JUDGMENT
B.P. Katakey, J.
The appellant/husband filed a petition in the Court of the learned District Judge, Karimganj, under Section 12(1)(b) as well as under Section 13(1)(iii) of the Hindu Marriage Act, 1955 (in short, “the Act”) seeking annulment of marriage solemnized with the respondent/wife on 07.03.1994 by a decree of nullity and for dissolving such marriage by decree of divorce on the ground that the respondent/wife has been suffering from incurable mental disorder since before the marriage and is physically and mentally incapable for the marital life with the petitioner. In the said petition, the respondent/wife was shown to have represented by Shri Pronab Das, her elder brother, she according to the appellant/husband, being a women of unsound mind.
2. The respondent/wife, on receipt of the summons, entered appearance and filed application praying for allowing her to represent herself in the said proceeding, controverting the statement made in the petition that she being a women of unsound mind is not capable to represent herself. The learned District Judge upon hearing the learned Counsel for the parties vide order dated 15.11.1997 allowed her to contest the proceeding herself and not through the next friend or guardian. The respondent/wife, thereafter, filed the written statement denying the claim of the appellant/husband about her mental disorder and prayed for dismissal of the divorce petition by contending that though her husband is a good person but because of her husband’s brother’s wife (sister in law) she was driven out from her matrimonial house and not allowed to go back but still she wants to live with her husband.
3. The learned Trial Court on the basis of the pleadings of the parties framed the following six issues:
1. Whether there is any cause of action for the suit?
2. Whether the suit is maintainable in its present form?
3. Whether the op/wife is insane and off unsound mind as alleged?
4. Whether the marriage performed between the parties is void abinition?
5. Whether the op/wife deserted the petitioner/husband?
6. To what relief or reliefs the parties are entitled?
During the course of trial the appellant/husband examined six witnesses namely, (i) Sri Raghubir Das (the appellant); (ii) Chuttku Chakraborty (a neighbour of the appellant); (iii) Sri Radhesh Ranjan Das (a co-villager of the appellant); (iv) Dr. Swapan Kr. Dey, (a general physician, who was the family doctor of the respondent’s father’s family); (v) Dr. Bipul Ch. Bhattacharjee, (a specialist in medicine, who treated the respondent for her urinary tract infection) and (vi) Dr. Niranjan Mohanta, (a gynecologist who also examined the respondent/wife for her gynecological problem). The appellant/husband also exhibited a number of documents. The respondent/wife examined herself as DW-1 apart from exhibiting a number of documents. All the witnesses were duly cross-examined by the respective parties.
4. The learned Trial Court upon appreciation of the evidences on record, both oral and documentary, refused to annual the marriage between the parties by a decree of nullity by holding that the marriage between the parties cannot be annulled by decree of nullity, under Section 12 of the Act, as the petition has not been field within one year from the date of the marriage as required under Section 12(2) of the Act. The learned Trial Court has also refused to dissolve the marriage between the parties by a decree of divorce by holding that the appellant/husband has failed to prove that the respondent/wife is suffering from any mental disease and her mental disorder is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent/wife. Hence, the present appeal under Section 28 of the Act.
5. This Court though made an attempt for re-conciliation between the parties, which has been recorded in the order dated 16.03.2002, it has failed.
6. I have heard Mr. S.C. Biswas, the learned Counsel for the appellant and Mr. N. Choudhury, the learned Counsel appearing for the respondent. I have also perused the pleadings of the parties as well as the evidences on record, both oral and documentary.
