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2025 DAILYLAW 2329 (JHR)

Deshratna, S/o. Ajay Singh v. Varsha Singh, W/o. Deshratna, D/o Manoj Kumar Singh

2025-12-22

Gautam Kumar Choudhary, Sujit Narayan Prasad

body2025
JUDGMENT : Sujit Narayan Prasad, J. Prayer: 1. The instant appeal under Section 19(1) of the Family Courts Act, 1984 is directed against the judgment dated 06.05.2024 and decree signed on 17.05.2024 passed by the learned Additional Principal Judge, Additional Family Court No. II, Dhanbad in Original Suit No. 574 of 2022, whereby and whereunder, the suit filed by the petitioner-appellant [husband] for decree of dissolution of marriage on the ground that marriage is null and void under Section divorce u/s 12(1)(b) read with Section 5(ii)(b) of the of Hindu Marriage Act, has been dismissed. Factual Aspect 2. The brief facts of the case, leading to filing of the divorce petition by the appellant-petitioner, as taken note in the impugned order as emanated from the plaint, needs to be referred herein, which reads as under: 3. Appellant is legally married with the respondent and their marriage was solemnized on 28-11-2021 at Panchkut Resort, Dhanbad, according to Hindu Rites and Customs. After the marriage both the petitioner-appellant and respondent had been living together as wife and husband at Dhanbad. Out of the wedlock there was no child. It is further stated that at the time of marriage the petitioner-appellant found the respondent was suffering from Mental illness during SAPTAPADI and also recurrent insanity and not fit for marriage. 4. It is further stated that the Brahmins who were solemnizing the marriage were also consoling both the family as to overcoming the recurrent insanity of wedding respondent spouse. It is further stated that the petitioner's elderly people were being highly embarrassed seeing such mental illness-cum-insanity of the respondent wife. It is further stated that the petitioner-appellant at the wedding time prior to Saptapadi was at his wife's end found himself anxious and felt deceived and perplexed to the extent seeing hers recurrent attacks of insanity of giving her valid consent, suffering from mental disorder. It is further stated that after marriage the respondent was brought by the petitioner at her matrimonial house to lead a happy conjugal life and for that a special room was booked in a Cocoon Luxury hotel in Dhanbad to spend and enjoys a first night with respondent but all goes in vain when she resisted to cohabit with the petitioner. 5. 5. It is further stated that on 28-01-2022 the petitioner received one doctor's prescription dated 23-01-2022 through his Whatsapp and when he enquired from sender who is maternal father-in-law then he was informed that Dr. Konika Mitra is a psychiatrist and when he again put up question that why his wife is under the treatment of psychiatrists then he stated that the respondent's mental condition is not well. It is further stated that thereafter, petitioner-appellant made contact with Dr. Anirban Roy and when he showed that medical report of his respondent-wife, the said doctor stated that she has mental problem and for proper treatment he needs to know the back history of his wife but the respondent's father as well as other family members despite of request till date has not furnished the back history for the treatment of the respondent and even the respondent is not cooperating towards her treatment. 6. It is further stated that the respondent at the time of marriage and filing of the suit is not mentally fit to lead her conjugal life with the petitioner-appellant. Due to mentally illness of the respondent the marriage between both parties is not consummated. It is further stated that after marriage the petitioner-appellant immediately noticed serious symptoms of psychotic disorder in respondent and the petitioner-appellant lived together with respondent at his resident but he found sign of mental disorder and accordingly the respondent failed to perform her marital obligation and further on the above reason, the respondent returned to her parental house. 7. Cause of action for the petitioner arose on 28-11-2021 during Saptapadi when the marriage of the petitioner with respondent was performed. It also arose on several occasions when the respondent misbehaved and also when he saw the sign of recurrent insanity. 8. On the aforesaid factual background, the petitioner- appellant filed suit praying therein to declare marriage null and void u/s 12(1)(b) r/w section 5(ii) (b) of Hindu Marriage Act 1955. 