Om Prakash Gupta vs Puspa Kumari on 28 October, 1969

    Om Prakash Gupta vs Puspa Kumari on 28/10/1969

JUDGMENT

   V.S. Deshpande, J.

   (1) What is the meaning of "an idiot" in section 5(ii) of the Hindu Marriage
Act, 1955 (hereinafter called the Act) and how to determine whether a person is
such an idito on the medical and other evidence in this case-are the two
important questions for decision in this appeal by the husband whose petition
under section 12(1)(b) of the Act for a decree of nullity against the respondent
wife has been dismissed by the learned lower Court on the ground that the
husband has failed to prove that wife, at the time of the marriage, was "an
idiot".

   (2) The two provisions of the Act to be considered are : Section 5(ii) :

     "Amarriage may be solemnized between any two Hindus, if the following
conditions are fulfillled, namely :

     (I)..

     (II)neither party is an idito or a lunatic at the time of the marriage."

   AND section 12(1) (b) :

     12.(1) Any marriage solemnized, whether before or after the commencement of
this Act, shall be voidable and may be annulled by a decree of nullity on any of
the following grounds, namely :

     (a)..

     (B)That the marriage is in contravention of the condition sepeified in
clause (ii) of section 5."

   (3) The key to the interpretation of Sections 5(ii) and 12(1)(b) will be
found in the long title of the Act which is as follows :

     "ANAct to amend and codify the law relating to marriage among Hindus".

   (4) The Act thus partly embodies the existing Hindu Law and partly amends it.
In 1955, the Legislature, therefore, in making this Act, drew upon two distinct
sources, namely :

     (A)the then existing Hindu Law and

     (B)the English Common Law as modified by statutes.

   (5) The concept of idiocy and/or lunacy as a ground of incapacity was nto
unknown to Hindu Law. Idiocy was a ground of disqualification of a person from
inheritance. In R. Muthammal v. S. Devasthanam (1) paragraphs 9 and 10, one
Ramasami Pillai was held to be insane being a "gloomy and sickly person with a
vacant look" and unable to answer "even the simple question about his name. On
the evidence, the attempted distinction between a lunatic and a person of week
intellect could nto be sustained in that case. The Supreme Court apparently
based its finding of lunacy on the complete loss of reason and intellect.

   (6) Persons of unsound mind, i.e. idiots and lunatics, though disqualified
for civil purposes generally, were nto declared incompetant to marry under the
ancident Hindu Law. But such marriages were reprehensible. The late Sir Gurudas
Banerjee in his Tagore Law Lectures on Marriage and Stridhan, therefore,
expressed the view that "an idito and a lunatic being, where the loss of reason
is complete, incompetent to accept the gift of the bride which is a necessary
part of the ceremony of marriage, it is nto easy to understand how their
marriage in such cases can be regarded as marriage at all". (Fifth Edition, page
41). In Mouji Lal v. Chandrabati Kumari (2), the Privy Council did nto consider
the question whether unsoundness of mind could in any circumstances, invalidate
a Hindu marriage. Acting, however, on the hypothesis that it might, they pointed
out that the degree of unsoundness would always have to be considered and in the
particular cases berore them the man whose marriage was in question was nto so
insane that he could nto understand the ceremonies of the marriage and,
therefore, that particular marriage was nto invalid. The observations of the
Privy Council were followed and Gurudas Banerjee's view cited above was approved
by the Federal Court in R. N. Singh v. Bhagwati Saran Singh (3) paragraphs 94
and 153 to 155. The following observation of B. K. Mukherjee J. is particularly
instructive :

     "THEREare undoubtedly various degrees of insanity and the fact that a man
has been adjudicated a lunatic may mean and imply that he is nto competent to
manage his own affairs, but it does nto necessarily show that he suffers from
complete mental aberration. He may have sufficient amount of reason still left
in him which would enable him to understand the ceremonies of marriage".

   (7) There is a presumption that the Legislature does nto intend to change the
law unless a statute clearly says so. It would be fair, therefore, to conclude
that the words "idiot" and "lunatic" in section 5(ii) of the Act were used to
indicate the total loss of reason or the last degree of mental disorder which
alone would incapacitate a person from marriage inasmuch as this was the state
of Hindu Law in 1955 when the Act came on the statute book.

