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2022 Supreme(Online)(KER) 52844
HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
S. BIJU – Appellant
Versus
SEEMA.A. – Respondent
Mat.Appeal 774 2013
SRI.C.P.PEETHAMBARAN, SRI.M.SASINDRAN
A ground for divorce under the Hindu Marriage Act can be established through evidence of mental cruelty, even if the specific condition of mental unsoundness is unproven.
Headnote:
Divorce - Marriage - Section 13(1)(iii) of the Hindu Marriage Act - The court analyzed the grounds for divorce under the Act, ultimately determining that mental cruelty was sufficiently established, justifying the dissolution of marriage amidst claims of misappropriated gold ornaments.
Fact of the Case:
The husband sought a divorce citing mental cruelty, and the wife contested both the divorce and claims regarding gold ornaments. An ex parte divorce decree was set aside, leading to a trial where evidence was presented regarding allegations and counterclaims.
Finding of the Court:
The court concluded that insufficient evidence was provided to support the husband's claims of the wife's mental unsoundness. However, it recognized instances of mental cruelty that justified granting a divorce. The wife was entitled to recover gold ornaments misappropriated by the husband.
Issues: Whether the husband established grounds for divorce under Section 13(1)(iii) due to mental cruelty and whether the wife was entitled to the recovery of gold ornaments.
Ratio Decidendi: The court held that while the ground claimed under mental unsoundness was unsubstantiated, the behavior of the wife constituted mental cruelty, thus validating the divorce. It was also determined that a preponderance of evidence indicated misappropriation of the wife's gold.
Final Decision: The court granted a decree of divorce favoring the husband and partially allowed the wife's appeal for recovery of 30 sovereigns of gold ornaments.
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
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
