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Section 12(1)(c) in The Hindu Marriage Act, 1955
Section 12(1) in The Hindu Marriage Act, 1955
The Hindu Marriage Act, 1955
Section 12 in The Hindu Marriage Act, 1955
Section 12(2) in The Hindu Marriage Act, 1955

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Karnataka High Court
Nalini Kumari, Major vs K.S. Bopaiah, Major on 24 November, 2006
Equivalent citations: 2007 (1) KarLJ 342
Bench: H Dattu, N Ananda



JUDGMENT
 

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1. These appeals are disposed of by a common order, since the parties in these appeals are common.

Page 0127

2. These first appeals are filed against the common judgment and decree passed by the learned Family Court Judge, Virajpet, in M.C.No. 5/1996, MC.No. 17/1996 and G.&.WC.No. 2/1998 dated 23.2.2000.

3. M.C.No. 5/1996 is filed by the husband against his wife for a judgment and decree of divorce on the ground of fraud and cruelty.

4. MC.No. 17/1996 is filed by the wife for restitution of conjugal rights.

5. G & WC No. 2/1998 is filed by the wife for the custody of the minor daughter born out of the wedlock.

6. The petitioner in MC.No. 5/1996 was married to respondent at Gonikoppal on 8.3.1992 according to rites and customs prevailing in the community. After the marriage, the parties had set up their matrimonial home at Nangala Village, Virajpet Taluk. A baby girl was born to the couple out of the wedlock on 29.4.1993. The petitioner has asserted in the petition, that since the inception of the marriage, everything went on in the normal manner, except that he observed, that the respondent has developed the habit of getting agitated for frivolous things. It is stated that during the month of April, 1993, the respondent went to her parents house for pre-natal care and after the birth of the child on 29.4.1993, she was brought back to the matrimonial home on 25.6.1993. It is stated, that the health condition of the mother of the petitioner deteriorated on 2nd July 1993 and in the presence of such trauma, it was observed by the petitioner, that the respondent was behaving in a strange way and such behaviour forced the neighbours to inform the petitioner, that some thing was abnormal with the respondent. After closely observing the respondent, it is stated, that the respondent was behaving as a psychic as though she was mentally unsound, and it appears, the respondent very strangely took out a brush as though she was brushing the teeth and was moving towards their wet lands and on mere observation, petitioner and his brother discovered that the respondent was of unsound mind. It is further stated, that some time thereafter, the respondent had informed the petitioner, that she was suffering from unsoundness of mind and the same had aggravated owing to the irregularity in the consumption of tablets and when he opened the almirah, he found 90 to 100 tablets and when he showed it to her father, he was not prepared to acknowledge, that he knew anything about the same and when he showed the tablets at a drug store, it was revealed that the drug was to be consumed by a person of unsound mind and this caused him grave shock, mental agony and distress. It is also stated, that the respondent was insisting the petitioner to make a separate house, since she was not prepared to stay with his brother's family and also for partition of joint family properties and otherwise, she would kill their own child and commit suicide. Petitioner has further alleged, that when he searched the entire almirah, he secured a medical slip issued by Manasa Medical Foundation, Bangalore, which evidenced that earlier to the marriage itself, i.e. on 26.11.1991, the respondent had been admitted as an inpatient at the said Nursing Home and had treatment for a long and had spent a sum of Rs. 9,040/- towards medical bills. It is only then he realised that the respondent even earlier to the marriage had received the treatment for unsoundness of mind and she infact was Page 0128 mentally unsound even prior to the marriage. It is also stated, that the petitioner for the first time on 3.5.1996 came to know the fraud played by the respondent and her parents that the respondent earlier to the marriage itself was suffering from unsoundness of mind and the parents of the respondent had suppressed the existence of such position and did not reveal the factum of suffering of the respondent from unsoundness of mind at any time and the fraud played by the respondent and her parents have delivered a fatal blow to the very life of the petitioner. Therefore, it is stated, that the fraud played by the respondent and her parents had enabled the petitioner to claim, that, his marriage with the respondent be annulled under the provisions of Section 12 of the Hindu Marriage Act, 1955, ('Act' for short) owing to the presence of fraud factor. It is also stated, that in the presence of fraud, the arrangement that had been made in inducing the petitioner to marry the respondent has turned out to be voidable contract, capable of being declared as void at the option of the petitioner, who had suffered. According to the petitioner, the cause of action for filing of the petition arose on 8.3.1992, when the petitioner married the respondent without having any opportunity of noticing fraud, on 20.4.1996, when the respondent attempted to commit suicide and finally on 3.5.1996, when the petitioner detected the fraud played by the respondent and her parents in suppressing that the respondent was insane earlier to the marriage itself. It is specifically asserted, that the petition is not barred by time in view of the fact that the petition has been presented within one year from the date of detection of the fraud. Petitioner further contends, that having regard to the nature of the disease and the strange and unbecoming behaviour of the respondent, it is impossible for him to live with her. He therefore, prays for decree of annulment of marriage dated 8.3.1992, on the ground of fraud and in the alternative, for a decree of divorce on the ground of cruelty.

