he has
prescribed "Trinicalmplus and CPZ" to the respondent. PW-2
Dr. Mazumdar has further admitted in his cross-examination
that the above tablets reduce stress and enable proper sleep.
The respondent has taken medical treatment for that purpose.
Dr. Mazumdar has admitted in his cross-examination in para 13
that he has not prescribed any medicines to the respondent
between June, 2007 to September, 2007. He has further
admitted in the same paragraph that as per his advice the
respondent stopped taking medicines during the above period.
In view of the above discussion, in our opinion, the evidence of
PW-2 Dr. Mazumdar does not prove that the respondent is
suffering from mental disorder to such an extent that it was
difficult for the appellant to live with the respondent.

18 The respondent has stated in his evidence that he
was working in B.A.R.C. i.e. Nuclear Power Corporation India
Ltd. He had been promoted. He also worked as the Secretary
of the society from 2002 to 2007. He is still performing his
official work and he is not suffering from any mental disorder.
Hence, on this basis, it can safely be held that he is not
suffering from any mental disorder to such an extent as to
make it difficult to live with him.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 136 OF 2013
Mrs. Hemali Bindesh Kelaiya ]

Vs.
Mr. Bindesh Jayantilal Kelaiya ]

CORAM : SMT.V.K.TAHILRAMANI AND
V.L. ACHLIYA, JJ.

DECLARED ON : JANUARY 21, 2014
Citation; 2015(4) ALLMR 313

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What is duty of court when one of parties in suit is lunatic?

In Rami Reddy's Case, the suit had been brought on behalf of the plaintiff by his next friend on the obvious allegation that the plaintiff, because of reasons of mental infirmity, could not sue directly himself. Obviously in such a situation the issue of the mental infirmity of the party is thus brought into the field on behalf of the party himself and, if contested, must be gone into. The issue of unsoundness of mind of the parties in this case is primarily between the court and the party and is certainly not a lis between the parties themselves. The legislature in its wisdom has conferreds larger and paternal power on the court to see that each party has the capacity to safeguard its legal interest and is no way handicapped by reason of any mental infirmity. This beneficial and, indeed, paternal power is wholly vested in the court and it is in its discretion alone, where it finds that any one of the parties is suffering from a weakness of mind, to proceed for taking steps to safeguard the interest of such a party. In the instant case, the lower court has failed to exercise its discretion which is vested with it and to refer a party to medical examination in order to adjudge as to the unsoundness of mind of the plaintiff.

Madras High Court

M.S. Nadar @ Subramaniya Nadar vs S. Saraswathi on 14 June, 1997

Equivalent citations: 1997 (2) CTC 132, (1997) IIMLJ 385,

Bench: A Lakshmanan

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