(1.) This appeal filed under S.28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), is directed against the judgment and decree dated 21-10-83 passed by Shri D.R. Pundlik, District Judge, Raipur in Civil Suit No. 28A of 1982 dissolving the marriage between the parties by a decree of divorce under S.13(1)(iii) of the Act.

(2.) That the parties were married in accordance with Hindu rites in March, 1988 and lived together as husband and wife for a year and a half, does not appear to be in dispute. According to the respondents application under S.13 of the Act, the appellant was suffering from epilepsy, as a result of which she very often lost consciousness and suffered convulsions. The respondent claims to have got her treated and spent Rs. 2,000/- to Rs. 3,000/- for that purpose, without any result. In his application, it is alleged that though the appellant suffered the disease from before the date of marriage, he was not informed about it and therefore, he underwent marriage ceremony without being told about it. According to the application, the disease has posed a danger to the life of the appellant and has made it risky for him to live with the appellant. The application further discloses that there is no likelihood of the appellant being cured of the disease. He, therefore, prayed for a decree of divorce. The appellant, in her written statement, admitted that she was suffering from epilepsy from before marriage but her defence was that this was disclosed to the respondents father before marriage. She also admitted that as a result of this, she suffered a fit of sudden loss of consciousness attended with convulsions. She, however, submitted that the disease was curable and if the respondent had given her proper treatment, she would have recovered. She denied that the respondent had spent any amount on her treatment. The learned trial Judge, on the basis of appreciation of evidence adduced by the parties, came to the conclusion that the appellant was suffering from epilepsy, which constituted a ground under S.13(1)(iii) of the Act. The learned Judge drew adverse inference against the appellant for her not appearing as a witness in the case. That is how, the decree for divorce was granted.

(3.) The question requiring consideration of this Court is whether case for divorce under S.13(1)(iii) of the Act has been made out on the basis of material on record The provision reads as under:-

"13.(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on it petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has after the solemnization of the marriage, had voluntary sexual intercourse with, any person other than his or her spouse; or (ia) to (ii) ..... (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."

