# VIN IT A SAXENA v. PANKAJ PANDIT

- **Citation:** [2006] 3 S.C.R. 116
- **Court:** Supreme Court of India
- **Decided:** 2006-03-21
- **Case number:** Civil Appeal No. 1687 of 2006
- **Bench:** Ruma Pal, Dr. Ar. Lakshmanan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vin-it-a-saxena-v-pankaj-pandit-21204
- **Pages:** 30

## Headnote

Hindu law:
Hindu Marriage Act, 1955: Section 13(/)(i-a) and (iii).
Divorce-Cruelty and mental disorder-Non-consummation of
marriage-Marriage solemnized in 1993-Marriage lasted only for jive months
but was never consummated as the husband was incapable of performing his
matrimonial obligations-Wife was treated with utmost cruelty both mental
D and physical by husband's mother-Husband was a case of Paranoid
Schizophrenia and under constant medical treatment even prior to marriageWife filed a petition for divorce on grounds of mental and physical crueltyThe wife's case was that on account of Paranoid Schizophrenia that the
husband was suffering from, she could not be reasonably expected to live with
him-Trial Court dismissed the petition-High Court affirmed the decision
E holding that the husband was not suffering from schizophrenia and that there
was insufficient material on record to establish cause of cruelty-Correctness
of-Held· To beget children from a Hindu wedlock is one of the principal
aims of Hindu Marriage where 'sanskar' of marriage is advised for progeny
and offspring-If procreation of children is not possible it may famish a good
ground for nullifying the marriage-In the instant case, the husband's mental
F disorder is such that he is incapable of performing his matrimonial ob/igationsThe marriage between the parties was not consummated-A workable solution
is certainly not possible and the wife's stay with her husband is injurious to
her health-Hence, decree of divorce granted
G
H
Words and Phrases:
"Cruelty"-Meaning of-In the context of S. I 3(l)(i-a) of the Hindu
Marriage Act, 1955.
"Mental disorder"-Meaning of-In the context of S. 13(/)(iii) of the
116
y
'
VINITA SAXENA v. PANKAJ PANDIT
117
Hindu Marriage Act, 1955.
''Schizophrenia' '-Meaning of-Explained
The marriage between the appellant-wife and the respondenthusband was solemnized in the year 1993. The marriage lasted for five
months but was never consummated on account of the fact that the
respondent was incapable of performing his matrimonial obligations. It
was alleged that the respondent's mother treated the appellant with utmost
cruelty both mental and physical. The respondent's case was a case of
Paranoid Schizophrenia and he was under constant treatment and
observations of different doctors even prior to the marriage for the said
ailment.
The appellant filed a petition for divorce under Section 13(1)(i-a) and
(iii) of the Hindu Marriage Act, 1955 on the grounds of mental and
physical cruelty before the District Court. The appellant's case was that
on account of Paranoid Schizophrenia that the respondent was suffering
from, the appellant could not be reasonably expected to live with the
respondent.
The trial court dismissed the petition filed by the appellant. The High
Court dismissed the appeal filed by the appellant holding that the
testimonies of the do~tors examined by the appellant to prove that the
respondent was suffering from Schizophrenia could not be looked into for
the reason· that the respondent was not under the treatment of the said
disorder. Hence the appeal.
Allowing the appeal, the Court
HELD: 1.1. It is not in dispute that the marriage has lasted hardly
for five months and was never consummated on account of the fact that
the respondent was incapable of performing his matrimonial obligations.
The appellant has examined herself as PW-I. She has specifically stated
in her deposition that the marriage was not consummated at all. It has
further come out in her deposition that she accompanied the respondent
to the hospital and met the Sexologist and Marriage Counsellor. In her
deposition, it had also come out that the said· doctor informed her that
the respondent cannot perform the marital obligations. She was also
informed by the said doctor that the respondent was a Psychopathic case
and he has no power of concentration. She was also informed that the
A
B
c
D
118
SUPREME COURT REPORTS
[20061 3 S.C.R.
A disease is uncurable in nature. The

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A
B
c
VIN IT A SAXENA
v.
PANKAJ PANDIT
MARCH 21, 2006
[RUMA PAL AND DR. AR. LAKSHMANAN, JJ.)
Hindu law:
Hindu Marriage Act, 1955: Section 13(/)(i-a) and (iii).
