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A.F.R.
Neutral Citation No. - 2024:AHC-LKO:71619-DB
High Court of Judicature at Allahabad
Lucknow
****

Reserved on 20.09.2024
Delivered on 24.10.2024

Court No. - 2
Case :- FIRST APPEAL No. - 174 of 2023
Appellant :- Pawan Kumar Pandey
Respondent :- Sudha
Counsel for Appellant :- Bhavini Upadhyay,Pankaj Kumar
Tripathi,Sandhya Dubey

Hon'ble Rajan Roy,J.

Hon'ble Om Prakash Shukla,J.
(Per 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

appellant-husband 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 decree dated

29.04.2023 passed by Principal Judge, Family Court-II,

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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 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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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 re-married, 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)

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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 ¼1½
¼iii½ 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

cross-examination, 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 cross-examination 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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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

cross-examination of the husband as P.W.1 in the case filed

under Section 125 Cr.P.C. by the wife, receipt of S.R.N.

Hospital, Allahabad, photocopy of the application submitted by

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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 sister-in-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 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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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, issue nos.1 and 2, as mentioned above,

have been decided due to lack of evidence and not being

pressed by the appellant.

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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 ¼1½ ¼iii½ 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.

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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 suppressed from

husband. In this regard, even in her statement, she has

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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;

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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(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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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“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 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.

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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(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 the first time and lived there only for 4-5 days and

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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.”

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(12) The respondent lived with the appellant only for few days

though interregnum period after marriage and she 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 plaintiff-appellant. 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

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha
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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 :

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"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.

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(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

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 Page No. 24 of 25

schizophrenia. The learned Family Court considered the

balancing fact of the wife being educated upto M.A. (previous)

and, therefore, refused to accept that the disease of alleged

mental illness was such that she cannot lead a normal life.

Therefore, looking to evidence available on record, learned

Family Court decided additional issue No.1 against

appellant/husband.

(20) After considering entire evidence available on record, this

Court has no hesitation in accepting findings and approach of

learned Family Court, which appears to be valid and practical.

Though, appellant/ husband was able to prove that respondent/

wife is suffering from schizophrenia, but he failed to prove that

disease is of such a kind and degree, which may be accepted for

dissolution of marriage in terms of Section 13 (1) (iii) of H.M.

Act. No sufficient material was brought on record by husband

except prescriptions of Doctors, which do not contain any

specific finding that disease is having grave consequences as is

referred under Section 13 (1) (iii) of the H.M. Act, therefore, in

considered opinion of this Court, findings of the Family Court

in this regard are just, proper, legal and do not suffer from any

perversity and do not call for any interference by this Court in

this appeal. Point no.III is answered accordingly.

(21) As regard the contention of the appellant’s counsel that the trial

Court omitted to consider that the ground of divorce was

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concealment of material fact considering the mental condition

of respondent-wife, we are of the opinion that the suit was filed

under Section 13 of the H.M. Act and not under Section 12 of

the H.M. Act. This ground is not available under Section 13 of

the H.M. Act but under Section 12 (1) (c) of the H.M. Act. No

objection was raised nor any application was given for framing

any issue in terms of Section 12 (1) (c) of the H.M. Act,

therefore, this plea is rejected.

(22) In view of the aforesaid facts, we set-aside the judgment and

decree dated 29.04.2023 passed by the Principal Judge, Family

Court-II, Pratapgarh in Suit No. 787 of 2019. Marriage

between the parties is dissolved. Suit No. 787 of 2019 is

decreed accordingly.

(23) Appeal is allowed in the above terms.

(24) There shall be no order as to cost.

(Om Prakash Shukla, J.) (Rajan Roy, J.)

Order Date : 24th October, 2024

Ajit/-

First Appeal No. 174 of 2023 : Pawan Kumar Pandey Vs. Sudha

Digitally signed by :-
AJIT KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench