T. Hari Kumar Naidu v. Smt. Prameela .

1. The appellant and the respondent are the husband and wife. The marriage between them was held on 10-3-1989 according to the Hindu rites and customs and they lived together as husband and wife at their permanent residence at Bansilalpet, Secunderabad. During the wedlock they begot two children namely Vikram and another child who were aged about 2 1/2 years and 4 months respectively at the time of filing of the above OP. It is alleged by the appellant that the respondent-wife, who was suffering from mental disorder and attempted to commit suicide, and has not shown any interest though he made all endeavours to lead the happy married life. Her acts and behaviour, it is stated, are dangerous both to the appellant and the children and there is no safety as the respondent is suffering from Schizophrenia.

2. The appellant-husband, therefore, filed OP No.75 of 1991 before the 111 Additional Judge, City Civil Court, Hyderabad at Secunderabad under Section 13(1) (iii) of the Hindu Marriage Act seeking divorce on the ground that the respondent-wife was suffering from Schizophrenia-mental disorder.

3. The respondent filed a counter-affidavit denying the allegations that she was suffering from Schizophrenia. It is stated that she has spent happy married life with the appellant at Karimanagar and that she is hale and healthy. She further stated that when she was pregnant for second time in the month of November, 1990, she was compelled to leave the marital home at Karimnagar apprehending danger to her life and she sent her brother Rajendra kumar to bring minor child Vikrant. It is stated that she is ready to lead the marital life subject to the assurance of safety to herself and her children.

4. On the above pleadings both the parties have adduced both oral and documentary evidence.

5. To substantiate the plea of mental disorder viz.. Schizophrenia, the appellant examined himself as PW1, besides examining PW2-mother of the appellant, PW3-maid servant in the house of the appellant, and PW4-Dr. K. Chandra Sekhar, Psychiatrist (examined through Commissioner) and marked Exs.A1 to A4. Under Ex.A1 dated 19-2-1990, the respondent-wife under her own handwriting gave her family history on the letter head of the appellant. Ex.A2 is a legal notice dated 2-6-1991 issued by the appellant to the respondent, Ex.A3 is wedding invitation of the parties and Ex.A4 is a letter dated 21-11-1990 written by the respondent to the petitioner.

6. The respondent wife besides examining herself as RW1 examined RW2 her father and RW3 friend of RW2. Exs.XI and X2 were marked by the Court.

7. The Court below on appreciation of the evidence available on record held that the appellant failed to establish that the respondent-wife is suffering from mental disorder especially the schizophrenia and has abnormal behaviour, and dismissed the petition for grant of divorce.

8. Assailing the said judgment and decree, on various grounds, the appellant-husband has preferred this appeal.

9. The learned Counsel for the appellant argued that the Court below did not consider the evidence in proper perspective and that in the facts and circumstances of the case wrongly shifted the burden on the appellant. Learned Counsel has drawn my attention to the decision of this Court in Chiranjeevi v. Lavanya, AIR 1999 AP 316. It is to be stated here itself that the decision referred to by the learned Counsel for the appellant is not at all applicable to the facts and circumstances of the case. In that case decree of divorce was granted at the instance of husband, due to non-co-operative approach of the parties and there was no possibility of re-union and even if there was re-union, there was no guarantee that both husband and wife would like happily.

10. On the other hand learned Counsel for the respondent-wife maintained that the Court below on proper appreciation of the evidence was not inclined to grant divorce and therefore contended that the judgment of the Court below does not deserve interference by this Court.