7. The respondent has contested the claim of the petitioner. In her objections statement filed, she has denied the allegation of fraud and the unusual behaviour which the petitioner has graphically portrayed in the petition. She has also alleged, that the brother and sister-in-law of the petitioner have treated her badly as long as she lived in the petitioner's house. She has also alleged, that she was forced to bring money from her parents house. She has also stated, that she did suffer certain mental illness earlier to the marriage and the illness disappeared after taking proper treatment in a sophisticated hospital and further, she was advised by the Medical experts to have periodical clinical check-ups, so that illness may not reoccur. It is also pleaded, that the respondent has not committed any fraud on the petitioner and he was well aware that she had taken some treatment for certain illness effecting her mental health. The rest of the contentions in the objection statement are not material for our purpose.

8. Petitioner has examined himself and four other witnesses and the respondent has examined herself and one another witness. In his evidence, petitioner has marked nearly 18 documents and the respondent has marked 4 documents as exhibits in support of their case.

9. On these pleadings, the learned Family Court Judge has framed the necessary issues and on consideration of the evidence on record adduced by Page 0129 the parties, has come to the conclusion, that, the respondent was suffering from mental disorder/bipolar disease even earlier to her marriage with the petitioner which was solemnised on 8.3.1992 and without disclosing her serious ailment, the respondent and her family members have committed fraud and misrepresentation to the material fact concerning the respondent and that therefore, petitioner is entitled to a decree of annulment of the marriage solemnised on 8.3.1992. As regards the alternative plea, the learned Family Court Judge has not given any finding. In view of his aforesaid findings and conclusion, the learned Family Court Judge has rejected both the petitions filed by the respondent/wife. Being aggrieved by this judgment and decree, the wife is before us in these first appeals.

10. On the submissions made by both the learned Counsel, the points that would arise for our consideration and decision are, whether the learned trial Judge is justified in annulling the marriage between the petitioner and the respondent solemnised on 8.3.1992? and secondly, whether the petition filed is within the time prescribed under Section 12(2) of the Hindu Marriage Act, 1955?

11. We will take up the second issue first for our consideration. In order to answer the issue, the provisions of Section 12(1)(c) read with Section 12(2) of the Act require to be noticed.

Section 12 of the Act speaks of voidable marriages. Under Section 12(1) of the Act, a competent Court may annul a marriage by decree of nullity of any marriage solemnised, whether before or after the commencement of the Act, on the ground, that the marriage has not been consummated owing to the impotence of the respondent; that the marriage is in contravention of the condition specified in Clause (ii) of Section 5 of the Act; that the consent of the petitioner or where the consent of the guardian in marriage of the petitioner was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; and lastly, that the respondent was, at the time of the marriage, pregnant by some person other than the petitioner.

Sub-section (2) of Section 12 of the Act says that not withstanding anything contained in Sub-section (1) of the Act, no petition for annulling a marriage on the ground specified in Clause (c) of Sub-section (1) shall be entertained, if the petition is presented more than one year after the force had ceased to operate or, the fraud had been discovered; or the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered.

12. It is the case of the appellant's learned Counsel that the petition filed by the petitioner was beyond the time prescribed under Section 12(2)(a) of the Act and therefore, the learned trial Judge ought to have rejected the petition filed under Section 12(1)(c) of the Act, without going into the merits of the case, since he has not entertained the alternative prayer sought for by the petitioner.

13. In answer to this submission, the learned Counsel for the respondent in these appeals, would contend, that the respondent came to know the fraud Page 0130 played by the appellant and her parents only on 3.5.1996 and has presented the petition within one year from the date the fraud was discovered and therefore, petition was rightly entertained by the trial Court.

