# DARSHAN GUPTA v. RADHIKA GUPTA

- **Citation:** [2013] 10 S.C.R. 937
- **Court:** Supreme Court of India
- **Decided:** 2013-07-01
- **Case number:** Civil Appeal Nos. 6332-6333 of 2009
- **Bench:** P. Sathasivam, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/darshan-gupta-v-radhika-gupta-28666
- **Pages:** 45

## Headnote

Hindu Marriage Act, 1955 - ss.13(1)(ia) and (iii) - Plea
under, of appellant-husband for dissolution of marriage - Held:
A
B
Not tenable, since appellant-husband failed to prove the
C
ingredients of either clause (ia) or clause (iii) of s.13(1) - The
husband failed to establish, that he was subjected to cruelty
at the hands of the wife - On the issue of alleged aggressive
and abnormal behavior of the wife, no material evidence
before the Court - Such alleged behavior could have easily
D
been established through attendants of respondent-wife, but
such witnesses were withheld, despite being easily available
to appellant-husband - PW4, the expert witness produced by
appel/ant-husband admitted that while examining
respondent-wife, he did not observe any signs of E
aggressiveness in her - Interaction of PW4 with respondentwife in the court-ha/I when PW4 appeared to depose in the
matter demonstrated that the behavior of respondent-wife was
far from erratic - A/so, the appellant was not able to prove, that
his wife was suffering from any incurable unsoundness of F
mind and/or mental disorder - Respondent-wife merely
suffered from cognitive deficiency which was acquired by her
during her second pregnancy - Besides, she was found to
have substantially improved from her cognitive deficiency,
during the course of her treatment - Appellant-husband failed
G
to establish, that the mental unsoundness of mind or mental
disorder of respondent-wife was of such degree, that he could
not be expected to live with her - Further, appellant husband
- cannot be permitted to use his own fault to his advantage -
937
H
938
SUPREME COURT REPORTS
[2013] 10 S.C.R.
A
He did not heed the advise of the gynecologist, after abortion
of the respondent's first pregnancy - The Gynecologist had
advised the couple against planning any further conception,
for a period of at least two years - Despite the advice, the
appellant impregnated his wife, just after eight months of the
B said abortion - In regard to plea of appellant for dissolution
of marriage on the ground, that matrimonial fies between the
parties had irretrievably broken down, it is questionable as to
whether such relief is available - Even otherwise, on facts,
decree of divorce cannot be granted on such ground since
c the breakdown was only from the side of the husband and the
respondent did not consent to the severance of matrimonial
ties right from the beginning - Further plea of appellant for
dissolution of marriage by invoking jurisdiction u!Art.142 of
the Constitution also not tenable as, on facts, the same cannot
0
be viewed as doing justice to respondent-wife - Constitution
of India, 1950 - Art. 142.
Hindu Marriage Act, 1955 - s.13(1) - Divorce und.er -
Grounds - Nature of - Held: The grounds are based on the
'fault' of the party against whom dissolution of marriage is
E sought - It is only on the ground of an opponent's fault, that a
party may approach a Court for seeking annulment of his/her
matrimonial alliance - The party seeking divorce under the
"matrimonial offence theory" I the "fault theory" must be
innocent - A party suffering ''guilt" or "fault" disentitles himself/
F herself from consideration - Matrimonial jurisprudence -
'Matrimonial offence theory' - 'Fault theory'.
The appellant-husband filed petition before the
Family Court seeking dissolution of marriage on two
G grounds. First and foremost, he claimed to have been
subjected to cruelty on account of the intemperate
behaviour of respondent-wife, and in this regard, relied
on clause (ia) of Section 13(1) of the Hindu Marriage Act,
1955. The second ground. on which the appellanthusband sought dissolution of marriage was, that the
H
DARSHAN GUPTA v. RADHIKA GUPTA
939
respondent-wife was of incurable unsound mind, and
A
suffered from such a mental disorder, that the appellant
could not be reasonably expected to live with her. In
regard to the second ground, the appellant-husband
relied on clause (iii) of Section 13(1) of the Hindu Mar

## Text

_Characters 0–39,963 of 94,124. This is a partial read: ask again with offset=39963 for what follows._

[2013] 10 S.C.R. 937
DARSHAN GUPTA
v.
