JUDGMENT

A.Muhamed Mustaque, J.

These appeals have preferred by the same parties. The marriage between parties was solemnized on 23.11.2002. In the wedlock, a boy child was born. The parties are referred with their marital status hereinafter:

2. The husband filed a petition for divorce in the year

2011. He was granted an ex parte decree. After the ex parte decree, he married another person. Thereafter, wife filed an application to set aside the ex parte decree. That was allowed. The matter went for trial. After trial, the Family Court dismissed the petition for divorce. The petition for divorce was filed under Section 13(1)(iii) of the Hindu Marriage Act. The above provision reads as follows:

“13. Divorce (1) Any marriage solemnized, whether before or after the

commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that

the other party-- [(i) xxx xxx xxx (ia) xxx xxx xxx

(ib) xxx xxx xxx (ii) xxx xxx xxx [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation: In this clause--

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment or;]”

3. Though the above ground was canvased, it appears that substantially, the husband urged a ground of cruelty as well on account of unusual behaviour of the wife. Pleadings and evidence adduced by the parties in the petition clearly would show that husband alleges the ground of mental cruelty as well for seeking divorce. Mere non-incorporation of statutory provision will not dissuade the court from examining the ground for divorce, if the same is having a foundation in the pleadings. Therefore, we are of the view that this case also has to be examined from the perspective of cruelty to the husband as well. The Family Court after trial, dismissed the petition for divorce. Husband has come up with with Mat. Appeal No.774 of 2013. Wife also filed a petition for recovery of gold ornaments, past maintenance and also for return of gold ornaments. Her claim for past maintenance was declined. There is no challenge against that decree. The petition for return of gold ornaments has been declined. Aggrieved by the dismissal of the petition, the wife has come up with Mat.Appeal No.195 of 2017. For the convenience, we are of the view that both cases can be disposed of by a common judgment.

4. We shall now advert to the divorce case filed by the husband. At the out set, we are of the view that the husband failed to make out a case of divorce under Section 13(1)(iii) of the Hindu Marriage Act, inasmuch as that there was no sufficient evidence on record to prove unsound mind or such mental disorder, which would prevent husband continuing with the relationship. On the other hand, the wife was also examined as RW1. The court did not form any opinion regarding unsound mind of wife. We also have to take note of the fact that there was no appointment of the guardian for the wife in the proceedings. Further, in the wedlock a child was born. That clearly would show that wife was not suffering any kind of mental disorder as alleged by the husband.

5. As we have proposed earlier it is appropriate to examine this case from the perspective of alleged cruelty to the husband. The cruelty is in the form of a mental cruelty. Ext.A3 Medical Report of the Doctor shows that she has undergone treatment at Koyil