The judgment establishes that claims of cruelty and unsoundness of mind must be substantiated by cogent evidence, and non-disclosure of mental health issues prior to marriage can impact the court's decision regarding divorce and alimony.

JUDGMENT

Arindam Sinha, J.

Mrs. Patnaik, learned advocate appears on behalf of appellant-wife and submits, her client has preferred appeal from judgment dated 28th November, 2017 made by the family Court dissolving the marriage and directing permanent alimony at ₹7,50,000/-. Respondent-husband has also preferred appeal (MATA no.43 of 2018) against quantum of permanent alimony directed by the judgment. Mr. Sahoo, learned advocate appears on behalf of the husband.

2. Mrs. Patnaik submits, there was lack of cogent evidence to prove either cruelty or unsoundness of mind of incurable nature. None of the two grounds were proved before the family Court. The learned Judge failed to appreciate and thereby erred in dissolving the marriage.

3. She draws attention to deposition dated 26th August, 2015 of respondent-husband in cross-examination. We reproduced below a passage from paragraph 2 therein.

"I returned to my house from Kolkata to my native village 15 days after I had gone there after taking leave from my service place. After marriage till I went to Kolkata I along with the O.P were living peacefully by cooperating to each other. During the period of my stay at Kolkata, I was informed by my parents that the O.P used to wake up late at about 9 O' Clock and was unwilling to follow the family custom and tradition and was unwilling to do household works and prepare food etc." (emphasis supplied)

She submits, the parties stayed with each other as husband and wife for total of a very brief period, of approximately 5 and ^1/2 months. At the time of marriage, respondent-husband was working in Kharagpur in West Bengal. It would appear from above quoted deposition that there was no problem for period of the two weeks her client was with him. It is only when she was left with her parents-in-law that some trivial complaints were made against her. Those do not amount to cruelty. She points out further from the deposition that respondent-husband had said he had not treated or consulted with any doctor relating to the abnormality of her client during the three days when he visited his house from Kolkata.

4. She relies on clause (iii) under sub-section (1) of section 13 in Hindu Marriage Act, 1955 to submit, there is no finding in impugned judgment as based on evidence that her client is incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that respondent-husband cannot be expected to live with her. She reiterates, time spent together was approximately 5 and ^1/2 months. She relies on judgment of the Supreme Court in Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511, paragraph 101 and illustrations thereunder to submit, there is no evidence on record to bring the case as within any of the illustrations.

5. Mr. Sahoo submits, no interference is warranted with impugned judgment. There have been findings based on the evidence and on adverse presumption against appellant-wife for not presenting herself to be examined. On his client's application, his father-in-law was appointed as guardian of appellant-husband to contest the case for protecting her interest.

6. We have perused impugned judgment. The findings have been given on several points. Point no.1 is on cruelty. Apart from allegations made against appellant-wife as submitted by Mrs. Patnaik we notice, inter alia, a further allegation made by respondent-husband in his evidence-in-chief, of her threatening that if anybody tried to persuade her to do the household work she would administer poison in the food. The family Court noted these allegations and that nothing could be elicited in cross-examination from respondent-husband to discredit him. It also appears appellant-wife did not offer herself to be examined in the proceeding.

7. We also notice, the petition for dissolution of marriage was filed by the husband against respondent-wife describing her to be a person of unsound mind. The description included that she