Hindu Marriage Act sec.12(1)(c) and sec.27 and Or.6 rule 4 of C.P.C and Section 12(2)(a) of Hindu marriage Act- Psoriasis is not a disease mentioned in sec.13 of Hindu marriage act to grant divorce - Mere Suppression of Psoriasis at the time of marriage does not amounts to force or fraud as mentioned in sec. 12(1)(c) and further more after knowing Psoriasis in May 2005. she lived with him up to July 2005 and as such she is not entitled for divorce as per sec.12(2)(a)- Except saying suppression of disease of Psoriasis , No pleading that by suppression, the husband played fraud and obtained her consent for the marriage as per Or. 6 rule 4 of C.P.C - High court allowed the appeal and set aside the orders of family court = S.Mahender.. Appellant Smt.Shalini.. Respondent = 2014 ( January part )judis.nic.in/judis_andhra/filename=10771
Hindu Marriage Act sec.12(1)(c) and sec.27 and Or.6 rule 4 of C.P.C and Section 12(2)(a) of Hindu marriage Act- Psoriasis is not a disease mentioned in sec.13 of Hindu marriage act to grant divorce - Mere Suppression of Psoriasis at the time of marriage does not amounts to force or fraud as mentioned in sec. 12(1)(c) and further more after knowing Psoriasis in May 2005. she lived with him up to July 2005 and as such she is not entitled for divorce as per sec.12(2)(a)- Except saying suppression of disease of Psoriasis , No pleading that by suppression, the husband played fraud and obtained her consent for the marriage as per Or. 6 rule 4 of C.P.C - High court allowed the appeal and set aside the orders of family court =
The respondent filed F.C.O.P.No.143 of 2006 in the Family Court,
Hyderabad, against the appellant, under Sections 12(1)(c) and 27 of the Hindu
Marriage Act, 1955 (for short 'the Act'), for annulment of the marriage.
She has also prayed for return of a sum of Rs.6,50,000/- said to have been given as
dowry and Rs.5,00,000/- towards cost of gold, silver and other articles said to
have been presented at the time of the marriage.
The ground pleaded by the respondent was that the appellant and his family
members suppressed a vital information about him at the time of marriage viz.,
that he is suffering from psoriasis.
Trial court decreed the suit =
1) Whether the respondent proved that her consent to the marriage with the
appellant was obtained by force or by fraud as to any material fact, concerning
the appellant; as mentioned under Section 12(1)(c) of the Act?
2) Whether the O.P. filed by the respondent is covered by the exception, carved
out under Section 12(2)(a) of the Act?
13(1) (iii), (iv) and (v) of the Act makes this aspect clear.
In relation to the plea raised by the respondent, two aspects became clear.
The
first is about the nature of ailment.
The second is as to
whether the appellant
was under legal obligation to reveal the same and if so, whether there was any omission on his part.
2014 ( January part )judis.nic.in/judis_andhra/filename=10771
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL
F.C.A.No.196 of 2009
02-01-2014
S.Mahender.. Appellant
Smt.Shalini.. Respondent
Counsel for appellant : Sri G.M. Mohiuddin
Counsel for respondent : Mrs. S. Vani
<GIST:
>HEAD NOTE:
?CASES REFERRED :
1) AIR 1984 Delhi 139
2) 2008(4) ALD 728 (DB)
3) (1992) II DMC 244
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
F.C.A.No. 196 of 2009
JUDGMENT : (Per LNR,,J)
The appellant is the husband of the respondent. Their marriage took place on
10.02.2005.
The respondent filed F.C.O.P.No.143 of 2006 in the Family Court,
Hyderabad, against the appellant, under Sections 12(1)(c) and 27 of the Hindu
Marriage Act, 1955 (for short 'the Act'), for annulment of the marriage.
She has also prayed for return of a sum of Rs.6,50,000/- said to have been given as
dowry and Rs.5,00,000/- towards cost of gold, silver and other articles said to
have been presented at the time of the marriage.
The ground pleaded by the respondent was that the appellant and his family
members suppressed a vital information about him at the time of marriage viz.,
that he is suffering from psoriasis.
It was stated that she has been subjected
to serious harassment ever since the marriage on the ground that she did not
bring adequate dowry and despite that she continued to live with the appellant.
She alleged that the appellant never permitted her to see his body and he used
to wear full sleeves shirts, and switch off the light during night hours.
According to the respondent, she switched on the light during night when the
appellant was sleeping and she was shocked to see that his skin was peeling off
and that immediately she fainted.
She further stated that on being questioned,
the appellant replied stating that he is suffering from psoriasis for the past
two years and that he is taking treatment from Dr. D.B.N. Murthy.
The respondent stated that she left the matrimonial home in December, 2005 and
at a meeting of the members of their families, the appellant admitted that he is
suffering from psoriasis, but the elders opined that it is not a ground for
divorce at all.
Ultimately, she pleaded that the marriage is liable to be
dissolved, on account of the suppression of the vital information and that had
she known about the same, she would not have agreed for the marriage with the
appellant.
The appellant filed a counter opposing the O.P. He denied all the facts pleaded
in the O.P. He stated that himself and the respondent were living happily, so
much so, the respondent became pregnant, but she got it terminated, despite his
opposition. He further stated that he never took treatment with the doctors
mentioned in the O.P. According to him, on the advice of elders, he once went
to a doctor and after verification, some medicines were prescribed observing
that it would be cured very soon.
The trial Court allowed the O.P. through its order, dated 12.03.2009.
Hence,
this appeal under Section 19 of the Family Courts Act, 1984.
Sri G.M. Mohiuddin, learned counsel for the appellant, submits that the O.P. was
not maintainable in law, since the ingredients of Section 12 of the Act are
totally absent in it. He contends that 'psoriasis', even if exists in a
spouse, is not a ground for divorce. Learned counsel further submits that the
allegation of the respondent that the appellant always covered his body is not
correct. He submits that at the time of the marriage, ceremonies are performed
where the bridegroom is required to remove his shirt and that after marriage
also, the families went to Komaravelli, where during Abhishekam his shirt was
removed and nothing objectionable was noticed at any point of time. He contends
that the psoriasis, wherever it exists aggravates periodically and that it does
not hinder any human activities.
The learned counsel further submits that the plea as to suppression of the vital
information was not at all proved. Alternatively, he submits that the O.P. is
barred, since it is not presented within the time stipulated or because the
spouses lived together even after the respondent is said to have noticed the
psoriasis on the appellant.
Mrs. S. Vani, learned counsel for the respondent, on the other hand,
submits that though 'psoriasis' may not be a disease that warrants divorce, the
plea raised by the respondent is that at the time of settlement of the marriage,
vital information about the health condition of the appellant was suppressed and
that itself is sufficient for annulment of the marriage. She contends that the
doctors, who examined the appellant, found that the disease very much exists.
She further submits that the plea raised by the appellant about the limitation
for filing of the O.P. is also incorrect. She contends that soon after the
respondent noticed ailment of the appellant, she left the company and
thereafter, the O.P. was filed before the time stipulated under Section 12 of
the Act expired.
The O.P. was filed for annulment of the marriage under Section 12 of the Act.
The trial Court framed only one point for consideration, namely,
whether the petitioner is entitled to the relief of annulment of their marriage.
On behalf of the respondent, P.Ws.1 to 7 were examined and Exs.P.1 to P.9 were
filed. On behalf of the appellant, R.Ws.1 and 2 were examined and Ex.R.1 was
filed. Apart from that, a letter addressed by the In-charge Medical Officer,
ESI Dispensary, was taken on record as Ex.X.1.
In this appeal, the points for consideration are as to:
1) Whether the respondent proved that her consent to the marriage with the
appellant was obtained by force or by fraud as to any material fact, concerning
the appellant; as mentioned under Section 12(1)(c) of the Act?
2) Whether the O.P. filed by the respondent is covered by the exception, carved
out under Section 12(2)(a) of the Act?
POINT NO.1:
There is no dispute that the marriage between the parties herein has taken place
on 10.02.2005. They lived together, till May, 2005. The appellant pleaded that
the respondent became pregnant, but she got it terminated despite his
opposition. The evidence is not clear about this, and it is not material fact,
for adjudication of the O.P. It is referred only to point out that the parties
lived together at least till 2005.
The respondent pleaded that in May, 2005, she noticed that the appellant is
suffering from 'psoriasis' and at once she became shocked. She is said to be
residing in the house of her parents. Ever since then, there is some
uncertainty about this.
While in the O.P., the respondent stated that in May
2005 she went to the house of her parents soon after noticing that the appellant
is suffering from psoriasis, in her evidence as P.W.1, she admitted that it is
only in July, 2005 that she went to the house of her parents. Mention was also
made in the O.P., to the meeting of elders and relations in December, 2005.
Just as in any other contract, the consent in relation to a marriage between a
Hindu male and female must be the result of a free will. In case the consent of
one spouse is obtained by the other, through coercion or fraud, law recognizes
the same as basis for annulment of marriage. The Hindu Marriage Act, which is a
sacred union, partakes the character of a contract, to this limited extent.
Section 12 of the Act reads as under:
"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 Sec.5; or
c) that the consent of the petitioner, or where the consent of the guardian in
marriage of the petitioner was required under Sec.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 anything contained in sub-sec. (1) no petition for annulling
a marriage, -
a) on the ground specified in clause (c) of sub-sec. (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."
A perusal of this provision makes it clear that two important words, namely,
'force' and 'fraud' are employed in it. The word 'suppression' does not occur
in this.
Nowhere in the O.,P., it was mentioned that any force was exerted upon
the respondent or her parents, for obtaining her consent to the marriage with
the appellant.
It appears that the failure on the part of the appellant to
inform that he is suffering from psoriasis was treated as an act of fraud.
Since the decree that may be granted with reference to Section 12 of the Act has
the effect of terminating the marriage, the language employed therein must be
kept in mind while analyzing the facts. Neither its purport can be expanded nor
can it be restricted.
Fraud or other related acts and omissions, wherever pleaded as the basis for the
relief in a suit or a petition, must be stated with necessary details, so that
the party accused of it, is provided with an opportunity to accept or contradict
the same. Rule 4 of Order VI of CPC make this obligatory.
Though the pleading
in a suit or a petition is required to be precise and not comprising of
evidence, an exception is carved out, if fraud and other related acts or
omissions, are pleaded. The O.P. filed by the respondent is totally silent
about the details. Except stating that the appellant did not inform the
respondent and her parents that he is suffering from psoriasis, no other act of
fraud or use of force was mentioned.
It would be an ideal situation where the parties to a marriage are hale and
healthy. However, the instances of one or the other spouse suffering from some
ailment or deformity, are not lacking. Happiness of a person is not entirely
dependent upon the health condition of such person or his or her spouse. It is
mostly a state of mind. If the parties have understood each other, the illness
or sickness that occurs to one would be an occasion for the other, to help and
serve. One of the promises that the spouses make at the time of a Hindu
marriage is that the respect to each other should not get diluted at the testing
times or in adverse circumstances. This said, it must be noted that law itself
recognizes certain types of ailments, as grounds for granting divorce. Section
13(1) (iii), (iv) and (v) of the Act makes this aspect clear.
In relation to the plea raised by the respondent, two aspects became clear. The
first is about the nature of ailment.
The second is as to whether the appellant
was under legal obligation to reveal the same and if so, whether there was any
omission on his part.
The respondent as P.W.1 has repeated the contents of the O.P. in the affidavit
filed in lieu of her chief examination. In her cross examination, she stated
that the appellant and his family members suppressed the fact that the appellant
is suffering from a disease. It is that suppression, which according to her,
constitutes fraud. In her petition, the respondent did not state as to when she
noticed the ailment or disease of the appellant. The relevant portion in the
O.P. reads:
"The petitioner submits that the behavior of the respondent used to be strange
in privacy. Being a man, he never undressed before the petitioner. He never as
much as removed his shirt in the presence of the petitioner. He always wore full
sleeves shirts. Even in bed, he used to be dressed fully. During private
moments, he had intimacy with the petitioner only in full darkness. The
petitioner was given strict instruction that she should wake up while it is
still dark and step out of the bed room only after bathing. The petitioner was
not allowed to be around when the respondent used to bath or get dressed and
strangely, his mother used to help him. The petitioner used to find peels and
scales in her bed room every day in the morning. They appeared like human skin.