14. Petitioner in his petition filed for annulment of marriage on the ground of fraud has stated, that the marriage between him and the respondent was solemnised on 8.3.1992 at Gonikoppa as per the provisions of Hindu Law and according to the customs prevailing in the community and after the marriage, a baby girl was born to them on 29.4.1993. That some time in the month of July, 1993, he and his brother observed, that the respondent was behaving in a queer manner and his neighbours also informed him that there is something odd with the respondent and on close observation of the respondent, he observed, that the respondent was behaving as a psychic, as though she was mentally unsound. In support of this assertion, he gives an instance, which is said to have taken place some time in the month of July, 1993. According to him, she took a tooth brush and posed as though she was brushing her teeth and was moving towards wet lands and by mere observation, he and his brother discovered, that the respondent is of unsound mind. It has also come in his pleadings that, some time in the month of July, 1993, the respondent had informed the petitioner, that she was suffering from unsoundness of mind and the same aggravated owing to the irregularity in the consumption of tablets and experiencing the trauma of shock and disbelieve, he opened the almirah and found 90 to 100 tablets and on verifying with the drug store, he came to know that the tablet was to be consumed by a person of unsound mind and he was under the belief that unsoundness of the mind has commenced subsequent to the child birth. This assertion of the petitioner in his petition, only means, that he was fully aware of the ailment of the respondent in the month of July, 1993 and also on the subsequent dates. In his evidence, petitioner has deposed that since respondent did not return from her parents house some time after his mother's death, which was again in the month of July, 1993, he was informed by respondent's sister that his wife is admitted in Manasa Nursing Home, Bangalore, and after two days, he had gone to that hospital and got her discharged from the said nursing home. Curiously, petitioner has not even whispered in his evidence whether he enquired with the Hospital Staff, or the persons attending on her or atleast his own wife, about the cause for her being admitted to the said nursing home. This, in our opinion, is not the conduct of normal human being. After all, it is his wife, who is admitted to the nursing home. The moment he comes to know about the admission of his wife to a nursing home, a person whose senses are intact, would in our opinion, tries to find out from all sources including the staff of the hospital, the cause of suffering of his wife, or his kith and kin. This must have happened, but the petitioner is hiding his knowledge of this episode from the Court, only to save limitation for filing of the petition. It has also come in his evidence that even before his mother's death i.e. some time in the month of July, 1993 about the respondent informing her ailment and prescription of the medicine by her Doctor and his searching the almirah and finding about the tablets which on verification from a drug store was made known to him, that the tablets Page 0131 which he had discovered are prescribed to a person who is suffering from unsound mind or the mental disorder. It has also come in the evidence, that when the respondent was not at home, he had searched the almirah some time in the month of May, 1996, and found Ex.P2, which was the discharge slip issued by nursing home, where respondent had taken treatment for her mental disorder. The evidence, which has come on record, would clearly disclose that the petitioner was fully aware that the respondent was treated for unsoundness of mind much prior to his marriage. Inspite of this knowledge, petitioner continued to cohabit with her, till he filed the petition for nullity of marriage in the year 1996. Under Section 12(2) of the Act, a petition to annul a marriage on the ground of force or fraud has to be filed within one year after the force had ceased to operate or as the case may be, the fraud has been discovered. The second condition for the maintainability of the petition is, that the petitioner has not, with his or her full consent lived with the other party to the marriage as husband and wife after the force had ceased to operate or as the case may be, the fraud has been discovered. The condition laid down in Sub-section (2)(b)(ii) of Section 12 of the Act that the petition must be filed within one year as prescribed is absolute and a petition will not lie under this clause after that period has lapsed, even if fraud had been practised on the petitioner as to any material fact or circumstances concerning the respondent. The Sub-section does not prescribe a period of limitation but creates a statutory bar to the entertainment of the petition. The narration of facts and the dates by us in the course of the order would amply demonstrate, that the petitioner was fully aware of the ailment suffered by the respondent-wife some time in the year 1993 itself but choose to cohabit with the respondent till 1996 and it is only on 26.6.1996, has filed a petition under Section 12(1)(c) of the Act. The petition so filed is beyond the period prescribed under the Act. Secondly, petitioner with his full consent lived with the respondent as her husband. If the husband or the wife as the case may be, overlooks the alleged fraud and condones it, with the result there is reconciliation, the petitioner can be said to have lived with full consent with the respondent. The evidence shows that the petitioner after the alleged fraud was discovered, lived together for nearly three years from the date of the solemnisation of the marriage as husband and wife with full consent. Therefore, this ground was also sufficient for not entertaining the petition for annulling the marriage. Therefore, on these two grounds, petition filed by the petitioner requires to be rejected. However, since the learned Counsel has argued on the other issue also, we deem it necessary to consider the same.

