BANI DEVI Vs. A K BANERJEE

JUDGEMENT

(1.) The main question which arises for decision in this appeal by the wife under Section 28 of the Hindu Marriage Act (hereinafter referred to as the Act) is as to what is meant by the expression 'incurably of unsound mind' used in Section 13(l)(iii) of the Act?

(2.) The Hindu Marriage Act, 1955 does not define the term unsound mind. I find that while laying down the conditions for a Hindu marriage under Section 5(ii) of the Act the Parliament used words idiot or lunatic for disqualifying a party from entering into a valid marriage. Under Section 10(l)(.e) the term unsound mind has been used for giving a right to a party to pray for a decree of judicial separation. Under Section 13(l)(iii) of the Act a party is entitled to ask for dissolution of a marriage by a decree of divorce on the ground that the other party has 'been incurably of unsound mind' for a continuous period of not less than three years immediately preceding the presentation of the petition. The use of different expression in the same Act by the Parliament shows that they are not meant to convey the same meaning.

(3.) Under Section 12(l)(b) of the Act, a marriage may be annuled by a decree of nullity on the ground that a party to the marriage at the time of the marriage was an 'idiot or lunatic'. This remedy is based on the ground of incapacity of a party to marry. It envisages a mental dis-order or such a degree of unsoundness of mind that a person is not in a position to comprehend nature of the contract of marriage and so is not in a position to give the consent. However, by using the expression 'unsound mind' for the purposes of judicial separation and divorce, the Parliament seemed to convey different intention than that which was shown by the use of expression 'idiot or a lunatic' My attention has also been drawn to the Indian Lunacy Act, 1912. Section 3(5) defines lunatic' meaning 'an idiot or a person of unsound mind'. This Act while providing for judicial powers over person and estate of lunatic. 67 of this Act are pan materia and are in the following terms : 46. (1) The Court may make orders for the custody of lunatic so found by inquisition and the management of their estates. (2) When upon the inquisition it is specially found that the person to whom the inquisition relates is of unsound mind so as to be incapable of managing his affairs, but that he is capable of managing himself, and is not dangerous to himself or to others, the Court may make such orders as it thinks fit for the management of the estate of the lunatic including proper provision for the maintenance of the lunatic and of such members of his family as are independent on him for maintenance, but it shall not be necessary to make any order as to the custody of the person of the lunatic." 9-685HCD/71