When questioned, respondent threatened her to mind her own business and not to
ask such questions. She saw some medicine prescriptions of Dr. batra in her
bedroom when she asked respondent, he said that he is taking treatment for hair
loss. The said strange behavior continued, until one night, the petitioner
accidentally switched on the light in the bed room while respondent was
sleeping. To her utter shock and dismay, the petitioner saw skin peeling off
the body of respondent. She fainted at the said sight. On further enquiry from
the respondent he informed that he has been having this problem for over two
years and that he is taking treatment from Dr.D.B.N. Murthy. Immediately, the
petitioner went to her parental house, which was in the month of June, 2005 ever
since she is living with her parents. The petitioner is filing herewith a copy
of the medical prescription and the same is marked as document No.4."
In her evidence also, she was not clear as to when she has noticed it, and in
what form. In the cross examination, she stated that in May, 2005 the appellant
informed her that he was taking treatment from Dr. D.B.N. Murthy for the last
two years. It was elicited from her that though she knew in May, 2005 about the
ailment of the appellant, she lived with him till July, 2005. It was also
elicited that between July and December, 2005 as many as seven meetings have
taken place.
A medical certificate, said to have been issued by a Civil Assistant Surgeon of
ESI Hospital, to the effect that the appellant is suffering from psoriasis, was
filed by the respondent. In relation to that document, P.W.2, a doctor from ESI
Hospital, was examined. This witness stated that the certificate (Ex.X.1) was
issued by Dr. V. Sukhjeevana Chary. In the cross examination, it was elicited
from her that ESI hospital has no pathological laboratory and that she is not
the in-charge of the dispensary. The following was elicited from her:
"It is true complete blood picture and biopsy must be conducted, to say a person
who is having skin disease is suffering with psoriasis. Certificate
dt.8.11.2004, 15.11.2004 and 22.11.2004 which are part of Ex.X.1 were issued to
the patient Mahender only. As per Ex.X.1, Mahender came to our dispensary for
the first time on 27.10.2004. I do not know when Mahender approached our
dispensary and when he was examined by Dr. Sukhaneevana Chary, he was having
only chicken pox. The witness says Dr. Sukhanajeevana Chary diagnosed for
chicken pox also. Dr. Sukhajeevana Chary is not a qualified dermatologist. It
is true when I examined in chief I did not say that the patient S. Mahender was
suffering from chicken pox also."
P.W.3 is another doctor. He is said to have prescribed medicines to the
appellant, through Ex.X.2. The statement of this witness in the cross
examination is important. The relevant portion reads:
The petitioner, her father and respondent, his father come back with reports.
The father of the petitioner had approached me dt.6.2.2006 with a photo copy of
my list of investigations recommended on 4.7.2005 and requested for certificate
as issued as Ex.X.2. The father of the petitioner told me that the matter
between pending in the Court and requested me to issue a certificate. Normally,
the expression used on the list of investigated on dt.4.7.2005 "Not for Medico-
Legal Purpose" is not usually written by me, but is written on this as I
suspected that to avoid my involvement in Legal proceedings. The original
certificate dt.6.2.2006 of Ex.X.2 is issued to the petitioner father. The
Ex.X.2 does not contain any statement that the respondent suffers from psoriasis
in the certificate dt.6.2.2006. It is not true to suggest that the respondent's
father raised an objection with regard to my including the observation that the
patient as past history of similar condition two years back. The certificate
dt.6.2.2006 was issued at the request of some persons who claimed to the
authorized by the Court in some legal proceedings. I never verified the claim
of the said persons while issuing the certificate dt.6.2.2006. I recollect
having seen a document requesting me to issue the above certificate I did not
verify the said authority nor do I keep a copy of the same."
The trustworthiness of this witness is further exemplified from the following
statement:
"I would not have issued Ex.X.2 dt.6.2.2006 to any person except when it is
requested judicial or authorized authority. The petitioner, her father
accompanied the person who was claiming to be authorized by a judicial
authority. I do not maintain any medical records of the patients. Patients
themselves maintain their records."
P.W.4 is the father of the respondent. In the cross examination, he stated "the
petitioner told me that the respondent suffered from the skin disease and that
she learnt about the same after two months from the date of marriage". The
evidence of P.W.5 does not have any relevance on this aspect. P.W.6 is a person
who is said to have accompanied the respondent and her father, P.W.3. According
to this witness, P.W.3 is a Skin Specialist. However, P.W.3 himself did not
claim to be so. The other portion of the evidence of this witness is of not any
relevance.
Psoriasis is not a contagious disease nor does it constitute a ground for
divorce. The word 'suppression' does not occur in Section 12 of the Act. The
Parliament has employed the words 'force' and 'fraud'. Before a party gives
consent for the marriage with the other, there is bound to be exchange of
information. While a part of information may emerge voluntarily, it is not
necessary that the parties must present to each other, their entire life history
thus far. If one is curious to know any particular information about the other,
certainly the same can be procured directly or from the persons who act as
mediators. There are certain important informations, such as, whether the
person was already married earlier, whether he or she suffers from any serious
disease which, if known to the other party, would not agree for the match.
Parliament has taken care to ensure that even if such important factors which,
if known to a party, would not get diluted simply because marriage was
performed. If the information pertaining to such objectionable conduct is
noticed at a later stage also, that can be cited as a ground for dissolution.
Section 13 of the Act enlists the factors of this nature. In case, the
information of that nature is suppressed and the consent was obtained, the
aggrieved party, no doubt, may have been subjected to certain inconvenience with
the marriage, but whenever he or she notices the same, it can be pleaded as
ground for divorce. For instance, if a party to the marriage was married to
another, it can be pleaded as a ground for divorce, as and when the fact is
known.
The ground mentioned under Section 12(c) of the Act stands on a slightly
different footing. This Section cannot be treated as a provision placing burden
upon a spouse to the marriage, to reveal the entire information about him or her
to the other. If that were to be so, it would have become unworkable. It is
too difficult to stuff the provision with the types of information that a person
must share with the would be spouse at the time of settlement of the marriage.
