Lekhu Devandas Sajnani v. Bhagwanti Sajnani

HCMC000004/1973

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 4 OF 1973

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Coram: Pickering, J.

Date of Judgment: 25 May 1973

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JUDGMENT

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1. This is a petition for a declaration of nullity of marriage. The hearing of the action represented the culmination of an attempt by the petitioning husband to slough off the respondent wife who, at the time of the break-up of the marriage, was an unwanted bride of less than two months standing. At the conclusion of the five-day hearing I dismissed the petition saying that I would give my reasons later, which I now do.

2. Both parties to the marriage, which was an arranged marriage and is agreed to have been monogamous, are of the Indian race. The petitioner, who is now about 35 years of age, is a merchant of Hong Kong. The respondent, now 23 years old, was born and bred in Djakarta in Indonesia. The grounds for the petition, which is based on the Matrimonial Causes Ordinance, (Cap. 179) s.20(2), are that the respondent wife was, at the time of the marriage, suffering from mental disorder within the meaning of the Mental Health Ordinance, 1960, of such kind or to such an extent as to be unfitted for marriage and the procreation of children; in the alternative it is pleaded that at the time of the marriage she was subject to recurrent attacks of insanity or epilepsy. In either event it is said that the petitioning husband was ignorant of any of those matters and that no marital intercourse took place, with the consent of the petitioner, since the discovery by him of the existence of the grounds for a decree.

3. The petitioner was introduced to the respondent, with a view to marriage, whilst on a trip to Djakarta in February 1971. During that same month the couple became engaged at a formal ceremony in the Hindu Temple in Djakarta and some two or three days later the petitioner left on a trip to India returning on 1st April for the purpose of marrying the respondent; the wedding took place on 4th April 1971 in the Hindu Temple in Djakarta according to Sikh rites.

4. It was the evidence of the petitioner that prior to the wedding he had seen his fiancee on only some seven occasions in all; that he found her happy at the prospect of marriage; an innocent and calm type of girl though somewhat shy; and that from the time of meeting her up to the time of their marriage he did not discern anything wrong with her.

5. The wedding night was spent in the Hotel Indonesia in Djakarta, after which the couple moved around for two or three days to Hill Stations with the respondent's god-parents (whom she regarded as virtually her own parents) and the brother-in-law of the petitioner, who had been responsible for the introduction of the couple. It was the evidence of the petitioner that on the wedding night the respondent began to complain about chest pains, said that she was feeling very weak and showed no signs of any physical desire but appeared to be absent-minded as if living in a world of her own. According to the petitioner no marital intercourse took place on the wedding night but this occurred for the first time on the following night and he described the experience as "like having sex with a dead body", because the respondent was so cold and frigid. The petitioner described himself in evidence as very disappointed.

6. It was the petitioner's further evidence that at the Hill Stations the respondent was very tired all the time and was unable to walk very far without having to sit and gasp for breath.

7. The couple arrived in Hong Kong on 18th April 1971, together with the petitioner's mother, who had travelled to Indonesia from Hong Kong for the wedding. In Hong Kong the couple lived in Chungking Mansion, Nathan Road, together with the petitioner's mother and his three nephews. It was the wife's first departure from Djakarta. The petitioner claims that after one or two days in Hong Kong the respondent started to complain about her eyes, whereupon he took her to an eye specialist as well as to two other doctors for different physical ailments. According to the petitioner, the first occasion upon which he noticed anything mentally wrong with the respondent was on 3rd May 1971 when he received a telephone call at his office from his cook-amah and, upon returning home, found that his mother was cradling his wife in her arms. Upon taking the respondent to the bedroom and asking what had happened to her, she told him "I am seeing one lady ghost, who is looking at me with her sharp eyes and is threatening me to leave my husband". According to the petitioner, after some reassurance on his part and repeated assertions from the respondent that the lady ghost was asking her to go along with her, his wife slept. The incident, according to the petitioner, lasted for ten or twelve minutes during which his wife's tone changed considerably "from loud to slow" in what he described as "our own Sindhi language", all the time sounding terrified.