11. The appellant who was examined as PW1 deposed that during the early part of his marriage, he found some mental disorder in her behaviour and he being a Doctor diagnosed it as Schizophrenia, which is incurable disease and serious. It is also stated that the respondent-wife attempted to commit suicide by pouring kerosene on herself and also by consuming, all sorts of tablets. He further deposed that she used to show homicidal tendency at the time of the said mental disorder and used to attempt to kill the children while they were asleep and also attempted to murder the appellant. Some times, she used to remain in a detached manner and totally cut off from the general work and she used to live in her own world. He further deposed that at lucid intervals, he tried to discuss her problem with the respondent and on his enquiry, she told that she was suffering from the mental disorder since 1983 i.e., prior to the marriage Ex.A1 is the three page letter-head of the appellant containing medicines taken by her and also the name of the Psychiatrists under whom she has been treated. The respondent herself continued the treatment at Nellore and Madras. But there is no change in her mental condition. The appellant further deposed that the respondent left the house from Karimnagar and went to Nellore as she was pregnant. Inspite of his request she could not join and therefore issued a legal notice. She did not give any reply. Ex.A2 is the office copy of the notice dated 2-6-1991.

12. In his cross examination PW1 denied the suggestion that Ex.A1 is a fabricated document. He in categorically stated that the respondent left the house on 19-11-1990 without his consent. In his cross-examination there is no deviation from his version.

13. Likewise PW2, who is mother of the appellant-PW1, deposed that after the marriage she noticed some abnormalities in the condition of the respondent. Her version is in corroboration with the version of PW1 and she also reiterated regarding the attempt to commit suicide by pouring kerosene on herself (RW1). She further stated that when his son was sleeping, she tried to press his neck with turkey towel and also tried to strangulate the child by trying a rope around the neck. PW2 further deposed that prior to the marriage, it was not known that the respondent was suffering from any disease. She further deposed that the respondent used to consume whatever medicines she likes. She further deposed that the respondent used to sit at one place for hours together, and when asked she used to reply in filthy language and does not show any interest in the work and even her sister Sarala committed suicide as she was suffering from schizophrenia.

14. PW3 who is a maid servant deposed about the rude behaviour and also spoke about the pouring of kerosene on herself by the respondent and PWs.1 and 2 preventing it. The Court below however, disbelieved her evidence holding that duration of stay of the parties at Karimnager is very short and no averment about the exact stay at Karimnagar was made. PW4 a Psychiatrist deposed that a patient suffering from Schizophrenia show both suicidal and homicidal tendencies. However, PW4 has not examined the respondent-wife personally and only explains about the nature of schizophrenia, his evidence is of not much relevance.

15. On the other hand respondent wife who was examined as RW1 denied averments of PWs.1 and 2. She also denied that she is suffering from schizophrenia and stated that she is hale and healthy. She deposed that after the death of her father-

in-law, her beloved sister by name R. Sarala also passed away and due to these calamities, she was upset. She deposed in her chief-examination that since 1989 the appellant used to beat and harass her whenever she used to remember her deceased sister.

16. In her cross- examination she stated that she did not take up any job in any nursing home at Karimnagar as she conceived after one and half month and after that she could not practice because her mother-in-law told her to start practice after one year from the date of birth of the child. She denied that her sister also suffered with Schizophrenia and stated that she died due to drug reaction. She further stated that 'while she was washing the house with bleaching power and that time she suffered with breathlessness (Apnoe).' As her sister's death is a spot death, they have not shown to the doctor. She stated that PW1 got four pet dogs and PW1 and his family members used to keep quiet when the dogs were biting her legs as well as on her thigh. She admitted about the execution of Ex.A1 which consists of three pages, its contents therein and stated that it is written by her. But she deposed that she was under threat of her husband and wrote Ex.A1 which contains the name of the Doctors under whom she was undergoing treatment, her family history and the prescription given by the Psychiatrists.

17. RW2 father of the respondent deposed that the respondent is not suffering from Schizophrenia. He stated in his cross-examination that it is not true to say that the respondent is suffering from mental disorder and as such she is not able to do any job. He further stated in his cross examination that after delivery of the 2nd child, he made attempts to send her back and he wrote letters and also telephoned to the appellant. He, however, states that "other than touch by phone, we have not made any efforts to meet the petitioner personally". He stated in his cross examination that he is ready to send his daughter for a detailed psychiatrist examination by any doctor at the choice of the Court below.