If suppression of an item of information can be treated as a ground under
Section 12(c) of the Act, it would not be difficult to imagine the serious
repercussions thereof. What constitutes the necessary information, would depend
upon the likes and dislikes of the person concerned. A habit, information or
incident, which is close to the heart of an individual, may not be so for the
other. Take for instance that a person who is looking for a match is a doctor
and he obtained the seat by paying capitation fee, not being able to procure the
seat on merit, and he did not inform the factum of payment of capitation fee or
donation for procuring the seat, to his spouse at the time of discussions
preceding the marriage. It may so happen that the woman with whom the marriage
was fixed dislikes to the core, any practice of procuring admission through
payment of capitation fee and the fact that her husband got the seat through
such method comes to her knowledge, after marriage. It can be successfully
argued that the man did not inform his wife that he procured the seat through
donation. However, it cannot be treated as a suppression of the relevant
information, much less a ground for annulment of marriage. Similarly, persons
may have their own likes or dislikes and the mere fact that the information
which is otherwise not to their liking was not revealed before the marriage,
cannot be cited as a ground under Section 12 of the Act. Viewed from this
angle, the omission of the word 'suppression' in Section 12 of the Act is not
without basis.
Section 12(1)(c) of the Act gets attracted only when the consent was obtained
through force or by playing fraud. The content of these words can be better
understood, if one takes into account, the purport of Section 12(2)(a) of the
Act. In the relevant clause, the words used are "force has ceased to operate or
as the case may be fraud has been discovered". This provision can not at all be
operated vis--vis the suppression of information. Therefore, the respondent
cannot be said to have made out a case under Section 12(1)(c) of the Act.
Reliance is placed by the learned counsel for the respondent, upon the
judgment of the Delhi High Court in Smt. Praveen Kumari Vs. Man Mohan Kumar1.
That was a case where the disease of epilepsy was not revealed. It hardly
needs any mention that epilepsy if proved, would fit into Section 13 (1)(3) and
it constitutes a ground for divorce.
Judgment in M. Devender Vs. A. Sarika,2 relied upon by the respondent, is a case
where the information as to the educational qualifications and financial and
economic status furnished by the husband turned out to be false.
If a particular information, knowing it to be false is presented as true, it amounts
to fraud and on proof of fraud, a marriage can certainly be annulled under
Section 12(1)(c) of the Act.
In the instant case, the allegation is about
suppression and failure to inform a particular fact cannot be treated as fraud,
unless the person failing to mention it was under legal obligation to state it.
In Sunita Jain Vs. Suresh Kumar Jain3, the ground pleading annulment was that
the husband was suffering from mental disorder even before the date of marriage
and that it was not revealed. A learned Single Judge took the view that the
consent in such case can be said to have been obtained by fraud. Here again,
the mental disorder, if proved, would fit into Section 13 of the Act.
We, therefore, find that the respondent failed to prove the ingredients of Section
12(1)(c) of the Act against the appellant. The point is answered accordingly.
POINT NO.2:
Assuming that the ground referable to Section 12(1)(c) is proved, it needs
to be seen as to whether the exception carved out under Sub-Section 2(a) of
Section 12 of the Act gets attracted. Though an attempt is made that the aspect
of limitation covered by Section 12(2)(a) of the Act gets attracted, we are not
at all impressed by that. The marriage took place on 10.02.2005 and the O.P.
was presented within one year from the date of marriage itself. It is only when
the O.P. is not filed within one year from the date on which the fraud was
discovered or the force ceased to operate, that can be treated as barred.
There is another facet of Sub-Section 2. In case the petitioner in O.,P. filed
under Section 12(1)(c), with his or her full consent lived with the other party
to the marriage after the force, ceased, or the fraud has been discovered, the
Court cannot entertain the O.P. In the instant case, even according to the
respondent, the fact that the appellant is suffering from psoriasis came to her
knowledge in May 2005. Even if her consent is said to have been obtained by
fraud, she can maintain the O.P. if only she stopped living with him and filed
the O.P. thereafter. The evidence discloses that she lived with the appellant
till July, 2005. That disentitles the respondent to maintain the O.P.
We, therefore, allow the Family Court Appeal and set aside the decree passed by
the trial Court. There shall be no order as to costs.
The Miscellaneous Petitions, if any, pending in the appeal shall stand disposed
of.
______________________
L. NARASIMHA REDDY, J.
________________
M.S.K. JAISWAL, J.
2nd January, 2014
The respondent filed F.C.O.P.No.143 of 2006 in the Family Court,
Hyderabad, against the appellant, under Sections 12(1)(c) and 27 of the Hindu
Marriage Act, 1955 (for short 'the Act'), for annulment of the marriage.
She has also prayed for return of a sum of Rs.6,50,000/- said to have been given as
dowry and Rs.5,00,000/- towards cost of gold, silver and other articles said to
have been presented at the time of the marriage.
The ground pleaded by the respondent was that the appellant and his family
members suppressed a vital information about him at the time of marriage viz.,
that he is suffering from psoriasis.
Trial court decreed the suit =
1) Whether the respondent proved that her consent to the marriage with the
appellant was obtained by force or by fraud as to any material fact, concerning
the appellant; as mentioned under Section 12(1)(c) of the Act?
2) Whether the O.P. filed by the respondent is covered by the exception, carved
out under Section 12(2)(a) of the Act?
Just as in any other contract, the consent in relation to a marriage between a
Hindu male and female must be the result of a free will. In case the consent of
one spouse is obtained by the other, through coercion or fraud, law recognizes
the same as basis for annulment of marriage. The Hindu Marriage Act, which is a
sacred union, partakes the character of a contract, to this limited extent.
A perusal of this provision makes it clear that two important words, namely,
'force' and 'fraud' are employed in it. The word 'suppression' does not occur
in this.
Fraud or other related acts and omissions, wherever pleaded as the basis for the
relief in a suit or a petition, must be stated with necessary details, so that
the party accused of it, is provided with an opportunity to accept or contradict
the same. Rule 4 of Order VI of CPC make this obligatory. The OP is silent about details.
law itself recognizes certain types of ailments, as grounds for granting divorce. SectionHindu male and female must be the result of a free will. In case the consent of
one spouse is obtained by the other, through coercion or fraud, law recognizes
the same as basis for annulment of marriage. The Hindu Marriage Act, which is a
sacred union, partakes the character of a contract, to this limited extent.
A perusal of this provision makes it clear that two important words, namely,
'force' and 'fraud' are employed in it. The word 'suppression' does not occur
in this.
Fraud or other related acts and omissions, wherever pleaded as the basis for the
relief in a suit or a petition, must be stated with necessary details, so that
the party accused of it, is provided with an opportunity to accept or contradict
the same. Rule 4 of Order VI of CPC make this obligatory. The OP is silent about details.