8. The petitioner went on to testify that after a few days the same sort of thing happened repeatedly. On the second occasion, he was at home and observed his wife looking straight at the wall holding herself so rigidly that he was frightened; he asked her to sit on the sofa, which she did, and in answer to his queries as to what was happening to her, she said she was feeling pain and had much difficulty in breathing, adding "today is Satnarayen day" - an Indian holiday associated with the full moon. She complained that somebody was being cruel to her and had animosity towards her and thereafter said that she was seeing the lady ghost again. After one big scream she closed her eyes for a few minutes and, upon re-opening them, asked why her husband had brought her into the bedroom. This incident, according to the petitioner, lasted for ten to fifteen minutes.

9. On the following day there was a third attack during which, the petitioner says, the respondent began to say "Let me go back to Djakarta". Upon being asked why she wished to go back she said that she would ask her god-parents why they had done this cruelty to her, suggesting that someone in Indonesia must have hypnotized her, probably her aunt and godmother, "Ganga", and that she wished to go to Indonesia and asked Ganga why she had done such a thing to her.

10. The petitioner's evidence was that there were in all some four or five such attacks and that they were usually associated with the respondent's menstrual periods. When I queried the likelihood of this in view of the fact that the respondent remained in Hong Kong for only one month, the petitioner claimed that during that month the respondent had two menstrual periods - a suggestion which was emphatically and convincingly denied by the respondent when she gave her evidence.

11. The petitioner further claimed that around this time, about every alternate day, the respondent would laugh or cry for no apparent reason, and that such bursts of smiling or laughing or crying would last for ten, twenty or thirty seconds.

12. The petitioner employed a tape recorder on two occasions to record the conversations between himself and his wife during what he described as major attacks. These tape recordings were in the Sindhi language and a certified written transcript was before the court. The tapes, in my view, did not assist the petitioner for there was no question, on his own identification of the voices, that his was the hectoring, bullying tone occurring virtually throughout the tapes and, what was described in the transcript as screaming on the part of the respondent, proved on listening to the tapes, to be nothing more than weeping or sobbing. In this direction the transcript was biassed.

13. The petitioner mentioned the attacks which his wife was encountering, to friends who suggested that he should take her to a psychiatrist and, on 31st May 1971, he took her to see Dr. C.M. Chung. Two days later on 2nd June, the respondent left for Djakarta, according to the petitioner because the respondent wished to find out from her godmother why her godmother had done this cruel thing to her but, according to the respondent, because the petitioner had sent her to Djakarta, advising her to obtain further psychiatric treatment there and saying that he would in due course come to fetch her. In fact, although the respondent wrote six letters to the petitioner from Djakarta, he did not reply to any of them and made no attempt to bring her back to Hong Kong or to communicate with her in any way. She returned to Hong Kong only in 1973, for the purpose of defending this petition and she returned at the expense of her godparents.

14. Dr. Cho-man Chung, the Hong Kong psychiatrist to whom the petitioner took the respondent on 31st May 1971, saw the girl on this occasion only and that for a period of about one hour and in the presence of the petitioner. Dr. Chung said that the respondent was not without English (and, indeed, she gave her evidence in court half in English and half in Sindhi) and that he could communicate with her either by gestures or by putting questions to her to which she would answer "Yes" or "No", but added that he did need interpretation from her husband, the petitioner. In June, Dr. Chung said, the petitioner came to him saying that he was going to take the respondent to Djakarta and asking Dr. Chung to record something about his, Dr. Chung's, diagnosis and proposed treatment; this was said to be for the benefit of the doctor in Djakarta, whereupon Dr. Chung wrote a report dated 12th June 1971. On the petitioner's own evidence this visit to Dr. Chung occurred a few days after the respondent's departure for Djakarta, so that there could have been no truth in the petitioner's assertion that he was going to take his wife to Djakarta. As we have seen, the petitioner made no attempt to communicate with his wife in Djakarta and there is no evidence that the report prepared by Dr. Chung was ever made available to a doctor in Djakarta. Indeed it was the respondent's evidence that she never had any occasion to visit a doctor in Djakarta in regard to her mental health.

