# Pawan Kumar Pandey v. Sudha

- **Citation:** (2024) 10 ILRA 913
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-24
- **Case number:** First Appeal No. 174 of 2023
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-pandey-v-sudha-51161
- **Pages:** 14

## Headnote

Civil Law- Appeal under Section 19 (1) of
Family Courts Act, 1984 read with Section
28 of Hindu Marriage Act, 1955 and
Section 96 of the Code of Civil Procedure,
1908- against dismisaal Hindu Marriage
Act, 1955 - Section 13(1) (iii) - Divorce
- Cruelty and desertion - Continuous
separation for over a decade - No
physical cohabitation - Wife's failure to
contest proceedings despite service -
Held, prolonged separation, coupled with
non-performance of marital obligations
and absence of opposition to appeal,
amounts to mental cruelty - Matrimonial
bond ruptured beyond repair - Family
Court's refusal to grant divorce reversed
in part - Judgment of Family Court partly
set aside- Decree of divorce granted.

H.M. Act, 1955 - Section 13(1)(iii) -
Unsoundness of mind - Schizophrenia -
Allegation
of
mental
disorder
not
sufficiently proved - Mere diagnosis
without
cogent
medical
evidence
of
severity
and
functional
incapacity
insufficient to dissolve marriage - Law
requires proof of degree and intensity of
mental disorder - Family Court's finding
upheld- Appeal allowed. (Para 8, 10, 13,
17, and 18)

HELD:
In the present case, the appellant is working in
Uttar Pradesh Fire Department. He got married
to the respondent on 08.06.2003. Apparently,
both the parties belong to reputed families. The
respondent/wife has lodged F.I.R. against the
plaintiff/appellant and his family members. In
cross
examination,
D.W.1/respondent-wife
herself has St.d that after marriage, parties
cohabitated only for a brief period and that she
has been residing separately since 2012. Now, a
period of more than a decade has elapsed since
the parties started living separately. (Para 8)

Moreso, the respondent is not contesting the
appeal in spite of service on notice having been
issued by this Court. She has not come forward
to oppose the pleas of the appellant. This shows
her disinclination to live with the appellant in
spite of the stand taken by him. Thus, the
feeling
of
deep
anguish,
disappointment,
frustration of the appellant caused by the
conduct of respondent for a long time may also
lead to mental cruelty and the long period of
914 INDIAN LAW REPORTS ALLAHABAD SERIES
continuous separation i.e. for more than a
decade establishes that the matrimonial bond is
beyond repair. The marriage between the
parties becomes a fiction though supported by a
legal tie. By refusing to sever that tie, the law in
such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard
for the feelings and emotions of the parties. In
such a situation, it may also lead to mental
cruelty. In such circumstances, this Court is of
the view that the matrimonial bond had been
ruptured
beyond
repair
because
of
the
continuous mental cruelty caused by the
respondent/wife. (Para 10)

In view of the aforesaid facts, we are of the
considered view that the facts of the present
case sufficiently points towards the willful
desertion by the respondent/wife without any
plausible reasons, which are sufficient for grant
of a decree of divorce in favour of the plaintiffappellant. The Family Court has erred in not
considering the plaintiff's suit to the aforesaid
aspect of the matter. Thus, point nos. 1 and 2
are decided in favour of the appellant. (Para 13)

In view of the above pronouncement, it appears
that the ground of a spouse suffering from
schizophrenia, by itself is not sufficient for grant
of a decree of divorce under Section 13(1) (iii)
of H.M. Act as it may involve various degree of
mental illness. The law provides that a spouse in
order to prove a ground of divorce on the
ground of mental illness, ought to prove that
the spouse is suffering from a serious case of
schizophrenia which must also be supported by
medical reports and proved by cogent evidence
before Court that disease is of such a kind and
degree that husband cannot reasonably be
expected to live with wife. (Para 17)

Section 13 (1) (iii) of H.M. Act does not make
mere existence

## Text

_Characters 0–39,811 of 42,803. This is a partial read: ask again with offset=39811 for what follows._

10 All. Pawan Kumar Pandey Vs. Sudha
913
Rs. 5,000/- granted by the trial Court under
Section 125 Cr.P.C. Point No.2 is decided
accordingly.

(26) In view of the aforesaid, it is
directed that the respondent/ husband shall
pay maintenance amount of Rs. Rs. 1000/-
per month from the date of filing of the suit
till May, 2024 and shall pay Rs. 4000/- per
month to the appellant-wife w.e.f. June,
2024. The entire amount of arrears shall be
deposited by the respondent in the Family
Court within eight weeks from today, after
adjusting the amount, if any, already paid
or deposited by him.

(27) The impugned order dated
16.11.2022 is modified to the aforesaid
extent.