7. Mr. Biswas, the learned Counsel for the appellant has submitted that since the appellant/husband sought for a decree of nullity on the ground enumerated in Section 12(1)(b) of the Act, i.e. the marriage being in contravention of the condition specified in Clause-(ii)(b) of Section 5, in as much as though the respondent/wife was capable of giving a valid consent but she having been suffering from mental disorder of such a kind or to such an extent she was unfit of marriage and procreation of children, the learned Court below ought not to have held the petition, filed by the appellant/husband seeking annulment of marriage by a decree of nullity, not maintainable by applying the provision of Section 12(2) of the Act, as the said provision is not applicable to a petition seeking annulment of marriage by a decree of nullity under Section 12(1)(b) of the Act. It has further been contended by Mr. Biswas that there being ample evidence on record, i.e. the evidence of the appellant/husband as well as of the doctor supported by the documentary evidence that the respondent/wife was suffering from schizophrenia, which is a mental disorder within the meaning of Section 13 of the Act, and also there being evidences on record that the respondent’s mental disorder is of such a kind and to such an extent as to be unfit for marriage and the procreation of children, the marriage between the parties ought to have been annulled by a decree of nullity. Mr. Biswas has further contended that the appellant is also entitled to a decree of divorce dissolving the marriage between the parties on the ground that the respondent/wife has been incurably of unsound mind and suffering continuously or intermittently from mental disorder of such a kind and to such an extent that he cannot reasonably expected to live with the wife, under Section 13(1)(iii) of the Act. Mr. Biswas, therefore, submits that the judgment and decree passed by the learned Court below be set aside and a decree of nullity annulling the marriage between the parties may be passed or in the alternative the marriage between the parties to be dissolved by passing a decree of divorce. Mr. Biswas further contends that, in any case as both the appellant and the respondent are living separately since 1996, i.e. for almost 11 (eleven) years and there being no chance of re-conciliation, as the attempt for re-conciliation by the learned Court below as well as by this Court have failed, no purpose would be served to continue such marriage and hence the marriage should be dissolved by passing a decree of divorce, as it has irretrievably broken down. Mr. Biswas in support of his contentions has placed reliance on the decision of the Apex Court in A. Jayachandra v. Aneel Kaur ; Vinita Saxena v. Pankaj Pandit ; Rishikesh Sharma v. Saroj Sharma as well as on the decision of the Delhi High Court in Smti. Asha Srivastava v. R.K. Srivastava reported in AIR 1981 (Delhi) 253 and the decision of the Punjab & Haryana High Court in Tarlochan Singh v. Jit Kaur .
8. Mr. Choudhury, per contra, supporting the judgment and decree passed by the learned Court below has urged that the appellant/husband has even failed to prove, that the respondent/wife is suffering from mental disorder within the meaning of the Act, by adducing the expert medical evidence, i.e. by examining the doctors, who according to the appellant, treated the respondent for her mental disorder and, therefore, there is no question of annulling the marriage between the parties by passing a decree of nullity under Section 12(1)(b) or dissolving the marriage by decree of divorce under Section 13(1)(c) as the burden is on the appellant/husband to prove that the necessary ingredience to constitute a voidable marriage so as to annul the marriage between the parties by a decree of nullity within the meaning of Section 12 of the Act or to dissolve the marriage by a decree of divorce. It has further been contended that the appellant/husband has also failed to prove, by adducing evidence that the respondent/wife has been suffering from mental disorder of such a kind or to such an extent so as to be unfit of marriage and procreation of children and thereby has violated of the condition of a Hindu marriage as enumerated in Section 5(ii)(b), which is the case of the appellant/husband. Mr. Choudhury has further urged that even if the respondent/wife is suffering from schizophrenia that itself will not be the ground for passing a decree of divorce or annulling the marriage between the parties by decree of nullity unless it is proved to the satisfaction of the Court by the appellant that such mental disorder is of such a kind or to such an extent so as to be unfit of marriage and procreation of children or that the appellant cannot reasonably be expected to live with the respondent/wife, which according to the learned Counsel, the appellant has failed to prove by adducing any evidence. Regarding the contention of the learned Counsel for the appellant that even if the appellant has faild to prove the ingredience to constitute a voidable marriage to get the marriage annulled by a decree of nullity or the conditions enumerated in Section 13(1)(iii) to dissolve the marriage by a decree of divorce as required under the said provision of the Act, as both the parties are living separately since the year 1996 and there is no chance of re-conciliation, the marriage between the parties has irretrievably broken down and, therefore, it should be dissolve by passing a decree of divorce. Mr. Choudhury has contended that it has come out in the evidence adduced by the parties that the respondent/wife did not leave her matrimonial house of her own but was driven out and though she made several attempts to come back to the matrimonial house, she was not allowed to enter and, therefore, the appellant/husband because of living separately for almost 11 (eleven) years cannot say that the marriage between the parties has irretrievably broken down so as to dissolve the marriage by passing a decree of divorce, as it is for the fault of the appellant/husband that the respondent is compelled to live separately. Mr. Choudhury in support of his contention has placed reliance on the decision of the Apex Court in Shyam Sunder Kohli v. Sushma Kohli @ Satya Devi and Naveen Kohli v. Neelu Kohli .
