RAJASTHAN H IGH COURT

                   Saraswati

                                           Vs.

                                           Gopal

                   C.M.A. No. 367 of 2006
                      (Prakash Tatia, J.)

                   13.09.2006

                   JUDGEMENT

Prakash Tatia, J.

1. Heard learned counsel for the parties.

2. This appeal is against the judgment and decree dated 19-9-1994 by which the
District Judge, Bikaner in Petition No. 111/1990 allowed the respondent's application
filed under Section 12 (1) (b) and Section 13 (1) (iii) of the Hindu Marriage Act, 1955
(for short 'the Act of 1955') and granted divorce decree.

3. Brief facts of the case are that the marriage of the appellant and respondent was
solemnized on 12-5-1986. Out of the wedlock, a daughter was born after about 18
months. The respondent husband's allegation in the divorce petition was that the
appellant was suffering from the disease - epilepsy. She was sick since before her
marriage and the appellant's parents got the appellant married with the respondent by
suppressing this fact. It is submitted that on the day one, when the appellant came to
the house of the respondent, there was attack of epilepsy and she fell down and all
symptoms of epilepsy were apparent from the body of the appellant. The respondent
subsequently found that the appellant was suffering from the said disease since the age
of 7 years. Be it as it may be, the respondent tried to give treatment to the appellant
firstly in Ayurvedic Hospital - Dhanwantri Aushadalaya where Vaidhya Dayaldas was
there. However, he could not cure the disease. Thereafter, the appellant was given
treatment in the Government Hospital - P.B.M. Hospital, Bikaner. There Dr. Advani
gave treatment to the appellant in the year 1987-1988 but the appellant's ailment
continued and there was no possibility of the appellant's recovery, therefore, the
respondent called the appellant's father and he was apprised of all the facts and
thereupon the appellant's father took the appellant with him on 16-5-1988. It is
submitted by the respondent, that since 16-5-1988, the appellant is residing with her
parents. The divorce petition was filed on 23-7-1990.

4. The appellant submitted reply to the divorce petition. The appellant stated that she
was turned out by the respondent on 3-2-1988. She stated that neither she was sick nor
she is sick. She was neither given treatment for any disease like epilepsy or insanity.
She was never given treatment by Vaidhya Dayaldas in Ayurvedic Hospital. It is also
pleaded that the application has been filed after inordinate delay, therefore, the
application may be dismissed and the appellant is ready to live with the respondent.

5. The trial Court framed the issue whether the appellant is suffering from the disease
of epilepsy and, therefore, the respondent is entitled to get the marriage declared null
and void under Section 12 (1) (c) of the Act of 1955 which provides that in case of
fulfillment of conditions as given under Section 5 of the Act of 1955, the marriage can
be declared void. Another issue framed by the trial Court was whether the effect of
epilepsy is frequent and, therefore, the respondent is entitled for decree of divorce.
Issue No. 3 is on the plea of the respondent that whether from 16-5-1988, the appellant
is living separately from the respondent.

6. In the trial Court, the respondent gave his statement in support of his petition and
produced witness PW2 Salim who is milkman and used to go to the house of the
appellant and respondent who stated that he saw the appellant suffering from epilepsy
which he observed from the symptoms. PW3 Narendra Kumar Trivedi was
compounder in the Hospital at Bikaner where according to the respondent, the
appellant was given treatment. PW4 Narayan Das is father of the respondent who also
gave his statement about the physical condition of the appellant. PW5 Hanuman
Vishnoi is neighbour of the respondent, PW6 Dayaldas was Vaidhya at the relevant
time who, according to the respondent, gave treatment to the appellant for treatment of
epilepsy. PW7 Dr. B. Advani, who was appointed as Professor and Psychiatrist in
SMS Medical College, Jaipur and at the relevant time, he was posted as Professor in
PBM Hospital, Bikaner, stated that he gave treatment to the appellant for disease of
epilepsy.

7. The appellant gave her statement denying allegation of disease and produced
witness NAW2 Mansukh Das who is father of the appellant, NAW3 Gopal and NAW4
Shanker Lal who both were neighbors of the appellant.

8. The trial Court held that from the evidence of PW6 Vaidhya Dayaldas, PW7 Dr. B.
Advani and PW3 Narendra Kumar, compounder, and in view of the oral evidence
produced by the witnesses of the respondent, it is proved that the appellant was
suffering from the disease of epilepsy. The trial Court rejected the contention of the
appellant that she was not sick and she even joined the service after she was turned
out by the respondent. The trial Court also held that the appellant was taken away by
the appellant's father and thereafter, she is residing without any objection with her
parents and thereby she deserted the respondent. The trial Court's divorce decree dated
19-9-1994 is under challenge in this appeal.

