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2018 Supreme(Mad) 4257
IN THE HIGH COURT OF MADRAS, MADURAI BENCH
G.R. Swaminathan, J.
Mahalingam – Appellant
Vs.
Hemamalini – Respondent
Civil Miscellaneous Second Appeal No. 16, 17 of 2017, Civil Miscellaneous Petition No. 4038 of 2017
Decided On : 03-09-2018
M. Ajmal Khan, Adv., M.P. Senthil, Adv.
Headnote:
Hindu Marriage Act - Section 13(1)(iii) - Hindu Rites and customs - Dissolution of his marriage - Restitution of conjugal rights - respondent is suffering from "Schizophrenia" and that it is incurable – whether the marriage between the parties can be dissolved by granting a Decree of Divorce on the basis of one spouses mental illness which includes Schizophrenia under Section 13(1)(iii) of the Act -Held, it is not necessary that the Court should in all cases take the opinion of a Medical Board appointed by the Court. Matrimonial litigation is also one more form of adversarial litigation. Evidence is adduced on either side. The Court will have to take the final call. Of course if the evidence is not forthcoming or if the interest of justice require, it is always open to the Court to appoint a Medical Board for subjecting the party concerned to an examination - respondent is able to give answers properly to all the questions put by the appellants counsel during the cross examination. Nowhere she hesitated to answer nor she gave answer with any abnormalities. She deposed as an ordinary person and she appeared to be a woman of normal sense. The learned trial Judge had the advantage of observing the respondent at close quarters. This finding given by the learned trial Judge based on her personal observations carries great weight with this Court. This Court cannot also accede to the submission of the learned Senior counsel appearing for the appellant that in view of the irretrievable break down of the marriage, mental cruelty should be inferred and that therefore, the marriage should be dissolved. The legislature is yet to introduce "irretrievable break down of the marriage" as a ground for divorce. Even otherwise in the present case, the break down is only from the side of the appellant. The respondent has consistently maintained that she wants to live with the appellant. In the present case, a girl child has been born through the wedlock. Therefore, considering her interests and her future, the respondent is not willing to dissolve the relationship. This Court can very well appreciate the perspective of the respondent - Civil Miscellaneous Second appeals stand dismissed
G.R. Swaminathan, J.
The appellant Thiru.Mahalingam got married to the respondent Mrs.Hemamalini on 30.08.2001 at Thanjavur as per Hindu Rites and customs. A girl child was born through the said wedlock on 06.09.2002. According to the appellant, the respondent herein exhibited a strange behaviour right from the inception. The respondent appeared to be suffering from a severe mental illness. Therefore, the respondent was taken to a Psychiatrist by name, Dr.J.Venkatesan. The respondent was given medication. But there was no change in the mental state of the respondent. Therefore, the respondent was taken to NIMHANS, a renowned institution at Bangalore. It was then discovered that the respondent is suffering from "Schizophrenia" and that it is incurable. The appellant realized that the respondent was having such a condition from the beginning and that by suppressing the same, she was given in marriage to him. On 13.09.2005, at about 10.30 p.m., the respondent became very aggressive and severely assaulted the appellant. Left with no other option, the appellant took the respondent and the child to her parents' house and left them there. Since the respondent is having an incurable mental disorder and continued cohabitation with her would cause danger to the life and limb of the appellant, he filed H.M.O.P.No.108 of 2005 before the Principal Subordinate Judge, Thanjavur, seeking dissolution of his marriage with the respondent. He also filed G.O.P.No.124 of 2005, seeking custody of the minor child. The respondent filed H.M.O.P.No.171 of 2007 before the very same Court seeking restitution of conjugal rights.
2. All the three petitions were tried together. The appellant examined himself as P.W.1. His mother was examined as P.W.2. Dr.J.Venkatesan, Psychiatrist, who treated the respondent was examined as P.W.4. Exhibits P.1 to P.12 were marked. On the side of the respondent, the respondent examined herself and her mother as R.W.1 and R.W.2. Exhibits R.1 to R.7 were marked on the side of the respondent.
3. The learned trial Judge by a common order dated 27.04.2010, dismissed the petitions filed by the appellant herein and allowed the petition filed by the respondent herein. Aggrieved by the same, the appellant herein filed C.M.A.Nos.19 and 20 of 2010 before the learned I Additional Sessions Judge (P.C.R.), Thanjavur. The first appellate Court dismissed both the appeals by order dated 11.03.2011. Challenging the same, these two appeals have been filed.
4. These appeals were admitted as the following substantial question of law arose for consideration:-
"While determining the mental stability of a person, is it necessary that the Court should in all cases take the opinion of a Medical Board appointed by the Court or whether it is sufficient, if the Court relies on the medical opinion given by the doctors on the side of the wife and husband."
5. Heard the learned Senior counsel appearing for the appellant and the learned counsel appearing for the respondent.
6. The learned Senior counsel appearing for the appellant submitted that the marriage took place as early as in the year 2001 and that the parties have been living apart for more than 13 years. The relationship between them had suffered an irretrievable break down. It cannot be in dispute that the respondent is suffering from a mental disorder and that has led to this long period of continuous separation. He therefore pressed into service, the principle laid down by the three Judges Bench of the Hon'ble Supreme Court in the decision reported in (Samar Ghosh V. Jaya Ghosh, (2007) 4 SCC 511), which reads as follows:-
"(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the part