   (8) The concept of nullity of marriage was unknown to Hindu Law before the
amendment made by sections 11 and 12 read with section 5 of the Act. Section 19
of the Indian Divorce Act, 1869, however, already existed on the Indian statute
book outside the Hindu Law. It was in pari materia to sections 11 and 12 read

   (9) In its turn section 19 of the Indian Divorce Act, 1869, derived the
meaning of the word "idiot" from the English Common Law on which it was based.
As shown by section 22 of the Matrimonial Causes Act, 1857, the' Courts were to
give relief of nullity of marriage on the same principles and rules on which the
Ecclesiastical Court had done so before. Historically and prior to the
Reformation, marriage in England was also regarded by the Church as a sacrament
which could nto be dissolved by a decree of divorce avinculo mafrimonii. This
doctrine of indissolubility came to be evaded in course of time by the evolution
of decree annulling the marriage on the ground that due to the lack of certain
essential conditions, the marriage itself could nto be validly performed. One
such condition was the mental capacity of a party to the marriage. When a party
was unable to consent to the marriage because of mental incapacity, there could
be no marriage at all and the marriage which might have been gone through was
void ipso jure. In Durham (5) , Sir James Hannen (President) said that the
contract of marriage is a very simple one which does nto require a high degree
of intelligence to comprehend." In Marrod v. Harrod (6) a dumb and deaf lady of
extremely dull intellect who could nto comprehend anything, could nto read or
write, was never allowed to leave her home alone and Was unable to tell the
value of money or how to give change, was still held to be capable of marriage.
In Park v. Park (7) upheld in appeal in 1954 Probate Division 112, the marriage
of a 78 year old man was held to be vaild though his mind had been found to be
impaired after a stroke and hardening of the arteries and was incapable of full
recovery, but was capable of understanding what marriage was.

   (10) The definition of "an idiot" given in Stroud's Judicial Dictionary,
Third Edition, Volume 2, page 1357, based on old decisions is as follows :

     "IDIOT"is he that is a focl natural from his birth, and knoweth nto how to
account or number twenty pence, or cannto name his father or mother, nor of what
age himself is, or such like easie and common matters".

     "IDIOTS"were defined in the Menial Deficiency Act, 1913 as "persons so
defective in mind from birth or from an early age as to be unabie to guard
themselves against common physical dangers". Under the Marriage of Lunatics Act,
1811, a person who has been found to be of insane mind by inquisition was
disqualified from marriage. But a person nto so found by inquisition was nto
disqualified if at the time of the marriage he or she was capable of
understanding the nature of the contract and the duties and responsibilities
thereby created, and was free from the influence of insane delusions on the
subject. (19, Halsbury's Laws of England 780, para 1250, Rayden on Divorce,
Tenth Edition 101 and Tolstoy on the law and Practice of Divorce, Fifth Edition
109).

   (11) It is clear from the above decisions that a very low degree of intellect
did nto by itself amount to idiocy under the Common Law prior to the enactment
of section 19 of the Indian Divorce Act, 1869. There is thus a continuity of
meaning given to the word "idiot" in the Common Law, in section 19 of the Indian
Divorce Act. 1869, and in section 5(ii) of the Act. This meaning also accords
with the sense in which the word "idiot" was understood in the Hindu Law. The
conclusion is, therefore, irresistable that the word "idiot" was used by the
Legislature with the same meaning in the Act.

   (12) The evidence of "idiocy" in the present case consists of three types,
namely :

     (1)the depositions of the husband and his witnesses countered by the
depositions of the witnesses examined on behalf of the wife;

     (2)the medical evidence of Dr. S. Dutta Ray and

     (3)the evidence given by the wife herself in the witnessbox on 6-3-1961,
13-2-1962, 9-5-1962 and 10-5-62 before the learned lower Court who had the
opportunity to observe whether the wife was rational in her conduct in the Court
and in answering the questions put to her.

   (13) Little importance can be attached to the general evidence of witnesses
given on either side. Firstly, they are biased in favor of the party for whom
they are deposing. Secondly, these witnesses are nto aware of the correct stand-
point by which idiocy or otherwise of the wife has to bejudged.