(28) The appeal stands allowed in
part accordingly.
----------
(2024) 10 ILRA 913
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 174 of 2023

Pawan Kumar Pandey ...Appellant
Versus
Sudha ...Respondent

Counsel for the Appellant:
Bhavini Upadhyay, Pankaj Kumar Tripathi,
Sandhya Dubey

Counsel for the Respondent:
--

Civil Law- Appeal under Section 19 (1) of
Family Courts Act, 1984 read with Section
28 of Hindu Marriage Act, 1955 and
Section 96 of the Code of Civil Procedure,
1908- against dismisaal Hindu Marriage
Act, 1955 - Section 13(1) (iii) - Divorce
- Cruelty and desertion - Continuous
separation for over a decade - No
physical cohabitation - Wife's failure to
contest proceedings despite service -
Held, prolonged separation, coupled with
non-performance of marital obligations
and absence of opposition to appeal,
amounts to mental cruelty - Matrimonial
bond ruptured beyond repair - Family
Court's refusal to grant divorce reversed
in part - Judgment of Family Court partly
set aside- Decree of divorce granted.

H.M. Act, 1955 - Section 13(1)(iii) -
Unsoundness of mind - Schizophrenia -
Allegation
of
mental
disorder
not
sufficiently proved - Mere diagnosis
without
cogent
medical
evidence
of
severity
and
functional
incapacity
insufficient to dissolve marriage - Law
requires proof of degree and intensity of
mental disorder - Family Court's finding
upheld- Appeal allowed. (Para 8, 10, 13,
17, and 18)

HELD:
In the present case, the appellant is working in
Uttar Pradesh Fire Department. He got married
to the respondent on 08.06.2003. Apparently,
both the parties belong to reputed families. The
respondent/wife has lodged F.I.R. against the
plaintiff/appellant and his family members. In
cross
examination,
D.W.1/respondent-wife
herself has St.d that after marriage, parties
cohabitated only for a brief period and that she
has been residing separately since 2012. Now, a
period of more than a decade has elapsed since
the parties started living separately. (Para 8)

Moreso, the respondent is not contesting the
appeal in spite of service on notice having been
issued by this Court. She has not come forward
to oppose the pleas of the appellant. This shows
her disinclination to live with the appellant in
spite of the stand taken by him. Thus, the
feeling
of
deep
anguish,
disappointment,
frustration of the appellant caused by the
conduct of respondent for a long time may also
lead to mental cruelty and the long period of
914 INDIAN LAW REPORTS ALLAHABAD SERIES
continuous separation i.e. for more than a
decade establishes that the matrimonial bond is
beyond repair. The marriage between the
parties becomes a fiction though supported by a
legal tie. By refusing to sever that tie, the law in
such cases, does not serve the sanctity of
marriage; on the contrary, it shows scant regard
for the feelings and emotions of the parties. In
such a situation, it may also lead to mental
cruelty. In such circumstances, this Court is of
the view that the matrimonial bond had been
ruptured
beyond
repair
because
of
the
continuous mental cruelty caused by the
respondent/wife. (Para 10)

In view of the aforesaid facts, we are of the
considered view that the facts of the present
case sufficiently points towards the willful
desertion by the respondent/wife without any
plausible reasons, which are sufficient for grant
of a decree of divorce in favour of the plaintiffappellant. The Family Court has erred in not
considering the plaintiff's suit to the aforesaid
aspect of the matter. Thus, point nos. 1 and 2
are decided in favour of the appellant. (Para 13)

In view of the above pronouncement, it appears
that the ground of a spouse suffering from
schizophrenia, by itself is not sufficient for grant
of a decree of divorce under Section 13(1) (iii)
of H.M. Act as it may involve various degree of
mental illness. The law provides that a spouse in
order to prove a ground of divorce on the
ground of mental illness, ought to prove that
the spouse is suffering from a serious case of
schizophrenia which must also be supported by
medical reports and proved by cogent evidence
before Court that disease is of such a kind and
degree that husband cannot reasonably be
expected to live with wife. (Para 17)

Section 13 (1) (iii) of H.M. Act does not make
mere existence of a mental disorder of any
degree sufficient in law to justify dissolution of a
marriage. The contest in which the ideas of
unsoundness of mind and mental disorder occur
in section as ground for dissolution of a
marriage, require assessment of degree of
mental disorder and its degree must be such
that spouse seeking relief cannot reasonably be
expected to live with the other. All mental
abnormalities are not recognized as grounds for
grant of decree. The medical concern against
too readily reducing a human being into a
functional nonentity and as a negative unit in
family or society, is law's concern also, and is
reflected, at least partially, in the requirements
of section 13 (1)(iii) of H.M. Act. The personality
disintegration that characterizes schizophrenia
may be of varying degrees and that not all
schizophrenics
are
characterized
by
same
intensity of disease. The burden of proof of
existence of requisite degree of mental disorder
is on the spouse who bases his or her claim on
such a medical condition. (Para 18)

Appeal allowed. (E-14)

List of Cases cited:

1. Rakesh Raman Vs Kavita : 2023 SCC OnLine
SC 497

2. Debananda Tamuli Vs Kakumoni Kataky:
(2022) 5 SCC 459

3. Kollam Chandra Sekhar Vs Kollam Padma
Latha : (2014) 1 SCC 225

4. Ram Narain Gupta Vs Smt. Rameshwari
Gupta : (1988) 4 SCC 247

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Office has reported sufficiency of
service of notice on sole respondent vide
report dated 26.09.2023, but none appears
on her behalf before this Court to oppose
the appeal, hence the appeal was heard ex
parte on 20.09.2024.