9. It appears that initially, the appeal was admitted and subsequently dismissed on the
ground of bar of limitation. By order of this Court dated 3-5-1996, the appellant
preferred appeal against the said order of this Court, upon which the appellant's appeal
being D.B. Civil Special Appeal No. 69/1996 was allowed on 13-9-2004 and the
matter was remanded for deciding on merits. It appears that in place of filing Misc.
appeal, regular first appeal was filed by the appellant which was got converted into
Misc. appeal by leave of the Court dated 26-2-2006.

10. According to learned counsel for the appellant, the burden was upon the
respondent to prove necessary ingredients for disease epilepsy. It is also submitted that
even for desertion, for which, according to learned counsel for the appellant, there was
no ground in the original divorce petition, the trial Court granted decree.

11. According to learned counsel for the appellant, the Hon'ble Apex Court held in the
case of Lachman Utamchand Kirpalani v. Meena, reported in 1that to prove desertion,
the applicant is required to plead and prove the necessary facts in relation to the
deserting wife/spouse with clear intention not to live with the applicant. The same
view has been taken in subsequent judgments of the Hon'ble Supreme Court in the
following cases relied upon by learned counsel for the appellant; (1) R. Lakshmi
Narayan v. Santhi, reported in 2 (2) Chetan Dass v. Kamla Devi, reported in 3
Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, reported in 4

12. According to learned counsel for the appellant, the Hon'ble Supreme Court in the
case of Chetan Dass (supra) also held that wrongdoer cannot take benefit of his wrong
in the matrimonial proceedings. According to learned counsel for the appellant, in this
case, it is clear that the respondent himself turned out the appellant and even gave a
notice to the appellant asking her to get herself medically examined and get the
certificate of doctor that she is not sick and thereafter only she can come to the house
of appellant (respondent). This clearly shows that the appellant was turned out by the
respondent himself. Learned counsel for the appellant also pointed out that in the
cross-examination, the respondent clearly admitted in the first instance that he turned
out the appellant, however, he corrected this in the same line that he did not turned out
but the appellant's father took away the appellant. It is also submitted that even for
allegation of mental disorder, there is no evidence available on the record apart from
the fact that there are no sufficient pleadings. In support of this contention, learned
counsel for the appellant relied upon the judgment in Santhi's case, AIR 2001
Supreme Court 2110 (supra). Learned counsel for the appellant also referred oral
evidence and pointed out that the evidence produced by the respondent in support of
his divorce petition nowhere proves that the appellant was and is suffering from
epilepsy or any such disease which can be said to be mental disease making the
appellant and respondent's living together impossible. Learned counsel for the
appellant pointed out that alleged Vaidhya Dayaldas in his cross-examination clearly
admitted that he had no record and even then, he issued certificate Ex.5 for the
treatment which according to him was given to the appellant in the year 1986 whereas
the certificate was issued in the year 1992. It is pointed out that PW6 Dayaldas clearly
admitted that he could not diagnose the disease of the appellant, therefore, in fact, the
statement of Dayaldas is of no use so far as the alleged disease of appellant is
concerned. Learned counsel for the appellant further submitted that the respondent
produced witness Dr. B. Advani. He tried to prove Exhibits 1, 2, 3 and 4 and
admittedly, on these prescription slips, there is a mention of name of one Saraswati but
from above documents, the appellant cannot be connected. It is also submitted that the
prescriptions are of the period 1987 and the doctor himself could not have
remembered who was the patient. Therefore, Ex. 1 to Ex. 4 cannot be identified with
the appellant. In view of the above, it is clear that the Court below committed error of
fact as well as error of law in relying upon such weak evidence to declare the
appellant sick and suffering from epilepsy.

13. Learned counsel for the respondent submitted that the Court below gave cogent
reasons for passing the decree for divorce in a matter where marriage was solemnized
in the year 1986 and admittedly, the appellant-wife is not living with the respondent-
husband since 1988. It is also submitted that the Court below decided the case on the
basis of evidence and the respondent's witnesses are trustworthy as well as
independent witnesses. It is also submitted that epilepsy is such type of disease which
can be noticed by any person and, therefore, the respondent produced evidence to
show the effect of epilepsy upon the appellant. The oral evidence is fully corroborated
by the medical evidence of the doctor and the doctor's evidence finds support from the
documentary evidence namely, prescription slips. It is also submitted that otherwise
also, it is clear from the statement of the appellant herself that she was given notice by
the respondent before filing divorce petition stating therein that she should get herself
medically examined and she did not produce any medical certificate from any doctor
to prove that she is not suffering from epilepsy. It is also submitted that the appellant
could have controverted the medical evidence by producing the medical evidence by
producing the doctor but she did not produce any medical report of her fitness nor
produced any doctor. Learned counsel for the respondent also submitted that in all
preponderance of probabilities, it is clear that the appellant started living separately
from the respondent and there is no other allegation and any reason because of which
the two parties are living separate. In these circumstances, the animus and intention of
the appellant not to live with the respondent is established and the trial Court has
decreed the divorce petition, therefore, the appellate Court should not interfere in such
matter where the parties are living separately since last almost 20 years.