RADHIKA GUPTA
(Civil Appeal Nos. 6332-6333 of 2009)
JULY 1, 2013
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]
Hindu Marriage Act, 1955 - ss.13(1)(ia) and (iii) - Plea
under, of appellant-husband for dissolution of marriage - Held:
A
B
Not tenable, since appellant-husband failed to prove the
C
ingredients of either clause (ia) or clause (iii) of s.13(1) - The
husband failed to establish, that he was subjected to cruelty
at the hands of the wife - On the issue of alleged aggressive
and abnormal behavior of the wife, no material evidence
before the Court - Such alleged behavior could have easily
D
been established through attendants of respondent-wife, but
such witnesses were withheld, despite being easily available
to appellant-husband - PW4, the expert witness produced by
appel/ant-husband admitted that while examining
respondent-wife, he did not observe any signs of E
aggressiveness in her - Interaction of PW4 with respondentwife in the court-ha/I when PW4 appeared to depose in the
matter demonstrated that the behavior of respondent-wife was
far from erratic - A/so, the appellant was not able to prove, that
his wife was suffering from any incurable unsoundness of F
mind and/or mental disorder - Respondent-wife merely
suffered from cognitive deficiency which was acquired by her
during her second pregnancy - Besides, she was found to
have substantially improved from her cognitive deficiency,
during the course of her treatment - Appellant-husband failed
G
to establish, that the mental unsoundness of mind or mental
disorder of respondent-wife was of such degree, that he could
not be expected to live with her - Further, appellant husband
- cannot be permitted to use his own fault to his advantage -
937
H
938
SUPREME COURT REPORTS
[2013] 10 S.C.R.
A
He did not heed the advise of the gynecologist, after abortion
of the respondent's first pregnancy - The Gynecologist had
advised the couple against planning any further conception,
for a period of at least two years - Despite the advice, the
appellant impregnated his wife, just after eight months of the
B said abortion - In regard to plea of appellant for dissolution
of marriage on the ground, that matrimonial fies between the
parties had irretrievably broken down, it is questionable as to
whether such relief is available - Even otherwise, on facts,
decree of divorce cannot be granted on such ground since
c the breakdown was only from the side of the husband and the
respondent did not consent to the severance of matrimonial
ties right from the beginning - Further plea of appellant for
dissolution of marriage by invoking jurisdiction u!Art.142 of
the Constitution also not tenable as, on facts, the same cannot
0
be viewed as doing justice to respondent-wife - Constitution
of India, 1950 - Art. 142.
Hindu Marriage Act, 1955 - s.13(1) - Divorce und.er -
Grounds - Nature of - Held: The grounds are based on the
'fault' of the party against whom dissolution of marriage is
E sought - It is only on the ground of an opponent's fault, that a
party may approach a Court for seeking annulment of his/her
matrimonial alliance - The party seeking divorce under the
"matrimonial offence theory" I the "fault theory" must be
innocent - A party suffering ''guilt" or "fault" disentitles himself/
F herself from consideration - Matrimonial jurisprudence -
'Matrimonial offence theory' - 'Fault theory'.
The appellant-husband filed petition before the
Family Court seeking dissolution of marriage on two
G grounds. First and foremost, he claimed to have been
subjected to cruelty on account of the intemperate
behaviour of respondent-wife, and in this regard, relied
on clause (ia) of Section 13(1) of the Hindu Marriage Act,
1955. The second ground. on which the appellanthusband sought dissolution of marriage was, that the
H
DARSHAN GUPTA v. RADHIKA GUPTA
939
respondent-wife was of incurable unsound mind, and
A
suffered from such a mental disorder, that the appellant
could not be reasonably expected to live with her. In
regard to the second ground, the appellant-husband
relied on clause (iii) of Section 13(1) of the Hindu Marriage
Act, 1955. As against the aforesaid, the respondent-wife
B
filed petition, before the same Court, seeking restitution
of conjugal rights under Section 9 of the Hindu Marriage
Act,' 1955. Both the cases were clubbed together.
The Family Court dismissed the petition filed by C
appellant-husband on the ground that he had not been
able to prove the ingredients of either clause (ia) or
clause (iii) of Section 13(1) of the Hindu Marriage Act,
1955. On the other hand, the petition filed by respondentwife was allowed holding that she was entitled to the relief D
of restitution of conjugal rights. The appellant-husband
was accordingly directed to receive her back into his
house within three months, and to give her moral and
emotional support. On his failure to do so, he was
directed to continue to pay the interim maintenance
amount fixed by the Family Court, till he finally accepted
E
her back into his house. The appellant filed appeals
before the High .Court which were dismissed, and
therefore the present appeals.
Dismissing the appeals, the Court
F
HELD: 1.1. The respondent-wife admittedly suffered
brain damage after her cesarean operation in September,
2000, during her second pregnancy. She had remained
unconscious for some time even after having delivered
a baby on 20.9.2000. It appears, that at the time of G
regaining consciousness, she was totally disoriented,
having lost her memory. The extent to which she had lost
her memory was most definitely substantial, as it is clear,
that she could not even recognize persons of close
H
940
SUPREME COURT REPORTS
(2013] 10 S.C.R.
A
affinity. Not only that, even her speech was substantially
impaired. [Para 28] (967-E-G, HJ
1.2. To deal with the medical condition of
respondent-wife, the appellant-husband seems to have
8
initially extended full financial support, by seeking
consultation of specialists in fields wherein respondentwife needed assistance. He also ensured, that such
treatment was provided to her at premium hospitals.