9. The appellant filed the petition for dissolution of the marriage solemnized with the respondent on 07.03.1994 by a decree of divorce alleging that the respondent/wife is suffering from schizophrenia, which is a mental disorder within the meaning of the Act since before her marriage and though the appellant got her treated by various doctors, she could not be cured, which mental disorder he could notice on the night of marriage itself. It has further been alleged that the doctor, who treated her for her mental disorder has opined that there is a very little chance of her being cured from the mental disorder and because of such mental disorder it is not possible to lead a marital life with the respondent/wife as she is physically and mentally incapable of leading the marital life with him. An alternative prayer has also been made for annulling the marriage by passing a decree of nullity under Section 12 of Act on the same ground. The respondent/wife, as discussed above, has contested the proceeding by filing written statement denying the allegation of mental disorder and also by contending that because of the undue influence of the brother and his wife upon the appellant to marry the sister-in-law’s sister, all the allegations have been levelled though her husband is a good person and ultimately sent her to her brother’s house by keeping all her ornaments inspite of the objection by the husband and though subsequently, made an attempt to come back to her matrimonial house, she was not allowed to enter the house. It has further been contended in the said written statement that she is not suffering from any disease and is mentally and physically fit to lead a marital life. It appears from the pleadings of the appellant in the petition that the appellant sought a decree of divorce by dissolving the marriage on the ground enumerated in Section 13(1)(iii) of the Act with the alternative prayer for annulling the marriage by decree of nullity under Section 12 of the Act.
10. Section 12 of the Act provides that any marriage solemnized before or after commencement of Act shall be voidable and may be annulled by a decree of nullity on any of the grounds enumerated in Clauses (a), (b), (c) and (d). Clause (a) of Sub-section 2 of Section 12 provides that no petition for annulling a marriage under Clause (c) of subsection 1 shall be entertained if–(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered. Clause (b) of Sub-section 2 of Section 12 also provides that no petition for annulling the marriage on the ground specified in Clause (d) of
Sub-section 1 shall be entertained unless the Court is satisfied–(i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted, in the case of a marriage solemnized before the commencement of the Act, within one year of such commencement and in the case of marriages solemnized after such commencement, within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
11. For better appreciation Section 12 of the Act is reproduced below:
12. Void marriages–(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
(a) That the marriage has not been consummated owing to the impotence of the respondent; or
(b)That the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) That the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in Sub-section (1), no petition for annulling a marriage–
(a) On the ground specified in clause (c) of Sub-section (1) shall be entertained if-
(i) The petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) The petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) On the ground specified in clause (d) of Sub-section (1) shall be entertained unless the court is satisfied–
(i) That the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) That proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii)That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of [the said ground].
12. The appellant in his petition seeking annulment of marriage by a decree of nullity has not urged that the marriage has not been consummated owing to the impotence of the respondent or that the consent of the petitioner was obtained by force, or the respondent was at the time of marriage pregnant by some person other than the petitioner, as enumerated in Clauses (a), (c) and (d) of Section 12(1) of the Act to constitute a voidable marriage. Therefore, I shall deal with the requirement of law for annulling the marriage by a decree of nullity on the ground enumerated in Clauses (b) of Section 12(1) only.
13. Clause (b) of Section 12(1) of the Act as quoted above provides a ground for annulling the marriage by a decree of nullity if the marriage was in contravention of the condition specified in Section 5(ii). Section 5 lays down the conditions for a Hindu marriage. It provides that to constitute a valid Hindu marriage, (i) neither of the parties must have a spouse living at the time of the marriage, (ii) at the time of the marriage, neither party–(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years and the bridge, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between them.
14. Therefore, for annulment of marriage by a decree of nullity, the person, who seeks such a decree, must prove that any of the conditions for a Hindu marriage was not fulfilled. In the petition filed by the appellant seeking such a decree, it has not been urged that the respondent had a spouse living at the time of the marriage or that she was below 18 years of age or that the parties are within the degree of prohibited relationship or that the parties are sapindas of each other. The allegation in the petition, as discussed above, is that the respondent is suffering from the mental disorder since before her marriage, which could not be cured even after the treatment after marriage. It has not been alleged in the said petition that she though above 18 years of age was incapable of giving a valid consent to the marriage in consequence of unsoundness of mind. From the nature of the pleading in the petition, it appears that the appellant wants to contend that though the respondent was capable of giving a valid consent. She has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage. To constitute a ground for annulling a marriage by a decree of nullity under Section 12(1)(b) on the ground that the condition laid down in Section 5(ii)(b) of the Act has been contravented, the party alleging such contravention must prove that the other party to the marriage though was capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be until for marriage and for procreation of children.