9. Respondent appeared and contested the suit by filing a written statement and stated that the marriage of the respondent had been solemnized as per Hindu Rites and customs. All the allegations as levelled against the respondent are false, frivolous and baseless allegations. It is further submitted that the respondent does not know Dr. Kanika Mitra or Dr. Anirban Roy and no such papers have been filed by the petitioner while filing this case. All the allegations as levelled against the respondent are false, frivolous and baseless allegations. It is further submitted that the respondent does not know Dr. Kanika Mitra or Dr. Anirban Roy and no such papers have been filed by the petitioner while filing this case. It is also submitted that the allegation of any counseling at Indian Institute of Psychiatrists in Kolkata is also emphatically denied by the respondent and it is purely a false and fabricated allegations and, in this regard, no such papers have been filed by the petitioner-appellant. It is further submitted that the marriage has already been consummated as several occasions cohabitation took place in between the spouses. It is further stated that the petitioner-appellant and his family members tortured the respondent physically and mentally by compelling her to bring Innova Car. It is further stated that under the fact and circumstances stated above all the allegation levelled against the respondent are false and fabricated and the suit filed by the petitioner is liable to be dismissed. 10. Respondent-wife has filed additional written statement and stated that the suit is neither maintainable under the facts and circumstances, nor in law and the requirement of order XIX CPC has not been complied. It is further stated that there is no valid cause of action of this suit. The petition has been filed for a declaration of the marriage solemnized with the respondent on 28-11-2021 as null and void, on false and imaginary ground, that the respondent was mentally ill and as was given at the time of marriage was not a valid consent. It is further stated that the petitioner-appellant has also admitted that the petitioner-appellant and respondent are legally wedded husband and wife. It is further stated that the respondent has filed a medical report of RINPAS, Kanke Ranchi, regarding the respondent's mental health psychological evaluation that kempt and tidy in touch with surroundings normal speech and psycho-motor activity, ecthymas effect, no thought or prefectural disturbance could be elicited. It is further stated that all the allegation made by the petitioner are false, baseless and imaginary hence denied. 11. The issues were framed by the Court and evidence was adduced on behalf of the parties. 12. It is further stated that all the allegation made by the petitioner are false, baseless and imaginary hence denied. 11. The issues were framed by the Court and evidence was adduced on behalf of the parties. 12. The learned Additional Principal Judge, Additional Family Court-II, after appreciating the evidence adduced on behalf of parties, came to the conclusion that the petitioner- appellant has not been able to prove his case against the respondent even to the extent of preponderance of probabilities. Accordingly, find and hold that he is not to get the decree to annul the marriage between both parties as null and void under section 12(1) (d) of Hindu Marriage Act 1955. Accordingly, the suit for decree of divorce was dismissed, against which the instant appeal has been filed. Submission on behalf of appellant-husband 13. It has been contended on behalf of the appellant that the factual aspect which was available before the learned family court supported by the evidences adduced on behalf of the appellant has not properly been considered and as such, the judgment impugned is perverse, hence, not sustainable in the eyes of law. 14. Learned counsel for the appellant has submitted that the learned additional family court has failed to appreciate the fact that it was the specific case of the appellant that SAPTAPADI was not performed and marriage was not solemnized as per section 7(2) of the Hindu Marriage Act, 1955 since only 4 phera was done instead of 7 phera and the said fact has also been admitted by the pandit of the respondent namely Rakesh Mishra (D.W. 4) in para no. 14 of the cross examination. 15. Further, the marriage was not consummated and there was no co-habitation between the parties and the respondent has also not specifically denied the same in the written statement, but the learned additional family court has failed to appreciate the said fact. 16. Learned additional family court has also not appreciated that the respondent was suffering from mental disorder and had re-current attack of insanity which was specifically pleaded by the appellant and the same has also been substantiated in the deposition of the appellant. 17. 16. Learned additional family court has also not appreciated that the respondent was suffering from mental disorder and had re-current attack of insanity which was specifically pleaded by the appellant and the same has also been substantiated in the deposition of the appellant. 17. The learned additional family court has committed a grave error in law by neither deciding the objection petition dated 17.07.2023 of the appellant to the report of the Medical Board of RINPAS nor framing an "Issue" with respect to the said objection petition dated 17.07.2023. 