Incurable unsoundness of mind and mental cruelty constitute valid grounds for divorce under Section 13(1)(iii) of the Hindu Marriage Act, 1955.

Sarojnei Saksena, J.

1. Appellant wife has filed this appeal under Section 28 of the Hindu Marriage Act (in short the Act) assailing the decree of divorce granted against her under Section 13 of the Act.

2. Admittedly appellant was married with the respondent on 30.5.1980 at village Mori, Tehsil Charkhi Dadri according to Hindu rites. After marriage the appellant lived with the respondent-husband in his village Gahli.

3. The respondent-husband contended that after the marriage the appellant lived with him only for 3/4 days. During her stay he came to know that she is of unsound mind. Once she poured lassi on the ground and them tried to smear it on her head. She could neither bear clothes properly nor could look after any household chore. She used to laugh or weep without any rhyme or reason. Thus he was convinced that her unsoundness of mind is incurable. When this fact was brought to the notice of appellants father he told him that he (respondent) is at liberty to remarry because the appellant is of unsound mind. Earlier on 2.2.1989 he filed petition for divorce but it was withdrawn due to a compromise arrived at between the parties that she will be examined by Medical Board of Rohtak and they will act according to their opinion. Thereafter she was examined by a Medical Board of three Doctors of Medical College and Hospital Rohtak. They admitted her in Psychiatric Ward for a couple of days for observation and finally opined that she is a lady of mental retardation. Psychological tests were done to test her intelligence and she was found to be having I.Q.38. Thus according to them she falls under Moderate Range of Mental Retardation. According to the respondent her unsoundness of mind is incurable. She cannot discharge her marital obligations. This has caused mental cruelty to him. It is difficult for him to live with her in harmony in the matrimonial home. Hence he claimed divorce on these grounds.

4. The appellant denied the allegations that she is having incurable unsoundness of mind or her behaviour is abnormal. According to her when she lived in the matrimonial home she performed all her duties. She has not caused any mental cruelty to her husband. Even the Medical Board has not opined that she suffers from incurable unsoundness of mind. According to her she was turned out of the matrimonial home by her husband and therefore, she is residing with her parents.

5. Parties examined themselves. Respondent-petitioner examined Doctor P.K. Paliwal, and Hira Nand and appellant examined her father also. The trial court on appraisal of the evidence on record came to the conclusion that the petitioner-husband has proved the ground of divorce and accordingly decree of divorce was granted in his favour.

6. The appellants learned counsel contended that the respondent-petitioner has utterly failed to prove that she is a lady of unsound mind or further that it incurable. He commented that even Doctor P.K. Paliwal has not stated that the appellant is a lady of unsound mind. He alongwith two other Doctors examined Sona (appellant). She was kept under observation from 10th May 1989 to 31st May, 1989. Their opinion is that she is a case of mental retardation but its range is Moderate as she is having I.Q. 38. The medical report is Ex.PW.2/A, Relying on Bimla v. Baldev Raj, 1987(2) H.L.R. 424 and Harpreet Singh v. Surinder Kaur, (1994-3) 108 P.L.R. 312, he contended that even if it is to be believed that the appellant sometimes behave in an abnormal way, that will not prove that she is of unsound mind and her mental disorder is of such a kind and to such an extent that the respondent cannot reasonably be expected to live with the appellant. Advancing this argument he further stressed that there is not an iota of evidence on record to prove that the respondent cannot reasonably be expected to live with the appellant. Since the respondent has not proved this second parameter of the ground of divorce under Section 13(l)(iii) of the Act,