15. Section 13 of the Act lays down the grounds on which a marriage can be dissolved by a decree of divorce. Clause (iii) of subsection 1 of Section 13, under which the petition has been filed by the appellant/husband, requires that the parties seeking the dissolution of marriage must prove that the other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of suchakind and to such an extent that the petitioner cannot reasonably be expected to live with the other party. Explanation (a) to Clause (iii) defines the expression “mental disorder” as mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia.
16. In the backdrop of the aforesaid legal provisions, I shall now discuss the evidence adduced by the parties in course of the trial of the petition filed by the appellant/husband. The appellant/husband, who examined himself as PW-1, in his evidence has stated that the marriage, which was an arranged marriage, was solemnized between him and the respondent on 07.03.1994 and on the first night of the marriage he could know that the respondent/wife is of unsound mind, as she used to laugh loudly and her conduct was irrelevant. He has further deposed that she used to take medicine like’ Asphazia plus’ and ‘Tigretol-200’, which are the medicines prescribed for schizophrenic patient. He has further deposed that he also consulted Dr. Swapan Kr. Dey, (PW-4), who was the respondent’s family doctor, and as per his advice she was also treated by psychiatrist namely, by Dr. Pramathesh Das Mahapatra of Calcutta, Dr. P.K. Choudhury of Krishnanagar of Calcutta as well as Dr. Gautam Sanyal of the same place and even was admitted to a Nursing Home at Krishnanagar of Calcutta as during examination of Dr. Sanyal, she became violent. The appellant, in his deposition has further stated that on being released from Nursing Home on 01.07.1994, as she could not be cured she was also treated by a Doctor namely. Ashit Baran Ghosh, who opined that the respondent could not be cured and, never be cured. He further deposed that the respondent was further treated by Dr. N.C. Ghose of Karimganj Civil Hospital and also by Dr. Sailendra Talukdar of Silchar Medical College Hospital for her mental illness, apart from the treatment by Ayurvedic doctor and the gynecologist namely Dr. Mahanta. PW-1, in his deposition stated that because of such mental disorder of his wife, he could not lead a marital life with her and no sex took place between them and it is impossible for him to live with her and lead a marital life. In support of his version that the respondent/wife is suffering from mental disorder the prescriptions and vouchers being Exhibit-1 to 22 were exhibited by the appellant/husband in course of his evidence, apart from the case history written by the respondent under her own handwriting on 22.03.1996 (Exhibit-23).
17. PW-2, Sri Chuttku Chakraborty, who is a neighbour of the appellant deposed that he came to know from the inmates of the house of the appellant that on the date of his father’s death, the respondent/wife left his house and on the next day when they visited the respondent’s parents house he found her there. He further deposed that when the respondent was in appellant’s house, she sometimes sang and sometimes cried and that the appellant used to tell him and others that the respondent was not normal and she is not mentally sound. This witness has not stated anything that he found the respondent to be of unsound mind except saying that sometimes she sang and sometimes she cried, which act cannot lead to the conclusion that the respondent is of unsound mind.
18. Shri Radhesh Ranjan Das, a co-villager of the appellant, who has been examined as PW-3, in his deposition has stated about a village meeting held on 31.8.1997 in the house of Uttam Nag Choudhury at village Katirail, which is the village of the appellant. He deposed that the proceeding of the said meeting was reduced to writing, which has been exhibited as Exhibit-24 (under objection of the respondent) wherein decision was taken to the effect that there would be another meeting in the next month in the same house and in that meeting both the parties will decide for decree of divorce on mutual consent. During cross-examination, this witness has admitted that no subsequent meeting was held as decided in the meeting dated 31.08.1997. It is also apparent from the proceeding dated 31.08.1997, which has been exhibited as Exhibit-24, that none from the side of the respondent nor the respondent was present in the said meeting and whatever has been written in the said document is only one sided, i.e. the version of the appellant. Therefore, it cannot be treated as a proof of mental disorder of the respondent and anything written on the said document cannot be treated as admission of mental disorder by the respondent.
