1980 Supreme(MP) 225

R. K. Vijaywargiya, J.
Shakuntalabai v. Omprakash
F. A. No. 71 of 1979 (I) ; Decided on 25-8-1980.

Headnote:Hindu Marriage Act, 1955-S. 11 (l) (iii)-decree of divorce under-whell may be possed-unsoundness of mind and mental disorder-what are-person of weak intellect-whether comes under this category.

       Facts giving rise to this appeal briefly stated are as follows: The appellant is legally wedded wife of the respondent. The appellant and the respondent were married some 10 years ago. They had three children out of whom two are aLi"Ve. The respondent filed the present petition for dissolution of the marriage by a decree of divorce. The ground for divorce as alleged by the respondent were that the respondent was treated by the appellant with cruelty and that the appellant was of unsound mind and suffering from mental disorder as provided in section 13 (J) (iii) of the Hindu Marriage Act. The appellant denied the allegations of the respondent. According to the appellant she was W-treated by the respondent and she never treated the respondent with cruelty. She also denied that she was suffering from any mental disease. The trial Court has dissolved the marriage by a decree of divorce on the ground that the respondent was .treated with cruelty by the appellant. The appellant has challenged the decree of the trial Court in this appeal.

       Held : I have heard learned counsel for the parties and perused the record. At the out set it may be stated that although in the petition allegations about the fact that the appellant was of unsound mind were made but no issue was framed about the same. In fact the divorce was not claimed on the ground of unsoundness of the mind of the appellant but was stated to substantiate the ground of cruelty. As regards the mental derangement of the appellant the respondent examined Dr. V. Dhodapkar (P.W. 4) who is incharge of the mental hospital, Indore. He deposed that he treated the appellant as an out-door patient and she was suffering from menic depressed psychosis. However, in cross-examination he admitted that he did not record the family history of the appellant and that the family history was recorded by the social worker who has not been examined Dr. Dhodapkar categorically admitted in-cross examination that he found the memory of the appellant in order. She gave proper replies to the questions put to her. She was of ordinary intellect. She had insight and she talked to him plainly. From his evidence it is clear that the appellant was not of unsound mind and also did not suffer from any such mental disorder which may be a ground for divorce. She might be a person or weak intellect but that cannot be made a sound for divorce. That may be the reason why the unsoundness of mind or mental disorder was not made a ground for divorce but it was stated that on account of her mental disorder she treated the respondent with cruelty.

       The trial Judge has not properly appreciated the evidence of the appellant and her witnesses. According to the trial Judge the statement of the appellant that her husband used to beat her is a fact which lends support to the allegations of the respondent regarding the appellants unusual and abnormal behaviour because she does not state any reason for which her husband used to beat her. According to the learned trial Judge it does not stand to reason that a husband would unnecessarily beat wife. This reason of the learned trial Judge is unacceptable. As stated above the evidence of the respondent and the witnesses examined by him is too vague and is not reliable and the marrige duly solemnized cannot be dissolved on the basis of such flimsy evidence. In my opinion the learned trial Judge committed an error in holding that it was proved that the respondent was treated with cruelty by the appellant and in dissolving the marriage on that ground. The decree of the trial Court, therefore, cannot be sustained and deserves to be set aside. Appeal allowed.