15. The next question that requires to be considered is, whether the consent of the petitioner had been obtained by fraud either by the respondent or by her parents within the meaning of Section 12(1)(c) of the Act? In this connection, the facts found by the learned trial Judge and the facts which are not in serious dispute are, that the respondent before her marriage had taken treatment once in National Institute of Mental Health and Neuro Science, Bangalore, in the month of June, 1985 and was discharged from the Hospital, nearly, after 15 days i.e. on 18.6.1985. The Doctors, Page 0132 who have been examined by the petitioner before the trial Court with reference to the records have deposed about the admission of the respondent for the illness and the treatment given to her to the ailment that she was suffering from. According to the discharge slip, which was produced in the evidence, shows that the respondent was suffering from bipolar/psychic maniac disease. Nearby after six years, she was once again admitted to Manasa Medical Foundation on 26.11.1991. The Doctor, who had not even treated her, has deposed with the help of prescriptions, that the respondent had been treated in their nursing home and was diagnosed, that the respondent was suffering from mental disorder. Petitioner in his evidence has not even stated that the respondent or her parents represented to him or to his relatives at any stage that she was healthy. Therefore, this is not a case where truth was suppressed deliberately and a false representation was made to the petitioner that she was healthy. In these facts and circumstances, whether the conduct of the respondent and her relatives, more particularly, her parents amounts to fraud under Section 12(1)(c) of the Act.

16. The word 'fraud' used in Section 12(1)(c) of the Hindu Marriage Act does not speak of fraud in any general way, nor does it mean every misrepresentation or concealment, which may be fraudulent, but fraud as to the nature of ceremony or as to material fact or circumstance concerning the respondent. 'Fraud' according to Chambers Dictionary means, "deceit". Thus, in case where the consent to the marriage has been obtained by deception, it was liable to be annulled under Section 12(1)(c) of the Act, before the amendment of Clause (c) of Section 12(1) of the Act, and insertion of the words "as to the nature of the ceremony or as to any material fact concerning the respondent". Thus, after the amendment of Clause (c) of Section 12(1) of the Act by Marriage Laws (Amendment) Act, 1976, the emphasis cannot be laid only regarding the nature of the ceremony or factum of marriage, but, in case there is deception as to any material fact or circumstances concerning the respondent, the said case would also be covered by Sub-clause (c) of Section 12(1) of the Act.

17. Now, the question would be, whether the concealment about the treatment taken for bipolar disease which is a mental illness and is controllable and treatable and in some cases curable, would amount to obtaining the consent of the petitioner by fraud as to any material fact concerning the respondent-wife, so as to attract the provisions of Section 12(1)(c) of the Act?

18. The test in this type of cases should be, whether the disease is of such nature that concealment of the disease would constitute a fraud relating to a material fact or circumstance concerning the respondent within the meaning of Section 12(1)(c) of the Act. The bipolar disease may not be curable disease, but is controllable and treatable disease by regular medication and is not such a disease, which would effect a person from leading a married life. We hasten to add, that concealment or misrepresentation of diseases of serious nature/incurable disease may be enough for annulment of marriage on the ground of fraud.

19. Now let us discuss what is mis Bipolar disease and whether it is curable/controllable and treatable disease?

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20. In National Institute of Mental Health Publication No. 3679, it is stated:

Introduction:

Bipolar disorder, also known as manic-depressive illness, is a brain disorder that causes unusual shifts in a person's mood, energy, and ability to function. Different from the normal ups and downs that everyone goes through, the symptoms of bipolar disorder are severe. They can result in damaged relationships, poor job or school performance, and even suicide. But bipolar disorder can be treated, and people with this illness can lead full and productive lives.

(underlining is by us) What is the Course of Bipolar Disorder?

Episodes of mania and depression typically recur across the life span. Between episodes, most people with bipolar disorder are free of symptoms, but as many as one-third of people have some residual symptoms. A small percentage of people experience chronic unremitting symptoms despite treatment.

The classic form of the illness, which involves recurrent episodes of mania and depression, is called bipolar I disorder. Some people, however, never develop severe mania but instead experience milder episodes of hypomania that alternate with depression; this form of the illness is called bipolar II disorder. When four or more episodes of illness occur within a 12-month period, a person is said to have rapid-cycling bipolar disorder. Some people experience multiple episodes within a single week, or even within a single day. Rapid cycling tends to develop later in the course of illness and is more common among women than among men.