18. In the above background of the evidence, the trial Court disbelieved the evidence of the appellant and held that though there arc names of several doctors and medicines referred to in the document Ex.A1, the appellant has not taken any steps to show that the respondent is suffering from such a terrific in-curable mental disease of Schizophrenia and nothing prevented the appellant to prove Ex.A1 by way of cogent evidence.

19. In the above background of the case it is necessary to extract the meaning of Schizophrenia according to the Medical Dictionary.

"A term, coined by Bleuler, Synonymous with and replacing demantia prccox; the most common type of psychosis, characterised by a disorder in the thinking processes, such as delusions and hallucinations, and extensive withdrawal of the individual's interest from other people and the oulside world, and the investment of in his own. Schizophrenia is now considered a group of mental disorders rather than as a single entity and distinction is made a between process and reactive. Ambulatory schizophrenia, a milder from of hizophrenia in a which the patient is capable of maintaining himself in society and need not be hospitalised."

20. It is not in dispute that the appellant filed IA No.892 of 1994 in the above OP seeking to refer the respondent to a Psychiatrist of Government Hospital for Mental Care, Hydrabad for obtaining the opinion with regard to the mental disorder of the respondent. In fact it is the respondent who agreed to be referred to the Psychiatrist and to the medical test. The father of the respondent also deposed that he is ready TO subject the respondent for medical test to prove that the respondent is not suffering from Schizophrenia. The Court below also felt that it is better to take medical evidence on the record rather than oral evidence adduced by the parties. The said 1A was allowed and the respondent/wife was directed to get herself examined.

21. Pursuant to the order of the Court below, a report dated 18-11-1994 was sent from the Superintendent, Institute of Mental Health, Hyderabad stating that Dr. Pramod Kumar, Assistant Professor of Psychiatry was drafted for the purpose and for certification, a Committee of Doctors was formed compring Dr. P. Raghurami Reddy and Dr. Krishna Murthy and that the respondent and her father were reluctant to undergo the said test and consequent hospitalization and in-patient observation though they were informed that in-patient observation is essential for arriving at an opinion. It is further stated in the report that after initial examination as out-patient from 20-10-1994, the respondent was admitted into the hospital on 26-10-1994 for continuous inpatient observation. Some initial work and examination were conducted in out-patient to avoid longer period of in-patient observation, in view of the request and altitude of the respondent and her father. Even the respondent and her father were also informed by the doctors that a minimum 10. days period of stay, extendable up to total period of 30 days, is statutorily essential before arriving at a medical opinion, the father of the respondent frequently demanded for pre-mature discharge and also stated that there was an interview to be attended by the respondent for Government job at Pondicherry and that they have to go to Delhi. On 5-11-1994 the respondent-wife was discharged on the promise that she will return by 15-11-1994. It is further stated that she has not so far been brought back though a specific undertaking was given by both the respondent and her father. It is expedient here to extract relevant portion of Ex.X1, dated 18-11-1994.

".....

.....

The Hon'ble Court wanted an opinion on:

22. It is true that the appellant-husband has to succeed on the strength of his case and not on the weaknesses of the respondent-wife. The learned trial Judge merely held that the burden lies on the appellant to prove his case beyond reasonable doubt, without noticing the relevant factor that the respondent herself having agreed for medical examination before the Court has not co-operated and subjected herself to medical examination so as to clear the doubt and show her bona fides that she was not suffering from Schizophrenia.