19. The appellant did not examine any psychiatrist whom according to him, were consulted for the mental disorder of the respondent and though she stated to have been treated by such psychiatrists both in Silchar in Assam as well as in Calcutta. The appellant, however, has examined Dr. Swapan Kr. Dey, a family physician of the respondent and who is not a psychiatrist, in support of the contention that the respondent is suffering from mental disorder. Dr. Swapan Kr. Dey (PW-4), however do not support the case of the appellant as he has stated in his evidence that she (respondent) was treated for the restlessness and anxieties and also for the peptic ulcer syndrome and the medicines prescribed by Exhibits-18, 19, 20, 21 and 22 mainly relate to the treatment of peptic ulcer syndrome, which is a curable disease and the medicine ‘espazine’,
as prescribed vide Exhibits-18, 19, 20, 21 and 22, was meant for anxiety and
tension, the same being a tranquilizer. During cross-examination this witness
has stated that he advised her to consult a specialist for treatment for mental
un-restness. This witness has not stated anything regarding the mental disorder of the respondent, not to speak of the mental disorder of such a kind or of such an extent that the petitioner cannot reasonably expected to live with the wife and that such mental disorder is incurable or that she has been continuously or intermittently suffering from such mental disorder.
20. Dr. Bipul Ch. Bhattacharjee was examined as PW-5, who is a specialist in medicine. This witness has stated that vide exhibit-10 he prescribed certain medicines and found that she had been suffering from psychiatric illness alongwith urinary tract infection and advised for psychiatric consultation. This witness has also not stated about the mental disorder of the respondent/wife and has simply stated that she has been advised for having a psychiatric consultation. Dr. Niranjan Mohanta, who is a gynecologist, was examined by the appellant as PW-6, who deposed that he treated the respondent on 10.10.1994 for threatened abortion. This witness, however, has stated that he made a note in his report that the respondent was a patient of psychiatric therapy and such note was made as told by the respondent’s attendants. During cross-examination, this witness has further stated that he did not prescribe any medicine for psychiatric therapy.
21. From Exhibit-1 (prescription issued by Dr. Pramothesh Das Mahapatra), it appears that the respondent had complained of sleeplessness, acidity and dyspepsia. Exhibits-2, 3 and 4 are the reports of examination of urine, stool and blood respectively. Exhibit-5 is another prescription of Dr. Gautam Sanyal. Ex-hibit-6 is the discharge certificate issued by Central Nursing Home with the diagnosis ‘Schizoaffective Psychosis’ and was discharged with advice for rest for five days and to report on 26.08.1994. Exhibit-7 is the voucher showing payment of the Nursing home charges. Exhibit-8 is the prescription of Dr. Ashit Bran Ghosh a consultant physiatrist. Exhibit-9 is the prescription issued by Dr. N. Mohanta, a gynecologist, Exhibit-10 is another prescription issued by another doctor. Exhibit-11 is a prescription issued by Dr. Sailendra Kr. Talukdar, a Psychiatrist. Exhibits-12, 13 and 14 are the prescriptions issued by an Ayurvedic physician. Exhibits-15 and 16 are the reports of examination of urine. Exhibit-17 is the prescription issued by an Ayurvedic physician. Exhibits-18, 19, 20, 21 and 22 are the prescriptions issued by various other doctors. None of these exhibits reveal that the respondent is of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind or to such an extent that the appellant cannot be reasonably expected to live with her, so as to be entitled to a decree of divorce dissolving the marriage under Section 13(1)(iii). It has also come out from the evidence of Dr. Mohanta (PW-4) that the respondent was treated for threatened abortion, therefore, it is not that the marriage was not consummated, which also goes to show that both the appellant and the respondent could lead a marital life after the marriage. Hence the appellant also could not prove that the respondent is unfit for marriage and procreation of children so as to annul the marriage by a decree of nullity within the meaning of Section 12 of the Act.
22. The next contention, which requires consideration is-whether inspite of the appellant having failed to prove the ingredience for annulling the marriage by a decree of nullity or for dissolving the marriage by a decree of divorce under Sections 12 and 13 of the Act, respectively, the marriage can be dissolved by a decree of divorce as both of them are living separately since the year 1996, on the ground that the marriage has irretrievably broken down.
23. The Apex Court in Shyam Sunder Kohli (supra) has observed that Court must not lightly dissolve a marriage on the ground of irretrievably broken down of marriage and only in extreme circumstances that the Court may use this ground for dissolving a marriage. In the said case the Apex Court in view of the evidence to the effect that the respondent/wife was forced to leave the matrimonial home refused to dissolve the marriage on ground of irretrievably broken down of marriage by observing that it can hardly lie in the month of a party, who has been at fault and who has not allowed the marriage to work to claim that the marriage should be dissolved on the ground of irretrievable break down of marriage.