Divorce-Cruelty and mental disorder-Non-consummation of
marriage-Marriage solemnized in 1993-Marriage lasted only for jive months
but was never consummated as the husband was incapable of performing his
matrimonial obligations-Wife was treated with utmost cruelty both mental
D and physical by husband's mother-Husband was a case of Paranoid
Schizophrenia and under constant medical treatment even prior to marriageWife filed a petition for divorce on grounds of mental and physical crueltyThe wife's case was that on account of Paranoid Schizophrenia that the
husband was suffering from, she could not be reasonably expected to live with
him-Trial Court dismissed the petition-High Court affirmed the decision
E holding that the husband was not suffering from schizophrenia and that there
was insufficient material on record to establish cause of cruelty-Correctness
of-Held· To beget children from a Hindu wedlock is one of the principal
aims of Hindu Marriage where 'sanskar' of marriage is advised for progeny
and offspring-If procreation of children is not possible it may famish a good
ground for nullifying the marriage-In the instant case, the husband's mental
F disorder is such that he is incapable of performing his matrimonial ob/igationsThe marriage between the parties was not consummated-A workable solution
is certainly not possible and the wife's stay with her husband is injurious to
her health-Hence, decree of divorce granted
G
H
Words and Phrases:
"Cruelty"-Meaning of-In the context of S. I 3(l)(i-a) of the Hindu
Marriage Act, 1955.
"Mental disorder"-Meaning of-In the context of S. 13(/)(iii) of the
116
y
'
VINITA SAXENA v. PANKAJ PANDIT
117
Hindu Marriage Act, 1955.
''Schizophrenia' '-Meaning of-Explained
The marriage between the appellant-wife and the respondenthusband was solemnized in the year 1993. The marriage lasted for five
months but was never consummated on account of the fact that the
respondent was incapable of performing his matrimonial obligations. It
was alleged that the respondent's mother treated the appellant with utmost
cruelty both mental and physical. The respondent's case was a case of
Paranoid Schizophrenia and he was under constant treatment and
observations of different doctors even prior to the marriage for the said
ailment.
The appellant filed a petition for divorce under Section 13(1)(i-a) and
(iii) of the Hindu Marriage Act, 1955 on the grounds of mental and
physical cruelty before the District Court. The appellant's case was that
on account of Paranoid Schizophrenia that the respondent was suffering
from, the appellant could not be reasonably expected to live with the
respondent.
The trial court dismissed the petition filed by the appellant. The High
Court dismissed the appeal filed by the appellant holding that the
testimonies of the do~tors examined by the appellant to prove that the
respondent was suffering from Schizophrenia could not be looked into for
the reason· that the respondent was not under the treatment of the said
disorder. Hence the appeal.
Allowing the appeal, the Court
HELD: 1.1. It is not in dispute that the marriage has lasted hardly
for five months and was never consummated on account of the fact that
the respondent was incapable of performing his matrimonial obligations.
The appellant has examined herself as PW-I. She has specifically stated
in her deposition that the marriage was not consummated at all. It has
further come out in her deposition that she accompanied the respondent
to the hospital and met the Sexologist and Marriage Counsellor. In her
deposition, it had also come out that the said· doctor informed her that
the respondent cannot perform the marital obligations. She was also
informed by the said doctor that the respondent was a Psychopathic case
and he has no power of concentration. She was also informed that the
A
B
c
D
118
SUPREME COURT REPORTS
[20061 3 S.C.R.
A disease is uncurable in nature. The appellant has further deposed that the
respondent kept on sleeping for three days immediately after solemnization
of marriage and the appellant was told that she should not disturb him.
It was further stated in her evidence that the appellant was blamed for
the respondent's illness and was mercilessly beaten up and on the same
B day the respondent attempted to commit suicide and he was taken to the
hospital by the appellant and her brother. (133-G, H; 134-A-Cj
1.2. In her cross-examination, the appellant has stated that though
they were studying together in the Engineering College, however, there
were no special meetings between them except meeting in the class. It has
C also come on record that there was no intimacy between the appellant and
the respondent. The appellant has emphatically denied the allegation about
the intimacy between the appellant and the respondent prior to the
marriage. She also stated on oath that it was a marriage though of her
choice but solemnized only after her parents had given the consent. In the
cross-examination, the respondent has not been able to shake or destroy
D the case of the appellant. (134-D-El
2.1. With regard to cruelty, there is deposition of the appellant and
her father on record which clearly establishes and proves that the
appellant was treated with cruelty by the respondent and his mother. With •
E regard to the plea of mental insanity i.e. Section 13(1 )(iii) of the Hindu
Marriage Act, 1955 the appellant adduced the evidence of doctors.
According to the medical record, the respondent was admitted with
reference to a case of Psychopathic and depression. The evidence of the
doctors also establishes the case of mental insanity and the fact that the
respondent was a case of Paranoid Schizophrenia. The said doctors
p produced the original record and made necessary deposition and it is
recorded that the respondent had visited the Psychiatric Ward along with
his mother. It was also recorded that the respondent suffers from delusion
of persecution and reference effect and on the physical examination it had
been observed that the respondent has clear ~ystematized delusion of
persecution and reference and, therefore, on the review it is clear that the
G respondent is suffering from Paranoid Schizophrenia. The medical record
of the respondent maintained by the hospital has established that the
respondent visited the hospital and was advised for psychological testing.