15. Dr. Chung said that when he saw the respondent on 31st May 1971 she was in a depressive state and complained of general weakness, sleep disturbance, loss of interest, fear, anxiety and worry. There were also a lot of psychomatic complaints, due to nervous tension, such as breathlessness, palpitation, a feeling of constriction in the chest, headache and dizziness.

16. Dr. Chung said that he obtained his patient's history and that this indicated to him that she had had a kind of mental disorder of at least two years standing from the date on which he examined her, some of the features of that disorder being similar to the symptoms he observed at the time he examined her; and some being worse, namely fits of hysteria and a state of psychosis - that is insanity - were especially related to some very recent attacks occurring in the month before he had examined her.

17. Another feature which Dr. Chung found significant was the respondent's family history, notably the history of schizophrenia in a brother of the respondent, who was being treated in India, and kept in a mental hospital there. Such a history, Dr. Chung said, is significant in a prognosis of a member of his family who falls sick, indicating that such member may also be schizophrenic or suffering from a depression - the depression resulting from severe illness or one which could develop into schizophrenia. Since neither the respondent nor her godfather, who gave evidence in court, had the slightest knowledge of any mental illness, schizophrenic or otherwise in her brother, who has resided in India since the late 1950s having then left from Djakarta, the source of this alleged family history, apparently fed to Dr. Chung, is apparent and indeed, Dr. Chung confirmed that the information came from the petitioner.

18. Dr. Chung went on to say that the most significant features in the respondent's history were the hysterical fits which she had experienced after coming to Hong Kong. The respondent had told him that during the last two years she had had no interest in anything and that signified to him that she had suffered from this same type of illness for at least two years and possibly for longer. Dr. Chung said that he obtained the history of fits during April or May 1971 from the petitioner and was able to get confirmation from the respondent of "some features of the case". He came to the conclusion that the respondent required immediate treatment in hospital. He gave the respondent some pills to take, pending a decision by her husband, the petitioner, as to what course the latter would adopt in regard to the respondent's possible entry into hospital. It was the respondent's evidence that she took the pills for the remaining two days during which she was in Hong Kong, in order to please her husband but that, having left Hong Kong, she never took them again.

19. Dr. Chung said that he found the transcript of the tape recordings consistent with his findings upon examination of the patient. In Dr. Chung's opinion the respondent, at the time of his examination of her, was a "mentally disordered person" within the meaning of the Mental Health Ordinance. In his opinion, at the time of his examination, the girl was not suitable for marriage and, had she been an unmarried person contemplating matrimony, he would have advised her to wait until she got well, before entering into marriage. It was also the opinion of Dr. Chung that it would have been very inadvisable for the respondent to have born children whilst undergoing the illness she had at that time. This doctor considered that her illness must have been in existence for at least two years, but he found no signs of epilepsy.

20. In cross-examination Dr. Chung agreed that normally, before coming to a firm diagnosis, he would try to see the patient several times and agreed further that the report, dated 12th June, 1971, which he had made out at the request of the petitioner, was based not only on his interview with the patient but also upon a supplementary talk which he had had with the petitioner subsequently. Dr. Chung confirmed that at the interview on 31st May 1971 most of the conversation was between him and the petitioner, and that perhaps only about ten questions were directed by him to the patient, the respondent. Dr. Chung agreed that owing to the respondent's limited English he obtained his description of her symptoms basically from the petitioner; much of the patient's history was also supplied by the petitioner, including the allegation of schizophrenia in her brother in India; it was the petitioner who also supplied the information that the brother was confined in a mental hospital and who described the respondent's then recent firs, as well as supplying the history of two years depression and hysterical fits. In Dr. Chung's view, the respondent required electrical shock treatment since it could not be guaranteed that she would regularly take medicines prescribed for her; it was possible, Dr. Chung thought, she could have recovered without electrical shock treatment and, whilst some psychoanalysts would have said that she could recover without even any drugs being prescribed, in Dr. Chung's view that was not practical.