13(1) (iii), (iv) and (v) of the Act makes this aspect clear.
In relation to the plea raised by the respondent, two aspects became clear.
The
first is about the nature of ailment.
The second is as to
whether the appellant
was under legal obligation to reveal the same and if so, whether there was any omission on his part.
Section 12(1)(c) of the Act gets attracted only when the consent was obtained
through force or by playing fraud. The content of these words can be better
understood, if one takes into account, the purport of Section 12(2)(a) of the
Act. In the relevant clause, the words used are "force has ceased to operate or
as the case may be fraud has been discovered". This provision can not at all be
operated vis--vis the suppression of information. Therefore, the respondent
cannot be said to have made out a case under Section 12(1)(c) of the Act.
Reliance is placed by the learned counsel for the respondent, upon the
judgment of the Delhi High Court in Smt. Praveen Kumari Vs. Man Mohan Kumar1.
That was a case where the disease of epilepsy was not revealed. It hardly
needs any mention that epilepsy if proved, would fit into Section 13 (1)(3) and
it constitutes a ground for divorce.
Judgment in M. Devender Vs. A. Sarika,2 relied upon by the respondent, is a case
where the information as to the educational qualifications and financial and
economic status furnished by the husband turned out to be false.
If a particular information, knowing it to be false is presented as true, it amounts
to fraud and on proof of fraud, a marriage can certainly be annulled under
Section 12(1)(c) of the Act.
In the instant case, the allegation is about
suppression and failure to inform a particular fact cannot be treated as fraud,
unless the person failing to mention it was under legal obligation to state it.
In Sunita Jain Vs. Suresh Kumar Jain3, the ground pleading annulment was that
the husband was suffering from mental disorder even before the date of marriage
and that it was not revealed. A learned Single Judge took the view that the
consent in such case can be said to have been obtained by fraud. Here again,
the mental disorder, if proved, would fit into Section 13 of the Act.
We, therefore, find that the respondent failed to prove the ingredients of Section
12(1)(c) of the Act against the appellant. The point is answered accordingly.
through force or by playing fraud. The content of these words can be better
understood, if one takes into account, the purport of Section 12(2)(a) of the
Act. In the relevant clause, the words used are "force has ceased to operate or
as the case may be fraud has been discovered". This provision can not at all be
operated vis--vis the suppression of information. Therefore, the respondent
cannot be said to have made out a case under Section 12(1)(c) of the Act.
Reliance is placed by the learned counsel for the respondent, upon the
judgment of the Delhi High Court in Smt. Praveen Kumari Vs. Man Mohan Kumar1.
That was a case where the disease of epilepsy was not revealed. It hardly
needs any mention that epilepsy if proved, would fit into Section 13 (1)(3) and
it constitutes a ground for divorce.
Judgment in M. Devender Vs. A. Sarika,2 relied upon by the respondent, is a case
where the information as to the educational qualifications and financial and
economic status furnished by the husband turned out to be false.
If a particular information, knowing it to be false is presented as true, it amounts
to fraud and on proof of fraud, a marriage can certainly be annulled under
Section 12(1)(c) of the Act.
In the instant case, the allegation is about
suppression and failure to inform a particular fact cannot be treated as fraud,
unless the person failing to mention it was under legal obligation to state it.
In Sunita Jain Vs. Suresh Kumar Jain3, the ground pleading annulment was that
the husband was suffering from mental disorder even before the date of marriage
and that it was not revealed. A learned Single Judge took the view that the
consent in such case can be said to have been obtained by fraud. Here again,
the mental disorder, if proved, would fit into Section 13 of the Act.
We, therefore, find that the respondent failed to prove the ingredients of Section
12(1)(c) of the Act against the appellant. The point is answered accordingly.
In case the petitioner in O.,P. filed
under Section 12(1)(c), with his or her full consent lived with the other party
to the marriage after the force, ceased, or the fraud has been discovered, the
Court cannot entertain the O.P. In the instant case, even according to the
respondent, the fact that the appellant is suffering from psoriasis came to her
knowledge in May 2005. Even if her consent is said to have been obtained by
fraud, she can maintain the O.P. if only she stopped living with him and filed
the O.P. thereafter. The evidence discloses that she lived with the appellant
till July, 2005. That disentitles the respondent to maintain the O.P.
We, therefore, allow the Family Court Appeal and set aside the decree passed by
the trial Court. There shall be no order as to costs.
under Section 12(1)(c), with his or her full consent lived with the other party
to the marriage after the force, ceased, or the fraud has been discovered, the
Court cannot entertain the O.P. In the instant case, even according to the
respondent, the fact that the appellant is suffering from psoriasis came to her
knowledge in May 2005. Even if her consent is said to have been obtained by
fraud, she can maintain the O.P. if only she stopped living with him and filed
the O.P. thereafter. The evidence discloses that she lived with the appellant
till July, 2005. That disentitles the respondent to maintain the O.P.
We, therefore, allow the Family Court Appeal and set aside the decree passed by
the trial Court. There shall be no order as to costs.
2014 ( January part )judis.nic.in/judis_andhra/filename=10771
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL
F.C.A.No.196 of 2009
02-01-2014
S.Mahender.. Appellant
Smt.Shalini.. Respondent
Counsel for appellant : Sri G.M. Mohiuddin
Counsel for respondent : Mrs. S. Vani
<GIST:
>HEAD NOTE:
?CASES REFERRED :
1) AIR 1984 Delhi 139
2) 2008(4) ALD 728 (DB)
3) (1992) II DMC 244
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON'BLE SRI JUSTICE M.S.K. JAISWAL
F.C.A.No. 196 of 2009
JUDGMENT : (Per LNR,,J)
The appellant is the husband of the respondent. Their marriage took place on
10.02.2005.
The respondent filed F.C.O.P.No.143 of 2006 in the Family Court,
Hyderabad, against the appellant, under Sections 12(1)(c) and 27 of the Hindu
Marriage Act, 1955 (for short 'the Act'), for annulment of the marriage.
She has also prayed for return of a sum of Rs.6,50,000/- said to have been given as
dowry and Rs.5,00,000/- towards cost of gold, silver and other articles said to
have been presented at the time of the marriage.