[Para 29] (968-A-B]
c
1.3. It, however, seems, that the appellant-husband
was skeptical about the outcome of her recovery. His
assessment of her medical condition, in the background
·of the inputs from the doctors attending on her, probably
created the impression, that she would henceforth be a
D liability on him. Keeping in mind the hopeless condition
of respondent-wife, the appellant-husband could not
have expected any kind of positive relationship with
respondent-wife. In 2000, when the unfortunate incident
occurred, he was merely 25 years old. One would expect,
E that all his dreams of a happy married life, came to be
shattered after seeing the medical condition of his wife,
specially in the background of the assessment made by
the experts being consulted. It is in the aforesaid
background, that it is easier to understand why he had
F
refrained from extending emotional or moral support to
respondent-wife. But the inescapable truth is, that
factually the appellant-husband did not extend emotional
or moral support to his wife, after her medical episode.
The distress of the appellant, and the distance that he
G started to keep from his wife, emerge from the statement
of RW1. RW1 placed on the record of the Family Court
three documents (Exhibits R1 to R3) pertaining to the
treatment of respondent-wife during 2002. The attending
doctor of respondent-wife considered it appropriate to
expressly record in one of these reports, that during
H
DARSHAN GUPTA v. RADHIKA GUPTA
941
treatment of respondent-wife, he had requested her to A
bring her husband along with her. He also noted, that the
husband had never accompanied her, despite his
aforesaid
indication
to
respondent-wife.
The
consequence of non-participation of appellant-husband
in the course of treatment of respondent-wife, is also B
recorded in the report. The report notices, that her
improvement would have been a lot more significant and
faster, if her husband had been with her and· had cared
for her in her journey to recovery. The reasons which
may have weighed in the young husband's mind may be c
any, but the harsh reality is, that appellant-husband did
not extend due care and support to his wife, nor did he
participate in her journey to recovery. [Para 30] [968-CD; E-G; 969-A-F]
1.4. Shorn of the participation and support of D
appellant-husband to his wife, it is still material to
determine the extent of recovery of respondent-wife. It
would be just and appropriate to refer to and rely upon,
the three reports placed on the record of the Family Court
by RW1. The said reports were prepared in June, J!JIY E
and October 2002. The reports reveal, that respondentwife had undergone intensive cognitive re-training using
brain function therapy, and she was provided with
graded re-training in alphabet and number recognition
and delayed recall, recognition and recall of words and
F
figures, different levels of working memory, etc. In the first
neuro-psychological assessment of respondent-wife at
NIMHANS in June, 2002, as also, in the second
assessment made in July, 2002, considerable
improvement was found in the medical condition of G
respondent-wife. Respondent-wife was subjected to a
third neuro-psychological assessment in October, 2002.
Again marked improvement was found in her conceptual
organization of numbers and ability for arithmetic
operations. The third assessment expressly records, that H
942
SUPREME COURT REPORTS
[2013] 10 S.C.R.
A
respondent-wife was capable of all normal emotional
experiences and expressions. Her eager and earnest
desire about her future reunion with her husband, is also
indicated in the report. She has been assessed as fully
capable of shouldering the responsibilities of a happy
B marital life. RW1 categorically testified, that respondentwife was not a case of mental disorder. He clarified, that
her case was of cognitive deficiency, on account of brain
damage. According to RW1, respondent-wife had
recovered her working memory by more than 80%. He
c also explained, that cognitive deficiency is recoverable,
but the recovery is dependent on the degree of damage
to the brain, as also, the emotional support the patient
gets from the family members, at the relevant time. This
is the testimony of the same doctor, who had been
0
requiring respondent-wife to bring appellant-husband
along with her, during the course of her consultations.
During the course of his cross-examination, RW1 denied
the suggestion, that respondent-wife was not in a
position to discharge her normal day to day functions of
E life. [Para 31] [969-G; 970-A-D, F-H; 971-A·C]
1.5. The Family Court had directed respondent-wife
to appear before a medical board comprised of eminent
specialists in psychiatry and clinical psychology. In the
report (Exhibit C1) submitted by the medical board to the
F
Family Court, conclusions were recorded on the basis of
the medical history of respondent-wife, as also, the
observations and examinations of the respondent-wife.
The medical board concluded, that respondent-wife did
not manifest any signs of major mental disorder, and that,
G she exhibited normal adequate emotional responses. It
was also opined, that she would further benefit from
neuro-psychological rehabilitation measures, which are
available at NIMHANS. CW2, one of the members of the
medical board, was also examined by the Family Court,
H as a court witness. During the course of his deposition,
DARSHAN GUPTA v. RADHIKA GUPTA
943
CW2 expressed the opinion that respondent-wife could
A
be described as a person of moderate intelligence. He
also expressed, that by undergoing therapy training,
there was a further likelihood of improving her cognitive
deficiencies. He also clarified, that the deficiencies
suffered by respondent-wife, would not come in her way
B
to discharge her matrimonial obligations. [Para 32] [971D-E, F-H; 972-A-B]
1.6. Based on the material evidence, it is not possible
to record, that respondent-wife suffers from any incurable
unsoundness of mind. It is also not possible to hold, that C
she suffers from such mental disorder, that it cannot be
reasonably expected of her husband to live with her. The
evidence produced before the Family Court makes it clear
that respondent-wife merely suffers from mild to
moderate cognitive deficiencies. She is categorized by
D
medical experts as an individual of moderate intelligence.