(2) Heard Ms. Bhavini Upadhyay,
learned Counsel representing the appellanthusband
and
perused
the
impugned
judgment as well trial Court's record.

(3) By means of the present appeal
under Section 19 (1) of Family Courts Act,
1984 read with Section 28 of Hindu
Marriage Act, 1955 and Section 96 of the
Code
of
Civil
Procedure,
1908,
appellant/husband assails judgment and
10 All. Pawan Kumar Pandey Vs. Sudha
915
decree
dated
29.04.2023
passed
by
Principal
Judge,
Family
Court-II,
Pratapgarh (hereinafter referred to as
'Family Court') in Suit No. 787 of 2019 :
Pawan Kumar Pandey Vs. Smt. Sudha,
whereby
learned
Family
Court
has
dismissed the said suit filed by the
appellant/husband for grant of decree of
divorce under Section 13 of the Hindu
Marriage Act, 1955.

(4) At the very outset, it is
essential to advert to the brief factual
matrix to provide context to the manner in
which the present proceedings have arisen
before this Court.

A)
Appellant
and
respondent
got
married
on
08.06.2003 in accordance with
Hindu Rites and Customs. The
respondent-wife
came
to
her
martial home and kept performing
her duties for some time. However,
subsequently,
the
appellant/husband
filed
divorce
suit, bearing No.787 of 2019, on
11.07.2011 under Section 13 of
Hindu
Marriage
Act,
1955
(hereinafter referred to as 'H. M.
Act') on the allegation that after
marriage, his wife came to the
marital home thrice and during this
period, her mental condition was
not good as his wife was suffering
from Schizophrenia, which disease
he came to know after marriage and
before marriage, his father-in-law
never told him about her illness. It
was pleaded that the disease of
Schizophrenia is hereditary and
whatever children his wife will
bear, will suffer from this disease
and also due to this disease, her
fertility has become zero due to
which the husband's lineage will
end. The husband further pleaded
that he made constant efforts for his
wife's treatment but the doctors
told him that the disease is
incurable. It has also been pleaded
by the husband that in a state of
mental illness, the mental condition
of his wife was unnatural like she
gets up and goes anywhere without
informing anyone, loses sense of
wearing clothes and at night when
the family members are asleep, she
leaves the house alone. In this way,
according to the plaintiff, an
unpleasant incident could occur at
any time. It has been stated by the
husband that his wife is being
treated
by
a
psychiatrist
at
Allahabad for a long time, but till
now there is no improvement and
there
is
no
possibility
of
improvement either. Husband has
further stated in plaint that lastly in
June, 2011, the plaintiff took
medical advice and on medical
advice, he became fully convinced
that mental disease of wife is
continuous and incurable and of
such a kind and to such an extent
that husband cannot reasonably
accept to live with wife and as
such, he filed a suit for divorce on
the ground of desertion, cruelty and
mental disorder of wife under
Section 13 of the H. M. Act.,
praying to grant him decree of
divorce.
B)
The
respondent/wife
appeared before the learned Family
Court and denied allegations of
mental disorder. She pleaded in
written
statement
that
after
marriage, she went to her marital
home and performed her marital
916 INDIAN LAW REPORTS ALLAHABAD SERIES
duties but her husband and his
family
members
started
torturing/harassing her in various
ways to get more dowry, due to
which she became stressed. She
stated that she never suffered from
any type of mental illness before or
after marriage rather she tolerated
the mental harassment by her
husband and his family members. It
was also pleaded in the written
statement by the wife that her
husband and his family members
took all her jewellery and stridhan
and while beating her, threw her
out of the marital home and her
husband is planning to get remarried, hence the wife prayed for
dismissal of the husband's petition
seeking divorce.
C)
On
the
basis
of
pleadings of parties, the Family
Court has framed the following
issues :-

1. D;k foi{kh Jherh
lq/kk fcuk fdlh ;qfDr&;qDr
dkj.k ds vius ifr@;kph iou
dqekj ls vyx jg jgh gS \
2. D;k foi{kh Jherh
lq/kk }kjk vius ifr@;kph iou
dqekj ds lkFk dzwjrk dk vkpj.k
fd;k tk jgk gS ftlds vk/kkj ij
;kph iou dqekj] foi{kh Jherh
lq/kk ls oSokfgd foPNsn dh fMdzh
izkIr djus dk vf/kdkjh gS \
3. vU; mi"ke ;fn
dksbZ gS \
D) In addition to the
aforesaid issues, the Family Court,
keeping in mind the fact that the
husband has presented the plaint
for decree of divorce against wife
on the basis of her mental illness
called Schizophrenia as per the
provisions of Section 13 (1) (iii) of
the H.M. Act, framed following
additional issue for consideration :-
1. D;k ;kph nkos esa
of.kZr dkj.kkas ij foi{kh dh
ekufld v{kerk ds vk/kkj ij
/kkjk 13 1⁄411⁄2 1⁄4iii1⁄2 ds varxZr fookg
foPNsnu dh fMdzh izkIr djus dk
vf/kdkjh gS \