People with bipolar disorder can lead healthy and productive lives when the illness is effectively treated (see below - "How is Bipolar Disorder Treated"). Without treatment, however, the natural course of bipolar disorder tends to worsen. Over time a person may suffer more frequent (more rapid-cycling) and more severe manic and depressive episodes than those experienced when the illness first appeared. But in most cases, proper treatment can help reduce the frequency and severity of episodes and can help people with bipolar disorder maintain good quality of life.

(underlining is by us)

21. In Health & Medical Information in Psychiatry (Australia's Central Health & Medical Information Resource), it is stated:

Bipolar Affective Disorder (BPAD) is a psychological disease.

This condition is characterised by alternating syndromes of depression and mania. Depression is a psychiatric syndrome characterised by a subjective feeling of depression, loss of enjoyment in all activities and overwhelming feelings of guilt and worthlessness.

Mania represents the opposite end of the spectrum characterised by erratic and disinhibiter, behaviour, poor tolerance or frustration, over-extension of responsibility and vegetative signs. These include raised libido, weight loss with anorexia, decreased need for sleep and excessive energy.

Incidence:

The prevalence is 1% worldwide. It is equally common in men and women. There is no variation between socioeconomic class or race. Page 0134 The average age of onset is 21. The increased frequency found in divorced people is probably a consequence of the condition.

Predisposing Factors:

The most significant risk factor for the development of BPAD is a family history of either BPAD or depression.

Natural History:

The condition of bipolar usually begins between the ages of 30 to 40 years old. There are two types of bipolar affective disorder - Type I and type II. In type I BPAD, patients will meet the criteria for a full manic episode but may never experience an episode of major depression, type II BPAD, the patient will fulfil the criteria for a major depressive episode but will never experience a full manic episode. They may experience a less form of mania called hypomania.

The patient in an episode of major depression is at increased risk of self-harm and suicidal behaviour and must be monitored closely for risk factors. The duration of depressive episode varies but usually lasts for approximately six months if left untreated. In the majority of cases, the patient experiencing an episode of mania will generally refrain from self-harm behaviour. They will, however, place their finances and social life at risk by indulging in wreckless behaviour. These episodes again last for around 3-6 months if left untreated by medication. The patient with type I BPAD will typically experience 10 episodes of mania throughout their lives.

Prognosis:

The average duration of a manic episode is 3-6 months with 95% making a full recovery in time. Recurrence is the rule is bipolar disorders, with up to 90% relapsing within 10 years. In terms of overall prognosis, 15% completely recover from the illness. 50-60% partially recover and one third will retain chronic symptoms resulting in social and occupational dysfunction.

Investigation:

Patients should be screened for thyroid function and can produce hypothyroidism. During treatment, lithium levels should be checked for 3 months, along with regular thyroid and renal function rents.

Treatment Overview:

The primary treatment for BPAD involves long-term daily medications. The most commonly used drug in the initial management of BPAD is lithium. The drug takes about 2 weeks to take effect and is effective in stabilising the patient's mood. Other drugs such as valproate and tegretol are more commonly used in the long term to help prevent the recurrence of mania and depression in patients with BPAD. They may also be combined with lithium for greater effect, if one agent proves inadequate to control the symptoms.

Psychotherapy is also helpful in the management of BPAD Group therapy, family therapy and individual psychotherapy have been shown to improve the outcome of this condition when combined with the regular use of medications.

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22. In Wikipedia, the free encyclopedia, it is stated:

Bipolar disorder (previously known as Manic Depression) is a psychiatric diagnostic category describing a class of mood disorders in which the person experiences clinical depression and/or mania, hypomania, and/or mixed stated. The disorder can cause great distress among those afflicted and those living with them. Bipolar disorder can be a disabling condition, with a higher-than-average risk of death through suicide.

The difference between bipolar disorder and unipoloar disorder (also called major depression) is that bipolar disorder involves both elevated and depressive mood states. The duration and intensity of mood states varies widely among people with the illness. Fluctuating from one mood state to the next is called "cycling". Mood swings can cause impairment or improved functioning depending on their direction (up or down) and severity (mild to severe). There can be change in one's energy level, sleep pattern, activity level, social rhythms and cognitive functioning. Some people may have difficulty functioning during these times.

Domains of the bipolar spectrum:

Bipolar disorder is often a life-long condition that must be carefully managed. Because there is so much variation in severity and nature of mood problems, it is increasingly being called bipolar spectrum disorder. The spectrum concept refers to subtypes of bipolar disorder or a continuant of mood problems, that can include sub-syndromal (below the symptom threshold for categorical diagnosis) symptoms. Nassir Ghaemi, M.D., has also contributed to the development of a bipolar spectrum questionnaire. The full bipolar spectrum includes all states or phases of the bipolar disorders.

