Precaution to be taken by court while conducting trial of person of unsound mind

 In view of the discussion of law and facts made above, we are satisfied that learned trial court erred in law in resuming full-fledged trial despite receiving categorical opinion of the medical board comprising of experts, conveyed to it by the Superintendent, Mental Hospital, Jaipur, vide letter dated 25.03.2009 that though there was partial improvement in the condition of accused and that he was capable of taking care of himself and would not cause any threat to himself and others, but "he was not capable of understanding the judicial process." This communication was specifically taken note of by the trial court in its order dated 08.04.2009, even then it proceeded with the trial further and did not rectify the mistake despite some of the witnesses, who were examined subsequently, stating about mental unsoundness of the accused at the time of crime. This was a serious lacunae which vitiated the entire trial.

22. In the result, present appeal succeeds and is allowed. The impugned judgment and order dated 17.07.2013 of the trial court is set aside. The matter is remanded back to the trial court for fresh medical examination of the accused-appellant from a Medical Board consisting of three expert psychiatrists to determine whether the accused-appellant was capable of making his defence during trial or otherwise, and then proceed in accordance with the provisions contained in Chapter XXV of the Code of Criminal Procedure, especially Sections 329 to 331 thereof, including about his right to be released on bail on fulfillment of the condition envisaged in Section 330 of the Cr.P.C.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

D.B. Criminal (Jail) Appeal No. 848/2013

Decided On: 26.05.2016

 Ramswaroop

Vs.

State of Rajasthan

Coram:

Mohammad Rafiq and Vijay Kumar Vyas, JJ.

Citation:2017 CRLJ(NOC) 23 Raj

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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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