E) Both the parties led
evidence before the Family Court
on the issues framed. The husband
examined himself as P.W.1 by
filing
his
affidavit
as
his
examination-in-chief, wherein he
verbatim reiterated the averments
made in his plaint. In his crossexamination, he stated that his
marriage with respondent was
solemnized
on
08.06.2003
according to Hindu rituals and
'Saptapadi'
ceremony.
He
admittedly stated that neither his
father nor he went to see the bride
before marriage nor did he visit the
bride alone. He was confronted
with his statement during crossexamination in a maintenance case
filed by the wife, wherein he stated
that he had met the respondent
before marriage and they had
discussed their relationship and the
same has not been rebutted by him.
He further stated that he has been
working with the Uttar Pradesh
Fire Department since three years
prior to the marriage. His first
posting was in the Sitapur district.
After their wedding, his wife came
to his house and stayed with him
for a week, but he did not
remember how many days of leave
he took at that time. He also stated
that he went along with his wife for
her treatment at Lucknow but he
10 All. Pawan Kumar Pandey Vs. Sudha
917
returned back from there at the
instance of his father-in-law as his
father-in-law told him that they
would take her to Allahabad for
treatment because she was already
being treated there. He also stated
that he did not consult any doctor
for his wife's treatment, however,
at the time of her marriage, she
brought
treatment
documents
indicating she had a mental illness.
He has submitted a certificate
regarding the illness of his wife in
the case, stating that Dr. Renu
Verma
from
Pratapgarh
had
diagnosed her as mentally ill. P.W.1
has also stated that in this case, he
had entered into a settlement at the
mediation center of trial Court,
however, the settlement did not
fructify on account of the fact that
the terms and conditions of the
settlement between the parties were
altered by his brother-in-law. He
also stated that his wife had
completed her Master's degree
before marriage and after marriage,
he made her fill application form
seeking employment to the post of
Postmaster, which required a land
to be allocated, therefore, his father
transferred a land in the name of
his wife for this purpose in Umri
village.

F) PW-1 has further stated
that the divorce case was filed
approximately seven years after
marriage. In his plaint, initially, the
type of mental illness of his wife
was not specified, but he later
amended the plaint and added that
his
wife
is
suffering
from
Schizophrenia disease, after he
came to know about it in 2019. He
has also stated that after the said
settlement, he went to bring his
wife from her parental home, but
she did not come back. He also
stated that when his wife came to
his home after marriage, she did
not fulfill her marital duties. The
first time she came, she stayed for
about four to five days, then
returned two or three months later
for another six to seven days.
Overall, she did not stay longer
than six or seven days. He asserted
that he had never had a physical
relationship with her and this fact
has been stated in the divorce
petition.
However,
when
the
husband was shown the plaint for
divorce, P.W.1 could not specify in
which para it was so mentioned. He
admitted that he could not explain
why that detail was not included in
the plaint/affidavit. He also stated
that due to Schizophrenia, his wife
would suddenly fall and become
aggressive,
regaining
consciousness after about half an
hour, then would take medication
and sleep. He also stated that he
took his wife for treatment on
10.06.2003, but her father later
brought her to another doctor,
namely, Dr. A.K. Tandon.

G) Husband/plaintiff filed
documentary
evidence
viz.
photocopy of Kisan Vikas Patra,
photocopy of mutation, photocopy
of letters, photocopy of the case
filed by wife under Section 125
Cr.P.C. :Sudha Vs. Pawan Kumar
Pandey, photocopy of the crossexamination of the husband as
P.W.1 in the case filed under
Section 125 Cr.P.C. by the wife,
918 INDIAN LAW REPORTS ALLAHABAD SERIES
receipt
of
S.R.N.
Hospital,
Allahabad,
photocopy
of
the
application submitted by the wife,
photocopy
of
the
application
submitted by the brother of the
wife,
namely,
Vinod
Kumar
Dwivedi, photocopy of the written
application submitted by wife,
photocopy of outdoor patient card
of S.R.N. Hospital.