24. In A. Joychandra (supra) the Apex Court keeping in view the facts involved in that case, however, came to the conclusion that the marriage between the parties has irretrievably broken down and direct dissolution of marriage with a view to do compete justice and shorten the agony of the parties engaged in long-drawn legal battle, the same being an exceptional case. In Vinita Saxena (supra) also the Apex Court in the peculiar facts and circumstances of that case passed a decree dissolving the marriage on the ground of irretrievable break down of marriage.
25. The Apex Court in Naveen Kohli (supra) has also observed that a decree can be passed dissolving a marriage on the ground of its irretrievably broken down, if the parties have separated and such separation has continued for a sufficient length of time and when the endeavour to reconcile the parties has failed, as the consequences of preservation in law of the unworkable marriage, which has long been ceased to be effective, are bound to be a source of greater misery for the parties. In Rishikesh Sharma (supra) the Apex Court on the same ground dissolved
the marriage between the husband and wife by a decree of divorce.
26. A marriage under the provisions of the Act cannot be dissolved by decree of divorce on the ground that the marriage has irretrievably broken down, as the same is not a ground enumerated in Section 13 of the Act. However, as observed by the Apex Court in a number of decisions including those discussed above, if the parties are living separately and such act is not attributable to the neglect of any of the party, a marriage can be dissolved by a decree of divorce on the ground that it has irretrievably broken down. Therefore, whether a decree on that count is to be passed depends on the facts of each case. In the instant case, though the appellant (PW-1), in his deposition has stated that on the death of his father, the respondent of her own left the matrimonial house, such version has not been supported by any other witness though he examined a neighbour as well as a co-villager namely Sri Chuttku Chakraborty and Sri Radhesh Ranjan Das, PW-2 and PW-3, respectively. PW-2, Chuttku Chakraborty, on the other hand, deposed that he came to know from the inmates of the house of the appellant that the respondent left the matrimonial house on the day when the appellant’s father died. He has not stated anything about the respondent leaving the matrimonial house of her own.
27. Similarly PW-3, Radhesh Ranjan Das has not stated anything in that regard. On the other hand, the respondent, who examined herself as DW-1, has stated that she was forcibly driven out of her matrimonial house and though on the subsequent dates she tried to come back and in fact came back to her matrimonial house, she was not allowed to enter. The respondent though was thoroughly cross-examined by the appellant could not be dislodged from her statement to that effect and no material contradiction could be brought out. Such version of the respondent, therefore, has to be accepted being reliable and trustworthy. It is, therefore, apparent from the evidences on record that the respondent did not leave the matrimonial house and is living separately for last 11 years of her own, but has been living separately because of the unwillingness of the appellant/husband to allow her to stay in the matrimonial house.
28. The object of dissolving a marriage between the parties on the ground of its irretrievably broken down is to put an end to a relationship, which is almost dead. However, no decree on that ground can be passed by a Court of law on the prayer made by the husband if because of him the respondent/wife is compelled to leave the matrimonial house and to live separately, for whatever period of time may be, otherwise a shrewd husband after driving out his wife from the matrimonial house and compelling her to live separately for a considerable period of time, would be able to get a decree dissolving the marriage, on the ground of the same being irretrievably broken down, though he is guilty for such separation. Hence the argument put forward by the learned Counsel for the appellant that the marriage be dissolved by a decree of divorce on the ground of the same being irretrievably broken down, cannot be accepted and hence rejected.
29. The decision of the Delhi High Court in Smti. Asha Srivastava (supra) as well as of Punjab & Haryana High Court in Tarlochan Singh (supra) cited by the learned Counsel for the appellant cannot be made applicable in the present case in view of the finding recorded by this Court that the appellant could not prove that the respondent is suffering from mental disorder, even before marriage, of such a kind or to such an extent as to be unfit of marriage and procreation of children, as there is neither pleading nor proof that the fact of the respondent being suffering from mental disorder has been concealed from the appellant/husband.
30. In view of the aforesaid discussion, I am of the view that the appellant is not entitle to any decree as prayed for. The learned Court below has, therefore, rightly dismissed the petition filed by the appellant/husband. The judgment and decree passed by the learned Court below is affirmed. The appeal stands dismissed. Keeping in view the facts and circumstances of the case, the parties are directed to bear their own cost.