Material on the record of the case reveals, that she would
further benefit from neuro-psychological rehabilitation
measures, which are available at NIMHANS. Even though
the said deficiencies could influence her day to day
E
functioning, but expert opinion is unanimous that the
same would not come in her way to discharge her
matrimonial obligations. It cannot also be overlooked,
that experts have clearly expressed that respondent-wife
exhibits normal and adequate emotional responses. She
F
has right from the beginning, fervently expressed the
desire to restore her .relationship with her husband, and
to live a normal life, in a matrimonial relationship with
him. In the aforesaid view of the matter, it is not possible
to conclude, that the mental condition of respondent-wife
G
is such as to accept the appeal preferred by appellanthusband under Section 13(1 )(iii) of the Hindu Marriage
Act, 1955. [Para 33] [972-C-G]
2.1. Insofar as the alleged abnormal, erratic and
aggressive behaviour of respondent-wife is concerned,
H
944
SUPREME COURT REPORTS
[2013] 10 S.C.R.
A the courts below were fully justified in recording, that the
said behaviour of respondent-wife could have easily
been established through the testimony of the attendants
who looked after respondent-wife, as also, the other staff,
yet the said witnesses were not produced by the
B appellant, despite their availability. The appellanthusband had produced PW4 to support his cause,
however, PW4 during his deposition asserted that he did
not observe any signs of aggressiveness in the
respondent-wife. Since respondent-wife was under the
c care and treatment of PW4, he would have obviously
known of her erratic behaviour, if the allegations of the
husband were correct. The respondent-wife had also
produced RW1 on her behalf. He too would have been
aware of such behaviour. The appellant-husband,
0 however, chose not to examine RW1, on the said subject.
It would be pertinent to mention, that in the order of the
Family Court it is duly noted, that when PW4 appeared
to depose in the matter, respondent-wife was sitting in
the court-hall observing court proceedings. During his
E interaction with respondent-wife, PW4 had enquired
about her welfare, and she had responded by stating "I
am fine sir, thank you". The very court which respondentwife had repeatedly visited, recorded the above instance
to demonstrate that her behavior was far from erratic, as
suggested by the husband. The position would be no
F different, even if one considers these facts in conjunction
with her medical condition. There was no material on the
record of the case, to substantiate the alleged aggressive, ·
erratic or abnormal behaviour of respondent-wife. In the
aforesaid view of the matter, it is not possible to accept
G the appeal preferred by the appellant even under Section
13(1)(ia) of the Hindu Marriage Act, 1955. [Para 34] [972H; 973-E-H; 974-A-E]
3.1. However, it is necessary to examine the instant
H controversy from another point of view. A perusal of the
DARSHAN GUPTA v. RADHIKA GUPTA
945
grounds on which divorce can be sought under Section
A
13(1) of the Hindu Marriage Act, 1955, would reveal, that
the same are grounds based on the 'fault' of the party
against whom dissolution of marriage is sought. In
matrimonial jurisprudence, such provisions are founded
on the 'matrimonial offence theory' or the 'fault theory'.
B
Under this jurisprudential principle, it is only on the
ground of an opponent's fault, that a party may approach
a Court for seeking annulment of his/her matrimonial
alliance. The party seeking divorce under the
"matrimonial offence theory" I the "fault theory" must be c
innocent. A party suffering "guilt" or "fault" disentitles
himself/herself from consideration. [Para 35] [974-E, G-H;
975-A-C]
3.2. In the instant case, all the grounds/facts on
which divorce was sought, emerge from the medical
D
condition of respondent-wife, after her cesarean
operation in September, 2000, during her second
pregnancy. After respondent-wife's first conception was
aborted in June, 1999, the attending gynecologist at
Apollo Hospital, had cautioned the couple against any
E
further conception for at least two years. The couple had
been advised, that pregnancy of respondent-wife during
this period could lead to serious medical complications.
The husband did not heed to the advice tendered by the
attending gynecologist. There is no serious dispute, that
F
to satisfy his desires, he impregnated his wife within a
period of eight months, i.e., well within the risk period.
Therefore, she suffered the predicted consequences. The
medical condition of respondent-wife, on which the
appellant bases his claim for divorce, is of his own doing.
G
Even though at that juncture, appellant-husband was
merely 25 years of age, and it may well be difficult to
. blame him, yet there is no escape from the fact, that the
fault rests on his shoulders. In the above view of the
matter, it is not possible to conclude, that appellantH
946
SUPREME COURT REPORTS
[2013] 10 S.C.R.
