The Court emphasized the importance of following proper procedures and making enquiries when allegations of mental incapacity are made in divorce cases.

JUDGMENT :

Goutam Bhaduri, J.

1. Heard.

2. The present appeal is against the judgment and decree dated 26.11.2021 passed by the Judge, Family Court, Camp Court, Katghora, District Korba (CG) passed in Civil Suit No.74-A/2021, whereby, the decree of divorce has been granted in favour of the husband. The instant appeal is filed by the appellant-wife.

3. The brief facts of the case is that the marriage of the respondent-husband and the appellant-wife was solemnized on 9.5.2002 and thereafter, the wife moved to her matrimonial house at Korba. As per the pleadings of the husband, after the rituals of the marriage, the behaviour of the wife appeared to be non-cooperative and unnatural but since such behaviour was immediately after the marriage, it was ignored. However, the wife went back to her parental home and when the husband tried to bring her back, she refused for some or the other reasons. Thereafter, a child was born out of their wedlock. It was alleged that in May 2007, the wife again left for her parental house and subsequently, several rounds of social meetings were held. Lastly, it came out that the wife is mentally retarded, for which, she is being treated by Psychiatrists Dr. Prakash Narayan Shukla and Dr. Shailesh Verma at Raipur and Bilaspur respectively. It was further pleaded that the husband proposed to get the wife treated by the best Psychiatrist but for some or the other reasons, the same was avoided. It was also stated that when the husband got to know the mental condition of the wife, the sister of the wife came to the matrimonial house and took all her belongings and the wife never tried to come back. The husband has further made certain narrations of the incidents in his pleadings. Consequently, in a petition filed under Section 13(1) of the Hindu Marriage Act, 1955 before the Family Court, the respondent proceeded ex-parte and eventually, an ex-parte decree was passed.

4. Learned counsel for the appellant-wife would submit that when it was pleaded that the husband knew the fact that the wife is mentally retarded, the Court below should have proceeded under Order 32 Rule 15 of the CPC to make an enquiry about the state of mind of the wife. He would submit that without having done so, the Court has proceeded ex-parte, therefore, the order itself would be bad in law.

5. Per contra, learned counsel for the respondent-husband, would submit that it was on the information of the family members, the husband got to know that the wife was mentally retarded. Consequently, there was no mandate to follow the procedure under Order 32 Rule 15 of CPC. He further submits that even after the notice, the wife did not turn up and thus, the ex-parte proceedings drawn by the Court is well merited, which do not call for any interference.

6. We have heard learned counsel for the parties at length, perused the pleadings and the order sheets of the Court below.

7. The order-sheets would show that after filing of the petition on 19.7.2021, the notice was ordered to be issued and the case was fixed for 20.9.2021 for appearance of the wife, reconciliation and reply. The acknowledgment shows that the above notice was stated to be served on the respondent-wife (appellant herein). The order sheet further shows that the date of hearing i.e. 20.9.2021 was pre-poned and the matter was taken up on 25.8.2021 and on the said date, the next date of hearing was given as 22.10.2021'. Thereafter, on 22.10.2021, the ex-parte proceedings were drawn and on the subsequent date, the evidence was recorded.

8. Perusal of the order sheets would show that the notices were issued for appearance of the wife on 20.9.2021 and thus, it is not expected that on a prior date, the case would be taken up i.e. on 25.8.2021 and a different date of 22.10.2021 would be given. The acknowledgment notice shows that the date of appearance was given as 20.9.2021' and the order sheets of the trial Court would show that on the said date, the case was not taken up for hearing and on this