Kraepelin's (1921) construct is useful for primary care clinicians, patients and families. It describes variations in two directions (mania and depression) and of three aspects: mood, activity and thinking.

Bipolar depression:

According to the Mayo Clinic, in the depressive phase, signs and symptoms include: persistent feelings of sadness, anxiety, guilt, anger, isolation and/or hopelessness, disturbances in sleep and appetite, fatigue and loss of interest in daily activities, problems concentrating, irritability, chronic pain without a known cause, recurring thoughts of suicide.

A 2003 study by Robert Hirschfeld, M.D., of the University of Texas Medical Branch, Galveston found bipolar patients fared worse in their depressions than unipolar patients. In terms of disability, lost years of productivity, and potential for suicide, bipolar depression, which is different (in terms of treatment), from unipolar depression, is now recognized as the most insidious aspect of the illness.

Severe depression may be accompanied by symptoms of psychosis. These symptoms include hallucinations (hearing, seeing or otherwise sensing the presence of stimuli that are not there) and delusions (false personal beliefs that are not subject to reason or contradictory evidence and are not explained by a person's cultural concepts). They may also suffer Page 0136 from paranoid thoughts of being persecuted or monitored by some powerful entity such as the government or a hostile force or become paranoid that they'll be abandoned and left by those close to them. Intense and unusual religious beliefs may also be present, such as patients' strong insistence that they have a God-given role to play in the world, a great and historic mission to accomplish, or even that they possess supernatural powers. Delusions in a depression may be far more distressing, sometimes taking the form of intense guilt for supposed wrongs that the patient believes he or she has inflicted on your others. There are a number of conflicting theories on what can be considered the cause of bipolar depression, and what may be a symptom, none of which are yet widely accepted as correct.

It is crucially important to understand that there is no blood test or brain scan that expresses distinctly that this disorder exists.

Diagnosis:

Diagnostic criteria:

Flux is the fundamental nature of bipolar disorder. Both within and between individuals with the illness, energy, mood, thought, sleep, and activity are among the continually changing biological markers of the disorder. The diagnostic subtypes of bipolar disorder are thus static descriptions - snapshots, perhaps - of an illness in continual change. Individuals may stay in one subtype, or change into another, over the course of their illness. The DSMV, to be published in 2011, will likely include further and more accurate sub-typing (Akiskal and Ghaemi, 2006).

There are currently four types of bipolar illness. The DSM-IV-TR details four categories of bipolar disorder, Bipolar I, Bipolar II, Cyclothymia, and Bipolar Disorder NOS (Not Otherwise Specified).

According to the DSM-IV-TR, a diagnosis of Bipolar I disorder requires one or more manic or mixed episodes. A depressive episode is not required for a diagnosis of BP I disorder, although the overwhelming majority of people with BP I suffer from them as well.

Bipolar II, the more common but by no means less severe type of the disorder, is usually characterized by one or more episodes of hypomania and one or more severe depressions. A diagnosis of bipolar II disorder requires only one hypomanic episode. This stipulation is used mainly to differentiate it from unipolar depression. Although a patient may be depressed, it is very important to find out from the patient or the patient's family or friends if hypomania has ever been present, using careful questioning. This, again, avoids the antidepressant problem. Recent screening tools such as the Hypomanic Check List Questionnaire (HCL-32) have been developed to assist the quite often difficult detection of Bipolar II disorders.

A diagnosis of Cyclothymic Disorder requires the presence of numerous hypomanic episodes, intermingled with depressive episodes that do not meet full criteria for major depressive episodes. The main idea here is that there is a low-grade cycling of mood which appears to the observer as a personality trait, but interferes with functioning.

Page 0137 If an individual clearly seems to be suffering from some type of bipolar disorder but does not meet the criteria for one of the subtypes above, he or she receives a diagnosis of Bipolar Disorder NOS (Not Otherwise Specified).

Misdiagnosis:

There are many problems with symptom accuracy, relevance, and reliability in making a diagnosis of bipolar disorder using the DSM-IV-TR. These problems all too often lead to misdiagnosis.

Infact, University of California at San Diego's Hagop Akiskal M.D., believes that the way the bipolar disorders in the DSM are conceptualized and presented routinely lead many primary care doctors and mental health professionals to misdiagnose bipolar patients with unipolar depression, when a careful history from patient, family, and/or friends would yield the correct diagnosis.