A husband did not suffer from any "guilt" or "fault" in the
matter. He cannot be permitted to use his own fault to his
advantage. The party seeking divorce has to be innocent
of blame. For the instant reason also, the prayers made
by the appellant must fail. [Paras 36, 37] [975-G-H; 976B D-E, G-H; 977-A-C]
4. The appellant also sought dissolution of marriage
on the ground, that the matrimonial ties between the
parties had irretrievably broken down, specially when the
parties have lived apart for more than 12 years and there
c was no likelihood of the parties ever living together as
husband and wife. However, at the present juncture, it is
questionable as to whether the relief sought by the
appellant, on the ground of irretrievable breakdown of
marriage is available to him. Even otherwise, in the facts
o and circumstances of this case, one cannot grant a
decree of divorce, on the ground of irretrievable
breakdown of marriage, for the simple reason that the
breakdown is only from the side of the husband. The wife
has consistently maintained, that she was intensely
E concerned with her future relationship with her husband,
and that, her greatest and paramount desire was to rejoin
her husband, and to live with him normally in a
matrimonial relationship, once again. Since in the present
case, the respondent does not consent to the severance
F of matrimonial ties, it may not be possible to accede to
the instant prayer, made by the appellant. [Paras 38, 39) .
[977-D-E, G-H; 978-A; 979-F-H]
Vishnu Dutt Sharma vs. Manju Sharma, (2009) 6 SCC
379 and Gurbax Singh vs. Harminder Kaur (2010) 14 SCC
G 301: 2010 (12) SCR 275 - referred to.
5. Since the plea of irretrievable breakdown of
marriage was not accepted by this Court, the appellant
then implored this Court to invoke jurisdiction under
Article 142 of the Constitution of India, and to annul the
H marriage between the parties,-as a matter of doing
DARSHAN GUPTA v. RADHIKA GUPTA
94 7
complete justice between the parties. In the context of A
doing justice it was suggested, that the appellant would
8
be ready and willing to pay the respondent, whatever was
considered appropriate by this Court. In order to
determine the issue, the matter may be examined, by
reversing the roles of the parties - as if, the wife had
approached the Family Court seeking divorce, on· the
ground that her husband had suffered brain damage
leading to cognitive deficiencies. Yet, despite the said
deficiencies, his working memory had returned to "near
normal" after treatment. And his mental condition was
such, that it would not have any effect on his matrimonial
C
obligations. And the wife's family is agreeable to pay an
amount to be determined by this Court Uust as the
appellant-husband has offered), so as to enable their
daughter to break away, and find a more suitable match.
In such situation, if this Court had, in exercise of its 0
juri~diction under Article 142 of the Constitution, granted
c6mpensation to the husband, and had dissolved his
marriage on the pretext of doing complete justice
between the parties, would the same be acceptable to the
husband? There is no doubt that, on a reversal of roles,
E
the husband, without any fault of his own, would have
never accepted as just, the dissolution of his matrimonial
ties, even if the couple had been separated for a duration,
as is the case in hand. Specially, if the husband had, right
from the beginning, fervently expressed the desire to
restore his matrimonial relationship with his wife, and to
live a normal life with her. The issue in hand should be
adjudged by the above standards, when the same prayer
F
is made by the husband. To constitute justice, the picture
should appear to be the same, irrespective of the angle
from which it is viewed. If the same sequence of facts
G
cannot be viewed as doing justice to the husband, they
have to be likewise viewed for the wife as well. It is,
therefore, not possible to accept even the last plea
advanced on behalf of the appellant. [Paras 40, 41 and
42] [980-A-B, E-H; 981-A-Fi
H
A
948
SUPREME COURT REPORTS
[2013] 10 S.C.R.
Case Law Reference:
(2009) s sec 379
2010 (12) SCR 275
referred to
referred to
Para 39
Para 39
B
CIVIL APP ELLA TE JURISDICTION : Civil Appeal Nos.
6332-6333 of 2009.
c
From the Judgment and Order dated 06.07.2009 of the
High Court of Judicature Andhra Pradesh at Hyderabad in
Family Court Appeal No. 36 and 37 of 2006.
Vijay Hansaria, Prerna Kumari, Amit Anand Tiwari, Manoj,
Gargi Srivastava for the Appellant.
Mukul Gupta, Sushant Kumar, Ahwesh Madhukar,
Narender Singh Bisht, Rishabh, A. Venayagam Balan for the
D Respondent.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. The marriage between
E the appellant-husband, Darshan Gupta and the respondentwife, Radhika Gupta, was solemnized on 9.5.1997 at the
Holiday Inn Hotel in Hyderabad, as per Hindu rights and
customs. This was not the first matrimonial alliance between
the two families. The husband's elder brother was already
F married to the wife's sister. Both parties admittedly belong to
well-to-do families. At the time of marriage between the parties,
Darshan Gupta, the husband was 22 years of age, and Radhika
Gupta was 19. Now the husband is 35, and the wife 32. The
marriage between the parties was duly consummated, and their
relationship blossomed into one full of love and affection.
G
2. The cordiality between the parties continued for a
period of two years, till the wife conceived for the first time in
February 1999. The aforestated conception was aborted when
Radhika Gupta was in the fourth month of her pregnancy, as
H she had commenced to suffer from hypertension resulting into
DARSHAN GUPTA v. RADHIKA GUPTA
949
[JAGDISH SINGH KHEHAR, J.]
fits, extreme morning sickness and general weakness. The
A
decision to abort the pregnancy in June, 1999, was based on
medical advice.