21. It was this doctor's further evidence that had he still been working as a Government psychiatrist and had the respondent declined voluntary treatment in a Government hospital he would have certified that such treatment was necessary with a view to compelling her to undergo treatment. The doctor agreed, however, that if at any time he had occasion to suspect that the medical history given to him was not completely reliable, he would not have so certified; moreover, any suspicion as to the validity of the medical history given to him would have affected his views on whether the respondent was at that time fit for marriage and for the procreation of children. At the same time, Dr. Chung said that there was no contradiction between the information given to him by the petitioner and what he could discern during the interview with the patient, and that even had he interviewed the respondent in the absence of the petitioner, he would have concluded that she was suffering from a severe neurosis.

22. The mother of the petitioner, who had lived with the couple during their brief marital sojourn in Chungking Mansion, gave corroboratory evidence of the occasion on 3rd May, when the respondent got up from her seat, jumped onto the mother-in-law's lap and screamed. This was the occasion upon which the petitioner was recalled from his office to find his mother with her arms around his wife. This witness gave further supporting evidence that unusual incidents occurred on another four or five occasions. In cross-examination she denied that there had ever been any quarrels between the respondent and herself or that she had scolded the respondent, their relationship being friendly. Referring to the incident of 3rd May 1971, she said that on that occasion the respondent had referred to a woman in red, and when it was put to the witness that in examination-in-chief she had said that the respondent had said nothing but only screamed, she denied this, although, in fact, that is what she had said in examination-in-chief. The witness said that she did not remember that upon one occasion she had abused her daughter-in-law and called her indecent because she had allowed a tailor to button the back of her blouse over her naked back, but agreed that she had objected to this procedure. Whilst this witness testified that the respondent had fits on five occasions in her presence, her account of those, which she detailed, was unconvincing and added little to the petitioner's case.

23. Two doctors gave evidence for the respondent. Dr. Wong Chiu-lung, a psychiatrist, interviewed the respondent on six occasions, between 2nd and 8th April 1973 for a total of more than six hours. On each occasion the respondent was accompanied by an interpreter but Dr. Wong said that he was able to converse with the respondent in English without the assistance of the interpreter for about 80% of the time. This doctor examined the respondent and also obtained a very comprehensive history from her; he found her to talk coherently and to the point; he described her as being in "good contact" and said there was nothing abnormal in her behaviour or activities; there was no hallucination or illusion and she was fully orientated in time, in person and in place; the doctor found no significant impairment of her memory.

24. Her history as elicited by Dr. Wong was that at the time of her departure from Djakarta for Hong Kong she was happy; she loved her husband, was happy about her marriage and, as far as she could make out, so was her husband. In Hong Kong she found her mother-in-law very critical of her and apparently taking great exception to the fact that the respondent had to wear glasses, remarking on many occasions that her daughter-in-law was blind. There were frequent criticisms of the respondent to her husband by the husband's mother and, on one occasion, when the respondent remonstrated with her mother-in-law, complaining that she was ruining the respondent's relationship with her husband, the mother-in-law replied "What if I do it purposely to ruin your relationship?" According to the history elicited by Dr. Chung, the respondent, because of this deteriorating relationship, became depressed, was lacking in interest, her sexual desire was impaired and sleep became interrupted; she became weak, even had wild suicidal ruminations and told her husband that he had better kill her rather than make life so miserable for her. She became very frightened of her husband and, as a result, experienced palpitations at times together with a heaviness in the chest. She went to see three doctors in all, one an eye specialist, who prescribed spectacles, one who gave her injections for anaemia, and Dr. Chung. After her return to Djakarta she was depressed at receiving no reply to her letters to her husband.