It was observed in a medical sheet that the respondent was initially
diagnosed for psychosis. However, on subsequent visits and after detailed
H examination it has been confirmed that he suffers from Paranoid
...
\
(
VINITA SAXENA v. PANKAJ PANDIT
119
Schizophrenia. [134-F, G; 135-B, D-GI
2.2. There is no evidence whatsoever adduced by the respondent or
on his behalf. In fact, after recording of the examination-in-chief and part
cross-examination, the respondent refused to come in the witness box and
ran away. The observation has been made by the trial court in the
A
proceedings. (136-A-BI
B
3.1. The trial Court failed to appreciate the uncontroverted evidence
of the appellant who had proved the case on every count. It has been
established beyond doubt by the medical doctors who had deposed as
witnesses and brought the original medical record of the respondent that C
the respondent is suffering from mental disorder. Further, ground for
grant of divorce on the plea of mental insanity/mental disorder is different
than cruelty. The appellant had proved beyond doubt that the respondent
suffered from mental disorder and that the appellant suffered cruelty by
and at the behest of the respondent. [ 139-B-C)
3.2. The High Court failed to appreciate that in the absence of any
evidence led by the respondent, the appellant's evidence had to be relied
upon and, on the basis of the evidence, the decree for divorce was bound
D
to be granted in favour of the appellant. The appellant had also given
specific instances of cruelty which clearly establish that she had a
reasonable apprehension that it will be harmful or injurious for her to E
live with the respondent. [139-D]
4.1. It is settled by catena of decisions that mental cruelty can cause
even more serious injury than the physical harm and create in the mind
of injured appellant such apprehension as is contemplated in the Section.
It is to be determined on whole facts of the case and the matrimonial F
relations between the spouses. To amount to cruelty, there must be such
wilful treatment of the party which caused suffering in body or mind either
as an actual fact or by way of apprehension in such a manner as to render
the continued living together of spouses harmful or injurious having regard
to the circumstances of the case. (139-E, F]
G
4.2. The word 'cruelty' has not been defined and it has been used in
relation to human conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and obligations. It is a course
of conduct and one which is adversely affecting the other. The cruelty may
be mental or physical, intentional or unintentional. There may be cases H
120
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A where the conduct complained of itself is bad enough and per se unlawful
or illegal. Then the impact or the injurious effect on the other spouse need
not be enquired into or considered. In such cases, the cruelty will be
established if the conduct itself is proved or admitted. (139-G, H; 140-Af
4.3. The cruelty alleged may largely depend upon the type of life the
B parties are accustomed to or their economic and social conditions, their
culture and human values to which they attach importance. Judged by
the stand~rd of modern civilization in the background of the cultural
heritage and traditions of our society, a young and well educated woman
like the appellant is not expected to endure the harassment in domestic
C life whether mental, physical, intentional or unintentional. Her sentiments
have to be respected, her ambition and aspiration taken into account in
making adjustment and her basic needs provided, though grievances may
arise from temperamental disharmony. (140-8-Cf
5. The legal concept of cruelty which is not defined by statute is
D generally described as conduct of such character as to have caused danger
to life, limb or health (bodily and mental) or to give rise to a reasonable
apprehension of such danger. The general rule in all questions of cruelty
is that the whole matrimonial relations must be considered; that rule is
of a special value when the cruelty consists not of violent act but of
injurious reproaches, complaints accusations or taunts. It may be mental
E such as indifference and frigidity towards wife, denial of company to her,
hatred and abhorrence for wife or physical, like acts of violence and
abstinence from sexual intercourse without reasonable cause. It must be
proved that one partner in the marriage however mindless of the
consequences had behaved in a way which the other spouse could not in
p the circumstances be called upon to endure and that misconduct has caused
injury to health or a reasonable apprehension of such injury. There are
two sides to be considered in case of cruelty. From the appellant's side,
ought this appellant to be called on to endure the conduct? From the
respondent's side, was this conduct excusable? The court has then to decide
G
whether the sum total of the reprehensible conduct was cruel. That
depends on whether the cumulative conduct was sufficiently serious to say
that from a reasonable person's point of view after a consideration of any
excuse which the respondent might have in the circumstances, the conduct
is such that the petitioner ought not to be called upon to endure.
(140-F-H; 141-A-C)
H
6. t. As to what constitutes the required mental cruelty for the
VINITA SAXENA v. PANKAJ PANDIT
121
purposes of Section 13(1)(i-a) will not depend upon the numerical count A
-of such incidents or only on the continuous course of such conduct but
really go by the intensity, gravity and stigmatic impact of it when meted
out even once and the deleterious effect of it on the mental attitude
necessary for maintaining a conducive matrimonial home. (141-C, DJ
6.2. If the taunts, complaints and reproaches are of ordinary nature B
only, the court perhaps need consider the further question as to whether
their continuance or persistence over a period of time render, what
normally would, otherwise, not be so serious an act to be so injurious and
painful as to make the spouse charged with them genuinely and reasonably
conclude that the maintenance of matrimonial home is not possible any C
longer. (141-D, El
Dastane v. Dastane, AIR (1975) SC 1575 and Shobha Rani v.