   (14) This is why the medical evidence in such a case ought to be of central
importance. A medical witness must, however, remember that the law does nto
presume to define idiocy or lunacy. That is accepted as a medical question. But
it is for the law to consider what are the conditions which have to be satisfied
in order that a person may be regarded as having a capacity to marry. The
division of functions between law and medicine is somewhat as follows :

     THEmedical witness must confine himself to the elucidation of the facts for
the guidance of the Court.

   (15) The interpretation of the law rests with the Court.

   (16) It is no function of the medical expert to argue against the law as it
stands however stong he may feel against it. The medical evidence, therefore,
must give with integrity and objectivity the state of mind of the person alleged
to be idito while it is finally for the Court to decide the degree of the
impairment of the mind arising there from. The question whether the person
alleged to be an idito had the capacity to enter in to a valid marriage after
understanding what marriage meant is for the Court to decide. Fortunately, in
the perent case, we are nto concerned about any pathological distrubances of
emotion of the alleged idito on her conduct. Therefore, the fact of her idiocy
has to be judged by the test of rational conduct alone.

   (17) The evidence of Dr. S. Dutta Ray to whom the wife was taken for
examination by the husband and her relations was based partly on the information
given to him by the husband's relations who were interested in showing that the
wife was an idito and partly on the Doctor's own observations. Unfortunately,
Dr. Ray has nto kept these two bases of his opinion separate with the result
that the value of his opinion has been gravely reduced by the non-verification
of the information obtained by him from the husband's relations. For instance,
in Exhibit PW.2/B dated 25-3-1960, Dr. Ray has stated that the wife was
suffering from "secondary mental deficiency. She is an idiot. Her symptoms
started about 5 years ago after an ttack of Febrile illness (Typhoid). Her
mental defect is incurable". Clearly, the information regarding the past illness
of the wife was nto within the personal knowledge of the Doctor nor could it be
based on his observation. Similarly, in Exhibit PW.2/C which according to Dr.
Dutta Ray "contains all the grounds on which I have come to the conclusion
mentioned by me in examination-in-chief", the same confusion is apparent. The
very first ground given by him for his opinion that the wife was an idito is
that the wife was incapable of protecting herself from common physical dangers
(crossing the street, cooking etc.). Obviously the Doctor had neither seen the
wife crossing the street nor cooking. In the absence of personal observation,
the learned Doctor should never have based his conclusion on this ground. The
second ground given by the Doctor was that the wife could nto take care of her
person and had no sense of modesty. This opinion was supported by him by
pointing out that the wife underssed in the clinic and had some difficulty in
dressing herself again. Apparently the wife was asked to undress. She may have
had a lesser degree of modesty than an ordinary perosn. But the very fact that
she was dressed before she was asked to undress and she also redressed
afterwards would show that the wife was nto without the sense of modesty. It
also does nto show that she does nto take care of her person. Lastly, the
learned Doctor has stated that the wife could nto recognize her husband and some
other relatives. This opinion is completely contradicted by the ability of the
wife in the witness-box before the learned lower Court to recognize her own
husband and also some other relatives.

   (18) What is then to be understood from the bald statement of Dr. Ray that
the wife is an idito ? Firstly, Dr. Ray was deposing as a medical witness and
nto as a legal expert. As observed by the Report of the Royal Commission which
led to the enactment of the Mental Health Act, 1959, in the United Kingdom,
"disorders of the mind are illnesses which need medical treatment". The
standpoint from which Dr. Ray should have examined and observed the wife was
whether the disorder of her mind was an illness which needed medical treatment.
We may, therefore, at the most regard Dr. Ray's opinion to mean that the mental
condition of the wife needed medical treatment. What is more important is the
criterion which governed the assessment of such medical opinion by the Court.
This criterion can best be stated in the authoritative words of Taylor on
Medical Jurisprudence 1965 Edition, pages 432-433 as follows:

     "PERHAPSthe essential feature of mental illness from a medico-legal point
of view is the failure, through incapacity of the individual, to maintain normal
contact with external reality, and to appreciate the distinction between what is
going on solely in his own mind, and what is going on beyond it in the external
world, and is therefore common to his own experience and that of others. The
older term "alienation of the mind", despite its disagreeable implication that
mentally ill patients were a race apart, certainly owed something of its force
to just this characteristic of mental illness in general: that the mentally ill
person is separated from common experience and appreciation of external reality,
and to a greater or lesser degree, is compelled by his illness to live in a
world different from that inhabited by his fellow men."