23. Admittedly, in the instant case the moot point is whether the respondent is suffering from Schizophrenia and to decide the same it is just and necessary to take medical evidence on record, which is very much relevant, than the oral evidence adduced by the parties. The respondent-wife though agreed for medical examination, but before the Committee of Doctors, after some initial examinations, she promised to return by 15-11-1994, as she stated to attend the interview and also an undertaking to that effect was given by both, respondent-wife and her father to the Committee of Doctors, who informed the respondent and her father that in-patient observation was still not over and psychological tests were still under progress. The committee of doctors in clear terms stated that from the beginning the committee felt that the Naidu (respondent herein) and her father were reluctant regarding, hospitalization and in-patient observation, though they were being informed that in-patient observation is essential for arring at an opinion. Learned trial Judge however, observed that -

"I accept with the contention that the party is entitled for such a benefit, if the petitioner substantiates his claim and discharged his prima burden that the respondent was suffering with any mental disorder by a way of any cogent evidence."

In the above stated circumstances, the wife having not subjected herself to medical examination that Court below ought to have drawn adverse inference or presumption against the recalcitrant party. But the trial Court proceeded in a narrow perspective and dismissed the petition. The trial Court erroneously shifted the burden of proof on the appellant stating that the appellant should have summoned the Dr. Pradeep kumar, who examined the respondent for the period from 20-11-1994 to 25-10-1994 as outpatient and from 26-10-1994 to 5-11-1994 as in -patient and also held that the appellant has not summoned the Superintendent of Institute of Mental Health, who issued report Ex.X1, and that the report does not reveal about the abnormal mental condition of the respondent.

24. Section 114 of the Indian Evidence Act, 1872 provides for presumption for the Court regarding existence of the facts. Illustration (g) to that section says that

"the Court may presume that evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it"

. Illustration (g) is to the effect that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This illustration is merely an illustration of the principle embodied in that Section. This illustration is based on the well-known maxim omnia praesumuntur contra spoliatorem. If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be raised against him. This section among other things, enables the Court to draw an adverse inference against a party who refuses, and the wording of this section enables the Court to draw a presumption against a person who can make evidence available to the Court but obstructs the availability of such evidence. The adverse inference that may be drawn by any Court is from the circumstances in each case and having regard to the refusal to let the best evidence being brought before the Court. The husband filed IA which was allowed and the respondent wife agreed that she will subject herself to the medical evidence to prove that she is not suffering with any mental disorder, but failed to get herself examined. This relentless attitude and non-co-operative approach of the respondent, however, cannot and does not render the Court helpless. The respondent-wife for the reasons best known to her did not co-operate with the Committee of Doctors and nothing prevented the respondent-wife to put forth her case before the Court regarding her non-examination before the committee. In those circumstances, adverse inference must be drawn against the respondent-wife.

25. There is another important aspect in this case regarding the execution of Ex.A1. Learned Counsel for the appellant vehemently contended that as per the basic requirements of the law of evidence what is admitted need not be proved. It was admitted by the respondent-wife that Ex.A1 was written by her on her own handwriting and under the letter pad of the appellant, which consists three pages, and it indicates the names of the psychiatrists who treated the respondent and also the names of the medicines. The learned Judge merely ignored Ex.A1 saying that it was obtained on fraud. The respondent merely stated that it was obtained by fraud, instead of revealing the circumstance to believe the theory of fraud put forth by her property. Learned Judge without any justifiable reasons and without considering the entire evidence in proper perspective, discarded the evidence adduced by PW1 holding that it is a concocted story. The entire approach of the trial Court is not proper. Further, the learned Judge was not right in holding that the appellant has failed to examine the doctors and shifted the burden on him. In fact, in the above stated circumstances, pursuant to the order passed in IA the Court directed the respondent-wife to subject herself to medical examination before the Superintendent of Institute of Mental Health, Hyderabad to decide whether she was suffering with mental disorder or not. It is due to non-co-operative attitude of the respondent wife, as stated supra, the medical examination could not be completed. In those circumstances, the Court below should have drawn adverse inference against her, but failed to do so and wrongly fastened the burden on the appellant.

26. For the foregoing reasons, order under challenge is set aside and the appeal is hereby allowed dissolving the marriage between the parties.

27. In the circumstances, there shall be no order as to costs.