25. Dr. Wong concluded that the respondent's mental state at the time of his examinations of her was normal and considered that at the time when she was previously in Hong Kong she was most probably suffering from a depressive reaction possibly with some hysterical features. Dr. Wong also concluded that at the time of the marriage the respondent was most probably mentally normal in the medical sense and this conclusion was confirmed by information given to Dr. Wong by the respondent's godfather, whom he interviewed separately. It was Dr. Wong's understanding that the respondent had received no medical treatment whatever after her return to Djakarta. In his view if, at the time of the marriage, the respondent had been a mentally disordered person whithin the meaning of the Mental Health Ordinance, it was most unlikely that that fact would not have been noticed by the petitioner. Dr. Wong considered it most unlikely that the respondent had, for at least two years prior to her marriage, been suffering from severe neurosis which he described as the result of interaction between stress and personality; a person severely neurotic for two years continuously would have to have a very vulnerable personality to stress; Dr. Wong's finding was that the respondent was not, at the time of his examinations, suffering from a neurotic reaction, let alone a severe one and it was significant that from the date of her departure from Hong Kong about two years prior to the hearing of the action she had not had any medical treatment; during that time, Dr. Wong continued, she must have had her fair share of stress in that her marriage had broken down, she had to return to her family, which was very shameful to her as a Hindu girl, and she had received no replies to her letters to her husband. Despite these matters and the fact that she had received no treatment, she was now normal and must have been normal for some time; on the basis of these facts Dr. Wong concluded that it was most unlikely that the neurotic illness which she had experienced whilst in Hong Kong could have been present for two years prior to Mr. Chung's examination of her for the respondent had not a personality particularly vulnerable to stress, although the stress to which she had been subjected in Hong Kong as a newly married girl on her first trip from Djakarta, with no relatives in Hong Kong, and subjected to quite agonising treatment from her husband and mother-in-law, was very severe.

26. In Dr. Wong's view the respondent was most probably capable of managing herself and her affairs at the time of her marriage in April 1971 and capable of living in a married state and carrying out the ordinary duties and obligations of marriage at that time; most probably she did not, at that time come within the definition of a "mentally disordered person" and her neurotic tendency after the marriage was caused as a result of the stress she experienced after she came to Hong Kong. Dr. Wong expressed agreement with Dr. Chung who had said that he would not have expected the respondent to recover without treatment or drugs and Dr. Wong added that if she was suffering, at the time she was examined by Dr. Chung, from severe neurotic illness which had lasted for two years, he would have regarded it as highly improbable that she could have recovered without treatment or drugs. This led to Dr. Wong's conclusion that it was most unlikely that the illness had lasted for two years prior to May 1971, the date when Dr. Chung examined her.

27. Having made all due allowances for the possibility of lying and exaggeration, Dr. Wong came to the conclusion that the history given to him by the respondent was a truthful one; he concluded that at the time the tapes were recorded she was in a state of heightened susceptibility due to exhaustion, insomnia and, possibly, the effect of sleeping pills and also due to the series of hectoring questions put to her by her husband, the petitioner; the presence of auditory and visual hallucination was quite in keeping with a hysterical state.

28. Dr. Wong added that if it were true that the respondent's brother was in fact in a mental hospital in India suffering from schizophrenia, that fact would be of little assistance to him in helping to diagnose the respondent's condition because everything would depend upon the cause of the brother's illness which might, for example, be the result of a road accident; even if hereditary factors could be found in the brother's mental illness it would be too far-fetched to conclude, on that fact alone, that his sister was mentally ill.

29. Dr. Wong agreed that, other things being equal, Dr. Chung, who examined the patient in May 1971, was in a better position than he to assess the patient's mental health at that date: but added that everything was not equal in the sense that he had had the opportunity of examining the respondent on six occasions for a total of more than six hours as against Dr. Chung's single one-hour examination; he also had had the advantage of being able to observe her progress since May 1971 up to the present time as well as being able to interview her godfather - an opportunity denied to Dr. Chung because the godfather was not in Hong Kong in May 1971; moreover, Dr. Wong said, he had spent about 80% of the interviewing time in direct communication with the respondent and had the additional advantage of knowing that she had had no treatment in the meantime.

