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Divorce – Hiding disease prior to Marriage

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Appellate Side

P R E S E N T:-

The Hon’ble Justice Nishita Mhatre

The Hon’ble Justice Tapash Mookherjee

F.A. No. 151 of 2013

Rita Dey (Saha)

Versus

Ashit Kumar Saha

For the Appellant :- Mr. Ranjan Kumar Kali, Advocate,
Mr. Sukanta Ghosh, Advocate,

For the Respondent :- Mr. Gopal Chandra Ghosh, Advocate,
Mr. Ayan Banerjee, Advocate, Ms. Jayeeta Kunda, Advocate.

The present appeal is directed against the judgment and order dated 23.12.2011 passed by the learned Additional District Judge, 1st Court, Barasat, North 24 Parganas in Mat. Suit No. 35 of 2009. The Suit was under Section 12 (I) (C) of the Hindu Marriage Act, 1955 praying for annulment of marriage between the parties. The Petitioner in the Suit Sri Ashit Kumar Saha is the husband and the Respondent Smt Rita Dey (Saha) is the wife. The Suit is decreed on contest against the Respondent/wife.

The Petitioner/Husband’s cases in the Suit, in short, was as follows:-

2. The Petitioner/Husband and the Respondent/Wife were married on 10.02.2009 according to the Hindu Rites and Customs and all usual rituals had been duly performed and the Respondent/wife went to the Petitioner’s house after completion of all ceremonies. In the night of 17.02.2009 the Respondent/Wife told the Petitioner/Husband that she required to go to her elder sister’s house for a surgical operation to remove a tumour in her left breast and on asking, the Respondent/Wife failed to explain as to why such illness of her’s was not disclosed during the negotiation of their marriage. However, in the following morning the members of the Petitioner/Husband’s family took the Respondent/Wife to a Homoeopath doctor for treatment and after examination of the Respondent/Wife the doctor advised for an Ultra Sonography Test which was done instantly and on the next date the report was shown to the said doctor who after consulting the report advised for a surgical operation immediately for the removal of the tumour and F. N. A. C. Test for further investigation. In such situation the Respondent/Wife disclosed that F. N. A. C. Test had already been done in the month of January, 2009 and the report was lying with her elder sister. The Respondent/Wife’s sister was thereafter contacted over telephone and the said F. N. A. C. Test report was collected from her and thereafter the Respondent/Wife was taken to a Gynaecologist on 21.02.2009 who after consulting the examination reports and clinical examination as well, opined that the Respondent/Wife was suffering from high grade infiltrating duct carcinoma. He, therefore, referred the Respondent/Wife to an Oncologist. The Respondent/Wife’s elder sister, who negotiated the marriage, was called for and she was asked as to why she and her family members having knowledge about the illness of the Respondent/Wife suppressed the fact during the negotiation of marriage. The reply of the family members of the Respondent/Wife was that the illness was very simple and curable by a minor surgical operation and after such reply they took away the Respondent/Wife to their house in the night of 22.02.2009 for treatment of the Respondent/Wife at Chenni. Thereafter, in the night of 25.02.2009 the Petitioner/Husband was informed that the family members of the Respondent/Wife decided to admit the Respondent/Wife in Calcutta Medical College and Hospital on the following day. Hence, a sister of the Petitioner/Husband went to the Calcutta Medical College and Hospital on the following day and she was informed that the doctors in the Hospital diagnosed the tumour in the left breast of the Respondent/Wife as ‘duct carcinoma’ which required immediate surgical operation.

3. It is the specific case of the Petitioner/Husband that the family members of the Respondent/Wife had the knowledge that the Respondent/Wife was suffering from breast cancer well before 21.01.2009 when the marriage was finalised and the date of marriage was also fixed. It is also the specific case of the Petitioner/Husband that had the disease of the Respondent/Wife been disclosed during the negotiation of the marriage he would not have married the Respondent. It is, therefore, the gist of the allegation of the Petitioner/Husband that his marriage with the Respondent is vitiated by fraud and misrepresentation and hence the marriage should be annulled by a decree under Section 12 (I) (c) of the Hindu Marriage Act.