H) The wife, in support of
her case, examined herself as
D.W.1 and her brother, namely,
Vinod Kumar Dwivedi son of
Ramadhar
Dwivedi
as
D.W.2,
wherein
they
reiterated
the
averments of written statements. In
cross-examination, D.W.1/wife has
stated that prior to the marriage, her
husband along with his family and
other women visited privately at
Belha Devi Temple, where they all
interacted with her. After the
marriage,
she
maintained
her
marital responsibilities and there
was regular interaction and a
physical relationship between both
of them. She asserted that her
husband's claim that her parents
deceived him into marriage while
hiding her medical condition, is
false. She has stated that she was
never
ill
and
had
managed
household work without any issue.
She was never in need of medical
treatment from her father nor did
her husband take her to any doctor
prior
to
the
marriage.
The
prescriptions submitted by her
husband were fraudulent. She did
not have Schizophrenia or any
symptoms of such a condition. Her
physical and mental abilities have
never been compromised by any
illness. She denied that she would
be incapable of procreation and that
any offspring would inherit this
alleged hereditary condition. She
stated that there is no link between
the
alleged
condition
and
reproduction. Husband and his
family
are
greedy
and
have
subjected her to various forms of
harassment for dowry. She has
stated that her husband, who is
wealthy and in a government job,
has failed to fulfill his marital
duties and has filed this case based
on fabricated claim. She has stated
that she desires to fulfill her marital
duties and live with her husband
and
his
family,
but
she
is
continually subjected to harassment
and violence, leading her to worry
about her future. She has also
stated that she has always been
academically inclined, achieving
high marks in school and excelling
in debates, indicating her mental
acumenity.
The
mention
of
Schizophrenia
in
the
divorce
appears to be an afterthought,
reflecting legal advice rather than
reality. She denied that she was
mentally disturbed, as indicated in
a document submitted by her sisterin-law. She stated that her marriage
was solemnized with the plaintiff in
the year 2003 and she had been
living in her parental home for the
past 15 years, with only 4-5 visits
to her in-laws' home during that
time. She stated that during these
visits,
she
would
stay
for
approximately 2-3 months and had
no dispute with her husband or with
anyone else in her in-laws' family.
However,
she
did
mention
occasional harassment related to
10 All. Pawan Kumar Pandey Vs. Sudha
919
dowry demands from her in-laws.
In this regard, she had filed a First
Information Report (FIR) against
her in-laws at the Mandhata police
station
regarding
the
dowry
demands. She has also stated that
since her last visit to her in-laws,
there had been no communication
from her husband or his family, and
her family had also not made any
visits to her in-laws. She has also
stated that her in-laws did not
arrange for her medical treatment.
She has stated that she was never
admitted to SRN Hospital by either
her in-laws or her parents. She has
also stated that a compromise was
made in 2012, where she agreed to
go with her husband, provided that
he would keep her with him. She
has stated that while living with her
in-laws, she and her husband
maintained a physical relationship.
She has also stated that she had
applied for the post of Postmaster,
and her father-in-law had executed
a deed for 5 biswas of land in her
name as a requirement for the job
application,
which
she
has
subsequently sold and she has also
stated that this marriage was by her
consent.

I) D.W.2, Vinod Kumar
Dwivedi,
the
brother
of
the
respondent,
stated
that
plaintiff/husband and his family
members began subjecting her to
various
forms of
torture
and
harassment for additional dowry.
This led to significant mental and
physical
distress
to
the
defendant/wife.
He
stated
that
defendant has never suffered from
any mental illness either before or
after marriage; the distress she
experienced was solely due to
mental harassment inflicted by the
plaintiff and their family members.
He stated that the plaintiff/husband
was a wealthy individual with a
government job, who, due to his ill
intentions, failed to fulfill his
marital duties and has falsely
accused the defendant of having a
fabricated
mental
illness.
He
insisted that defendant has never
suffered any mental health issue
and is an educated woman and is
currently
unemployed.
He
emphasized that the plaintiff made
false allegations of mental illness
against defendant without any
evidence.
He
has
stated
that
defendant still desires to fulfill her
marital
responsibilities
and
continues to strive for a life with
her family. He has highlighted that
plaintiff
has
made
promises
through mediation to uphold his
marital duties, provide care, and
ensure medical treatment for the
defendant, but has failed to follow
through. Instead, he sought a
decree of divorce based on false
accusations.

J)

No
documentary
evidence has been led by the wife
D.W.1 and his brother D.W.2.

K) The Family Court, after
appraising
the
pleadings
and
evidence on record, has returned a
finding that neither any evidence
has
been
led
by
the
plaintiff/appellant in respect of
issues no.1 and 2 as mentioned
above nor the same was pressed by
the plaintiff/ appellant, therefore,
920 INDIAN LAW REPORTS ALLAHABAD SERIES
issue nos.1 and 2, as mentioned
above, have been decided due to
lack of evidence and not being
pressed by the appellant.

L) So far as additional
issue i.e. D;k ;kph nkos esa of.kZr dkj.kkas
ij foi{kh dh ekufld v{kerk ds vk/kkj
ij /kkjk 13 1⁄411⁄2 1⁄4iii1⁄2 ds varxZr fookg
foPNsnu dh fMdzh izkIr djus dk vf/kdkjh
gS \, the Family Court has returned
a finding that basis for presenting
the suit by the appellant has not
been established from the evidence
produced by the appellant himself,
therefore, in such situation when
the
alleged
disease
of
the
wife/defendant is not proved by
evidence presented by the plaintiff
and further when it has not been
proved that the wife/defendant is
suffering from Schizophrenia and is
incapable of producing children,
then, his claim is not worthy of a
decree.