   (19) Dr. Ray has significantly failed to show that the mind of the wife was
alienated from reality in any way. He has also nto shown that the conduct of the
wife was in any way other than rational. Unfortunately, therefore, his opinion
is of practically no value to the Court.

   (20) The wife was examined by the learned lower Court on four occasions. At
first, the learned lower Court had to decide whether she was capable of
defending the suit herself or needed a guardian ad litem. The learned lower
Court concluded that she needed a guardian ad litem. This finding in no way
shows that the wife was incapable of entering into a valid marriage on account
of idiocy. The standards of the mental ability for these two purposes are
entirely different. Maturity and full understanding of pleadings and evidence
would be necessary before a person can be said to be capable of defending a
suit. On the other hand, even a country bumpkin who is illiterate and uninformed
but has the essential biological instincts and elementary understanding would be
capable of entering into a valid marriage. Any other conclusion would lead to
the disaster of annulling millions of marriages of illiterate, uninformed and
benighted persons in a country like India.

   (21) The evidence given by the wife and the observation of the rationality of
her conduct in Court and the answers given by her is alone sufficient to
demolish the husband's plea that the wife was an idito at the time of the
marriage. The wife identified her husband in Court and said that she was nto
willing to go and stay with him as he did nto call her (Bulate Nahi Hai). She
said her father's name was Roop Narain, that she was nto insane, that she could
protect her interest, that she wanted to defend the case, that she could cook
meals, could dress herself, comb her hair and wash her clothes. She said that
she closed the door when she went to answer the call of nature, she took her
bath behind cover and nto on the open. She could not, however, understand the
nature of the suit filed against her and could nto defend herself against it.
She identified a ten paise coin and a five paise coin correctly but she could
nto make a total of three ten paise coins or of two coins of two paise each and
one coin of one paisa. She called her mother "Bhabi". She knew the various
pulses such as, massoor, moong, harhar, gram etc. She also identified a
kharbooza, radish, potato, a sugar-cane piece and the vegetable lady's-finger.
Among the fruits, she picked up a chikoo but did nto know the names of other
fruits. She could nto describe relationships such as a brother's wife, a grand
mother or a maternal uncle though she knew such persons by their names. My
conclusion on her evidence is that she is a woman of very elementary and limited
intelligence and information. She can identify certain food stuffs etc., which
are known to her but she is nto capable of abstract thought even of an
elementary nature. Therefore, while she knows a man by his name, she does nto
know that his relationship with her is, for instace, that of a maternal uncle.
The wife was not, therefore, an idito within the meaning of section 5(ii) of the
Act.

   (22) The learned counsel for the appellant Shri S.S. Chadha made a strong
plea that in the interest of genetic reform and family planning, the Court
should take a liberal view of the meaning of idiocy and lunacy and grant a
decree of nullity when a a spouse is dull-witted as the wife in the present
case. The answer to this argument is two-fold. Firstly, the clear intention of
the Legislature in introducing the remedy of nullity of marriage in the Hindu
Law by enacting sections 11 and 12 read with section 5 of the Act was to provide
for the same degree of idiocy or lunacy to nullify a Hindu marriage as would
have been sufficient to nullify a marriage in the unamended Hindu Law on the one
hand and under section 19 of the Indian Divorce Act, 1869 and in the Common Law.
There is nothing to show that the Legislature wanted to grant nullity of
marriage where the degree of idiocy was lesser. After all, as was observed long
ago, in a wide ranging survey of this subject by Sir J. Hannen in Boughtson v.
Knight "unsoundness of mind is a question of degree". The conception of the
Legislature as to the degree of idiocy which would incapacitate a party from
entering into a valid marriage was the same as the definition of an idito in the
Oxford Dictionary, namely, "a person so deficient in mind as to the be
permanently incapable of rational conduct". This conclusion is arrived at
essentially in the context of incapacity to marry leading to a decree of nullity
of marriage. As observed in Taylor's Medical Jurisprudence, cited above, at page
464, "Mental disorder is an impendiment to marriage, because a mentally
disordered person cannto give that rational consent which is necessary to the
validity of a contract.". ....... "The marriage of a person of unsound mind will
be invalidated where there exists sufficient incapacity, by reason of this
unsoundness, either to comprehend the nature or fulfill the physical conditions
of the marraiage contract". There is absolutely no evidence in the present case
to show that the wife is unable to comprehend the nature or fulfill the physical
conditions of the marriage contract. At times, idiots are physically malformed.
But the wife in this case is physically a completely normal person. She has
shown herself to behave and answer questions with a degree of reason which
cannto be said to be insufficient for her being capable of entering into a valid
marriage.