18. It has also not been appreciate that the medical report of RINPAS (Ext. A) was not in terms of the order dated 05.01.2023 wherein the learned Court below had directed to examine the respondent and to diagnose the mental disease if any and also to opine whether that disease is curable or not and whether the respondent can reasonably be expected to lead a happy conjugal life with the appellant in days to come or not but the alleged medical report (Ext. A) is a half-page report mentioning that at present the respondent does not have any psychiatric illness and therefore the query raised by the learned Court below is still unanswered. Furthermore, the medical report of RINPAS (Ext. A) is based on the Clinical Examination, Mental Status Examination and Psychological Evaluation of the respondent but the report/findings of the said examination was neither sent by the RINPAS nor filed by the respondent, which casts a major doubt upon the alleged medical report of the RINPAS. 19. Further, medical report submitted by the appellant (Ext. 1) is a four-page report which specifically deals with the report of the test administered upon the respondent being Bhatia's Short Battery of Performance Tests of Intelligence, Multiphasic Questionnaire (MPQ) & Rorschach Inkblot Method (RIM) but the medical report of the RINPAS (Ext. A) is half-page report without the report/findings of the test administered upon the respondent. The respondent submitted herself before the Medical Board, RINPAS in the absence of the appellant, which casts a major doubt and aspersion upon the Medical Board & its alleged report. 20. Further the respondent (D.W. 1) in cross examination has admitted that she has lodged Jaggadal P.S. Case No. 467/2022 against the appellant. 21. The respondent submitted herself before the Medical Board, RINPAS in the absence of the appellant, which casts a major doubt and aspersion upon the Medical Board & its alleged report. 20. Further the respondent (D.W. 1) in cross examination has admitted that she has lodged Jaggadal P.S. Case No. 467/2022 against the appellant. 21. Learned Court below has completely ignored the documents of Jaggadal P.S. Case No. 467/2022, neither exhibited nor marked the same and has dismissed the case of the appellant on erroneous and extraneous consideration. 22. Learned counsel for the appellant, based on the aforesaid ground has submitted that the impugned order is perverse and is not sustainable under the law as also on the facts of the case. Submission on behalf of respondent-wife 23. Learned counsel for the respondent has submitted that the learned family court after considering the material available before it has passed the order, which requires no interference on the following ground. 24. Submission has been made that the respondent neither prior to marriage nor after the marriage she was suffering from any mental disease. 25. Further prior to marriage family members of both parties had met with each other and thereafter both the parties got ready for the marriage, which fact has been admitted by the appellant also and stated that when the respondent was liked by him and his family members then it was decided for the marriage by both the parties. 26. Even as per the report of the doctor also, the respondent was found to be abnormal lady in thought and perception. 27. Further even with the consent of both the parties, the respondent was sent before RINPAS for treatment of mental disease and a board was constituted in RINPAS for medical examination of respondent and after examination, the medical board has submitted the report, as per which she does not have any psychiatric illness. 28. Learned counsel for the respondent, on the basis of aforesaid ground has submitted that the impugned judgment passed by the learned family court requires no interference by this Court. Analysis: 29. We have heard learned counsel for the parties and gone through the pleading available on record as also the finding recorded by learned additional family court. 30. Before learned family court, the parties have adduced evidence, both oral and documentary, in support of their case. Analysis: 29. We have heard learned counsel for the parties and gone through the pleading available on record as also the finding recorded by learned additional family court. 30. Before learned family court, the parties have adduced evidence, both oral and documentary, in support of their case. Therefore, this Court before entering into the legality and propriety of the impugned order needs to appreciate the evidence on behalf of parties. 31. In order to prove and substantiate the petitioner has produced and examined altogether three witnesses. 32. P.W. 1-Deshratan (the petitioner-appellant), in his examination-in-chief has stated in his examination-in-chief that he has filed this case of to declare his marriage as voidable. He was married with respondent on 28-11-2021 and prior to Saptpadi he found that respondent is unsound mind lady which is still in existence. He has filed the report of doctor regarding mental disorder of respondent marked as Ext.-1. No cohabitation took place between both parties and respondent is unfit for procreation of child and so petitioner cannot lead conjugal life with his wife. 33. In cross-examination, he stated that marriage was performed on 28-11-2021 from Dist.