M) Apart from this, the
learned Family Court has also
returned a finding that if it is
believed that the wife was suffering
from some kind of disease, then,
being the husband, it is the
responsibility of the plaintiff to
provide a proper treatment for such
kind
of
disease
to
his
wife/defendant
but
from
the
evidence of plaintiff/husband, it
was clear that he never provided
any treatment for the defendant as a
wife and she was abandoned from
without any sufficient reason. It has
also been recorded that the plaintiff
has expressed the desire to get a
divorce from defendant/wife, which
seems more indicative of the
plaintiff's
neglect
of
marital
relations towards his wife. In this
background, additional issue no.1
has been decided against the
plaintiff/husband.

N) Recording the aforesaid
findings, the Family Court has
dismissed the suit filed by the
husband/plaintiff under Section 13
of the H.M. Act vide judgment and
decree dated 29.04.2023. It is this
judgment
and
decree
dated
29.04.2023,
which
has
been
challenged in the present appeal.

(5) Ms. Bhavini Upadhyay, learned
counsel
appearing
on
behalf
of
appellant/husband
has
premised
her
submission on the following points :-

I.
That
the
appellant/husband had filed a suit
for grant of divorce under Section
13 of the H.M. Act on the grounds
of desertion, cruelty and incurable
unsoundness of mind, which in fact
was noted by the learned Family
Court while framing issues but the
learned Family Court has erred in
dismissing the suit without giving
any finding on the first two grounds
i.e. desertion and cruelty;
II. That
under
Section
13(1)(iii) of H.M. Act, mental
disorder is enumerated as one of
the grounds for divorce. The
husband/plaintiff has pleaded in the
suit that his consent for marriage
was obtained by concealment of
factum of mental health of his wife,
as
she
was
suffering
from
Schizophrenia
and
was
under
treatment even before marriage and
this
fact
was
deliberately
10 All. Pawan Kumar Pandey Vs. Sudha
921
suppressed from husband. In this
regard, even in her statement, she
has admitted several times about
expenditure on her medication;
III. That the conduct of the
wife/respondent
was
highly
contradictory in nature viz. she had
stated in her deposition, on one
hand, that she had no grievance
whatsoever against her husband
and her in-laws and on the other
hand, she had lodged a case of
dowry against her husband and her
in-laws and also never tried to
return to matrimonial house, which
according to the husband/appellant
is sufficient to constitute cruelty
and as such the failure of the
learned
Family
Court
in
considering and returning a finding
on the said ground has made the
impugned judgment erroneous;
IV.
That
the
findings
recorded by the learned Family
Court to the effect that there was no
sufficient
evidence
to
prove
desertion and cruelty amounts to
ignorance of the evidence on record
particularly because both parties
gave evidence to the effect that
wife had not been living with the
husband for a period of at least five
years
preceding
the
date
of
presentation of the suit and since
then, the wife had admitted to be
living comfortably in her parental
home;

(6)

Having
regard
to
the
submission
of
the
learned
Counsel
representing the appellant/husband and
going through the record available before
this Court in this appeal as well as the
impugned judgment and decree and the
record of the trial Court, the points of
determination arise in consideration before
us in the present appeal are as under :-

I. Whether the findings of
the Family Court regarding issue
no. 2 with respect to the plea of
cruelty as grounds for divorce, is
perverse and unsustainable thereby
rendering the impugned judgment
unsustainable ?
II. Whether the findings of
the Family Court regarding issue
no. 1 with respect to the plea of
desertion as grounds for divorce, is
perverse and unsustainable thereby
rendering the impugned judgment
unsustainable ?
III. Whether the findings of
the
Family
Court
regarding
additional issue no.1 with respect to
the plea that wife is suffering from
such a disease, which may be
treated as mental disorder under
Section 13(1)(iii) for grant of
decree of divorce, are perverse and
unsustainable thereby rendering the
impugned judgment unsustainable
?

Point No. 1 is implicit in Point no.
2.