14. I considered the submissions of learned counsel for the parties and perused the
record.

15. It is clear from the pleadings of the parties that there are no wild and bald
allegations against each other. The only ground in the divorce petition is of sickness of
the appellant and that is epilepsy. The respondent's case is that he noticed the ailment
of the appellant from the day one i.e. from the date of marriage as on the same day, the
appellant fell down and gave all the symptoms of epilepsy. The respondent's father
also gave his statement in support of the respondent. The respondent neighbor as well
as PW2 Salim who normally could have reason to go to the house of the appellant and
respondent also stated that they saw the appellant suffering from epilepsy. These oral
statements find support from witness Dr. B. Advani who was Professor of Psychiatry
in PBM Hospital, Bikaner. Dr. Advani appears to be an independent witness and he
gave his statement on the basis of medical prescriptions Ex. 1 to Ex.4. It is true that on
these prescriptions, the husband's name of said Saraswati is not mentioned. The doctor
proved that these prescriptions disclose that the treatment was given for epilepsy and
the person for whom these prescriptions were issued, was suffering from epilepsy
since long, before the treatment was started by Dr. Advani. It appears from the
medical prescriptions Ex. 1 to Ex. 4 that these medical prescriptions contain the
handwriting of not only Dr. Advani but also one of the House Surgeon. The
respondent's statement is in relation to these prescriptions as the respondent in his
statement clearly stated that how and from whom the appellant was given treatment
when the appellant was living with the respondent. The appellant cross-examined the
respondent thoroughly but nothing came out from the cross- examination of the
respondent which can caste any doubt on the credibility of the respondent.

16. At this juncture, it will be worthwhile to mention here that the admitted fact is that
the husband and wife both are living separately since 1988 and there is no other
litigation or reason for living separately as per the pleadings of both the parties. Even
if the case of the appellant is examined, then according to her also, she was turned out
by the husband and she did not give any reason why she was turned out by the
husband when there was no dispute between both of them except allegation of
appellant suffering from epilepsy. There is no allegation of demand of dowry or
torture, manhandling or giving beating or even development of bad relations between
the family of the appellant and respondent. This fact cannot be ignored that before
filing divorce petition, the respondent gave notice to the appellant as admitted by the
respondent and therein also he demanded medical examination of the appellant.
Therefore, only reason of two living separately is the allegation of disease of epilepsy.
In these facts, particularly not taking any defense by the appellant and there is no
reason to disbelieve the respondent whose statement found support from the evidence
of a doctor with a status of Professor apart from other witnesses, I do not find that the
Court committed any error of law in relying upon the evidence of Dr. Advani as well
as oral evidence in proof of disease of epilepsy. It is true that the evidence of Vaidhya
Dayaldas is of no use as he himself admitted that he could not diagnose the disease.
The evidence of the compounder of the hospital is also corroborative evidence and
cannot be discarded because of any reason.

17. It will be worthwhile to consider the evidence of the appellant. In her examination-
in-chief, she only state that she was not sick and she is not sick. She was confronted
with the allegations and in cross-examination, she stated that she even joined the
service of teacher in the year 1992-1993 but it will be worthwhile to mention here that
she did not produce any proof in support of said contention and she could not furnish
any ground as to why any efforts were not made by herself or her father or other
family members for sending the appellant back to the house of the respondent.
Further, it will be relevant to mention here that the appellant's father also clearly stated
that they made no efforts for sending the appellant to the house of the respondent in 6-
7 years' period. The appellant's father stated that he had no knowledge whether the
appellant received any notice from the husband for her medical examination or not. It
appears that much has been suppressed by the appellant's father in his statement and
he only stated in his examination-in- chief that the appellant was not sick and she is
not suffering from epilepsy. The appellant herself stated that she is ready to get herself
examined from the doctor but failed to give any reason as to why she did not get her
medical check up and did not produce the medical certificate and did not produce any
doctor. It is true that the Court can direct the parties to get himself and/or herself
examined from the doctor but in a case where parties are living separately since last
more than 20 years and no efforts have been made by the appellant before the trial
Court for producing evidence or seeking permission from the Court to get herself
medically examined. I do not find that now the appellant can be permitted to produce
evidence at this stage.