30. The second doctor who gave evidence on behalf of the respondent was Dr. Wedderburn, who is both a doctor of medicine and a surgeon of many years experience but is not a psychiatrist. Dr. Wedderburn found the respondent's general health and physical condition to be perfectly normal; she was co-operative, friendly, of a pleasant personality and surprisingly relaxed. Dr. Wedderburn considered her mental condition completely normal, adding that a competent doctor could assess mental condition whether or not he was a psychiatrist, in the same way that a doctor could diagnose an inflamed appendix without, unless he were a surgeon, being able to remove it. Dr. Wedderburn had studied a copy of Dr. Chung's report on the respondent and it was Dr. Wedderburn's opinion that had the girl been as ill as Dr. Chung described she could not, without psychiatric treatment, have recovered at all - much less become normal. Dr. Wedderburn would have expected a person having had such a serious mental condition as that described by Dr. Chung, to be haggard, unkempt and careless of personal hygiene but found none of these signs nor any signs of physical deterioration or loss of weight. Dr. Wedderburn said that he would be surprised to know that the respondent had suffered from severe mental illness in April 1971 and considered that she could not have recovered from such an illness without expert attention and care whereas in fact she had had none.

31. The respondent also gave evidence. In the witness-box she displayed a relaxed and pleasant personality, answering with candour and without apparent embarrassment questions upon matters which, in many young women in her situation, would have provoked embarrassment. She told the court that prior to her marriage she had never left Djakarta where she had lived a secluded, protected life in her own home; before meeting her husband she had had no boy friends; she had met her husband on two or three occasions during the ten days between their first introduction and their engagement and on these occasions, although he had talked to her, she had not spoken to him, being too shy to do so. According to the respondent, after their engagement the couple saw each other every day, sometimes for an hour, sometimes for two hours, during which period there was mutual conversation; each day she got to know the petitioner better, liked him and was very happy and busy making plans for the wedding, which she described as a very happy occasion. The respondent said that on their wedding night she and the petitioner made love and "it was all pleasant" and between the wedding and leaving for Hong Kong "my relationship with my husband was all nice".

32. The respondent said that before leaving for Hong Kong with the petitioner at the age of 21, she had never had any mental illness nor suffered any fits.

33. Although the respondent took the oath in English she was frequently compelled to lapse into the Sindhi dialect in the course of her evidence. Her English is not fluent, which may explain the apparent ingenuousness of some of her evidence as, for example, her statement that when they first came to live at Chungking Mansion she was "very nice" to her husband but "He was not as nice to me; different". The respondent complained that after their arrival in Hong Kong her husband used to ignore her and took her for granted; that he used to argue and fight with her about trivial matters and that in the main he confined his conversation to his mother. Frequently these two talked about the respondent in front of her in terms which drove her to get up and go into her room because the things they were saying about her made her feel "hurt in my heart". Her husband, she said, frequently shouted at her "You are blind" and her need to wear spectacles appears to have been a source of irritation to both her husband and her mother-in-law, the former being in the habit of telling relatives who came to the house, "The girl cannot see. She is very blind". At breakfast he would hold the newspaper at three different distances from her face, saying "Can you read this? Can you read this?" and commenting unfavourably upon her eyesight. In Court the respondent sometimes wore spectacles and sometimes contact lenses. The spectacles did not impair her appearance.

34. It was the respondent's further evidence that her husband used to tell her that she had married him for his money and that from time to time he used to say "Look at me! Look at me!" and force her to stare into his eyes for about five minutes at a time - a process which made her feel frightened - "So that I had shaking in my heart". He used to complain that she did not talk much and asked why she kept quiet liked a statue. The reason, she said, that she did not talk much was because she was unhappy and upset and she used to wonder what she had done to him that he should treat her so ever since bringing her to Hong Kong.