-Purulia in the presence of family members and others people of society both parties. While performing of Saptpadi ceremony he came to know from her expression that she was mentally retarded women because she was laughing for no any reason but due of social prestige she did not stop the Saptpadi ceremony of the marriage. Dr. Anirban Roy is psychotic doctor and he had visited to the doctor. He cannot produce him as witness. He does not know about education of the respondent. It is not true that respondent is not suffering from mental illness and he has illicit relationship with another lady. 34. Pw-2 is brother of the petitioner who has supported the evidence of Pw-1 in examination-in-chief. 35. In cross-examination he has stated that prior to marriage Chheka ceremony was performed prior to marriage where they met the respondent and meeting was organized for 15 minutes in a restaurant. It is true that after being linked to the respondent the function of marriage started. The marriage was performed with consent of parents of both sides. After marriage respondent came to his house on 29-11- 2021. He has not done the course of medical and he has no knowledge about the same. It is true that after being linked to the respondent the function of marriage started. The marriage was performed with consent of parents of both sides. After marriage respondent came to his house on 29-11- 2021. He has not done the course of medical and he has no knowledge about the same. It is true that after marriage respondent resided for 45 days in his house. It is true that respondent was taken by her family members and they took her also. When respondent went away to her maika they never had gone to meet her. His brother has a shop of Cement and rod in Dhanbad. It is false to say that at the time of marriage they had demanded Innova vehicle and on non fulfillment of demand they ousted the respondent from his house. He has knowledge that on 05-01-2023 an order was passed by court for medical checkup of respondent with consent of both parties and thereafter respondent was medically examined on 19.05.2023 in RINPAS, Ranchi. He has no knowledge that respondent was found to be fit in medical report. It is false to say that due to non fulfillment of dowry respondent was driven out from her matrimonial house. 36. PW-3 is an independent witness (Priest) who has solemnized the marriage of both parties and he has stated that marriage between parties was solemnized on 28-11- 2021. The respondent was made sat prior to Saptapadi and he found that her conduct was not natural and symptoms mental disorder was found in respondent but all auspicious ritual ceremony including the Sapatpadi got performed by him in the presence of both family members. 37. In cross he has stated that the marriage between both parties was solemnized two years back. He is not doctor by profession but he is lawyer. At the time of Sapatpadi when respondent was sitting in the Mandap she was looking hither and thither. The marriage was performed in proper way and no any problem occurred . The girl is abnormal or not he has no knowledge about that but he felt that her behaviour was abnormal. 38. DW-1 is respondent herself who has stated in her examination-in-chief that she was married with Deshratna on 28-11-2021 with Hindu Rites seen and customs. Prior to marriage petitioner and his her and thereafter family members had marriage was fixed with consent of both parties. 38. DW-1 is respondent herself who has stated in her examination-in-chief that she was married with Deshratna on 28-11-2021 with Hindu Rites seen and customs. Prior to marriage petitioner and his her and thereafter family members had marriage was fixed with consent of both parties. She has passed out her Matric in year 2015 and intermediate in 2017 and graduate in year 2020. After sometimes of marriage due to demand of dowry an Innova vehicle she was abused and tortured physically and mentally and due to continuous torturing and living in starvation she got ill but she was not treated. She was not provided maintenance also. Her parents and other family members requested to keep her in good manner but they did ready for the same and then she has filed a case for cruelty against her in-laws. False allegation was made by her in-laws that she was suffering from any aliment. She was not suffering from any disease either prior to marriage or after the marriage. With consent of both parties to see got medically examined by medical board in RINPAS Ranchi. While living in her sasural her husband established sexual relationship several times with her. She is healthy lady and she is not suffering from any mental illness and she is fit for procreation of child. 39. In cross she has stated that prior to marriage both parties had seen to each other on 27-10-2021 and thereafter she gave her consent for the marriage. She completed her education in West Bengal. She has mentioned about assault upon her in para-6 of her affidavit but in this regard, she has not made any complaint in any Thana. On 17-01-2021 her father and maternal uncle came and took her to her maika. It is false to say that she had gone to consent with doctor Anirban Roy where she was medically examined. She has seen the report of Dr. Anirban Roy which has been filed in court. She wants to lead conjugal life with petitioner. 