3. The wife Radhika Gupta conceived for the second time
in February 2000. During the instant pregnancy, she had similar
8
symptoms, as she had suffered on the earlier occasion. For
the aforesaid reason, and on medical advice, when the
pregnancy was in its eighth month, a caesarian operation was
performed in September, 2000. At the time of birth of the child,
the wife, Radhika Gupta, was unconscious. Even after the child
C
was delivered, she remained unconscious. The child born to
Radhika Gupta survived for only eight days.
4. Since Radhika Gupta had developed serious medical
complications, she was treated at the best hospitals at
Hyderabad, amongst others at the Apollo Hospital, as an indoor D
patient. Doctors from across the country were consulted. They
had attended upon her, at the behest of her husband Darshan
Gupta. To ensure that there was no deficiency in her medical
upkeep, she was shifted to the Leelavathi Hospital at Mumbai.
At Mumbai, further tests were conducted and surgeries were
E
performed. She also sought consultations from the National
Institute of Medical Health and Neuroscience, Bangalore
(NIMHANS).
5. During the treatment of Radhika Gupta, neurologists and
gynecologists looking after her believed, that she had suffered
brain damage. On that account, she is stated to have lost her
memory, so much so, that she could not even recognize persons
F
of close affinity. Her speech was also stated to have been
substantially impaired. It was averred, that the condition of the
wife was such, that she could not even discharge her personal
G
obligations. She had to be assisted by an attendant. According
to the contention of Darshan Gupta, the condition of Radhika
Gupta was no better than a child of five years. He also alleged,
that Radhika Gupta's condition was such, that she could not
be left alone in the room, nor could she be permitted to use
H
950
SUPREME COURT REPORTS
[2013] 10 S.C.R.
A
the bathroom by herself. Gynecologists, who examined Radhika
Gupta had opined, that she was not fit for discharging her
matrimonial obligations. They also felt, that she could not bear
a child. Neurologists believed, that it was impossible for the
husband to live with Radhika Gupta. On the subject of their
B
marital relationship, the husband contends, that his wife did not
allow him to touch her physically, even to please her. It is the
husband's assertion, that at times Radhika Gupta would wake
up in the middle of the night, and thereafter, would not allow him
to sleep. Darshan Gupta even accused his wife, for shouting
c
and screaming without any reason.
6. For the upkeep, maintenance and sustenance of his
wife, the appellant Darshan Gupta, is stated to have created a
trust with a corpus of Rs.10,00,000/-. For his wife's residence,
the appellant Darshan Gupta persuaded his father to execute
D
a lease deed of a flat in a posh locality, at a nominal rent, in
favour of the trust. Besides the aforesaid, the appellant Darshan
Gupta has been paying his wife Radhika Gupta a sum of
Rs.25,000/- per month towards maintenance, during the
E
pendency of the proceedings.
7. In response, the case set up by Radhika Gupta has
been, that after her first conception was aborted in June, 1999,
the attending gynecologist at Apollo Hospital, had cautioned the
couple against any further conception for at least two years. The
F
couple had been advised, that pregnancy of Radhika Gupta
during this period could lead to serious medical complications.
Despite having been forewarned by the gynecologist, Radhika
Gupta alleges, that her husband had proceeded with unsafe
cohabitation, resulting in a second pregnancy within a short
G
period of eight months (after the termination of the first
pregnancy), i.e., well within the unsafe period. According to
Radhika Gupta, true to the advice of the attending gynecologist,
the second pregnancy resulted in the same symptoms as she
had suffered during her first pregnancy. It was her assertion,
that she had again started to suffer from hypertension resulting
H
DARSHAN GUPTA v. RADHIKA GUPTA
951
[JAGDISH SINGH KHEHAR, J.]
in fits, extreme morning sickness and general weakness.
A
Despite the precarious condition of the wife, she was
persuaded by her husband, Darshan Gupta, to carry on the
pregnancy till the eighth month. The wife acknowledges the
caesarian operation conducted on 20.9.2000, as also the fact,
that the child born to her surviving for only eight days. In this
B
behalf her assertion is, that her husband was to be blamed for
the same, as he did not heed to the medical advice of the
gynecologist. According to Radhika Gupta, the fall out of the
second pregnancy, specially the effect thereof to her health, was
the real cause of the turn around of the matrimonial relationship, c
between the parties. For that, Radhika Gupta blames her
husband.
8. Despite the factual position noticed hereinabove,
Radhika Gupta - the wife, claims to be hale and hearty. Before
the Family Court, she had expressed, that she was ready and
willing for any medical evaluation, at the Court's behest.
According to Radhika Gupta, after the death of the new born,
D
her husband did not extend, the care that she deserved from
him. This had happened after the termination of the first
pregnancy also. At that juncture, her parents had taken her to
neurologists, psychologists and occupational therapists of
national repute. After the caesarian surgery, Radhika Gupta had
remained unconscious. She used to suffer series of fits. It is
therefore, that she had to be shifted to the Apollo Hospital. After
treatment, she had regained her consciousness, and had
become more oriented. It is the wife's assertion, that yet again
after the episode of the second pregnancy, the husband did not
extend any emotional or moral support to her. Rather than
taking care of her, she was shifted to her parents' house in May
2002. It is the wife's contention, that her parents again took
G
good care of her. They had again sought advice from
specialists of different medical fields, as before. The undisputed
factual position between the parties is, that ever since she was
shifted to her parents house in May 2002, Radhika Gupta has
remained at her parents' house, except for a few days (from
E
F
H
952
SUPREME COURT REPORTS
[2013] 10 S.C.R.