   (23) Secondly, it is nto necessary in this case to consider whether idiocy or
lunacy constituting incapacity to marry and leading to a decree of nullity is
capable of being distinguished from "unsoundness of mind" which may lead to
judicial separation under section 10(1)(e) of the Act or to divorce under
section 13(1)(iii) of the Act inasmuch as a different expression "unsound mind"
has been used therein and the remedies of judicial separation and divorce are
also different from the remedy of nullity. Remedy of nullity of marriage is
based on incapacity to marry while the true purpose of divorce or judicial
separation is to protect and relieve a spouse from misery or malaise as the
outcome of cruelty or hardship. Nor are we concerned here with the meaning of
the words "incurably of unsound mind" as being a ground for divorce in section
l(i) (d) of the Matrimonial Causes Act, 1950, dealt with in Whysall v. Whysall
(9) Chapman v. Chapman and Robinson v. Robinson . The test adopted therein is
whether a person could manage himself and his own affairs. A similar test would
appear to have been adopted in section 38 of the Indian Lunacy Act, 1912. But
the purpose of the Lunacy Act, 1912 as also of the English Mental Health Act,
1959, is the care and protction of a person of unsound mind. Unsoundness of mind
is a general expression in which various degrees of mental derangement may be
comprised. For the treatment of mental illness the legal definitions of idoicy
or lunacy would nto be sufficient. Therefore, as observed in Taylor op cit,
(page 433), in. section 4(2) of the Mental Health Act, 1959, a new concept of
"severe subnormality" has been adopted to include different degrees of unsound
mind, e.g. "idiots" "imbeciles" and the lower grades of the "feeble minded"
while the concept of "subnormality" in section 4(3) thereof includes the
majority of the "feeble minded". This shows that for the medical purposes, the
approach to the subject of unsoundness of mind is likely to be different from
the approach for the purposes of law. Unsoundness of mind may become relevant
even for the purposes of law in different contexts such as responsibility for
cirminal act (section 84 of the Indian and Code based on the McNaghten Rules)
entering into ordinary contracts (saction 12 of the Contract Act) and mangement
of property (Lunancy Act). It would nto perhaps be possible to regard
unsoundness of mind for all these purposes to be the same thing. Even in the Law
of -Marriage, the Hindu Marriage Act, 1955, has used different expressions
indicating mental abnormality as a ground for nullity due to incapacity to marry
on the one hand and as a ground for judicial separation or divorce on the other
hand. Two rules of statutory construction may be borne in mind in this
connection. Firstly, expressions used in different statutes which are nto in
pari materia do nto necessarily mean the same thing. Secondly, different
expressions used in the same statute are nto ordinarily meant to convey the same
meaning.

   (24) As instances in which the above-mentioned rules of statutory
construction do nto seem to have been taken into account, reference may be made
to two recent decisions, one dealing with idiocy, namely, Ajitrai v. Bai
Vasumati (12) and the other dealing with lunacy, namely, Anima Roy v. Probodh
Mohan Roy It is nto necessary however to consider in the present case, whether a
part of the reasoning in these two decisions is vulnerable due to this lacuna.

   (25) As the evidence in the present case does nto indicate want of rational
conduct on the part of the wife, she cannto be regarded as having been an idito
at the time of the marriage. The petition for annulment of the marriage was,
therefore, rightly dismissed by the learned lower Court. In view of the further
consideration given to the question by me above, the appeal is also dismissed
with costs.