This clause, as is well-known, was added in the Act by Marriage Laws (Amendment) Act, 1976 to provide for divorce on the ground of incurable unsoundness of mind. Earlier this ground was available only if the incurable unsoundness of mind has been there for a continuous period of not less than three years immediately before the presentation of the petition. The amendment has the effect of dispensing with the requirement of minimum period. By this very amendment, cases of mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent are also added. Incurable unsoundness of mind conveys the idea of the person becoming incapable of managing himself and his affairs including the problems of society and of married life. Similarly, the mental disorder whether continuous or intermittent, has to be of a kind and extent that the petitioner cannot reasonably be expected to live with the respondent. The respondent in his statement on oath has stated that the appellant was suffering from epilepsy or falling sickness. The Hindi words used by him are: His witness Parabhu (P.W.2) and Vinod Bihari (P.W.3) also state the same thing. The respondent has not examined any medical witness nor has he produced any medical certificate from which it can be inferred that this disease is either incurable or renders the appellant of unsound mind. The evidence of the respondent also does not clarify as to how many times, she suffers such fits and what is the duration thereof. The respondent in his statement, has stated that the appellant suffers such fits several times and some times after 4 or 5 days. In his cross-examination, he asserts that the appellant suffered fit for long time from the beginning (para 17). Respondents father Parabhu (P.W.2) does not support respondent about number of fits suffered by the appellant each day. According to him, the appellant suffered such a fit on the second night after her marriage and was unconscious for two hours. According to him, this happens many a times. He, however, admitted that the appellant regained consciousness after the effect of epilepsy was over and during the epilepsy, she did not do any violence. Vinod Bihari, (P.W.3) claims to have seen only 3 or 4 such fits. In his cross-examination, he admitted that such fits continued for about an hour or half, but during which the appellant neither threw away her clothes nor abused any one nor became violent. This is the only evidence adduced by the respondent about the attitude, behaviour and disease of the appellant. The appellant has in her statement admitted that she was suffering from epilepsy. According to her, the fits continued only for 2-3 minutes and she becomes aware of these fits before hand, and, therefore, goes to the safe place. According to her, in spite of this, she had managed her household properly and has not caused any impediment to marriage relationship. She has of course not appeared as a witness and, therefore, it may be assumed that her statement that she has been able to maintain her marriage relationship properly is not proved. As against this, appellants father Loknath (D.W.2) had admitted that his daughter was suffering from fits whose duration was uncertain. According to him, fits lasted from 3 to 5 minutes, after which the appellant became normal. He also deposed that these fits came sometimes within an interval of 3 or 4 days and sometimes 8 to 10 days. No question was asked to him in cross-examination either about the duration or intervals of these fits. Loknath further admitted that the appellant had become pregnant during her 18 months stay with the respondent, but unfortunately, suffered an abortion. As a result of abortion, the duration of fits became longer and they sometimes continued for two-and-a-half hours or three hours. According to him, he was obtaining treatment for her daughter and she has improved considerably. Dr. M.M.Dubey (D.W.3) claims to be the doctor treating appellant for epilepsy. According to him, the disease is controlled by the medicine, though many a times, these fists occur even after medicine. According to him, appellant remains normal after fits, though during fits, she would not understand anything. According to his information, appellant suffered fit once at least in 15 days and the same lasted for 5 or 10 minutes. There is no cross-examination of this witness also on the point of duration and interval of fit and treatment thereof. The evidence of appellants father and Dr. Dubey clearly goes to indicate that except during the period, when appellant suffers epileptic fits, she remains normal and performs all duties and functions. This also appears to be the case of the respondent, who does not allege incapacity to discharge family obligations. The admitted fact that appellant lived with the respondent for about 18 months during which she also suffered these fits, would indicate that the fits by themselves were not enough to disturb their married life. If it were so, they would not have lived together for so long. It must, therefore, be held that epileptic fits suffered by the appellant make her dull and weak for a temporary period but do not restrict performance of family obligations, after their effect is over. It can also be held that the disease is controllable, if not curable, by proper medical treatment, and chances of appellant being cured are fair.

(4.) Epilepsy or falling sickness, according to Blacks Medical Dictionary (23rd Edition) is a term applied to a nervous disorder characterized by a fit of sudden loss of consciousness, attended with convulsions. From the said dictionary, it appears that the disease is commonly regarded as one of disordered function of the brain. Practically all that can be said about the direct cause is that in the healthy brain nerve energy is capable, under control of the will, of being expended in a sudden and explosive but regulated manner, whilst, in the disease known as epilepsy, uncontrolled discharge of energy, devoid of any purposive action, take place from time to time in an unusual manner. Hinsie and Shatzky Psychiatric Dictionary (Second Edition) lists various types of epilepsy and mentions that usually the attack is preceded by prodromata, lasting a few hours or a few days. Prodromal phenomena are variable; they may appear as mmods, or as physical symptoms. According to this dictionary, epilepsy is not caused by organic disease or anomaly, but is best understood in terms of the psychiatric. According to Blacks Medical Dictionary, in the intervals between the attacks, the general health of the patient is one of the most important points to be attended to. The strictest hygienic rules should be observed, and all the causes which have been mentioned as favouring the development of the disease should as far as possible be avoided. Several drugs are now available in the market to control the disease and chances of appellant, being cured are fair. It would, therefore, appear that the disease is not incurable. This is also the statement of Dr. Dubey (D.W.3). It is, therefore, possible to hold that though the appellant is suffering from epilepsy, she does not become violent during the period the fits last. It is also possible to hold that the disease is curable.

