Ajitrai Shivprasad Mehta vs Bai Vasumati on 20 June, 1967

    Ajitrai Shivprasad Mehta vs Bai Vasumati on 20/6/1967

JUDGMENT

   J.B. Mehta, J.

   1. The petitioner husband has filed this appeal under the Hindu Marriage Act,
1955, hereinafter referred to as "the Act", as his original petition for
obtaining decree of the nullity of his marriage or for divorce had been
dismissed by trial Court.

   2. The short facts which have given rise to this appeal are as under :--

   3. The petitioner and the respondent are Brahmins by caste. The petitioner is
deaf and dumb from the birth. The petitioner's father originally resided at
Umreth, while the original place of residence of the respondent is Vaso. But the
parents of both parties had been residing at Ahmedabad since many years.
According to the petitioner he was married to the respondent at Vaso on 15th
April 1954 according to the religious rites and as per the custom of the
community. It is the petitioner's case that he relied upon the representations
made by the respondent's father to the petitioner's father. After the marriage
the respondent came to reside with the petitioner when he found that her mental
condition was defective and she was insane and did not know how to lead a
married life with the petitioner. These facts were not known to the petitioner
at the time of the marriage and so, the petitioner contended that as the
respondent's mental condition was incurable, he was entitled to a decree of
nullity of his marriage or in the alternative to a decree of divorce. After the
exchange of notices the petitioner has filed the present petition for the
aforesaid reliefs. By her written statement, Ex. 24, the respondent denied that
the marriage which was legally performed was on the mere representations of her
father. The respondent averred that a writing Ex. 93 had been prepared as per
the custom of the community at the time of the engagement and the petitioner and
his parents and others had seen the respondent, talked with her and given
approval to the engagement. There was also another ceremony known as Kunvaro
Mandvo and thus the petitioner and his parents had ample opportunities of seeing
her and talking to her and observing her. The case of the respondent was that
while she stayed with the petitioner, the petitioner and his parents used to
taunt her as she did not bear a child even after long time after the marriage
and they did not keep her and this petition was filed only to get a divorce so
that the petitioner could marry again. The respondent denied that she was
mentally defective. The trial Court held that the petitioner had failed to
establish that the respondent was an idiot or lunatic at the time of the
marriage or that her mental condition had not been disclosed at the time of the
marriage. The learned Judge further held that the petitioner had further failed
to establish that the respondent was of an unsound mind for the relevant period
or that the said mental condition was incurable. Finally, the learned trial
Judge held that the petitioner was guilty of delay and even if he had
established the ground there was no case for granting the relief. Accordingly,
the petition was dismissed. The petitioner has filed the present appeal.

   4. At the hearing Mr. Vakil raised two points:--

     (1) That the expression "unsoundness of mind" had a wider connotation and
would include even a person like the respondent who was a mentally defective and
whose defect was congenital;

     (2) On the facts of the case the learned Judge ought to have held that the
respondent was of incurably unsound mind and should have passed a decree for
divorce

   5. In order to appreciate the first contention of Mr. Vakil, it would be
proper to consider the scheme of the relevant sections of the Act. Section 5
provides for conditions for a Hindu marriage and Section 5(ii) provides that a
marriage may be solemnized between two Hindus, if the following condition is
fulfilled: Viz., "neither party is an idiot or a lunatic at the time of the
marriage." Section 10(1)(e) provides for a decree for judicial separation, if
either party to a marriage had been continuously of unsound mind for a period of
not less than two years immediately preceding the presentation of the petition.
Section 12(1)(b), however, provides that any marriage solemnized, whether before
or after the commencement of the Act, shall be voidable and may be annulled by a
decree of nullity on the ground that the marriage was in contravention of the
conditions specified in Clause (ii) of Section