18. It will be worthwhile to consider the statements of the appellant's witnesses.
NAW3 Gopal stated that he is knowing the appellant since she was of the age of 10
years. In cross-examination, he stated that he did not attend the marriage of the
appellant and he did not enquire why the appellant is not living with her husband. He
also stated that he has no knowledge when the appellant married. Virtually he is
knowing nothing about the appellant and her family. Another witness NAW 4 Shanker
Lal produced by the appellant is also of the same type who stated that he is residing
near the house of the appellant but in cross-examination, he admitted that he never had
any talk with the appellant or her family members. He clearly admitted in his cross-
examination that he did not ask what for, the case was filed. He clearly admitted that
he even had no talk with the appellant's father about the allegations of epilepsy of the
appellant. It appears that two witnesses were produced by the appellant only to
increase the number of witnesses.

19. In view of the above, if the Court below also held that the appellant herself left the
house of the respondent, the Court below has committed any error of law.

20. It will be worthwhile to mention here that the word "epilepsy" has been deleted
from Clause (c) of sub-section (ii) of Section 5 of the Act of 1955 with effect from 2-
12-1999 by the Act 39 of 1999.

21. Learned counsel for the appellant tried to submit that in view of the said deletion,
the ground for grant of decree does not survive. It is submitted that the appeal is
continuation of suit and, therefore, in view of the judgment of the Hon'ble Apex Court
delivered in the case of Dilip v. Mohd. Azizul Haq and another, reported in 5 it is
nothing but rehearing of the suit itself and, therefore, the appellate Court is entitled to
take into account facts and events which came into existence after passing of the
decree appealed against. The Hon'ble Apex Court also held that if a new enactment
comes into force during the pendency of the appeal, the appellate Court can mould the
relief by applying the new enactment.

22. It is clear from the facts of the present case that when the divorce petition was
filed by the respondent, recurrent attacks of epilepsy was a ground for getting the
marriage declared void as per Clause (c) of sub-section (ii) of Section 5 read with
Section 12 (1) (b) of the Act of 1955. In this case, the facts reveal that there was
allegation of epilepsy against the appellant and the appellant's entire case is that she
was turned out by the respondent-husband with the allegation of sickness of epilepsy
and thereafter she was not allowed by the respondent to come back. Said contention of
the appellant was not accepted by the Court below and this Court, therefore, it is now
academic issue whether the deletion of word "epilepsy" from Clause (c) of sub-section
(ii) of Section 5 of the Act of 1955 has any effect in the present case because the
divorce decree has been upheld on the ground of desertion also.

23. In view of the above, it is not necessary to decide the issue whether the deletion of
word "epilepsy" from Clause (c) of sub-section (ii) of Section 5 of the Act of 1955 has
any effect in the present case or not.

24. Learned counsel for the appellant lastly tried to submit that the trial Court awarded
maintenance to the appellant by order dated 14-1-1991. Against the said order of
maintenance, the appellant has not been paid the maintenance. According to learned
counsel for the appellant, the divorce petition of the respondent should have been
dismissed by the trial Court for non-payment of maintenance amount. It is not clear
how much maintenance has been paid and how much has not been paid.

25. It is true that the appellant should have been paid the maintenance amount by the
respondent in compliance of the order of the Court if not paid but the record reveals
that since 1991, the appellant participated in the proceedings before the trial Court for
three years and it is not clear that how much maintenance amount has been paid and
how much has not been paid. The fact remains that even after 1994 when the trial
Court decided the divorce petition and the appellant preferred appeal, she did not pray
for maintenance from this Court for almost about 12 years. Despite the alleged non-
payment of maintenance, the appeal was preferred. It was contested before Single
Bench of this Court and thereafter before Division Bench of this Court and again after
remand before the Single Bench and with the help and full assistance of the advocate.
I do not find that on such vague allegation, the decree granted by the trial Court can be
reversed.

26. So far as the appellant's right to maintenance is concerned, for that facts are not
available on the record because of the reason that even the order dated 14-1-1991 has
not been passed in the main divorce petition by the trial Court. The appellant did not
claim maintenance since 1994 is an admitted position. The financial position of both
the parties are not available and cannot be examined. If the appellant is entitled for
more or less maintenance amount than Rs. 250/- awarded in the year 1991, the
appellant can move proper application under Section 25 of the Hindu Marriage Act
before the Court below so that the entire matter can be examined about entitlement of
maintenance of the appellant.

27. In case, any petition is filed under Section 25 of the Hindu Marriage Act by the
appellant, then the same be decided by the Court below expeditiously in view of the
fact that the matter is very old one.

28. In view of the above, this appeal, having no force, is hereby dismissed.

Appeal dismissed.

Cases Referred.
1. AIR 1964 SC 40
2. AIR 2001 SC 2110
3. (2001) 4 SCC 250: AIR 2001 SC 1709
4. (2002) 1 SCC 308: AIR 2002 SC 88
5. (2000) 3 SCC 607: AIR 2000 SC 1976