40. DW-2 is father of respondent, who has supported the evidence of DW-1 in examination-in-chief and in cross he stated that his daughter has filed a case for demand of dowry and cruelty. He wants to send his daughter to the house of petitioner even though he does not want to keep her. 40. DW-2 is father of respondent, who has supported the evidence of DW-1 in examination-in-chief and in cross he stated that his daughter has filed a case for demand of dowry and cruelty. He wants to send his daughter to the house of petitioner even though he does not want to keep her. The character of petitioner was not good even then he wants to send his daughter to live with him as because the marriage of her daughter was solemnized with him. 41. DW-3 is maternal uncle of the respondent, who has supported the evidence of DW-1 in examination-in-chief and in cross he stated that he cannot say the date and day of this case. He came to know about this case after receiving the notice. After marriage in sasural Versha Singh was tortured physically and mentally and her in laws put pressure upon him to bring more dowry. He cannot say about the Pandit of the side of Deshratna but he can recognize him by the face. The respondent returned back to her maika in the month of December. It is true that her niece was not treated by any psychiatric doctor. He has no knowledge that Versha Singh was treated by Dr. Kanika Mitra and Dr. Anirban Roy. 42. DW-4 is priest who has solemnized the marriage of both parties and he was present at the time of marriage as Pandit on behalf of respondent's side. He has further stated that he knows to respondent since her childhood and she was never suffering from any psychiatric disease. She is completely healthy lady. Neither prior to marriage nor after the marriage she was suffering from any mental disease. She wants to lead conjugal life with him. 43. In cross-examination, he has stated that the marriage was performed according to Saptapadi ceremony. She cannot file any certificate that he is Purohit/Pandit. It is not true that due to non-fulfillment of Saptapadi ceremony the marriage could not be solemnized. He has no any knowledge about medical treatment of Versa Singh. 44. This Court while appreciating the argument advanced on behalf of the parties on the issue of perversity needs to refer herein the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. 44. This Court while appreciating the argument advanced on behalf of the parties on the issue of perversity needs to refer herein the interpretation of the word “perverse” as has been interpreted by the Hon'ble Apex Court which means that there is no evidence or erroneous consideration of the evidence. The Hon'ble Apex Court in Arulvelu and Anr. vs. State [Represented by the Public Prosecutor] and Anr., (2009) 10 SCC 206 while elaborately discussing the word perverse has held that it is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. Relevant paragraphs, i.e., paras-24, 25, 26 and 27 of the said judgment reads as under: “24. The expression “perverse” has been dealt with in a number of cases. In Gaya Din v. Hanuman Prasad [ (2001) 1 SCC 501 ] this Court observed that the expression “perverse” means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. 25. In Parry's (Calcutta) Employees' Union v. Parry & Co. Ltd. [ AIR 1966 Cal 31 ] the Court observed that “perverse finding” means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665 : AIR 1994 SC 1341 ] the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. 26. In M.S. Narayanagouda v. Girijamma [AIR 1977 Kant 58] the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Moffett v. Gough [(1878) 1 LR 1r 331] the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey [106 NW 814] the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc. 27. The expression “perverse” has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner's Dictionary of Current English, 6th Edn. “Perverse.—Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.” 2. Longman Dictionary of Contemporary English, International Edn. Perverse.—Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English, 1998 Edn. Perverse.—Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. The New Lexicon Webster's Dictionary of the English Language (Deluxe EncyclopedicEdn.) Perverse.—Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud's Judicial Dictionary of Words & Phrases, 4th Edn. “Perverse.—A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.”” 45. Herein the suit was filed by the petitioner-husband to declare the marriage null and void taking aid of Section 12(1)(b) of the Hindu Marriage Act, 1955. 46. In the backdrop of the aforesaid factual aspect seminal question arises for consideration herein is that whether the appellant/husband has made out a case for an order under Section 12(1)(b) of the Act, 1955. 47. Therefore, this Court before proceeding to deal with the respective submissions of the counsel as also before appreciating the evidence adduced on behalf of the parties, as taken note of above, deems it appropriate to have a glance to the relevant provisions which may assume some importance in addressing the issue. Section 5 of the Hindu Marriage Act contains the conditions for the valid marriage solemnized between any two Hindus. The said section is reproduced hereunder: “5. Section 5 of the Hindu Marriage Act contains the conditions for the valid marriage solemnized between any two Hindus. The said section is reproduced hereunder: “5. Conditions for a Hindu Marriage .- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insantity (iii) the bridegroom has completed the age of twenty- one years and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degree of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;” 48. It requires to refer herein that the provision lays down mental capacity as one of the conditions for the marriage and mental disorder renders the marriage voidable. 49. Mulla's Hindu Law, XVII Edition, Volume II at page 71 says as follows: “An objection to a marriage on the ground of mental incapacity must depend on a question of the degree of the defect in order to rebut the extremely strong presumption in favour of the validity of the marriage, which has in fact, taken place.” 50. It further says in reference to Section 5 as follows: “The requirement is very simple one which does not demand any high degree of intelligence on the part of the parties to comprehend that the marriage is being solemnized and there is always a strong presumption that the requisite mental capacity was present.” 51. Section 5 of the Act 1955 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. Section 5 of the Act 1955 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein in clause (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. 52. The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy. On a plain reading of the said provision, it is manifest that the conditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the court for breaking a marriage already solemnized. 53. It needs to refer herein that the Section 7 of the Act relates to the ceremonies for the Hindu Marriage to be performed with Customary Rites of either party including Saptapadi i.e. taking of seven steps by bridegroom and bride jointly before the sacred fire to complete the marriage. The marriage shall be declared null and void at the option of either of the parties if it contravenes any of the provisions specified in Clause (i), (iv) & (v) of Section 5 of the said Act. Section 12 of the Act, which is pertinent in the present case, can be resorted to either of the parties for annulling the marriage as nullity provided the grounds set fourth therein are satisfied. Section 12 of the Act is quoted below: “ 12. Section 12 of the Act, which is pertinent in the present case, can be resorted to either of the parties for annulling the marriage as nullity provided the grounds set fourth therein are satisfied. Section 12 of the Act is quoted below: “ 12. Voidable marriages .- (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) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act 1978 (2 of 1978), the consent of such guardian 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; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. (2) Notwithstanding any thing contained in sub-section (1), no petition for annulling a marriage: (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if: (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) 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; (b) On the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied: (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.” 54. Thus, from the perusal of Section 12(1) (b) it is evident that any marriage solemnized, shall be voidable and may be annulled by a decree of nullity on the ground that the marriage is in contravention of the condition specified in clause (ii) of section 5 of the Act 1955. 55. Further it requires to refer herein the purport of the Section 13 of the Act 1955 contains the provision under which the marriage can be dissolved by a decree of divorce provided the ground enumerated therein are proved before the Court of competence jurisdiction. 56. Under the Hindu Law, a marriage is not a contract but sacrament. The Hindu Marriage Act has no doubt made an inroad into the close preserve of the ancient Hindu Law strongly suggesting the marriage as sacrament and not contract which still goes strong. The fraud contemplated by Section 12 of the said Act is not required to be interpreted in tune with the definition engrafted under Section 17 of the Contract Act. Both the Hindu Marriage Act and Contract Act are not pari materia as the former deals with marriages and the other deals with contract and commerce. The fraud contemplated by Section 12 of the said Act is not required to be interpreted in tune with the definition engrafted under Section 17 of the Contract Act. Both the Hindu Marriage Act and Contract Act are not pari materia as the former deals with marriages and the other deals with contract and commerce. Therefore, the definition of fraud given under the Contract Act cannot be brought with lock, stock and barrel to a marriage which is sacrament. 57. There are still strong reasons to hold that the Hindu Marriage is not a contract but sacrament, as the contract can at the will of the parties be dissolved but the parties who contract a marriage cannot except, of course, divorce by mutual consent as provided under Section 13B of the said Act. 58. It needs to refer herein that Marriage should not be annulled on grounds of mental incapacity unless expert evidence of lunacy or idiocy adduced cogently and clearly and an objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage. 59. The onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of R. Lakshmi Narayan v. Santhi, (2001) 4 SCC 688 . For ready reference the relevant paragraph is being quoted as under: 10. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety. 60. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety. 60. Further it is settled position of law that to brand the wife as unfit for marriage and procreation of children on account of the mental disorder it needs to be established that the ailment suffered by her is of such a kind or to such an extent that it is impossible for her to lead a normal married life. This is the requirement of the law as appears on a fair reading of the statutory provisions. 61. It needs to refer herein the N.R. Raghavachariar's Hindu Law, XVII Edition, Volume-I, at page 972 , dealing with the question whether the particular person is in a position to comprehend or appreciate the significance of the marriage, says as follows: “The prime question to be answered in connection with the validity or otherwise of a marriage alleged to have been contracted between persons, either of whom is said to be an idiot or insane person, is the question whether the particular person is in a position to comprehend or appreciate the significance of the marriage and its effects and obligations on his status and condition in society. If the answer is in the affirmative, the marriage cannot be impugned as invalid.---” 62. Bearing in mind the principles, which flow from a fair reading of the statutory provisions as noted above, we proceed to examine whether the appellant has succeeded in establishing the case for declaring the marriage null and void on the ground of mental incapacity of his wife at the time of marriage and for coming out such conclusion we again delve into the testimonies of the witnesses as also the exhibits available on record as also submissions advanced on behalf of parties. 63. The first ground to establish the marriage null and void has been taken that even the 'SAPTAPADI' was not performed and marriage was not solemnized as per section 7(2) of the Hindu Marriage Act, 1955 since only 4 phera was done instead of 7 phera. 63. The first ground to establish the marriage null and void has been taken that even the 'SAPTAPADI' was not performed and marriage was not solemnized as per section 7(2) of the Hindu Marriage Act, 1955 since only 4 phera was done instead of 7 phera. Further ground has been taken that in course of marriage the appellant came to know that respondent is suffering from psychotic disease and her behaviour was found to be abnormal at the time of solemnization of marriage. 64. While on the other hand it was argued on behalf of respondent that marriage was solemnized as per Hindu Marriage Act and Saptapdi ceremony was also completed and she is legally wedded wife of petitioner. It was further argued that after marriage in his sasural he was tortured physically and mentally due to demand of dowry and ultimately, she was driven out from her matrimonial home. It was that petitioner wants further argued remarriage with another lady and so he has filed to this case to give her divorce on the ground of insanity whereas she is fit and fine and healthy lady and she is capable to perform all marital obligations of marital life. 65. Therefore, this Court is to examine as to whether Saptapadi ceremony could be completed or not and whether respondent is actually suffering from mental disease and she is unable to procreation of child or not? 66. From the testimony adduced on behalf of appellant- husband, it is evident that they have emphatically deposed that respondent is suffering from mental disease which was noticed at the time of marriage and due to that disease Saptapadi ceremony could not be performed. But in cross- examination at para-15 appellant [petitioner] himself has stated that at the time of marriage he did not try to stop Saptapadi ceremony on account of social prestige, which itself suggest that Saptapadi ceremony was completed at the time of marriage. 67. PW-1 [appellant] has further stated that at the time of Saptapadi ceremony seeing the activities and conduct of respondent he came to know that she is suffering from mental disorder and by that time she was laughing. But only on this basis that she was laughing it cannot be said that respondent was suffering from mental disease. 67. PW-1 [appellant] has further stated that at the time of Saptapadi ceremony seeing the activities and conduct of respondent he came to know that she is suffering from mental disorder and by that time she was laughing. But only on this basis that she was laughing it cannot be said that respondent was suffering from mental disease. Pw-2 who is brother of petitioner has stated in para-10 of his cross- examination that prior to marriage they had seen the respondent and meeting was organized in restaurant which lasted for 15 minutes and they had liked the respondent other thereafter function was initiated. They liked the respondent and found her suitable for the marriage. The above testimony itself suggests that even before marriage the appellant and respondent along with their family members meet but there was no complain of any mental disorder and on being satisfied the marriage ceremony took place as agreed between the parties. 