   5. Section 13(1)(iii) then provides that a marriage solemnised, whether
before or after the Act, could, on a petition presented by the spouse, be
dissolved by a decree of divorce on the ground that the other spouse "has been
incurably of unsound mind for a continuous period of not less than three years
immediately preceding the presentation of the petition". From this scheme it is
clear that if the condition in Section 5(ii) is not fulfilled the marriage is
not a void marriage as provided in Section 11, but a voidable marriage, under
Section 12, which can be annulled by a decree of nullity on the ground that the
other party was an idiot or lunatic at the time of the marriage. This type of
mental defect which could be called "idiocy or lunacy", if it existed at the
time of the marriage, would enable the party to avoid the marriage because under
Section 5(ii) this is one of the necessary conditions, the non-fulfilment of
which makes the Hindu marriage voidable. On the other hand Sections 10 and 13
which deal with the judicial separation and divorce provide for the ground of
unsoundness of mind either for two years or three years, but the real difference
in the two classes is that for a judicial separation mere unsoundness of mind
for the relevant period is a ground, while for divorce such unsoundness of mind
for the relevant period is to be further proved to be incurable. The mental
infirmity which the legislature has considered as adequate to be made a ground
for avoiding the marriage and getting a decree of nullity is one which amounts
to "idiocy or lunacy" and it must exist at the time of marriage while as a
ground of divorce it must be proved that the concerned spouse was for the
relevant period specified in Section 13(1)(iii) of "incurably unsound mind." We
must, therefore, consider the import of these three relevant expressions,
"idiot", "lunatic" and a person oil "incurably unsound mind" in the context of
the aforesaid scheme of the Act.

   6. In Titli v. Alfred Robert Jones, ILR 56 All 428 = (AIR 1934 All 273), the
Division Bench consisting of Sir Sulaiman C. J. and Mukherjea J. had to consider
the difference between medical and legal definitions of insanity in the context
of a similar legislation viz., Section 19(3) of the Indian Divorce Act, 1869,
which provided for a decree of nullity of marriage on the ground of the other
spouse being 'an idiot or a lunatic". It was found that the person concerned in
that case could read and take pleasure in reading, could write and could draft a
letter for himself, could ride, shoot and fish, that he gave intelligent answers
to questions put to him by the Court; that he himself went to the priest and
arranged for his marriage; that he knew that by the marriage he would be making
the woman his wife. It was held that he was fully able to understand the nature
and consequences of his marriage and was not an "idiot" within the meaning of
Section 19(3) of the Indian Divorce Act, 1869. The Division Bench held that even
though the term "idiot" had not been defined in the Divorce Act, 1869, or in any
other Indian Act, but undoubtedly idiocy was a form of congenital insanity, due
to the absence of development of the mental faculties and intelligence from very
childhood. It was also held that the only standard and test of insanity laid
down by the law was, according to Section 84 of the Indian Penal Code, whether
the person was by reason of unsoundness of mind incapable of knowing the nature
and quality of the act, or that the act was wrong or contrary to law. Their
Lordships also accepted for guidance the definition of the word, "idiots" in
England in the Mental Deficiency Act, 1913, as being persons so deeply defective
in mind from birth, or from an early age, as to be unable to guard themselves
against common physical dangers. The definition distinguished idiots as being a
more aggravated type of defectives than imbeciles or feeble minded persons and
the said distinction was found to be in perfect accord with medical books of the
highest authority. In the case of an idiot there was dementia naturalis or
complete amentia, while in the case of imbecility or partial amentia there was
not that marked want of development of the centres of sensorial perception which
was present in idiocy- An imbecile has rudimentary intelligence, whereas a
feeble minded person has a yet larger amount of intelligence. At page 451
Mukherjea J. observed that the meaning of that terra "idiot", according to
Murray's English Dictionary, was stated to be a "person So deficient in mental
or intellectual faculty as to be incapable of ordinary acts of reasoning or
rational conduct." At page 460 Sulaiman C. J. also held that one could not be an
idiot unless his faculties had not at all been developed and he had not acquired
any appreciable intelligence. The learned Chief Justice considered the
definition of an insane person i.e. a man of unsound mind and observed that
there had been difference between the points of view between a medical man and a
lawyer on the question of insanity. At p. 457 (of ILR All) = (at p. 282 of AIR)
Sir Sulaiman C. J. further pointed out that there were many persons who would be
considered insane by medical men who did not come upto the standard of insanity
as prescribed by law. The medical science had a long category of various degrees
of abnormality which were thought to be insanity, including idiocy, imbecility,
feeble mindedness. subjectivity to stupor, exaltations, delusions, impulses etc.
Indeed, abnormality in one form or another was considered according to medical
books as a species of insanity, but that was not the legal view. In law it was a
very high standard and the only test which had been laid down was as to whether
the person by reason of unsoundness of mind is incapable of knowing the nature
of the act. or that he was doing what was either wrong or contrary to law. "In
this Section 84 of the Indian Penal Code the definition was borrowed from the
opinions of the fifteen Judges in Danial McNaghten's case. (1843-10 Cl. & F 200)
in AIR 1932 All 233, who unanimously laid down that, "to establish a defence on
the ground of insanity, it must be clearly proved that at the time of committing
the act the party accused was labouring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of the act he was
doing, or if he did know it he did not know he was doing what was wrong." At
pages 461 to 462 (of ILR All) = (at p. 284 of AIR) the learned Chief Justice,
therefore, concluded that a medical man's conception of an insane, a lunatic or
an idiot was utterly different from the legal conception. The medical opinion
that a person was an idiot because by the mere deficiency in reasoning power he
was unable to manage his affairs was useless in the inquiry as to whether the
person Was an idiot in the eye of law. The test which was applied by the
Division Bench was that a person who was capable of understanding what marriage
was and its consequences could not be held to be an idiot or a lunatic at the
time of the marriage. (See at page 453 (of ILR All) = (at P. 281 of AIR)
Mukherjea J. and at pp. 463-465 (of ILR All) = (at pp. 285-286 of AIR) Sir
Sulaiman C. J.) The learned Chief Justice also found the following passage
quoted at pp. 466-67 (of ILR All) = (at P. 286 of AIR) from the case of Harrod
v. Harrod, (1854) 1 K. & J. 4 very instructive. At p. 8, the Vice-Chancellor
explained the two species of unsoundness of mind as follows:

     "Unsoundness of mind may be occasioned either by perversion of intellect,
manifesting itself in delusions, antipathies, or the like; or it may arise from
a defect of the mind. There is no allegation here of anything like a perversion
of the mind, or what is more properly called mania. With respect to defects of
the mind, they are of two kinds: The mind may be originally so deficient as to
be incapable of directing the person in any matter which requires thought or
judgment, which is ordinarily called idiocy or the defect may arise from the
weakening of a mind, originally strong by disease or some accident of a physical
nature, by which memory is lost and the faculties are paralysed, although there
is no perversion of the mind, nor any species of that insanity which is
ordinarily called mania". The defendant in that case had tried to put forward a
case of simple idiocy invalidating the marriage of a lady, who was shown to have
been deaf and dumb and of extremely dull intellect. Other people could not make
her comprehend anything. She had never been taught to talk with fingers, nor
could she read or write; her mother never allowed her to leave the house alone;
she was also unable to tell the value of money and she did not know how to give
change. The Vice-Chancellor held at page 8: "It is clearly the law that the
presumption is always in favour of sanity, and there is no exception to this
rule in the case of a deaf and dumb person; but the onus of proving the
unsoundness of mind of such a person must rest on those who dispute her sanity".
Even on the evidence for the defence alone he remarked that he should not have
been disposed to direct an issue on the question. At page 14 the learned Vice-
Chancellor observed

     "I am, therefore, of opinion that there is nothing in this case to show
that the plaintiff's mother was of unsound mind and as no case of fraud is
alleged there is nothing more to be done". In the result he held that her
marriage was not invalid.