The ground pleaded by the respondent was that the appellant and his family
members suppressed a vital information about him at the time of marriage viz.,
that he is suffering from psoriasis.
It was stated that she has been subjected
to serious harassment ever since the marriage on the ground that she did not
bring adequate dowry and despite that she continued to live with the appellant.
She alleged that the appellant never permitted her to see his body and he used
to wear full sleeves shirts, and switch off the light during night hours.
According to the respondent, she switched on the light during night when the
appellant was sleeping and she was shocked to see that his skin was peeling off
and that immediately she fainted.
She further stated that on being questioned,
the appellant replied stating that he is suffering from psoriasis for the past
two years and that he is taking treatment from Dr. D.B.N. Murthy.
The respondent stated that she left the matrimonial home in December, 2005 and
at a meeting of the members of their families, the appellant admitted that he is
suffering from psoriasis, but the elders opined that it is not a ground for
divorce at all.
Ultimately, she pleaded that the marriage is liable to be
dissolved, on account of the suppression of the vital information and that had
she known about the same, she would not have agreed for the marriage with the
appellant.
The appellant filed a counter opposing the O.P. He denied all the facts pleaded
in the O.P. He stated that himself and the respondent were living happily, so
much so, the respondent became pregnant, but she got it terminated, despite his
opposition. He further stated that he never took treatment with the doctors
mentioned in the O.P. According to him, on the advice of elders, he once went
to a doctor and after verification, some medicines were prescribed observing
that it would be cured very soon.
The trial Court allowed the O.P. through its order, dated 12.03.2009.
Hence,
this appeal under Section 19 of the Family Courts Act, 1984.
Sri G.M. Mohiuddin, learned counsel for the appellant, submits that the O.P. was
not maintainable in law, since the ingredients of Section 12 of the Act are
totally absent in it. He contends that 'psoriasis', even if exists in a
spouse, is not a ground for divorce. Learned counsel further submits that the
allegation of the respondent that the appellant always covered his body is not
correct. He submits that at the time of the marriage, ceremonies are performed
where the bridegroom is required to remove his shirt and that after marriage
also, the families went to Komaravelli, where during Abhishekam his shirt was
removed and nothing objectionable was noticed at any point of time. He contends
that the psoriasis, wherever it exists aggravates periodically and that it does
not hinder any human activities.
The learned counsel further submits that the plea as to suppression of the vital
information was not at all proved. Alternatively, he submits that the O.P. is
barred, since it is not presented within the time stipulated or because the
spouses lived together even after the respondent is said to have noticed the
psoriasis on the appellant.
Mrs. S. Vani, learned counsel for the respondent, on the other hand,
submits that though 'psoriasis' may not be a disease that warrants divorce, the
plea raised by the respondent is that at the time of settlement of the marriage,
vital information about the health condition of the appellant was suppressed and
that itself is sufficient for annulment of the marriage. She contends that the
doctors, who examined the appellant, found that the disease very much exists.
She further submits that the plea raised by the appellant about the limitation
for filing of the O.P. is also incorrect. She contends that soon after the
respondent noticed ailment of the appellant, she left the company and
thereafter, the O.P. was filed before the time stipulated under Section 12 of
the Act expired.
The O.P. was filed for annulment of the marriage under Section 12 of the Act.
The trial Court framed only one point for consideration, namely,
whether the petitioner is entitled to the relief of annulment of their marriage.
On behalf of the respondent, P.Ws.1 to 7 were examined and Exs.P.1 to P.9 were
filed. On behalf of the appellant, R.Ws.1 and 2 were examined and Ex.R.1 was
filed. Apart from that, a letter addressed by the In-charge Medical Officer,
ESI Dispensary, was taken on record as Ex.X.1.
In this appeal, the points for consideration are as to:
1) Whether the respondent proved that her consent to the marriage with the
appellant was obtained by force or by fraud as to any material fact, concerning
the appellant; as mentioned under Section 12(1)(c) of the Act?
2) Whether the O.P. filed by the respondent is covered by the exception, carved
out under Section 12(2)(a) of the Act?
POINT NO.1:
There is no dispute that the marriage between the parties herein has taken place
on 10.02.2005. They lived together, till May, 2005. The appellant pleaded that
the respondent became pregnant, but she got it terminated despite his
opposition. The evidence is not clear about this, and it is not material fact,
for adjudication of the O.P. It is referred only to point out that the parties
lived together at least till 2005.
The respondent pleaded that in May, 2005, she noticed that the appellant is
suffering from 'psoriasis' and at once she became shocked. She is said to be
residing in the house of her parents. Ever since then, there is some
uncertainty about this.
While in the O.P., the respondent stated that in May
2005 she went to the house of her parents soon after noticing that the appellant
is suffering from psoriasis, in her evidence as P.W.1, she admitted that it is
only in July, 2005 that she went to the house of her parents. Mention was also
made in the O.P., to the meeting of elders and relations in December, 2005.
Just as in any other contract, the consent in relation to a marriage between a
Hindu male and female must be the result of a free will. In case the consent of
one spouse is obtained by the other, through coercion or fraud, law recognizes
the same as basis for annulment of marriage. The Hindu Marriage Act, which is a
sacred union, partakes the character of a contract, to this limited extent.
Section 12 of the Act reads as under:
"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 Sec.5; or
c) that the consent of the petitioner, or where the consent of the guardian in
marriage of the petitioner was required under Sec.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 anything contained in sub-sec. (1) no petition for annulling
a marriage, -
a) on the ground specified in clause (c) of sub-sec. (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."
A perusal of this provision makes it clear that two important words, namely,
'force' and 'fraud' are employed in it. The word 'suppression' does not occur
in this.
Nowhere in the O.,P., it was mentioned that any force was exerted upon
the respondent or her parents, for obtaining her consent to the marriage with
the appellant.
It appears that the failure on the part of the appellant to
inform that he is suffering from psoriasis was treated as an act of fraud.
Since the decree that may be granted with reference to Section 12 of the Act has
the effect of terminating the marriage, the language employed therein must be
kept in mind while analyzing the facts. Neither its purport can be expanded nor
can it be restricted.
Fraud or other related acts and omissions, wherever pleaded as the basis for the
relief in a suit or a petition, must be stated with necessary details, so that
the party accused of it, is provided with an opportunity to accept or contradict
the same. Rule 4 of Order VI of CPC make this obligatory.
