A husband cannot be granted a divorce on the grounds of the wife's unsoundness of mind if he has been cruel to her, causing her mental illness.

H.S.Bedi, J.

1. The present appeal has been filed at the instance of the wife Asha Rani against the judgment of a Single Judge of this Court dated July 20, 1984 allowing the application of the respondent husband and granting a decree of divorce to him, on the grounds set out in Section 13(1)(iii) of the Hindu Marriage Act, 1955, on the ground that she was of incurably unsound mind.

2. The facts relevant for the disposal of the appeal are given hereunden:-

The marriage between the parties herein was solemnised on August 19, 1975 at Ambala City, according to Hindu rites and a female child was born to them, who died soon after birth. It appears that the parties cohabited till 1978 but thereafter, the appellant seems to have developed some mental illness. The respondent-husband tried to secure treatment for her at medical College, Rohtak and the Mental Hospital, Amritsar, but she could not be cured and was ultimately admitted to Pinghalwara Hospital at Jalandhar on December 23, 1978 and abandoned by the husband, who thereafter applied for divorce as stated.

The appellant wife in her written statement filed through her father and guardian, denied the allegations made by the husband including the averments that she had been treated for mental illness in any hospital or institution. It was also averred that it was the husband and his brother, who had ill-treated her, both physically and mentally and in addition to other- incidents had murdered her sister who had been married to the respondents brother. It was also stated that, she had suffered all the illtreatment silently and remained a devoted wife despite being abandoned and admitted in the Pinghalwara Hospital at Jalandhar against her wishes and without the knowledge of her relatives.

3. On these pleadings, the parties went to trial on the following issues;-

(1) Whether the respondent is suffering from unsoundness of mind as alleged by the petitioner? OPP

(2) Whether the petitioner has been cruel to the respondent?

(3) Relief;

4. The matrimonial Court found on Issue No.1 after a minute appreciation of the evidence that the wife did suffer from mental retardation of a kind that would make it difficult to live with her, but on Issue No.2 held that the husband was guilty of having treated her with cruelty and it was this treatment that had caused her mental illness and as provided in Section 13(i) (a) of the Hindu Marriage Act, (hereinafter called the Act) the husband could not take advantage of his own wrong and was therefore, not entitled to a decree of divorce, on these findings, the application was dismissed.

5. In the first appeal filed by the husband before this Court, the learned Single Judge, confirmed the finding of the trial Court on Issue No. 1, but reversed the finding on Issue No. 2. The marriage was, accordingly, dissolved by a decree of divorce. Hence, the appeal at the instance of the wife.

6. Mr. Amarjit Markan, learned counsel appearing for the appellant-wife has argued that two facts have to be pleaded and proved before a decree of divorce can be granted on the grounds set out in Section 13 (1) (iii) of the Act and they are (i) that the respondent was of unsound mind and (2) that the applicant cannot reasonably be expected on account of that unsoundness of mind to live with the respondent and in the absence of such pleadings or proof the petition was liable to be dismissed. In support of this assertion, he has relied upon Smt. Rita Roy v. Sitesh Chandra Bhadra Roy, A.I.R 1982 Cal. 138. This argument of the appellants counsel has been controverted by Mr. Vikas Sun, learned counsel appearing for the respondent by drawing our attention to Sub- section (2) of Section 20 of the Act, which states that the statements contained in a petition made under the Act, can at the hearing of the case, be referred to as evidence. Further explaining this matter, he has urged that even assuming that in the course of his evidence recorded in the trial court, the husband bad no