     The aforesaid decision concisely explains the various terms with which we
have to deal with and brings out the subtle distinction between the medical and
legal view on the question of insanity. In the case of idiocy, the insanity is
congenital and incurable and the mind is originally so defective as to be
incapable of directing the person in any matter which requires thought or
judgment or in other words, there is such a complete state of amentia from birth
or early childhood, that the person is almost without any glimmering of reason
at all. On the other hand, in case of lunacy or insanity or unsoundness of mind
such mental defect arises from the weakening of the mind, originally strong, by
reason of some disease, accident or other such cause resulting in some mental
illness by which memory, reason or understanding is lost and the faculties are
so paralysed. The distinction between the species of that insanity known as
lunacy or mania and mere unsoundness of mind is in the fact whether there is
perversion of mind or depravity of reason or only a want of it. The passage in
Stroud's Judicial Dictionary at page 2141 clearly brings out this distinction in
the following terms:

     " 'Unsound mind' which all persons must understand to be a Depravity of
Reason, or want of it. Mere eccentricity is not such an unsoundness of mind as
will amount to testamentary incapacity. There is an important difference between
'Unsoundness of Mind' and 'Dullness of Intellect' ..... Unsoundness of mind may
arise from perversion of the mental powers, and may exhibit itself by means of
delusions or strong antipathies, which is called 'Mania'; or it may arise from
what may be termed as detect of mind, as where the mind was originally incapable
of directing itself to anything requiring judgment which is 'idiocy' or where a
mind, originally strong, has become weakened by illness or age though producing
no such insanity as to amount to Mania."

   In all these three cases whether of congenital insanity, lunacy or
unsoundness of mind, the mental infirmity satisfies the test of legal insanity
only when it is to such a degree that a person is unable to understand the
nature and consequences of his acts and would, therefore, be considered not
responsible for his acts or his acts in the eye of law could not be regarded as
his acts at all, Mr. Vakil, however, argued that, "unsoundness of mind" would
differ in its import in the context of each legislation. The aforesaid tests
evolved in Daniel McNaghten's case, (1843-10 Cl. & F 200) and embodied in
Section 84 of the Indian Penal Code might be appropriate in fastening criminal
responsibility upon a person in cases where mens rea was a necessary ingredient
of the offence, but they would not be appropriate while considering the
unsoundness of mind as a ground of divorce. Mr. Vakil also pointed out that
under Section 12 of the Indian Contract Act, the expression "unsoundness of
mind" was used in the context of consent being given for entering into a valid
contract where a person must understand and form a rational judgment as to its
effect before entering into such a contract.

   Mr. Vakil further argued that in a matrimonial legislation the term
"unsoundness of mind" should be widely interpreted, especially when the
Legislature had purposely used a different phraseology in Section 13(1) when
mental infirmity was considered as a ground of dissolution of marriage as
distinguished from the mental defect contemplated in Section 5(ii) when it was
considered as in the context a necessary condition for the marriage and which
made it voidable under Section 12(1)(b), in which case, it must be such a grave
mental disorder which must be of the nature of "idiocy or lunacy". Mr. Vakil in
this connection vehemently relied upon the decision of Phillimore J. in Whysall
v. Whysall, 1959 (3) All ER 389, where the learned Judge had interpreted the
expression "incurably of unsound mind" in a similar matrimonial legislation in
England. On parity of reasoning Mr. Vakil argued that we should include even
feeble-minded persons and even persons of dull intellect who would not be able
to lead a full matrimonial life as rational persons duly appreciating the
marital obligations and rationally controlling their affairs in the society and
in married life. It would be futile to continue such an unhappy marriage tie.