If misdiagnosed with depression, patients are usually prescribed antidepressants, and the person with bipolar depression can become agitated, angry, hostile, suicidal, and even homicidal (these are all symptoms of hypomania, mania, and mixed states).

Treatment:

Currently, bipolar disorder cannot be cured, though psychiatrists and psychologists believe that it can be managed.

The emphasis of treatment is on effective management of the long-term course of the illness, which usually involves treatment of emergent symptoms. Treatment methods include pharmacological and psychotherapeutic techniques. Leading bipolar specialist, Gillian Townley, has researched the effect of the Ferret Rabbit process.

Prognosis and the goals of long-term treatment:

A good prognosis results from good treatment which, in turn, results, from an accurate diagnosis. Because bipolar disorder continues to have a high rate of both under-diagnosis and misdiagnosis, it is often difficult for individuals with the illness to receive timely and competent treatment.

Bipolar disorder is a severely disabling medical condition. In fact, it is the 6th leading cause of disability in the world, according to the World Health Organization. However, with appropriate treatment, many individuals with bipolar disorder can live full and satisfying lives. Persons with bipolar disorder are likely to have periods of normal or near normal functioning between episodes.

Ultimately one's prognosis depends on many factors, which are, infact, under the individual's control; the right medicines; the right does of each; a very informed patient; a good working relationship with a competent medical doctor; a competent, supportive and warm therapist; a supportive family or significant other; and a balanced lifestyle including a regulated stress level, regular exercise and regular sleep and wake times.

There are obviously other factors that lead to a good prognosis, as well, such as being very aware of small changes in one's energy, mood, sleep Page 0138 and eating behaviors, as well as having a plan in conjunction with one's doctor for how to manage subtle changes that might indicate the beginning of a mood swing. Some people find that keeping a log of their moods can help them in predicting changes.

The goals of long-term optimal treatment are to help the individual achieve the highest level of functioning while avoiding lapse.

23. The following is a quote from a successfully treated individual with bipolar disorder (from the U.S. National Institute of Mental Health):

Manic-depression distorts moods and thoughts, incites dreadful behaviors, destroys the basis of rational thought, and too often erodes the desire and will to live. It is an illness which is biological yet looks and feels psychological, one that is unique in conferring advantage and pleasure, yet one that brings in its wake almost unendurable suffering and, not infrequently, suicide. I am fortunate that I have not died from my illness, fortunate in having received the best medical care available, and fortunate of having the friends, colleagues, and family that I do.

Bipolar disorder and creativity Bipolar disorder is found in disproportionate numbers in people with creative talent such as artists, musicians, authors, performers, poets and scientists, and some credit the condition for their creativity. Many famous historical figures gifted with creative talents commonly are believed to have been affected by bipolar disorder, and were "diagnosed" after their deaths based on letters, correspondence, contemporaneous accounts, or other material.

It has been speculated that the mechanisms, which cause the disorder may also spur creativity.

Kay Redfield Jamison, who herself has bipolar disorder and is considered a leading expert on the disease, has written several books that explore this idea, including Touched with Fire. Research indicates that while mania may contribute to creativity (See Andreasen, 1988), hypomanic phases experienced in bipolar I, II, and in cyclothymia appear to have the greatest contribution in creativity (See Richarges, 1988). This is perhaps due to the distress and impairment associated with full-blown mania, which may be preceded by symptoms of hypomania (i.e. increased energy, confidence, activity), but soon spirals into a state much too debilitating to allow creative endeavour.

Hypomanic phases of the illness allow for heightened concentration on activities, and the manic phases allow for around-the-clock work with minimal need for sleep.

Another theory is that the rapid thinking associated with mania generates a higher volume of ideas and as well associations drawn between a wide range of seemingly unrelated information.

The increased energy also allows for grater volume of production.

24. The research made and published in the National Institute of Mental Health Publication gives out a positive hope that the bipolar disorder can be treated and people with this illness can lead full and productive lives. People Page 0139 with bipolar disorder can lead healthy and productive lives when the illness was effectively treated. The duration of depressive episode varies but usually lasts for approximately six months if left untreated by medication. The average duration of manic episode is 3-6 months with 95% making a full recovery in time. Recurrence is the rule in bipolar disorders, with up-to 90% relapsing within 10 years. In terms of over all prognosis, 15% completely recover from illness. 50-60% partially recovers and one-third will retain chronic symptoms resulting in social and occupational dysfunction.