(5.) The question of treatment, therefore, becomes important in such a case. There is no dispute that after marriage, the wife has to be maintained and looked after by the husband. It was, therefore, the obligation of the respondent to get her properly treated. He is a Government servant working as a Time Keeper in the Public Health Engineering Department and, therefore, it was possible for him to get the appellant treated free of cost in any Government Hospital. The respondent admits that he knew of the disease of the appellant on the second day of his marriage. If that be so, why did he not get her properly treated in a hospital According to him, he got the appellant treated in Ayurvedic Dispensary, Sarsinwa, without any result. He also states that he got her treated by a Witch Doctor at Raipur. In his cross-examination, he was asked as to why he has not produced any medical evidence, to which he did say nothing. He had volunteered that he did not get her treated in a medical hospital because of his father-in-law, who had asked him not to do so. Loknath (D.W.1) who is the father-in-law of the respondent, has denied that he had stopped the respondent from getting the appellant treated. In spite of his denial, no question was asked, to him about it in cross-examination. It is not understood as to why father of a married lady would stop his son-in-law to get her treated in a hospital foe known disease. It is, therefore, possible to hold that the respondent has not taken any step to get the appellant treated for the disease and has now pleaded false defence for the said purpose.

(6.) The question for consideration, however, is whether the aforesaid disease is sufficient to support the decree under S.13(1)(iii) of the Act If the fits are indicative of unsoundness of mind, the same are not incurable. There is no evidence on record to indicate that it is incurable. If it is treated to be a mental disorder, there is nothing on record to indicate that it is of such a kind or to such an extent that the respondent cannot reasonably be expected to live with the appellant. The disease no doubt makes the appellant dull for some time, but nothing else happens. Indeed, the respondent himself in his cross-examination admits that fits cuased weakness and, therefore, the appellant was not in a position to talk for some time. He admits that the appellant became normal after two hours of epileptic fit. There is nothing in the evidence of the respondent, from which it can be inferred that these fits are of such a kind and nature that the respondent cannot be reasonably expected to live with the appellant. The only thing that appears from his statement in the Court is that he apprehends false accusation or allegation of causing harm to the appellant. This apprehension, even if valid, would not bring S.13(l)(iii) of the Act in operation.

(7.) The learned trial Judge has drawn adverse inference against the appellant for her not appearing as a witness. Appellants father ha deposed on oath that she was sick and was, therefore, not able to come to the Court (para 9). He was not even asked a question about the illness of the appellant. Under the circumstances, it is unreasonble to hold that the appellant intentionally did not appear as a witness. Even if the appellant had intentionally chosen to remain absent, the same would not shift the burden of proof, which firmly rests on the respondent. In all such cases, the conscience of the Court must be satisfied before a decree is passed. No Court can ignore the mandate of S.23 of the Act where in any proceeding under this Act, whether defended or undefended, the petitioner has to prove every allegation by leading clear and cogent evidence. The manner of proof has been discussed by the Supreme Court in Dastane v. Dastane, AIR 1975 SC 1534 [LQ/SC/1975/129] wherein it has been clarified that the standard of proof required in such cases is of civil nature and the word satisfied in S.23 means satisfied on a preponderance of probabilities. Under the circumstances, a heavy burden lay on the respondent to prove all the ingredients of S.13(1)(iii) of the Act and the said burden would not be discharged only because the appellant failed to appear as a witness. The burden, in the opinion of this Court has not been discharged. The type of evidence, which has been adduced by the respondent, is wholly insufficient to attract application of the aforesaid provision. This Court is, therefore, not able to sustain the impugned judgment.