35. With regard to the incident on 3rd May 1971, the respondent said that she was sitting at a table when she suddenly fell forward over it, whereupon her mother-in-law said "If you fall on the table, the table will hurt you eyes. You had better lie on my lap". At this the mother-in-law put her arms around the respondent, meanwhile telling the amah to telephone to the petitioner, who returned to the flat and found his wife cradled in his mother's arms. The respondent denied that she had had fits and screamed. I have already observed that the transcript of the tapes was misleading in its reference to screaming. In regard to one of the two occasions upon which her husband taped their conversation, the respondent said that one morning she felt ill and lay on her bed, whereupon her mother-in-law telephoned to the petitioner at his office. The petitioner returned home, came into the bedroom, asked her what had happened. He repeated this enquiry in a very rough manner, meanwhile switching on the tape recorder and proceeded to ask her in a hectoring tone, which can be heard on the tape, "Have you seen anything?" and repeating "What do you see?". It was for this reason, the respondent said, that she answered "I see a girl, I see a woman" and she cried.

36. On other occasions, the respondent said, her husband would ask her silly questions in a very rough manner as, for example, shouting "Who am I? Who am I? You know who I am? I am the richest man in the world". At other times he would ask "Do you know me?"

37. On the occasion of the second tape recording the respondent talked about her godmother, to whom she refers as Auntie Ganga, and said that it must have been Aunt Ganga who had, in some manner, caused her to feel strange and unhappy. In fact, the respondent said, it was her mother-in-law who had had this effect upon her but she felt that she could not tell her husband so and, therefore, blamed Auntie Ganga. Again, on this occasion, the petitioner kept asking her "What do you see? What do you see?". The respondent said that in fact she did not see anything but because of his repeated question told him that she saw the lady ghost; the respondent added that if her husband had not kept asking her this question she would not have mentioned the lady ghost. She told the Court, "He asked me silly questions, so I gave him silly answers".

38. The respondent further claimed that on the occasion when the petitioner took her to see Dr. Chung he told the doctor in her presence "the girl is crazy". He had previously told her that if she went to see the doctor by herself she was to tell the doctor that she was mad. Her husband also told the doctor in her presence that she suffered from fits. At this interview, the respondent says, she exchanged only a few words with the doctor, answering his questions "Yes" or "No"; she was uninterested in talking to him because she knew that she was not ill, but she did not contradict her husband in front of Dr. Chung because she was afraid of her husband.

39. After leaving Hong Kong two days later for Djakarta, the respondent ceased to take the pills which Dr. Chung had given her, and during her stay in Djakarta, which lasted till February 1973, she had no electric shock treatment, no drugs and no treatment of any kind for mental illness. The respondent was unhappy at being back in Djakarta because she was separated from her husband and because she was receiving no replies to her letters to him. She describe herself as "feeling good" about her husband now and added that if he could tell her happily that he wanted her back she would go back to him since she still wanted to live with him and her mother-in-law. At the time of her marriage she had been happy, considering herself quite normal and not suffering from any mental illness; after she came to Hong Kong, she said that she was generally weaker both physically and mentally because she had nobody's love and was "just thinking and thinking about it".

40. As to her brother in India, the respondent's evidence was that he had gone to India when she was small, that he sometimes wrote to her, and that if he was mentally ill she did not know of that. In cross-examination she denied that she and the petitioner did not really know each other before marriage, but said that they knew each other very well, since for a period of two weeks he had come each day to her house. The respondent denied that she had been cold and frigid on the wedding night or that she had lost herself in a world of her own on that occasion. The wedding night had not been as described by her husband but had been quite normal and they had made love on that night and on the two subsequent nights; she had not complained of feeling weak and tired and all the things her husband had said about their honeymoon were false; although the petitioner had been rough in his love-making, she had not been cold towards him and marital relations had taken place each day after they came to Hong Kong until a day or two before her departure for Djakarta on 2nd June, 1971.

