The expression "incurably of unsound mind" in Section 13(1)(iii) of the Hindu Marriage Act, 1955 means a degree of unsoundness or incapacity of mind properly called insanity. The test for determining mental disorder is whether the petitioner cannot reasonably be expected to live with the respondent.

A. Pasayat, J.

1. Judgment passed by learned Subordinate Judge, Puri in O.S. No. 39/83 of 1986/82 is the subject matter of challenge in both the appeals though on different grounds. The suit was filed by Jagadananda Mishra, appellant in F.A. No. 70 of 1993 purportedly under Sections 13 and 14 of Hindu Marriage Act, 1955 (in short, the 'Act'), praying for dissolution of his marriage with Pravati, appellant. In F.A. No. 245 of 1991, by passing a decree of divorce, on the ground that Pravati was of subnormal state of mind which was incurable in nature. His case synoptically is as follows :

He married Pravati on 4-2-1982, according to Hindu customary rites. After marriage he discovered that Pravati was suffering continuously from mental disorder of such a kind and to such an extent that it would not be reasonably expected to live as husband and wife with her. She has incomplete development of mind and was suffering from psychopathic disorder of, mind, and, was possessed intelligence of a three year old child. This mental condition of Pravati was deliberately suppressed by Kamalakanta Mishra, her father who was other opposite party in the application filed by him. After marriage when Pravati came to his house at Puri, she behaved as a child and addressed him at Bhaina (brother) and she had no sexual urge and she used to move at times stark naked in the house. He suspected that something was wrong with her. Because of such abnormal mind of Pravati, he had no physical contact with her and there was no consumation of marriage and it had become impossible for him to live with her as husband and wife. Consequently, he was deprived of pleasures of marital life because of defective mental condition of Pravati There was no sexual intercourse between him and Pravati. She was also charged of being guilty of cruelty. After two months of marriage, he filed the suit for dissolution of marriage, and a petition was filed, in terms of Section 14 of the Act to allow for filing of a petition within a period of one year from the date of marriage.

2. A joint written statement was filed by Pravati and Kamalakanta. They denied the allegations regarding mental disorder of Pravati. It was averred that Pravati suffered from no mental disorder, but she has subnormal intelligence to a minor degree on account of the fact that she had no schooling in her childhood due to her affliction with a viral disease known as Encephalitis. Family members of Jagadananda knew about Pravati's subnormal state of mind as they had no several occasions visited the house of Kamalakanta, and had seen her many times. Question of suppressing Pravati's mental disorder did not arise. It was further stated that Pravati never refused to have sexual intercourse with Jagadananda, she was very much capable of having sexual intercourse, and in fact had it with Jagadananda on many occasions. There was no substance in the charge of cruelty, as alleged. It was alleged that with a view to extract dowry to the extent of rupees one lakh after marriage, which was not acceptable by Kamalakanta, the petition has been falsely filed. A prayer was made for return of certain articles as described in Schedule 'A' of the written statement, cash of Rs. 12,000/- which was paid, and other articles as described in schedule 'B'. A prayer for maintenance Rs. 500/- per month to Pravati, as she has no source of income.

3. Learned Subordinate Judge framed four issues. Vital issues are as follows :

1. Whether defendant No. 1 is a lunatic and not fit for marital life ?

2. Whether the plaintiff is entitled to a decree for divorce ?

On evaluation of evidence led by parties, learned Subordinate Judge came to hold that marriage of Jagadananda with Pravati had not been consummated due to mental disorder of Pravati, and therefore, the suit was maintainable, and Jagadananda was entitled to a decree for dissolution of marriage. It was further held that Jagadananda was liable to pay Rs. 1200/- per quarter to Pravati as mai