JUDGMENT S.U. Khan, J.
1. Heard learned Counsel for the appellants as well as learned Counsel for the respondent, who has appeared through caveat.
2. This appeal is directed against judgment and decree dated 27.11.2007 passed by A.D.J. Court No. 2, Ghazipur in matrimonial case No. 84 of 2003, Ratanjay Pradhan v. Smt. Suman and Ors. Through the impugned judgment, marriage in between plaintiff respondent and appellant No. 2/defendant No. 1 has been annulled and declared void mainly under Section 13(1)(iii) of Hindu Marriage Act, which is quoted below:
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 decree of divorce on the ground that the other party-
(i) & (ii) not relevant.
(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 require or is susceptible to medical treatment; or] The court below held that the wife Smt. Suman is suffering from some mental dis-order in the form of schizophrenia.
3. The first dispute, which cropped up at the initial stage of the hearing, was regarding present residence/custody of the wife. On the very first date, it was stated by learned Counsel for the husband respondent that Smt. Suman- the wife was in the custody of her uncle appellant No. 1, which was disputed by learned Counsel for appellants. Accordingly, on 16.01.2008, I directed S.S.P., Ghazipur to make enquiry and inform the Court regarding present residence/custody of the lady. However, afterwards learned Counsel for the husband respondent stated that under some confusion he had given statement on 16.01.2008 and the fact is that the lady is still with husband and as the mental condition of the lady is not good, hence unless appellant No. 1 comes to take her, she can't be turned out from the house Learned Counsel for the appellant since day one was asserting that the lady was still with the husband respondent.
4. The second question is regarding maintainability of appeal. In the divorce petition, the wife Smt. Suman was sued through her uncle Sri Uma Shanker Rai (deceased), who has been impleaded as appellant No. 3. A deceased ought not to have been impleaded as appellant. Appellant No. 2 is described as Smt. Suman, however Vakalatnama does not bear her signatures and learned Counsel for the appellant has stated that the husband, in whose custody Smt. Suman is, did not allow appellant No. 1 to obtain her signatures on the Vakalatnami. However, I do not propose to decide the question as to whether the appeal is maintainable or not. I propose to decide the appeal on merit.
5. The marriage was solemnized on 08.06.2003 and marriage petition was filed within two or three weeks. The court below through order dated 13.08.2004 appointed appellant No. 1 as guardian of the wife.
6. The husband pleaded that since the day one, the behaviour of the wife was not normal and she appeared to be abnormal and he got her examined and treated by various doctors, who were expert in treating the patients of mental dis-order. The Presiding Officer of the court below summoned the lady and examined her. She only gave her name and father's name. Thereafter, when the names of her mother, husband and father-in-law were asked, she kept quite. She also kept quite when her educational qualification were asked. When she was asked her school's name in which she studied, she kept quite. When she was asked that how many days before she was married, she kept quite. When asked that with whom she had to come to Court, she said that she was brought forcibly. When it was asked that who forced her, she did not reply. When she asked that what sort of case was filed against her, she kept quite. When asked whether any one assaulted her, she kept quite.
7. The Presiding Officer of the court below on 31.05.2004 passed an order that wife Smt. Suman should be got examined medically by Chief Medical Officer, Ghazipur. The C.M.O. intimated that Smt. Suman was referred to S.S.P.G. Hospital, Varanasi, which in turn referred her to Mental Hospital, Varanasi, where she was examined. The report of Mental Hospital, Varanasi was referred to Chief Medical Superintendent through Rishi Prasad and the said report was also sent to the Court. According to the report, she was examined in mental hospital from 02.06.2004 to 12.06.2004 Dr. Amrendra Kumar, who had examined her, gave the report, which was Paper No. 71 ga. Dr. Amrendra Kumar appeared as witness and proved the report.
8. Thereafter she was brought to the Mental Hospital, Varanasi on 22.06.2004 for treatment. Thereafter she was again brought in August, September, October, December, 2004, February, April, June, July August, September, October and November, 2005.
9. Dr. Amrendra Kumar in his statement as P.W. 4 proved his report and stated that he found Smt. Suman suffering from mental dis-order, known by the name of schizophrenia, code F-20. He also stated that since about two years before his inspection, the lady was suffering from the said disease and it was a case of the chronic schizophrenia. He stated that his report was based on the inspection and test conducted by him. He further stated that there were very little chances of cure of the lady Smt. Suman. Doctor also stated that schizophrenia was different from mental dis-order.
10. In the impugned judgment, it has also been mentioned that even though on behalf of mother and uncle of the lady, it was stated that she passed the examination of Intermediate, however when ever she came to court, she put her thumb impression and not the signatures.
11. I fully agree with finding of the fact recorded by the court below regarding condition of the wife. Those finding are based on correct appraisal of the evidence. The evidence of the Doctor and the conduct of the lady observed by the court, when she appeared herself was the most independent evidence. The husband proved that within a week of the marriage he started consulting the Doctors about the mental condition of his wife. In view of this, the court below did not believe and in my opinion rightly the assertion of the appellant that Smt. Suman became a mental case due to torture of her husband. Even after obtaining decree for divorce, husband is keeping her with him further proves the said fact.
12. The court below has recorded finding that the lady since the first day of marriage did not respond to normal situations in a normal manner. From the evidence on record, it was fully proved that schizophrenia suffered by the lady was of such magnitude which warranted divorce as held by the Supreme Court in "Ram Narain Gupta v. Rameshwari Gupta" referred in "Vineeta Saxena v. Pankaj Pandey" (Para-12).
13. Accordingly, the court has got absolutely no option but to accept the findings of fact recorded by the court below. Learned Counsel for the appellant has not been able to put slightest dent in the findings and reasoning of the court below.
Accordingly, appeal is dismissed.
14. However, the court persuaded the learned Counsel for the parties to come out with some such suggestion or solution which could safeguard the future of the lady to some extent. Learned Counsel for the appellant states that in case so much money is paid by the husband, which may yield about Rs. 1000/- interest per month, if kept in Bank, then suffering of the lady would be mitigated to some extent and the said amount would be utilized in her maintenance. Learned Counsel for the husband stated that husband was mainly depending upon his father and his father had other persons also to maintain, hence by maximum they could pay Rs. 30,000/- as alimony.
Even through the court is of the opinion that due to her mental condition Smt. Suman deserves proper alimony, however only so much alimony may be awarded, which is within the possible means of the husband.
15. Accordingly, I direct husband to pay Rs. 50,000/- as alimony to the wife Smt. Suman. He must deposit Rs. 50,000/- in some Nationalized Bank in the name of Smt. Suman for ten years' fixed period with interest payable monthly to appellant No. 1. The appellant No. 1 must utilise the said amount of interest for the welfare of Smt. Suman. After ten years, appellant No. 1 would be entitled to reinvest the said amount. However, if condition of the wife is improved during these ten years and she becomes capable to handle her affairs, then the interest must be given to her and she will be at complete liberty to receive the principal amount after ten years.
16. If Government has got some such fund, which may be made available to the ladies like appellant No. 2 in this appeal that on an application being filed in that regard by appellant, Government should sanction proper amount with proper conditions for appellant No. 2.