Madhukar Reddi, AIR (1988) SC 121, relied on.
Sheldon v. Sheldon, (1966) 2 All ER 257, referred to.
Halsbury Laws of England Vol. 12, 3rd Edn. P. 270, referred to.
7. Section 13(1)(iii) 'mental disorder' as a ground of divorce is only
where it is of such a kind and degree that the appellant cannot reasonably
D
be expected to live with the respondent. Where the parties are young and E
the mental disorder is of such a type that sexual act and procreation of
children is not possible it may furnish a good ground for nullifying the
marriage because to beget children from a Hindu wedlock is one of the
principal aims of Hindu Marriage where 'sanskar' of marriage is advised
for progeny and offspring. 1142-E, Fl
Smt. Uma Wanti v. Arjan Dev, AIR (1995) P and H 312, Harbhajan
Singh Monga v. Amarjeet Kaur, AIR (1986) M.P. 41, Rita Nijhawan v. Shri
Balkishan Nijhawan, AIR (1973) Del 200 and Rita Roy v. Sitesh Chandra,
AIR (1982) Cal 138, approved.
F
8. Spouses owe right and duties each to the other and in their G
relationship they must act reasonably. In every case where cruelty exists
it is possible to say that the spouse at fault has been unreasonable. The
list of cruelty, therefore, should be breach of the duty to act reasonably,
whether in omission or commission, causing injury to health. Such a list
avoids imputing on intention where in fact none may exist. Further all H
122
SUPREME COURT REPORTS
[20061 3 S.C.R.
A such matters are foresight, desires, wishes, intention, motive, perception,
obtuseness, persistence and indifference would remain relevant but merely
as matters of evidence bearing upon the requirement to act reasonably
or as aggravation of the matters charged. I 143-C-EI
Shrikant Anandrao Bhusale v. State of Maharashtra, 1200217SCC748,
B A. Jayachandra v. Anne! Kaur, 120051 2 SCC 22, Yuvraj Digvijay Singh v.
Yuvrani Pratap Kumari, AIR (1970) SC 137, Vijay Kumar Ramchandra Bhate
v. Neela Vijaykumar Bhate, AIR (2003) SC 2462, Ram Narain Gupta v. Smt.
Rameshwari Gupta, 119881 4 SCC 247, Rakesh K. Gupta v. Ram Gopal
Agarwala, AIR (2005) SC 2426, Shin Etsu Chemical Company v. Aksh
C Optifibre ltd, 120051 7 SCC 234, Union of India v. Popular Construction,
1200118SCC470, Savitri Pandey v. Prem Chandra Pandey, 120021 2 SCC
73 and B.N. Panduranga Shet v. N. Vijaylaxmi, AIR (2003) Kar 357, referred
to.
D
E
9. Humane aspects which this Court considered are as follows:-
(a) The appellant was 24 years of age when she got married.
1144-DI
(b) The marriage lasted for four to five months only when she was
compelled to leave the matrimonial home. 1144-EI
(c) The marriage between the parties was not consummated as the
respondent was not in a position to fulfil the matrimonial obligation.
1144-E)
(d) The parties have been living separately since 1993. 13 years have
F passed they have never seen each other. 1144-F)
(e) Both the parties have crossed the point of no return. 1144-F)
(f) A workable solution is certainly not possible. 1144-GI
(g) Parties at this stage cannot reconcile themselves and live together
G forgetting their past as a bad dream. 1144-GI
(h) The situation between the parties would lead to an irrefutable
conclusion that the appellant and the respondent can never ever stay as
husband and wife and the wife's stay with the respondent is injurious to
-
her health. (144-H; 145-AI
H
(i) The appellant has done her Ph.D. The respondent, according to
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN. J.]
123
the appellant, is not gainfully employed anywhere. 1145-A]
A
(k) As a matter of fact, after leaving his deposition incomplete during
the trial, the respondent till date has neither appeared before the trial court
nor before the High Court. 1145-B]
10. The facts and circumstances of the case as well as all aspects B
pertain to humanity and life would give sufficient cogent reasons for this
Court. to allow the appeal and receive the appellant from the shackles and
chain of the respondent and let her live her own life, if nothing less but
like a human being. [145-CI
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1687 of 2006. C
From the Judgment and Final Order dated 10.9.2004 of the Delhi High
Court in F.A.O. No. 235 of 2002.