25. In the present case, Dr. Janardana Reddy was examined as P.W2. The witness is working as Assistant Professor in Psychiatry in 'Nimhans', Bangalore. Admittedly, he never treated the respondent, but with the help of the hospital records, he would say that respondent, was admitted to the hospital on 1.6.1985 and was discharged on 18.6.1985. At that time, she was diagnosed to be suffering from manic depressive psychosis, which is presently called bipolar disease. He has further stated, that the last time, she came to the hospital was in the year 1988 and at that time, she was symptomatic and she was advised to continue lithium and haloperidol was added. This is what that has been stated in his examination-in-chief. In the cross-examination, he has stated, that on 11.6.1985, there was no perceptual anomalies recorded and on 20.7.1985, there is a note that the patient had passed her PUC and had joined for BA Sociology and that she was free of symptoms completely and again on 20.9.1986, there was no complaints and her biological and social functioning were normal and good, respectively. He has further stated, that on 1.8.1987, there was no further problem and on 9.4.1988, she had no maniac or depressive features. From this evidence, it is therefore, quite clear that immediately prior to the marriage which was solemnised on 8.3.1992, she had not visited the hospital for any treatment. The disease, which she was suffering, had been cured completely.

26. Let us now take the evidence of P.W3- Dr. Nagaraj, who was working as Assistant Psychiatrist in a Private Nursing Home. This Doctor at no point of time, had treated the respondent and it is only by looking into prescription chits, he says, that the respondent was treated in the hospital, where he is presently working for maniac depressive psychosis. Later on, in the examination-in-chief, he has stated, that the disease referred to above is a chronic and can be managed with medication. If the medicines are given, the patient will be alright for 8 to 10 years. Looking to Ex.P4 and Ex.P16, he says, that she is on continuous medication. He has further stated, that even though she was cured to prevent further disorder, she was advised to continue medication, for the reason, if she stops taking medicine, there is risk of relapse. It is therefore, quite clear from his evidence, that she was cured from the disease she was suffering and she was advised to continue to take medicine to prevent further disorder. That only means, that she was hale and healthy much before her marriage, which was solemnised on 8.3.1992. Therefore, there was no reason for the respondent or her parents to inform the petitioner as to any material fact or circumstance concerning the respondent.

Page 0140 Therefore, it cannot be said, that the consent of the petitioner was obtained by fraud as to any material fact or concerning of the respondent, since she was completely cured from the disease that she was suffering much earlier to the marriage which was solemnised in the year 1992.

27. Now let us come to the evidence of petitioner, who has been examined as P.W. 1. In his evidence, except saying, that he saw the respondent behaving in an unusual manner, he would not say anything, which can fit into the description of a person suffering from bipolar disease. He has not stated, that after the marriage, the respondent suffered from relapse of the disease and that necessitated him to take to any hospital or a nursing home. Thus, the evidence of P.W. 1 does not show that the disease for which the respondent had taken treatment had relapsed at any point of time after his marriage with the respondent.

28. Therefore, considering the evidence on record and particularly, the testimony of the two Doctors, who had been examined as P.W. 2 and P.W.3, we have no hesitation in holding, that the respondent/wife had been treated for bipolar disease and she was completely cured of the same much earlier to the marriage solemnised between the petitioner and the respondent. We are therefore, of the opinion, that non-disclosure or concealment of a disease which was cured much earlier to the marriage does not amount to fraud within the meaning of the word used in Section 12(1)(c) of the Hindu Marriage Act, 1955. Therefore, the learned trial Judge was not justified in coming to the conclusion that the petitioner consent had been obtained by fraud to any material fact or circumstance concerning the respondent/wife and therefore, entitled to a decree of nullity of marriage solemnised with the respondent.

29. In the result, the following:

Order I. MFA No. 1797/2000 is allowed.

II. The judgment and decree passed by the learned Family Court Judge in M.C.No. 5/1996 dated 23.2.2000 is set aside.

III. Consequently, MFA Nos. 1798/2000 and 1799/2000 are also allowed.

IV. The judgment and decree passed by the learned Family Court Judge in MC.No. 17/1996 and G & WC No. 2/1998 dated 23.2.2000 are set aside.

V. The matter is remanded back to the trial Court with a direction to decide the petitions filed by the appellant/wife, i.e. M.C.No. 17/1996 and G & WC No. 2/1998 on merits after affording sufficient opportunity of hearing to both the parties.

VI. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.