A 29.9.2011 to 3.10.2011), that also, in compliance with the
desire and directions of this Court.
9. It has been, and it still is, the wife's case, that she is
intensely concerned about her future relationship with her
8 husband, and that, her greatest and paramount desire is to
rejoin her husband, and to live with him normally in a
matrimonial relationship, once again. According to the
respondent-wife, all efforts made by her have failed, only on
account of the rigid attitude of her husband.
c
10. On the above facts, OP No.926 of 2002 was filed by
the appellant-husband before the Family Court seeking
dissolution of marriage under clauses (ia) and (iii) of Section
13(1) of the Hindu Marriage Act, 1955. As against the
aforesaid, OP No.629 of 2003 was filed by Radhika Gupta,
D before the same Court, seeking restitution of conjugal rights
under Section 9 of the Hindu Marriage Act, 1955. Both the
cases were clubbed together. Evidence was recorded in OP
No.926 of 2002, and the same was treated as evidence for the
determination of OP 629 of 2003 as well.
E
11. Darshan Gupta examined four witnesses in all. He
examined himself as PW1. He examined his maternal aunt
Nirmala Devi as PW2. Darpan Gupta, the twin elder brother of
the appellant-Darshan Gupta was exar:nined as PW3. Dr. M.
F Veera Raghava Reddy, a practicing neurologist was examined
as PW4. The .testimony of the husband Darshan Gupta who
appeared before the Family Court as PW1, was in consonance
with the factual position indicated in the pleadings, as also, in
the factual narration recorded hereinabove. PW2 and PW3
being close family relations supported the statement of Darshan
G Gupta-PW1, in all material particulars. While deposing before
the Family Court, Dr. M. Veera Raghava Reddy-PW4 stated,
that he had referred the respondent-wife Radhika Gupta to Dr.
Nagaraja for a second opinion. The said second opinion was
sought by the appellant-husband Darshan Gupta, and his
H relations. Even though Dr. M. Veera Raghava Reddy-PW4,
DARSHAN GUPTA v. RADHIKA GUPTA
953
[JAGDISH SINGH KHEHAR, J.]
somewhat towed the line of the appellant-husband Darshan A
Gupta during the course of his examination-in-chief, he
acknowledged during the course of his cross-examination, that
when he had visited Radhika Gupta at her residence, her
physical condition was normal. He also accepted, that he had
not prescribed any medicine to the respondent-wife, for the
B
effect of eclampsia on the brain, as there was no medicine for
it. He admitted, that he did not advise or refer Radhika Gupta
to any psychiatrist or clinical physiologist, for evaluating her
physical and mental functions, nor did he prescribe her any
treatment to improve the said functions. He however opined, c
from his experience, that even if treatment had been taken by
Radhika Gupta from psychiatrists/clinical physiologists, her
improvement would have been limited to 4-5%. He also
acknowledged, that he had never given any opinion to the
appellant-husband, that Radhika Gupta was suffering from loss D
of cognitive deficiency, or that she was not fit for conjugal life.
It would be pertinent to mention, that it stands noticed in the
order of the Family Court, that when Dr. M. Veera Raghava
Reddy-PW4, appeared before the Family Colurt to depose in
the matter, Radhika Gupta was sitting in the court-hall
observing court proceedings. During their interaction Dr. M.
E
Veera Raghava Reddy-PW4, had enquired about her welfare.
She had responded by stating, "I am fine sir, thank you.".
12. It would be pertinent to mention, that Radhika Gupta
chose not to examine herself as a witness, in either of the two
F
cases before the Family Court. She only examined Dr. C.R.
Mukundan-RW1, in her defence. During the course of his
deposition, Dr. C.R. Mukundan-RW1 had produced three
documents Exhibits R1 to R3. As per his deposition, when he
had examined Radhika Gupta, he was working as Professor G
of clinical psychiatry in the neuro-psychology unit, at NIMHANS,
in Bangalore. Consequent upon the respondent-wife's
evaluation by him, he had issued reports Exhibits R1 and R2.
As per the said reports, Radhika Gupta had undergone
intensive cognitive re-training using brain function therapy, and
H
954
SUPREME COURT REPORTS
[2013] 10 S.C.R.