I
Ms. Kamini Jaiswal, Mrs. S. Bakshi, MJ. Sunita Dwivedi and Ms. Rani
for the Appellant.
D
Dhruv Mehta and S. Rajappa for the Respondent.
The Judgment of the Court was delivered by
DR. AR. LAKSHMANAN, J. Leave granted.
The above appeal was filed by the appellant, wife of the respondent
herein, against the judgment and final order dated 10.9.2004 passed by the
High Court of Delhi in F.A.O. No. 235 of 2002 whereby the Civil Writ
Petition filed by the appellant was dismissed.
The short facts are as follows:
The marriage between the appellant-Vinita Saxena and the respondentPankaj Pandit was soleminzed on 7.2.1993 as per Hindu rites and customs.
E
F
No child was born out of wedlock. The marriage, according to the appellant,
lasted for five months and was never consummated on account of the fact G
that the respondent was incapable of performing his matrimonial obligations.
According to the appellant, from the first day of the marriage, the respondent's
mother treated the appellant with utmost cruelty both mental and physical
and that the reason for cruelty was the respondent's mental disorder. The
respondent's case is a case of Paranoid Schizophrenia and the appellant H
124
SUPREME COURT REPORTS
[2006] 3 S.C.R.
A discovered only after the marriage that the respondent was under constant
treatment and observations of different doctors even prior to the marriage for
the said ailment. Though the appellant knew the respondent prior to her
marriage, in fact, it is only after the marriage. the appellant realised and
discovered the mental disorder of the respondent. The appellant was never
B told by the respondent nor his parents that he was suffering from such serious
mental disorder and that he was under the treatment and used to take strong
medicines before the marriage. According to Dr. C.R. Samanta, who was a
consultant psychiatrist at Aashlok Hospital, the respondent was a case of
Schizophrenia and depression. On 4.7.1993, the appellant tried to discuss
regarding the problems she was facing with the respondent and her motherC in-law, who objected strongly and accused the appellant of defaming the
respondent. At her instance, the appellant was beaten mercilessly by the
respondent, which made him nervous to the extent that he consumed "Baygon
Spray" to commit suicide. The appellant and her brother immediately took
the respondent to the hospital in order to save the respondent's life. Again,
Dr. C.R. Samantha prescribed certain medicines i.e. (I) Triperidol (2) Pacitane
D (3) Prodep to the respondent. The respondent was hospitalised for four days
at Aashlok Hospital, Safdarjung Enclave and was discharged after giving
proper treatment on 7. 7 .1993. According to the appellant, Triperidol is given
in case of acute and chronic psychoses anxiety disorders, mania, Schizophrenia
as per the medical advise. The situation further became worse on 8. 7 .1993
E and 9.7.1993. Again on the instigation of the respondent's mother, the
respondent slapped and abused the appellant mercilessly and she was not
even allowed to have food that day and the next day morning i.e. on 9.7.1993.
On 9.7.1993, the appellant was pushed and kicked out of the matrimonial
home by her mother-in-law and the respondent and thereafter, the appellant
was not permitted to return again.
F
The appellant filed H.M.A. Petition on 30.6.1994 against the respondent
for dissolution of marriage under Secti"On 13( 1 )(I-a) and (iii) of the Hindu
Marriage Act, 195 5 hereinafter referred to as "the Act" on the grounds of
mental and physical cruelty and insanity before the Court of District Judge
G at Delhi.
The trial Court vide its order dated 15.5.1993, relying on the facts and
averments made by the parties as well as taking the medical documents
placed on record observed that a letter of request should be written to the
Medical Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to
H examine the respondent and to report about his mental state. However, this
VINITA SAXENA v. PANKA.I PANDIT [LAKSHMANAN. J.]
125
order was subsequently set aside by the High Court in a Revision Petition A
filed by the respondent. After the marriage had broken down the appellant
pursued further studies and completed M.S. (Structural Engineering) from
!IT Delhi and in 1996, left for her Ph.D. programme to U.S.A. Father of the
appellant. J.S. Saxena. deposed as PW-II and the appellant as PW-I and Dr.
D.S. Arora, Medical Superintendent, Aashlok Hospital and Dr Kuldeep Kumar B
of Safdarjung Hospital recorded their statement as PW-III and PW-IV
respectively supporting the case of the appellant.
The respondent, however, got only his statement recorded and before
his cross-examination could be concluded, deliberately did not appear in the
witness box to complete his deposition. The trial Court, vide order dated C
19.3.2001, dismissed the petition filed by the appellant under Section 13(1)(1-
. a) and (iii) of the Act for the grant of decree of divorce. Being aggrieved by
the said order, the appellant filed an appeal before the High Court. The High
Court vide order dated 10.9.2004 dismissed the appeal filed by the appellant
holding that the respondent is not suffering from Schizophrenia and that
there is insufficient material on record to establish the cause of cruelty and D
further held that the incidents of cruelty is not so grave which come within
the scope of concept of cruelty. The High Court also held that the testimonies
of the doctors examined by the appellant to prove that the respondent was
suffering froni Schizophrenia cannot be looked into for the reason that the
respondent was not under the treatment of the above doctors. Aggrieved by E
the said order, the appellant filed this appeal by way of special leave petition
before this Court.