68. PW-3 is Pandit who was present at the time of solemnization of marriage has stated that Sapatpadi was performed in presence of both parties as per the rites and customs. Further on perusal respondent and other witnesses adduced on behalf of her it appears that neither prior to marriage nor after the marriage there is cogent evidence that she was suffering from any mental disorder as alleged by the petitioner-appellant. If the respondent was suffering from any mental disease or her behaviour was abnormal, then the question arises why the said abnormality and activities could not be seen at the time of first meeting between both parties and it was only noticed at the time of marriage which creates doubt that prior to marriage or at the time of Solemnization of marriage the respondent was suffering from mental disorder. 69. The fact that the respondent-wife is of sound mind having no abnormality finds support from the medical evidence also. 70. In support of his pleading petitioner-appellant has stated that respondent was got medically examined by the Dr. Anirban Roy of Kolkata on 14-02-2022. He has filed medical report submitted by Dr. Anirban Roy Marked as Ext. 1. He has given detailed mental status of respondent but in very first line he has mentioned that client was well-kempt and tidy with age-appropriate body build and further in last line he has stated that there was no abnormality in thought of perception was found. He has filed medical report submitted by Dr. Anirban Roy Marked as Ext. 1. He has given detailed mental status of respondent but in very first line he has mentioned that client was well-kempt and tidy with age-appropriate body build and further in last line he has stated that there was no abnormality in thought of perception was found. So as per report of the doctor also the respondent was not found to be abnormal lady in thought and perception. 71. Apart from that with consent of both parties the respondent was sent to Ranchi Institute of Neuro Psychiatry and Allied Science (RINPAS) which is one of best and reputed hospital for treatment of mental disease wherein a Medical Board was constituted for medical examination of respondent and after examination. The Medical Board has submitted the report, as per which the respondent did not complain to be suffering of any psychological issues. Mental status examination revealed that Kempt and tidy, in tough with surroundings normal speech and psychomotor activity, euthymic effect, no thought or perceptual disturbances could be elicited. 72. On the basis clinical examination, mental status examination and psychological evaluations, the board is of the opinion that Smt. Versha Singh [respondent] does not have any psychiatric illness at present. 73. Therefore, from the Medical Board report also it is amply evident that no any psychiatric disease was found. 74. Furthermore , on behalf of respondent mark-sheet of matric, intermediate and graduation have been filed which she passed with good marks, which also suggests fact that she is physically as well as mentally healthy lady and falsify the allegation of petitioner that she was suffering from mental disorder. 75. Even in the evidence of respondent it has come that during her stay in matrimonial house, they established sexual relationship several times. The respondent-wife in her deposition has stated, which has supported by other witnesses appeared on behalf of respondent that after sometimes of marriage due to demand of dowry an Innova vehicle she was abused and tortured physically and mentally and due to continuous torturing and living in starvation she got ill but she was not treated. Her parents and other family members requested to keep her in good manner but they did ready for the same and then she has filed a case for cruelty against her in-laws. Her parents and other family members requested to keep her in good manner but they did ready for the same and then she has filed a case for cruelty against her in-laws. False allegation was made by her in-laws that she was suffering from any aliment. She was not suffering from any disease either prior to marriage or after the marriage. 76. Now coming to the provisions of Section 12 (1) (b) read with Section 5 (ii) of the Hindu Marriage Act, which says that a marriage can be voidable on the ground that the respondent was a lunatic or idiot at the time of marriage. But, on the basis of discussions made hereinabove, it can safely be concluded that the appellant-petitioner has not succeeded to prove and establish the case on the ground of mental disorder and insanity, so as to make entitle the decree to annul the marriage null and void. 77. This Court, based upon the aforesaid discussion, is of the view that the appellant/petitioner has also failed to establish the element of perversity in the impugned judgment as per the discussion made hereinabove, as such, this Court do not find any merit in the appeal. 78. Accordingly, the instant appeal fails and is dismissed. 79. Pending interlocutory application(s), if any, also stands disposed of.