A
that, she was provided with graded re-training in alphabet and
number recognition and delayed recall, recognition and recall
of words and figures, different levels of working memory, etc. It
was duly noted in Exhibit R2, that at the first neuro-psychological
assessment of Radhika Gupta at NIMHANS in June 2002, as
B
also, in the second assessment made in July 2002, there was
considerable improvement in her medical condition. It is also
recorded in Exhibit R2, that as per the follow up report, she was
currently showing significant improvement in all cognitive areas,
and that, her word finding difficulty was reduced by 60-70%. It
c also stands duly noted, that she could not spontaneously name
household articles, and food materials, or recall the names of
persons and objects seen in movies or read in books. The
report (Exhibit-R2) however indicates, that when she· had
difficulty to spontaneously name an article or person, she would
0
succeed to do so with a little effort. The report (Exhibit R2) also
notices, that her working memory had improved so much, that
the same could be described as "near normal", because she
was able to execute and complete, working memory tasks.
Thereafter, Radhika Gupta was subjected to a third neuroE
F
psychological assessment in October, 2002. Again marked
improvement was found in her conceptual organization of
numbers, and ability for arithmetic operations. On this occasion
it was found, that her writing skills still required further
improvement. The said third assessment expressly notices, that
Radhika Gupta was capable of all normal emotional
experiences and expressions, and that, she was intimately
desirous of restoring her future relationship with her husband.
She was found to be fully capable of a happy marital life.
Interestingly, the aforesaid report underlines the fact, that her
improvement would have been a lot more significant and faster,
G
if her husband had been with her, and had cared for her in her
journey to recovery. It was however, pointed out, that Radhika
Gupta still lacked in self-confidence. Yet, she was found to be
highly motivated for further improvement, and her logical thinking
H
and expressive abilities were described as excellent. Exhibit
R3 produced by Dr. C.R. Mukundan-RW1, was on the same
DARSHAN GUPTA v. RADHIKA GUPTA
955
[JAGDISH SINGH KHEHAR, J.]
B
lines as the earlier two exhibits. Dr. C.R. Mukundan-RW1,
A
deposed, that Radhika Gupta v1as not a case of mental
disorder. Her case was of severe cognitive deficiencies, on
account of brain damage. She had suffered, the aforesaid brain
damage on account of eclampia during the course of her
second pregnancy. According to Dr. C.R. Mukundan-RW1, in
some areas of deficiency, she was found to have fully
recovered. In some areas of cognitive deficiencies her
improvement was about 60-70%. According to Dr. C.R.
Mukundan-RW1, Radhika Gupta had recovered her working
memory by more than 80%. It was further pointed out, that c
cognitive deficiency is recoverable, but is dependant on the
degree of damage to the brain, as also, the emotional support
the patient gets from family members at the relevant time. In
his examination-in-chief, Dr. C.R. Mukundan-RW1 deposed,
that during her treatment he had requested Radhika Gupta to
D
bring her husband along with her. But her husband had never
accompanied her. It was sought to be explained, that the
presence of Darshan Gupta, would have given emotional
support to her. This position remained uncontested during his
cross-examination. On the issue of cognitive deficiencies, it was
E
sought to be clarified, that even though the same would affect .
the quality of life of Radhika Gupta, yet the same would have
no effect on her matrimonial obligations. During the course of
his cross-examination, Dr. C.R. Mukundan-RW1, denied the
suggestion, that Radhika Gupta was not in a position to
discharge her normal day to day functions of life, like bolting a
door after entering the bathroom, or opening a door after bolting
F·
it. He acknowledged, that he himself had given the reports at
Exhibits R2 and R3. At this juncture, it would be necessary to
notice, that after consulting Dr. C.R. Mukundan-RW1, the
appellant-husband Darshan Gupta desired a second opinion,
G
for which he obtained a letter from Dr. M. Veera Raghava
Reddy-PW4, addressed to Dr. Nagaraja. Thereafter, the
appellant-husband Drashan Gupta visited Dr. Nagaraja for a
second opinion, but while seeking the same, he did not
admittedly take the respondent-wife Radhika Gupta for
H
956
SUPREME COURT REPORTS
[2013) 10 S.C.R.
A examination at the hands of Dr. Nagaraja.
13. Dr. M Gauri Devi, Superintendent, Institute of Mental
Health, Erragadda, Hyderabad, was examined as Court
Witness 1(CW1). Dr. M. Gauri Devi-CW1 constituted a medical
8 board, at the asking of the Family Court, for examining and
evaluating the medical condition of Radhika Gupta. The
aforesaid medical board comprised of Dr. Ch. Venkata Suresh,
Assistant Professor of Psychiatry of Institute of Mental Health,
Hyderabad, Dr. K. Ashok Reddy, Associate Professor of
Psychiatry of Institute of Mental Health and Dr. S. Bhaskara
C Naidu, Professor of Clinical Psychology of Institute of Mental
Health Hyderabad. The medical board having examined
Radhika Gupta, submitted its report (Exhibit C1) to the Family
Court. A perusal of the medical report indicates, that the medical
board had recorded its conclusions on the basis of the medical
D history of Radhika Gupta, as also, the observations and
examination of the respondent-wife. The medical board
expressed the opinion, that the Radhika Gupta was suffering
from cognitive deficiencies, in the form of difficulty in
comprehension, attention, concentration, orientation, perceptual
E ability, memory retrieval, word finding difficulty and organization
ability. The said effects, according to the medical board, could
influence her day to day functioning.