The respondent filed a counter affidavit. It is stated in the counter
affidavit that the special leave petition is devoid of any merit. inasmuch as the
Courts below have given findings of fact in favour of the respondent and the p
Courts below have rejected the pleas of the appellant on the ground that she
has not made out any case for grant of divorce. It was submitted that the
appellant even before the marriage was having intimacy with the respondent
from 1986 to 1993 and she did not find any abnormality in the behaviour of
the respondent. It was also submitted that the appellant has not made out any
case seeking divorce on the ground of causing cruelty to her inasmuch as she G
has failed to prove any instance leading to causing such cruelty to her by the
respondent. It was submitted that the respondent is willing to take the appellant
and keep her happy to the fullest and it is the desire of the respondent that
the marriage should not break on the ground that she is building up her career
in America for the past I 2 years. Since concurrent findings of fact is in H
126
SUPREME COURT REPORTS
[2006] 3 S. C.R.
A favour of the respondent, the appellant ought not to be stated that the
respondent and his mother were involved in causing cruelty to her and that
the Courts below have also disbelieved the version of the appellant that the
cruelty was caused by the respondent due to his mental disorder. It was
further contended that the appellant did not lead any evidence to prove as a
matter of fact that the respondent was suffering from Schizophrenia and that
B the appellant has filed the petition deliberately and wilfully and with a view
to harass the respondent and his mother. It was also contended that the mere
branding of spouse as Schizophrenic is not sufficient and that the degree of
mental disorder of the spouse must be proved to be such that the appellant
spouse cannot be reasonably be expected to live with the other. It was also
C submitted that from the evidence and pleadings, it has clearly been stated that
the appellant was having sex with the respondent without any problem and
there is no truth in the allegation made by the appellant. The other allegations
mentioned in the Divorce Petition have not been proved at all and that the
appeal filed by the appellant deserves to be rejected.
D
We heard Ms. Kamini Jaiswal, learned counsel appearing for the
appellant-wife and Mr. Dhruv Mehta, learned counsel appearing for the
respondent-husband.
We have perused the pleadings, annexures filed along with the appeal
E and the orders passed by the courts below and the grounds of appeal.
F
G
H
Learned counsel for the appellant while reiterating the averments made
in the appeal submitted the following grounds for granting divorce as prayed
for by the appellant-wife :
(I) Non-consummation of the marriage itself would constitute mental
cruelty to a married woman.
(2) The respondent attempted to commit suicide also amounts to
mental cruelty and harassment.
(3) The appellant has lived only for five months after the marriage
and she was mercilessly beaten by the respondent and his mother.
(4) There was absolutely nothing to show that the documents and
prescription given by the doctors have been concocted. They are
the official records of the Hospital.
(5) The medical prescriptions and the evidence of doctors clearly
illustrate that the respondent was under the treatment of Dr.
' rVINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.]
127
Samantha and was a case of Paranoid Schizophrenia.
A
(6) The respondent, before his cross examination could be concluded,
deliberately did not appear in the witness box to complete his
deposition and his evidence had to be closed.
(7) The appellant was denied the matrimonial bliss of physical relation
by the respondent because of his incompetency which itself B
constitute cruelty for a married woman.
(8) The threat to commit suicide by the respondent amounts to cruelty
and the Courts below took cognizance of the fact that the
respondent consumed "Baygon spray".
(9) Because Dr. Samantha was not alive, the medical record authored
by him can only be proved by secondary evidence though Dr.
D.S. Arora, medical Superintendent who certified on oath that
the respondent was admitted in Aashlok Hospital and stated that
c
he had brought the records in respect of Pankaj Pandit. He also
identified the signatures of Dr. Samantha and the medical D
prescriptions of his having treated the respondent have also been
produced and proved by him where it had been categorically
stated that the respondent is· suffering from Paranoid
Schizophrenia.
(10) Likewise on the ground_ of non-availability of Dr. Abhyankar, E
who had authored the medical prescription as he was no more in
service of the hospital cannot be fatal to disregard the evidence
of the other doctor, who produced and proved the entire record.
{I I) The marriage between the appellant and the respondent hardly
lasted for five months and both of them are living separately for F
the last 13 years.
Learned counsel appearing for the appellant cited the following decisions:
.
