In a divorce proceeding under Section 13(1)(iii) of the Hindu Marriage Act, 1955, the petitioner must prove incurable unsoundness of mind or mental disorder of the respondent spouse by the standard of preponderance of probability or beyond reasonable doubt. Medical evidence is not always necessary, but when available and not produced, an adverse presumption may be drawn against the party alleging mental disorder. Social justice and the weaker party's position should be considered in deciding the case, but only when the evidence is evenly balanced.

A. M. BHATTACHARJEE, J.

( 1 ) THE suit was rightly dismissed and the appeal therefore must follow suit or follow the suit.

( 2 ) THE husband-appellant sued the wife-respondent for dissolution of marriage on the ground specified in section 13 (1) (iii) of the Hindu Marriage Act, 1955, namely, the respondent wife "has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of a such kind and to such an extent that the petitioner can not be reasonably expected to live with the respondent.

( 3 ) SOUND health, in these days of pollution of air and water, adulteration of food stuff and drugs and all that is a rare a species. So is sound mind, as a result of all the stress and strain, anxiety and tension of the modern age. The legislature has h6t made unsoundness of mind or mental disorder, by itself, a matrimonial fault unless the unsoundness is incurable or the disorder is such as to disable the person to become a reasonably tolerable matrimonial partner.

( 4 ) WE have no doubt that the petitioner-husband has failed to prove his case by any standard, whether the standard of preponderance of probability as laid down by the Supreme Court in Dastane v. Dastane (AIR 1975 5c 1534), or that of proof beyond reasonable doubt as laid by the Supreme Court in Bipin Chandra v. Probhabati (AIR 1957 SC 176) or in White v. White (AIR 1958 SC 441), none of which was, however, referred to in Dastane's case (supra ).

( 5 ) THE respondent wife has admitted that she suffered from some sort of mental disorder and was treated as an indoor patient in a Calcutta Hospital in 1976 for about a month in August-September and that she was totally cured. The appellant husband would, however, assert that the wife continued to suffer from severe mental disorder even thereafter and that he had to continue to get her treated by several doctors. The petitioner has asserted in the petition that the wife's mental disorder become so grave that she used to become violently aggressive and a source of danger to the safety of the lives and limbs of the petitioner, his parents and the other members of his family. In his deposition also the petitioner wanted to assert that the wife used to become so violent as to try to assault them with Bonti and other things.

( 6 ) THE trial Court has disbelieved the case of the Petitioner and in our view, for good reasons. The Petitioner lives with his parents and the case is that the parents were also very often the targets of the wife's violence. But the Petitioner could adduce no satisfactory reason as to why he could not examine his own parents who were expected to know all about the truth or otherwise of the Petitioner's case. The statement of the Petitioner that his father was "bed-ridden" has been square1y belied by his own witness, P. W. 2, who has said that the father of the Petitioner "is of sound health". He has also stated that his mother, aged about 65, is "bodily unfit to attend Court". But even if true, then also why no attempt to have them examined on commission?

( 7 ) THERE are several weighty reasons, some of which weighed with the trial Court also, to lead us to conclude that it would not be safe for us to accept and rely on these evidence and to act thereon.

( 8 ) WE have not been able to understand as to how, in a case where the husband sues the wife for divorce on the ground that her mental disorder is of such a nature as to endanger the safety and security of his parents also and the husband does not examine the parents in Court or on Commission for no satisfactory reason, the husband can reasonably resist the adverse presumption that his own parents are not in no mood to support the truth of his allegation. Then again, if it is the husband's case that even after the wife was discharged from the mental hospital in 1976, he had to continue to get her treated by doctors for such mental disorder and the doctors are named, but no steps have been taken to have the doc

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