(7) In Rakesh Raman Vs. Kavita
: 2023 SCC OnLine SC 497, the Hon'ble
Supreme Court has explained the meaning
of the word "Cruelty" used in Section 13 of
the H.M. Act in the following words :-

"17. Cruelty has not been
defined under the Act. All the same,
the context where it has been used,
which is as a ground for dissolution
of a marriage would show that it
has to be seen as a 'human
conduct' and 'behavior" in a
922 INDIAN LAW REPORTS ALLAHABAD SERIES
matrimonial relationship. While
dealing in the case of Samar Ghosh
(supra) this Court opined that
cruelty can be physical as well as
mental :-
"46...If it is physical, it is a
question of fact and degree. If it is
mental, the enquiry must begin as
to the nature of the cruel treatment
and then as to the impact of such
treatment on the mind of the
spouse.
Whether
it
caused
reasonable apprehension that it
would be harmful or injurious to
live with the other, ultimately, is a
matter of inference to be drawn by
taking into account the nature of
the conduct and its effect on the
complaining spouse.
19. Cruelty can be even
unintentional :-
...The absence of intention
should not make any difference in
the case, if by ordinary sense in
human affairs, the act complained
of could otherwise be regarded as
cruelty. Intention is not a necessary
element in cruelty. The relief to the
party cannot be denied on the
ground that there has been no
deliberate or wilful ill-treatment."
20. This Court though did
ultimately give certain illustrations
of mental cruelty. Some of these are
as follows:
(i) On consideration of
complete matrimonial life of the
parties, acute mental pain, agony
and suffering as would not make
possible for the parties to live with
each other could come within the
broad parameters of mental cruelty.
(xii) Unilateral decision of
refusal to have intercourse for
considerable period without there
being any physical incapacity or
valid reason may amount to mental
cruelty.
(xiii) Unilateral decision of
either
husband or
wife
after
marriage not to have child from the
marriage may amount to cruelty.
(xiv) Where there has been
a long period of continuous
separation,
it
may
fairly
be
concluded that the matrimonial
bond
is
beyond
repair.
The
marriage becomes a fiction though
supported by a legal tie. By
refusing to sever that tie, the law
in such cases, does not serve the
sanctity of marriage; on the
contrary, it shows scant regard for
the feelings and emotions of the
parties. In such like situations, it
may lead to mental cruelty."

(8) In the present case, the
appellant is working in Uttar Pradesh Fire
Department. He got married to the
respondent on 08.06.2003. Apparently, both
the parties belong to reputed families. The
respondent/wife has lodged F.I.R. against
the plaintiff/appellant and his family
members.
In
cross-examination,
D.W.1/respondent-wife herself has stated
that after marriage, parties cohabitated only
for a brief period and that she has been
residing separately since 2012. Now, a
period of more than a decade has elapsed
since the parties started living separately.

(9) When this Court examines the
aforesaid facts in light of the law explained
in Rakesh Raman (Supra), we find that
parties are living separately for a period
exceeding a decade i.e. since 2012. In
cross-examination, P.W.1 has stated that
after
solemnization
of
marriage,
the
respondent came to matrimonial home for
10 All. Pawan Kumar Pandey Vs. Sudha
923
the first time and lived there only for 4-5
days and thereafter went to her parental
home and subsequently, after 2-3 months,
respondent/wife again came to matrimonial
home and lived there only for 6-7 days.
P.W.1 has also stated that respondent/wife
never stayed matrimonial home more than
6-7 days after marriage and during stay at
matrimonial home, there was no physical
relationship with the respondent. These
facts have not been contradicted by D.W.1
(respondent/wife) in her testimony before
the Family Court. On consideration of these
facts
coupled
with
the
factum
of
matrimonial life of the parties as is evident
from the record, it appears that acute
mental pain, agony and suffering as would
not make possible for the appellant to live
with the respondent could come within the
broad parameters of mental cruelty.

(10) Moreso, the respondent is not
contesting the appeal in spite of service on
notice having been issued by this Court.
She has not come forward to oppose the
pleas of the appellant. This shows her
disinclination to live with the appellant in
spite of the stand taken by him. Thus, the
feeling of deep anguish, disappointment,
frustration of the appellant caused by the
conduct of respondent for a long time may
also lead to mental cruelty and the long
period of continuous separation i.e. for
more than a decade establishes that the
matrimonial bond is beyond repair. The
marriage between the parties becomes a
fiction though supported by a legal tie. By
refusing to sever that tie, the law in such
cases, does not serve the sanctity of
marriage; on the contrary, it shows scant
regard for the feelings and emotions of the
parties. In such a situation, it may also lead
to mental cruelty. In such circumstances,
this Court is of the view that the
matrimonial bond had been ruptured
beyond repair because of the continuous
mental
cruelty
caused
by
the
respondent/wife.

(11) The term "desertion" has been
explained by the Hon'ble Supreme Court in
Debananda Tamuli v. Kakumoni Kataky:
(2022) 5 SCC 459, in the following words:
-

"7....The law consistently
laid down by this Court is that
desertion means the intentional
abandonment of one spouse by the
other without the consent of the other
and without a reasonable cause. The
deserted spouse must prove that there
is a factum of separation and there is
an intention on the part of deserting
spouse to bring the cohabitation to a
permanent end. In other words, there
should be animus deserendi on the
part of the deserting spouse. There
must be an absence of consent on the
part of the deserted spouse and the
conduct of the deserted spouse
should not give a reasonable cause
to the deserting spouse to leave the
matrimonial home.
* * *
8. The reasons for a dispute
between husband and wife are
always
very
complex.
Every
matrimonial dispute is different
from another. Whether a case of
desertion is established or not will
depend on the peculiar facts of
each case. It is a matter of drawing
an inference based on the facts
brought on record by way of
evidence."