{I) Shrikant Anandrao Bhosa/e v. State of Maharashtra, [2002] 7
sec 748,
G
(2) A. Jayachandra v. Anee/ Kaur, [2005] 2 SCC 22,
(3) Smt. Uma Wanti v. Arjan Dev. AIR (1995) P&H 312
(4) Harbhajan Singh Monga v. Amarjeet Kaur, AIR (1986) MP 41
(5) Mrs. Rita Nijhawan v. Shri Ba/kishan Nijhawan, AIR (1973) H
A
B
128
SUPREME COl'RT RFPORTS
[20061 3 S.l'.R.
Delhi 200
(6)
Yuvraj Digvijay Singh v. Yuvrani Prutap l\.umari. AIR ( 1970)
SC 137.
(7)
Vijay Kumar Ramchandra Bhate v. ,l>v.eela rijaykumar Bhate, AIR
(2003) SC 2462
(8) B .. V. Panduranga Shel v. X I 'ijay/axmi. AIR (2003) Karnataka
357
Mr. Dhruv Mehta, learned counsel appearing for the respondent. per
contra, after referring to the grounds of divorce and the findings recorded by
C the trial Court and the High Court which has afiirmed the findings of the trial
Court, submitted that in order to make out a ground for divorce under Section
13( I )(iii) of the Act. it is not necessary to establish that the respondent is
suffering continuously or intermittently from mental disorder but it must
further be established that it is of such a kind and co such an extent that the
D
appellant cannot be reasonably be expected to live with the respondent. In
other words. the burden is not discharged by men::y establishing that the
respondent is suffering from mental disorder which in the present case would
include Schizophrenia by virnte of the Explanation to the said provision but
the appellant must further lead evidence to establish that the mental disorder
is of such a kind and to such an extent that the appellant cannot reasonably
E be expected to live with the respondent.
F
G
H
According to learned counsel for the respondent. the above contention
finds support from a decision of this Court in Ram Narain Gupta v. Smt.
Rameshwari Gupta. [ 1988] 4 SCC 24 7. For ready reference, the relevant
paras from the said judgment are as under:
"20. The context in which the ideas of unsoundness of 'mind'
and 'mental disorder' occur in the section as grounds for dissolution
of a marriage. require the assessment of the degree of the 'mental
disorder'. Its degree must be such that the spouse seeking relief cannot
reasonably be expected to live with the other. All mental abnormalities
are not recognised as grounds for grant of decree. If the mere existence
of any degree of mental abnormality could justify dissolution of a
marriage few marriages would, indeed, survive in law.
xx
xx
xx
28. The reasoning of the High Court is that the requisite degree
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.]
129
of the mental disorder which alone would justify dissolution of the A
marriage has not been established. This, it seems to us, to be not an
unreasonable assessment of the situation - strong arguments of Shri
Goel to the contrary notwithstanding.
xx
xx
xx
30 ...... the burden of proof of the existence of the requisite degree
of mental disorder is on the spouse basing the claim on that state of
facts.
B
33. This medical concern against too readily reducing a human
being into a functional non entity and as a negative unit in family or C
society is law's concern also and is reflected, at least partially, in the
requirements of Section 13(1 )(iii). In the last analysis, the mere
branding of a person as schizophrenic will not suffice. For purposes
of Section 13(l)(iii) 'schizophrenia' is what schizophrenia does."
It was further submitted that the aforesaid judgment of this Court has D
been followed by the Karnataka High Court in the case of B.N. Panduranga
Shet v. N. Vijayalaxmi, (supra). Learned counsel also relied on the decision
of the Calcutta High Court in the case of Rita Roy v. Sitesh Chandra, AIR
(1982) Calcutta 138 and the decision of the Himachal Pradesh High Court
reported in (1995) DMC 71 (DB).
Learned counsel also cited the judgment of this Court in Rakesh K.
E
Gupta v. Ram Copa! Agarwala & Ors., AIR (2005) SC 2426 for the
proposition that even in a custody dispute between the husband and wife
wherein it was alleged by the husband that the wife is suffering from Paranoid
Schizophrenia, this Court still awarded custody of the child to the mother.
F
According to the learned counsel, the evidence which has been brought
on record by the appellant is wholly insufficient to infer that the respondent
was suffering from the said mental disorder and the doctors who are alleged
to have treated the respondent have not been examined as witnesses by the
appellant and what has been brought on record are certain prescriptions made G
by the said doctors and the same are sought to be proved by examining the
Medical Superintendent of Aashlok Hospital, Safdarjung Enclave. Therefore,
he submitted that in view of the above fact, no inference can be drawn that
the respondent was suffering from Paranoid Schizophrenia and that the
appellant has not been discharged of the burden as required by the statutory
provision. Learned counsel contended that the words used in sub-clause (iii) H
130
SUPREME COURT REPORTS
(2006] 3 S.C.R.