(8.) Marriages in India, according to common belief, are settled in heaven with the blessings of Gods. Hindus regarded marriage as a sacrament and, therefore, there was no provision of divorce in their personal law. Muslims and Christians, the two important segments of Indian society, do not, however, share this belief and regard marriage as a contract. Their personal laws provided for divorce, Mohammadan Law provides for easy divorce by the husband, who can dissolve the marriage only saying Talaq, Talaq, Talaq. But, divorce, even in these communities are not as common in this country as perhaps elsewhere. Muslim law treats divorce "worst of all permitted things" (abghad-ul-muhabat) and advises peoptc to keep away from it. Muslim law expects that the husband will ordinarily not exercise this power and if he finds it unavoidable, he will do so with a sense of justice (adl) and rationality (maquliyat) and in an arbitrary, irrational and unreasonable manner. One can, therefore, legitimately infer that Indians do not, in general, favour divorce. Divorce of urn ailing wife, only because of her ailment is not rceognised in any community in India. Indeed, it would be contrary to "Marina". Almost all laws recognise the obligation of a husband to stand by his ailing wife during her illness. This cultural background will have to be taken note of while considering the application of the respondent-husband for divorce on the ground that the appellant was suffering from epilepsy.

(9.) The learned counsel for the respondent relied on Mohanmurari v. Smt. Kusum-kumari, 1965 MPLJ 321 [LQ/MPHC/1964/201] and submitted that since the respondent has got remarried in accordance with S.15 of the Act. the appeal should be deemed to have become infructuous. S.15 of the Act confers power on parties to the marriage to lawfully marry again where the marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed. In the instant case, the appeal was filed within the period of limitation and, therefore, it would be difficult to hold that the second marriage of the respondent was lawful. Decision of this Court in Mohanmuraris case (supra), no doubt lays down that in the absence of any order of prohibition, there would be no impediment to the remarriage, which would be valid in law. In the said case also, the marriage has been dissolved by a decree of divorce and though the appeal was filed, there was no order of the Court prohibiting the respondent wife from remarring. She, therefore, married again. This Court held that since the respondent cannot now revert to her status as the wife of the appellant, because of her remarriage, the appeal must be held to have become infructuous. This does not appear to be the current legal view. In Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839 [LQ/SC/1988/132] the Supreme Court dealt with a similar problem. In an appeal by the wife, the husband had remarried after he won his case in the High Court and got a decree of dissolution of marriage. The same argument was canvassed before the Supreme Court. The Supreme Court did not dismiss the appeal as having been infructuous. According t0 the Court, the successful party must wait for a reasonable period and make sure whether an application for special leave has been filed in the Supreme Court. The Court, therefore, held that, where a decree for dissolution is passed, an appeal against it is dismissed by the High Court and the husband remarries after one month of the High Courts order, he cannot be allowed to raise the plea that since he has remarried, the special leave petition filed by the wife becomes infructuous. The matter was exhaustively dealt by the Supreme Court in Smt. Lata Kamat v. Vilas. AIR 1989 SC 1477 [LQ/SC/1989/190] , where the Court interpreting words, marriage has been dissolved by decree of diverse appearing in S.15 of the Act, held that it only means where the relationship of marriage had been brought to an end by the process of Court by a decree. This was a case where the marriage has been dissolved by a decree of the Court of competent jurisdiction. But, before an appeal against the said decree was filed, he married again and pleaded for dismissal of the appeal on the ground that he had lawfully married again. His objection was upheld by the lower appellate Court a also by the High Court. The Supreme Court, however, did not agree with the aforesaid. According to the Supreme Court, S.15 of the Act only means where the relationship of marriage has been brought to an end by intervention of Court by a decree and this decree will include a decree under Sections 11, 12 and 13 of the Act. The Supreme Court, therefore, set aside the judgment and decree not only of the High Court, but the first appellate Court and directed the first appellate Court to dispose of the appeal on merits and in accordance with law. After this decision, of the Supreme Court, this Courts decision in Mohamuraris case (supra), must be held to be obsolete. It is, therefore, not possible for this Court to accept the respondents contention that his second marriage is legal under S.15 of the Act and therefore, the appeal is rendered incompetent. In the opinion of the Court his, marriage is illegal and, therefore, he would be liable to all consequences thereof.

(10.) As a result of the discussion aforesaid, the appeal succeeds and is allowed with costs. The impugned judgment and decree are set-aside and the application of the respondent-husband filed before the trial Court dismissed. Counsel fee, Rs. 500/-. Appeal allowed.