41. The godfather of the respondent also gave evidence, having come from Djakarta for that purpose. He described the respondent as being like a daughter to him, and said that between 1959 and 1964 she had lived in his household and between 1964 and 1971 had lived with her brothers but had spent a lot of time in his, the godfather's, house. This witness knew the respondent very well before her marriage and described her as a healthy girl who had never suffered from any mental illness but who was in every way normal and continued to be normal between the beginning of February 1971, when she first met the petitioner, and the date of her marriage in April of the same year. The godfather said that he also knew the respondent's family very well - her father, mother and brothers - and was aware of no mental trouble in any member of her family. When the respondent had returned to Djakarta from Hong Kong, he understood her to be mentally fit and she had lived in his household from June 1971 until returning to Hong Kong in March 1973 for the purpose of this hearing; during that time he had never seen or heard her behaving in an abnormal way nor known her to throw a fit; nor, within that period, had she received any treatment for mental illness.

42. The evidence of the respondent and her godfather in regard to her mental health, is of some marginal significance and points to consistent mental good health. The clash of evidence however is between the giants - the medical men; and when their evidence is considered, it is at once apparent that the petitioner, upon whom the burden rests, has failed, even upon a balance of probabilities, to establish that at the time of the marriage, the respondent was suffering from mental disorder or from recurrent attacks of insanity or epilepsy.

43. Dr. Chung, who considered that the respondent had suffered from a mental disorder for at least two years prior to the date of his single examination of her, had the advantage of time - using that word in its chronological sense; for he saw the patient within two months of her marriage. That however, was probably Dr. Chung's only advantage. Dr. Wong had the advantage of time, using that word in a cumulative sense, for he examined the respondent upon six occasions for a total period of more than six hours. This doctor had the further advantage of being able, in April 1973, to note the progress made by the patient, to the point of complete normality, and of being able to interview her godfather. Moreover he had been in direct communication with the patient for 80% of the interviewing time and had the additional benefit of the knowledge that she had undergone no treatment since her visit to Dr. Chung. Dr. Wong considered that on the basis of her "recovery" in the absence of treatment, it was most improbable that at the date of her marriage, the respondent came within the definition of a mentally disordered person. This view was convincingly reinforced by Dr. Wedderburn who, though not a psychiatrist, was a confident and excellent witness.

44. It is impossible for a layman to pontificate in this highly technical, and still partly unmapped, field of mental health. He can only listen to the experts, make sure that he understands their terminology and diverging views, and reach a conclusion. With the greatest respect to Dr. Chung, an acknowledged expert in the field, he lacked advantages which Dr. Wong had and which I have enumerated. I have no hesitation in accepting the views of Drs. Wong and Wedderburn. Even had I found it impossible to choose between the opposing views expressed, the very existence of such a clash of medical evidence would have left the petitioner in the position of having been unable to discharge the burden of proof lying upon him. But I am in no doubt.

45. Should I be wrong in holding that the petitioner has failed to prove that the respondent was a mentally disordered person at the time of her marriage, it would become relevant to reach a finding as to whether marital intercourse took place, with the consent of the petitioner, since the discovery by him of the grounds for a decree - since such intercourse would operate as a bar to the decree. The answer must be that no such intercourse took place for it was the evidence of the respondent that the last such occasion was on the 29th or 30th May 1971. There is no evidence however, that the petitioner was made aware of the suggestion that the mental illness diagnosed by Dr. Chung, had a two-year history until he received Dr. Chung's written report of 12th June 1971. He could not therefore, before approximately the middle of June, 1971, have had grounds for believing the respondent to have been mentally disordered at the time of the marriage, that is, he could not have known of the possible existence of grounds for seeking a declaration of the nullity of his marriage.

46. Costs to the Respondent to be taxed under the Legal Aid Regulations.

Representation:

M. Asome (H.A. Hoosenally & Co.) for Petitioner

W. Waung (Ngan & Wong) assigned for Respondent.