Though the pleading
in a suit or a petition is required to be precise and not comprising of
evidence, an exception is carved out, if fraud and other related acts or
omissions, are pleaded. The O.P. filed by the respondent is totally silent
about the details. Except stating that the appellant did not inform the
respondent and her parents that he is suffering from psoriasis, no other act of
fraud or use of force was mentioned.
It would be an ideal situation where the parties to a marriage are hale and
healthy. However, the instances of one or the other spouse suffering from some
ailment or deformity, are not lacking. Happiness of a person is not entirely
dependent upon the health condition of such person or his or her spouse. It is
mostly a state of mind. If the parties have understood each other, the illness
or sickness that occurs to one would be an occasion for the other, to help and
serve. One of the promises that the spouses make at the time of a Hindu
marriage is that the respect to each other should not get diluted at the testing
times or in adverse circumstances. This said, it must be noted that law itself
recognizes certain types of ailments, as grounds for granting divorce. Section
13(1) (iii), (iv) and (v) of the Act makes this aspect clear.
In relation to the plea raised by the respondent, two aspects became clear. The
first is about the nature of ailment.
The second is as to whether the appellant
was under legal obligation to reveal the same and if so, whether there was any
omission on his part.
The respondent as P.W.1 has repeated the contents of the O.P. in the affidavit
filed in lieu of her chief examination. In her cross examination, she stated
that the appellant and his family members suppressed the fact that the appellant
is suffering from a disease. It is that suppression, which according to her,
constitutes fraud. In her petition, the respondent did not state as to when she
noticed the ailment or disease of the appellant. The relevant portion in the
O.P. reads:
"The petitioner submits that the behavior of the respondent used to be strange
in privacy. Being a man, he never undressed before the petitioner. He never as
much as removed his shirt in the presence of the petitioner. He always wore full
sleeves shirts. Even in bed, he used to be dressed fully. During private
moments, he had intimacy with the petitioner only in full darkness. The
petitioner was given strict instruction that she should wake up while it is
still dark and step out of the bed room only after bathing. The petitioner was
not allowed to be around when the respondent used to bath or get dressed and
strangely, his mother used to help him. The petitioner used to find peels and
scales in her bed room every day in the morning. They appeared like human skin.
When questioned, respondent threatened her to mind her own business and not to
ask such questions. She saw some medicine prescriptions of Dr. batra in her
bedroom when she asked respondent, he said that he is taking treatment for hair
loss. The said strange behavior continued, until one night, the petitioner
accidentally switched on the light in the bed room while respondent was
sleeping. To her utter shock and dismay, the petitioner saw skin peeling off
the body of respondent. She fainted at the said sight. On further enquiry from
the respondent he informed that he has been having this problem for over two
years and that he is taking treatment from Dr.D.B.N. Murthy. Immediately, the
petitioner went to her parental house, which was in the month of June, 2005 ever
since she is living with her parents. The petitioner is filing herewith a copy
of the medical prescription and the same is marked as document No.4."
In her evidence also, she was not clear as to when she has noticed it, and in
what form. In the cross examination, she stated that in May, 2005 the appellant
informed her that he was taking treatment from Dr. D.B.N. Murthy for the last
two years. It was elicited from her that though she knew in May, 2005 about the
ailment of the appellant, she lived with him till July, 2005. It was also
elicited that between July and December, 2005 as many as seven meetings have
taken place.
A medical certificate, said to have been issued by a Civil Assistant Surgeon of
ESI Hospital, to the effect that the appellant is suffering from psoriasis, was
filed by the respondent. In relation to that document, P.W.2, a doctor from ESI
Hospital, was examined. This witness stated that the certificate (Ex.X.1) was
issued by Dr. V. Sukhjeevana Chary. In the cross examination, it was elicited
from her that ESI hospital has no pathological laboratory and that she is not
the in-charge of the dispensary. The following was elicited from her:
"It is true complete blood picture and biopsy must be conducted, to say a person
who is having skin disease is suffering with psoriasis. Certificate
dt.8.11.2004, 15.11.2004 and 22.11.2004 which are part of Ex.X.1 were issued to
the patient Mahender only. As per Ex.X.1, Mahender came to our dispensary for
the first time on 27.10.2004. I do not know when Mahender approached our
dispensary and when he was examined by Dr. Sukhaneevana Chary, he was having
only chicken pox. The witness says Dr. Sukhanajeevana Chary diagnosed for
chicken pox also. Dr. Sukhajeevana Chary is not a qualified dermatologist. It
is true when I examined in chief I did not say that the patient S. Mahender was
suffering from chicken pox also."
P.W.3 is another doctor. He is said to have prescribed medicines to the
appellant, through Ex.X.2. The statement of this witness in the cross
examination is important. The relevant portion reads:
The petitioner, her father and respondent, his father come back with reports.
The father of the petitioner had approached me dt.6.2.2006 with a photo copy of
my list of investigations recommended on 4.7.2005 and requested for certificate
as issued as Ex.X.2. The father of the petitioner told me that the matter
between pending in the Court and requested me to issue a certificate. Normally,
the expression used on the list of investigated on dt.4.7.2005 "Not for Medico-
Legal Purpose" is not usually written by me, but is written on this as I
suspected that to avoid my involvement in Legal proceedings. The original
certificate dt.6.2.2006 of Ex.X.2 is issued to the petitioner father. The
Ex.X.2 does not contain any statement that the respondent suffers from psoriasis
in the certificate dt.6.2.2006. It is not true to suggest that the respondent's
father raised an objection with regard to my including the observation that the
patient as past history of similar condition two years back. The certificate
dt.6.2.2006 was issued at the request of some persons who claimed to the
authorized by the Court in some legal proceedings. I never verified the claim
of the said persons while issuing the certificate dt.6.2.2006. I recollect
having seen a document requesting me to issue the above certificate I did not
verify the said authority nor do I keep a copy of the same."
The trustworthiness of this witness is further exemplified from the following
statement:
"I would not have issued Ex.X.2 dt.6.2.2006 to any person except when it is
requested judicial or authorized authority. The petitioner, her father
accompanied the person who was claiming to be authorized by a judicial
authority. I do not maintain any medical records of the patients. Patients
themselves maintain their records."