   7. There is much force in Mr. Vakil's contention that McNaughton Rules could
not be strictly applied in civil cases and especially in a matrimonial
legislation as their strict application would lead to absurd results, and as in
civil cases they could not be applied in the same way. The first limb of the
rules may afford a good test, but as far as the second limb is considered, it is
interpreted in criminal law so that "wrong" means contrary to law and not as
morally wrong. (See, Section 84 I. P. C.) Obviously, this meaning cannot be
applied to divorce cases. To pay no heed to the consequences of insanity other
than that of knowing what one is doing would be to introduce an unjustifiable
distinction. There would be neither reason nor logic in making any distinction
between these two types of persons who are in fact equally irresponsible so as
to permit one to be divorced while not the other, on the ground that his type of
insanity does not fall within the strict rigour of those rules. When insanity
deprives a man completely of choice or responsibility or volition or even moral
judgment so that a man's acts are not his acts, we must hold that the insanity
is of that degree which must be considered as sufficient. Therefore, these Mc-
Naughton Rules or their equivalent can be safely accepted as working rules
without necessarily picking any one of them to the exclusion of others. That is
what is done by the Division Bench in the aforesaid decision of ILR 56 All 428 =
(AIR 1934 All 273) when the Legislature intended that if the mental infirmity,
short of idiocy or lunacy, should not be a ground on which a marriage could be
avoided or in other words, if such a person, whose mental defect did not reach
this serious state of insanity known as idiocy or lunacy, could enter into a
valid marriage tie, it would be absurd to hold that on the very same ground of
mental defect which existed at the time of such marriage, it would be open to
dissolve the marriage tie by giving such a wide interpretation to the term
"unsoundness of mind" in Section 13(1)(ii), Feeble-minded persons or persons of
dull intellect in whose cases mental infirmity is not of such a grave mental
disorder as to make them incapable of knowing the nature and consequences of
their acts or, in other words, who can understand what marriage is as well as
the consequences of a marriage tie cannot be considered as persons of "unsound
mind" in the legal sense as contemplated in Section 13(i)(iii). We also do not
agree with Mr. Vakil that Phillimore J. has laid down any different test in
1959(3) All ER 389. In fact the learned Judge at page 395 observes that in the
context of the matrimonial legislation and bearing in mind the definitions
afforded by the Oxford Dictionary, the phrase "unsound mind" must have been
intended to describe a state of mind variously called unsoundness of mind or
insanity and no distinction was meant between the two phrases. At page 396 also
the learned Judge observes that the practical test of the degree of the
unsoundness of mind or incapacity of mind required for such insanity must be
found in the definition of a lunatic in Section 90 of the Lunacy Act, 1890, as a
person, "incapable of managing himself and his affairs, provided it was
remembered that "affairs" include the problems of society and of married life
and the test of ability to manage affairs was that to be required of the
reasonable men. Therefore, the learned Judge evolved this test only in the
context of legal insanity alone when it reached that high standard which was
required in law and did not intend to cover all kinds of mental abnormalities or
deficiencies as contended by Mr. Vakil. At page 396 the learned Judge considered
the meaning of the term "incurably". At page 397 he finally held that in decid-
ing whether a person "is incurably of unsound mind", the test to be applied is
whether by reason of his mental condition he is capable of managing himself and
the affairs and, if not, whether he can hope to be restored to a state in which
he will be able to do so. Of course he added the rider that the capacity to be
required was that of a reasonable person. This test, therefore, really proceeds
on the footing that the person is insane. A mere mental defective, whose state
of mind being congenital would be incurable would not satisfy this test of
insanity as in spite of arrested or incomplete development of his mind he would
be able to understand the nature and consequences of his acts and there would be
no justification to dissolve the marriage tie. We therefore, do not agree with
Mr. Vakil that the expression "incurably of unsound mind" should be so widely
interpreted as to cover such feeble-minded persons or persons of dull intellect
who understand the nature and consequences of their acts and are able,
therefore, to control themselves and their affairs and their reactions in the
normal way.

   8. Now coming to the facts of the present case, Mr. Vakil frankly conceded
that he cannot bring the present case under Section 12 read with Section 5(ii)
as the respondent could not be considered as an idiot or as a lunatic. The
respondent did not suffer from such mental infirmity as would make her an idiot
or a lunatic. The only evidence which was relied upon by the petitioner in this
connection was of the priest Motilal, Ex. 96, who stated that at the time of her
marriage the respondent was not by herself able to perform certain ceremonies
and that she had to be helped by another girl Saroj who was sitting by her to
per-form those ceremonies. In cross-examination he had to admit that even
educated persons might commit mistakes in performance of the ceremonies which
they corrected on being explained and that in his experience some women had to
be given instructions in greater detail than others. The petitioner has also
relied upon the maternal uncle Hiralal Dave, Ex. 98, who supported the story of
the priest that the respondent was not able to follow instructions at the time
of the marriage ceremony. But in cross-examination he had to admit that though
he was present near the place where the marriage ceremony had taken place and
had seen the girl at the time, he had not felt that the respondent had any
mental defect. The respondent and her witness Sarojben, Ex. 106, have
emphatically denied this allegation. Even at best the allegation only goes to
show that the respondent had to be explained properly in order to enable her to
partake in the various ceremonies at the time of the marriage. This would not be
any evidence of a mental defect in the petitioner which made her completely
unable to understand the marriage ceremony or the import of marriage. The
respondent had Riven evidence and the learned trial Judge had made a note how
she stood the test of a searching cross-examination. She merely did not
understand complicated questions but she gave all proper replies to simple
questions. Mr. Vakil, therefore, rightly did not rely upon this ground under
Section 12 for a decree of nullity as a condition under Section 5(ii) was not
fulfilled by the respondent as the alleged mental infirmity in her case was
completely short of idiocy or lunacy.