(12) The respondent lived with the
appellant only for few days though
interregnum period after marriage and she
924 INDIAN LAW REPORTS ALLAHABAD SERIES
did not return to live with him till date, i.e.
for more than a decade. The respondent is
not contesting the appeal, which shows that
she has no interest in her relation with the
appellant and which indicates that the
respondent has abandoned the relationship
between herself and the appellant and an
animus deserendi on her part, which is
sufficient to constitute desertion.

(13) In view of the aforesaid facts,
we are of the considered view that the facts
of the present case sufficiently points
towards the willful desertion by the
respondent/wife without any plausible
reasons, which are sufficient for grant of a
decree of divorce in favour of the plaintiffappellant. The Family Court has erred in
not considering the plaintiff's suit to the
aforesaid aspect of the matter. Thus, point
nos. 1 and 2 are decided in favour of the
appellant.

Point No. III

(14) Section 13(1)(iii) H.M. Act
provides that either of spouse can apply for
dissolution of marriage in case the other
spouse is of unsound mind or suffering
from mental disorder. It is suffice to
reproduce the provision at this stage, which
reads as under :-

"Section 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--
(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"

(15) The Apex Court in the matter of
Kollam Chandra Sekhar vs. Kollam
Padma Latha : (2014) 1 SCC 225 has
considered the aspect of grant of decree on
the ground that other spouse is suffering from
schizophrenia. The Apex Court framed
question No.1 that, whether the respondent is
suffering from a serious mental disorder i.e.
schizophrenia or incurable unsoundness of
mind, and can this be considered as a ground
for divorce under Section 13(1)(iii) of the
Hindu Marriage Act, 1955 ?

(16) To answer the aforesaid
framed question, the Hon'ble Supreme
Court
considered
its
various
earlier
precedents including judgment of Ram
Narain Gupta vs Smt. Rameshwari
Gupta : (1988) 4 SCC 247 and judgment
of Vinita Saxena (supra), wherein the Apex
Court observed as under :
10 All. Pawan Kumar Pandey Vs. Sudha
925
"In our considered view,
the contents of the report as stated
by the team of doctors do not
support the case of the appellant
that the respondent is suffering
from
a
serious
case
of
schizophrenia, in order to grant the
decree of divorce under Section
13(1)(iii) of the Act. The report
states that the respondent, although
suffering
from
"illness
of
schizophrenic type", does not show
symptoms of psychotic illness at
present and has responded well to
the treatment from the acute phases
and her symptoms are fairly under
control with the medication which
had been administered to her. It
was further stated that if there is
good compliance with treatment
coupled with good social and
family support, a schizophrenic
patient can continue their marital
relationship.
In
view
of
the
aforesaid findings and reasons
recorded, we have to hold that the
patient is not suffering from the
symptoms
of
schizophrenia
as
detailed above".
(emphasis supplied)

(17) In view of the above
pronouncement, it appears that the ground
of a spouse suffering from schizophrenia,
by itself is not sufficient for grant of a
decree of divorce under Section 13(1)(iii)
of H.M. Act as it may involve various
degree of mental illness. The law provides
that a spouse in order to prove a ground of
divorce on the ground of mental illness,
ought to prove that the spouse is suffering
from a serious case of schizophrenia which
must also be supported by medical reports
and proved by cogent evidence before
Court that disease is of such a kind and
degree that husband cannot reasonably be
expected to live with wife.

(18) Section 13 (1) (iii) of H.M.
Act does not make mere existence of a
mental disorder of any degree sufficient in
law to justify dissolution of a marriage. The
contest in which the ideas of unsoundness
of mind and mental disorder occur in
section as ground for dissolution of a
marriage, require assessment of degree of
mental disorder and its degree must be such
that
spouse
seeking
relief
cannot
reasonably be expected to live with the
other. All mental abnormalities are not
recognized as grounds for grant of decree.
The medical concern against too readily
reducing a human being into a functional
nonentity and as a negative unit in family
or society, is law's concern also, and is
reflected,
at
least
partially,
in
the
requirements of section 13 (1)(iii) of H.M.
Act. The personality disintegration that
characterizes schizophrenia may be of
varying
degrees
and
that
not
all
schizophrenics are characterized by same
intensity of disease. The burden of proof of
existence of requisite degree of mental
disorder is on the spouse who bases his or
her claim on such a medical condition.

(19) Coming to facts of the present
case
and
considering
above
pronouncements and legal proposition,
findings of learned Family Court recorded
in respect of additional issue no.1 have
been examined, wherein Family Court has
opined that husband has failed to prove the
gravity and degree of disease and has
merely brought on record the factum of
long treatment of schizophrenia. The
learned Family Court considered the
balancing fact of the wife being educated
upto M.A.