P.W.4 is the father of the respondent. In the cross examination, he stated "the
petitioner told me that the respondent suffered from the skin disease and that
she learnt about the same after two months from the date of marriage". The
evidence of P.W.5 does not have any relevance on this aspect. P.W.6 is a person
who is said to have accompanied the respondent and her father, P.W.3. According
to this witness, P.W.3 is a Skin Specialist. However, P.W.3 himself did not
claim to be so. The other portion of the evidence of this witness is of not any
relevance.
Psoriasis is not a contagious disease nor does it constitute a ground for
divorce. The word 'suppression' does not occur in Section 12 of the Act. The
Parliament has employed the words 'force' and 'fraud'. Before a party gives
consent for the marriage with the other, there is bound to be exchange of
information. While a part of information may emerge voluntarily, it is not
necessary that the parties must present to each other, their entire life history
thus far. If one is curious to know any particular information about the other,
certainly the same can be procured directly or from the persons who act as
mediators. There are certain important informations, such as, whether the
person was already married earlier, whether he or she suffers from any serious
disease which, if known to the other party, would not agree for the match.
Parliament has taken care to ensure that even if such important factors which,
if known to a party, would not get diluted simply because marriage was
performed. If the information pertaining to such objectionable conduct is
noticed at a later stage also, that can be cited as a ground for dissolution.
Section 13 of the Act enlists the factors of this nature. In case, the
information of that nature is suppressed and the consent was obtained, the
aggrieved party, no doubt, may have been subjected to certain inconvenience with
the marriage, but whenever he or she notices the same, it can be pleaded as
ground for divorce. For instance, if a party to the marriage was married to
another, it can be pleaded as a ground for divorce, as and when the fact is
known.
The ground mentioned under Section 12(c) of the Act stands on a slightly
different footing. This Section cannot be treated as a provision placing burden
upon a spouse to the marriage, to reveal the entire information about him or her
to the other. If that were to be so, it would have become unworkable. It is
too difficult to stuff the provision with the types of information that a person
must share with the would be spouse at the time of settlement of the marriage.
If suppression of an item of information can be treated as a ground under
Section 12(c) of the Act, it would not be difficult to imagine the serious
repercussions thereof. What constitutes the necessary information, would depend
upon the likes and dislikes of the person concerned. A habit, information or
incident, which is close to the heart of an individual, may not be so for the
other. Take for instance that a person who is looking for a match is a doctor
and he obtained the seat by paying capitation fee, not being able to procure the
seat on merit, and he did not inform the factum of payment of capitation fee or
donation for procuring the seat, to his spouse at the time of discussions
preceding the marriage. It may so happen that the woman with whom the marriage
was fixed dislikes to the core, any practice of procuring admission through
payment of capitation fee and the fact that her husband got the seat through
such method comes to her knowledge, after marriage. It can be successfully
argued that the man did not inform his wife that he procured the seat through
donation. However, it cannot be treated as a suppression of the relevant
information, much less a ground for annulment of marriage. Similarly, persons
may have their own likes or dislikes and the mere fact that the information
which is otherwise not to their liking was not revealed before the marriage,
cannot be cited as a ground under Section 12 of the Act. Viewed from this
angle, the omission of the word 'suppression' in Section 12 of the Act is not
without basis.
Section 12(1)(c) of the Act gets attracted only when the consent was obtained
through force or by playing fraud. The content of these words can be better
understood, if one takes into account, the purport of Section 12(2)(a) of the
Act. In the relevant clause, the words used are "force has ceased to operate or
as the case may be fraud has been discovered". This provision can not at all be
operated vis--vis the suppression of information. Therefore, the respondent
cannot be said to have made out a case under Section 12(1)(c) of the Act.
Reliance is placed by the learned counsel for the respondent, upon the
judgment of the Delhi High Court in Smt. Praveen Kumari Vs. Man Mohan Kumar1.
That was a case where the disease of epilepsy was not revealed. It hardly
needs any mention that epilepsy if proved, would fit into Section 13 (1)(3) and
it constitutes a ground for divorce.
Judgment in M. Devender Vs. A. Sarika,2 relied upon by the respondent, is a case
where the information as to the educational qualifications and financial and
economic status furnished by the husband turned out to be false.
If a particular information, knowing it to be false is presented as true, it amounts
to fraud and on proof of fraud, a marriage can certainly be annulled under
Section 12(1)(c) of the Act.
In the instant case, the allegation is about
suppression and failure to inform a particular fact cannot be treated as fraud,
unless the person failing to mention it was under legal obligation to state it.
In Sunita Jain Vs. Suresh Kumar Jain3, the ground pleading annulment was that
the husband was suffering from mental disorder even before the date of marriage
and that it was not revealed. A learned Single Judge took the view that the
consent in such case can be said to have been obtained by fraud. Here again,
the mental disorder, if proved, would fit into Section 13 of the Act.
We, therefore, find that the respondent failed to prove the ingredients of Section
12(1)(c) of the Act against the appellant. The point is answered accordingly.
POINT NO.2:
Assuming that the ground referable to Section 12(1)(c) is proved, it needs
to be seen as to whether the exception carved out under Sub-Section 2(a) of
Section 12 of the Act gets attracted. Though an attempt is made that the aspect
of limitation covered by Section 12(2)(a) of the Act gets attracted, we are not
at all impressed by that. The marriage took place on 10.02.2005 and the O.P.
was presented within one year from the date of marriage itself. It is only when
the O.P. is not filed within one year from the date on which the fraud was
discovered or the force ceased to operate, that can be treated as barred.
There is another facet of Sub-Section 2. In case the petitioner in O.,P. filed
under Section 12(1)(c), with his or her full consent lived with the other party
to the marriage after the force, ceased, or the fraud has been discovered, the
Court cannot entertain the O.P. In the instant case, even according to the
respondent, the fact that the appellant is suffering from psoriasis came to her
knowledge in May 2005. Even if her consent is said to have been obtained by
fraud, she can maintain the O.P. if only she stopped living with him and filed
the O.P. thereafter. The evidence discloses that she lived with the appellant
till July, 2005. That disentitles the respondent to maintain the O.P.
We, therefore, allow the Family Court Appeal and set aside the decree passed by
the trial Court. There shall be no order as to costs.
The Miscellaneous Petitions, if any, pending in the appeal shall stand disposed
of.
______________________
L. NARASIMHA REDDY, J.
________________
M.S.K. JAISWAL, J.
2nd January, 2014
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