   9. Mr. Vakil, however, strongly relied upon certain other symptoms from which
he wanted me to infer the petitioner's unsoundness of mind in the context of the
aforesaid Phillimore J.'s test. Mr. Vakil argued that it was seen on the
petitioner's evidence that the respondent was incapable by herself of managing
herself and her affairs, including problems of society and of marriage life,
judged by the ability of a reasonable person to manage such affairs, and such
incapacity in her case being congenital, was necessarily permanent and
incurable. Mr. Vakil in this connection strongly relied upon the evidence of Dr.
Rahimutullakhan Ahmedullakhan Hakim, Ex. 101, who is an M.B.B.S. Psychiatrist at
the Civil Hospital and B. J. Medical College and an Honorary Consultant at the
Mental Hospital. The doctor admitted that he had only once examined the patient
and that too without any clinical examination. The doctor has opined and given
certificate Ex. 102. He stated that in his opinion the patient was suffering
from mental deficiency by birth and this deficiency which he found in her was
not curable. She was a low grade moron. She would not be in a position to carry
out usual household duties. It is well settled, that an expert opinion would be
useful only when the expert gives grounds on which he holds such opinion. The
doctor has admitted that while the patient would be clinically examined past
history of the patient would be taken into consideration for coming to the
conclusion and if the past history was not correctly given there was a
likelihood of arriving at an incorrect decision, and that without a clinical
examination there would be a difference in the conclusion in the degree of
mental deficiency. The doctor further stated that over and above the past
history the doctor must ask questions to formulate the decision and that in such
personal examination if the patient was nervous or shy, she might give incorrect
answers. In fact, he stated that he would definitely like to see the patient
again to confirm the diagnosis. Mr. Vakil was unable to point out from this
whole evidence of Dr. Rahimtullakhan as to what was the previous history given
or as to what were the questions and answers which led him to the present
conclusion. In absence of such data or grounds of opinion the expert opinion
would be practically useless for our purpose. As Mukerjee J. pointed out in ILR
56 All 428(450) = (AIR 1934 All 273 at p. 280) the opinion of such an expert
would carry very little weight unless it was supported by a clear statement of
what the doctor noticed and on what he based his opinion. The expert should, if
he expected his opinion to be accepted, put before the Court all the materials
which induced him to come to his conclusion so that the Court, although not an
expert, may form its own judgment on these materials. In fact to the Court
question the doctor had stated that in his opinion he could not call a person
"moron low" to be an idiot Idiocy was mental deficiency of the lowest grade.
Thereafter, in answer to the questions by the petitioner's advocate the doctor
explained the difference between an idiot and a lunatic and he said that he
would call a person an idiot who could not realise danger and would not be able
to speak even or carry out all the routine habits of a human being. In fact the
doctor's opinion of an idiot could not differ from the accepted sense of the
term "idiot" where there must be complete absence of reason or judgment and the
doctor rightly stated that he did not consider the petitioner idiot. Similarly,
the doctor stated that the petitioner could not be considered a lunatic. In fact
what is material for our purpose is lunacy as understood in the legal sense and
not in the medical sense. We have mentioned this evidence of Dr. Rahimutullakhan
only for showing that there was nothing in his entire evidence which would
establish idiocy, lunacy or unsoundness of mind of the respondent. The opinion
of the doctor that the respondent could not carry out usual household duties
would be merely ipse dixit of the doctor unsupported by any reason or ground or
data. Therefore, this evidence could not help the plaintiff.