A of Section 13( I) to the effect that '"mental disorder of such a kind and to
such an extent that the appellant cannot reasonab(v be expected to live with
the respondent" must be given full effect as it is a well accepted principle of
statutory interpretation that a Court must make every effort to give effect to
all words in a statute since Parliament cannot be held to have been wasting
B its words or saying something in vain. Learned counsel, for this proposition,
relied on the following two decisions of this Court;
c
D
(a) Shin Etsu Chemical Company Ltd. v. Aksh Optifibre Ltd., [2005]
1 sec 234.
(b) Union of India v. Popular Construction, [2001] 8 SCC 470
Concluding his submissions, learned counsel submitted that the appellant
having failed to establish the aforementioned requirement of the statute, the
appeal must fail on this ground.
In Re : Cruelty
It was submitted that in order to make out a ground for divorce under
Section 13( I)( i-a) of the Act, the conduct complained of should be grave and
weighty so as to come to the conclusion that the appellant spouse cannot be
reasonably expected to live with the other spouse. It must be something more
serious than "ordinary wear and tear of married life". For this proposition, he
E relied on the judgment of this Court in A. Jayachandra v. Aneel Kaur, (supra).
F
G
H
Para 13 of the aforementioned judgment is as under:
"13 ... but before the conduct can be called cruelty, it must touch a
certain pitch of severity. It is for the Court to weigh the gravity. It has
to be seen whether the conduct was such that no reasonable person
would tolerate it"
It was argued that the trial Court, after examining the evidence, has
come to the conclusion that the acts complained of are not such as would
constitute cruelty and in any event the ground for divorce under Section
13( I )(i-a) is not made out. It was submitted that the trial Court had occasioned
to see the demeanour of witnesses and, therefore, the view taken by the trial
Court unless it can be said to be perverse should not be faulted with. It was
also contended that the approach in such cases should be to perverse the
matrimonial home. The judgment in the case of Savitri Pandey v. Prem
Chandra Pandey, [2002] 2 SCC 73 was relied on for this ·purpose.
-
--
VINITA SAXENA v. PANKAJ PANDIT [LAKSHMANAN, J.]
131
Answering the contention raised by the counsel for the appellant that A
the parties have not lived together for a long time and therefore, this is a fit
case to pass a decree of divorce, learned counsel for the respondent, submitted
that this is a wholly untenable argument and has to be rejected by this Court.
For this, he relied on the ruling of this Court in the case of A. Jayachandra
v. Anee/ Kaur, (supra).
B
Concluding his arguments, learned counsel appearing for the respondent
submitted that both the trial Court and the High Court have recorded concurrent
findings and have rejected the prayer of the appellant to grant decree of
divorce under Section 13(1)(i-a) and (iii) of the Act and, therefore, this Court
under Article 136 of the Constitution of India cannot interfere with the said C
findings unless it is established that the findings recorded by the trial Court
and the High Court are perverse.
Arguing further, he submitted that the findings of the trial Court are ·
based on the consideration of the entire evidence and well reasoned and in
similar circumstances, this Court refused to interfere with the concurrent D
findings of fact arrived at by the Courts in Savitri Pandey v. Prem Chandra
Pandey, (supra).
We have given our thoughtful and anxio~s consideration for the rival
submissions made by the respective counsel appearing on either side.
The appellant filed a petition for divorce under Section 13( I )(i-a) and
(iii) of the Act on the ground of 'ihental and physical cruelty. It is also her
case that on account of Paranoid Schizophrenia that the respondent was
suffering from, the appellant could not be reasonably expected to live with
the respondent. Section 13 (l)(i-a) and (iii) are reproduced hereunder:
"13. Divorce - (I) 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 partyE
F
( i) has, after the solemnization of the marriage, had voluntary G
sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the
petitioner with cruelty; or
• • * * *
H
132
SUPREME COCR1 REPORTS
[2006] 3 S.C.R.
A
(iii) has been incurably of unsound mind, or has been suffering
B
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
C
disorder or disability of mind (whether or not including sub-normality
of intelligence) which results in abnormally aggrc%ive or seriously
irresponsible conduct on the part of the other party, and whether or
not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of
D
leprosy; or
E
F
G
H
(v) has been suffering from venereal dise:isc in a communicabk
form: or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have heard of
it, had that party been alive.
Explanation - In this sub-section, the expression "desertion" means
the desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish
of such party, and includes the wilful neglect of the petitioner by the
other party to the marriage, and its grammatical variations and cognate
expressions shall be construed accordingly.
(l-AJ Either party to a marriage, whether solemnized before or
after the commencement of this Act may also present a petition for
the dissolution of the marriage by a decree of divorce on the ground
(i) that there has been no resumption of cohabitation as between
the parties to the marriage for a period of one year or upwards after
the passing of a decree for judicial separation in a proceeding to
which they were parties; or
VINITA SAXENA v. PANKAJ PANDIT (LAKSHMANAN.