   10. Mr. Vakil next relied upon the fact that from the evidence of the
petitioner's witnesses it was clear that:

     (1) the respondent did not know how to dress her clothes and she kept the
buttons of her blouse open as stated by the petitioner in his evidence, Ex. 54;

     (2) that though she was Brahmin she did not take bath daily;

     (3) that she did not distinguish between cereals and vegetables as she had
stated that she did not know what use may be made of Mug and that Chola was
cooked after putting into water and that it was not eaten, but applied on the
head;

     (4) that she had no control over her nature discharges as she passed urine
and stools even in the kitchen;

     (5) that she did not recognise the person and did not give welcome to the
visit and she had no sense and recollection of places, roads, neighbours etc.,
or

     (6) she required to be helped.

   Mr. Vakil relied upon these symptoms as having been established by the
evidence of the various witnesses of the petitioner. It is true as the learned
Judge himself has noted the demeanour of the respondent that the respondent is
slow of understanding complicated questions and she was not able to answer some
questions and some answers were not quite correct. But she was sub-normal in her
mental capacity and she was able to give relevant answers to simple questions
and the learned Judge has rightly stated that the respondent had stood the test
of a searching cross-examination. Merely because she has a weak memory of the
roads and places or names of relatives, it would not make her a person of
unsound mind. As regards her absence of control over urine and stools, it is
only (Sumanben?), Ex. 99 who had stated that she was passing stools and urine in
the kitchen but no such suggestion was made to the respondent. The only
suggestion to her was that she spoiled her clothes by passing urine or stools
and she had denied the same. The learned Judge has rightly not believed this
story which was practically not conveyed to anyone else by Sumanben and was not
even put up to the respondent. Merely because she did not take bath daily it
could not be said that she did not know how to take bath. In fact, in cross-
examination of the respondent the petitioner had gone to the extent of
suggesting that the bath was given to her by her mother-in-law, which was not
even the story of Sumanben, the stepmother Ex. 99. Similarly, a vague suggestion
was sought to be made to the respondent that she did not know how to comb her
hair and that her mother used to comb her hair. Merely because some buttons of
the blouse might have been seen open by the petitioner it is too much for Mr.
Vakil to argue that the respondent did not know how to dress. Besides even the
petitioner himself had to admit that the respondent did cooking even though his
mother denied the same. It may be that bread prepared by her may not be to the
satisfaction of the petitioner or his family. Even as regards welcome offered to
the guests or talks with them, it would also depend on the coldness with which
the guests even might treat such a person, who at best can be said to be of a
dull intellect or a feeble minded person. Therefore, the entire evidence makes
it very clear that the respondent is able to manage herself and all her affairs
in her! own simple way and she would be able to cope with the obligations of a
marital life. Even if on some occasions, she needed better instructions or
advice, she was able to look after herself and her affairs all alone and is not
even seriously sub-normal as it is sought to be suggested by Mr. Vakil.
Therefore, in any event, in the present case, the mental defect is not of such a
degree or extent which makes the respondent incapable of managing her self and
her affairs and even on the practical test adopted by Phillimore J., on which
Mr. Vakil strongly relied upon the respondent would not be a person of unsound
mind. When this ground of unsoundness of mind is relied upon, as a ground for
dissolution of marriage or for avoiding the marriage, the said ground must be
proved by cogent and clear evidence beyond reasonable doubt so as to satisfy the
Court. There is not an iota of evidence, however, in the present case, for
establishing the ground of unsoundness of mind or of idiocy or lunacy and the
petitioner was not, therefore, entitled to any relief under Section 12 or
Section 13 of the Act.

   11. In this view of the matter it is not necessary for me to consider whether
the alleged mental defect was proved to be congenital incurable and whether the
petitioner was disentitled to any relief because of any delay.

   12. In the result, this appeal must fail and is dismissed with costs.