4. The Respondent/Wife filed her written statement and contested the Suit. In her written statement the Respondent/Wife denied some of the allegations of her Husband against her and it was her specific defence that during the negotiation of marriage she and her husband met on several occasions and had regular conversations over the telephone as well, and during such meeting as well as telephonic conversations she had disclosed her disease to her husband and it was the view of her husband that the disease was curable by a minor surgical operation which could be arranged for after their marriage. She further alleged that the F. N. A. C. Test report had been handed over to her Husband on 29.01.2009, i. e., prior to their marriage and at that stage she herself had no knowledge that she was suffering from carcinoma. It was thus the specific case of the Wife/Respondent that prior to their marriage everything was disclosed to her husband and that she had not intentionally suppressed anything for any wrongful gain and hence the prayers of her Husband should be all dismissed. It was also a case of the Respondent/Wife that it was her Husband who had cheated her by falsely representing that he was a qualified Cost Account. It was also her case that she was driven out from her matrimonial home on 22.02.2009.

5. On the basis of the aforesaid pleadings of the parties the Trial Court framed five issues in the Suit out of which issues No. 2 and 3 were the main issues and after considering the evidence on record the Trial Court decided those two issues against the Respondent/Wife and hence passed the decree of annulment of marriage in favour of the Petitioner/Husband. Being aggrieved by and dissatisfied with such decision the Respondent/Wife filed the present appeal.

6. The point to be decided in this appeal is whether or not the decisions and judgment of the Trial Court suffer from any illegality or material irregularities.

7. Mr. Ranjan Kumar Kali, learned Advocate appearing for the Appellant, argued that all the decisions and the judgment of the Trial Court is based on some documents which have not been admitted in evidence according to the provisions in the Evidence Act, and the decisions of the Trial Court are also based on some conjectures and surmises as well. His further contention is that the precedents cited by the parties during trial have not been discussed or considered by the Trial Court and that the facts alleged by the Respondent against the Appellant have not been proved at all and as such the judgment and decree passed by the Trial Court is not sustainable in law. Mr Kali has referred to the following decisions in his support. (I) I (1997) DMC 285 (DB)=AIR 1997 Mad. 135, (A. Premchand v. Padmapriya), (II) AIR 1972 Bom. 132 (V 59 C 250), (Raghunath Gopal Daftardar v. Sau. Vijaya Raghunath Daftardar), (III) AIR 1988 Cal. 210, (Ruby Roy v. Sudarshan Roy), (IV) AIR 1974 MP 52 (V 61 C 14), (Rajaram Vishwakarma v. Deepabai), (V) AIR 1968 Bom. 112 (V 55 C 20), (Sri Mohammed Yusuf and another v. D. and Another), (VI) AIR 1950 (37) Cal. 173 (C.N. 58), (Sris Chandra Nandy v. Sm. Annapurna Ray), (VII) AIR 1997 Mad. 394, (V. Shankar Ram v. Mrs. Sukanya).

8. On the other hand, Mr. Gopal Chandra Ghosh, learned Advocate for the Respondent has argued that the documents relied on by the Trial Court have been all admitted in evidence on consent and formal proof having been dispensed with. He has further submitted that basic facts alleged in the Suit by the Respondent have either been admitted or not specifically denied in the pleading by the Appellant and the decisions of the Trial Court are all based on such documents as well as admission and non-denial by the Appellant during trial and as such the decree passed in the Suit is quite justified in law. Mr Ghosh has also referred to the following decisions (I) III (2009) SLT 365=AIR 2009 SC 2463, (Seth Ramdayal Jat v. Laxmi Prasad), (II) VII (2015) SLT 178=IV (2015) BC 251 (SC)=2015 (4) ICC 451 (SC) (Standard Chartered Bank v. Andhra Bank Financial Services Ltd. Ors.) and AIR 1968 Cal. 505 (V 55 C 99) (Mohammed Seraj v. Abibar Rahaman Sheikh and others).

9. Admittedly the marriage between the parties was a negotiated marriage solemnised on 10.02.2009 according to the Hindu Rites and Customs.

10. It is the specific case of the Respondent that his wife was suffering from a breast tumour which was known to be duct carcinoma but the fact was totally suppressed during the negotiation of marriage and it is further alleged by the respondent that if he had the information and knowledge of such serious disease he would not have married the appellant and his consent to the marriage was due to such fraud practised upon him and hence the marriage is null and void according to the provision in Section 12 (I) (c) of the Hindu Marriage Act, 1955. On such claims of the respondent, the defence of the Appellant was that she had no knowledge prior to her marriage with the respondent and what she knew during the negotiation of marriage was only that she had a tumour in her breast which she disclosed to the Respondent during their negotiation of marriage and after such knowledge it was the view of the Respondent that the disease was not very serious and it could be cured by a minor surgical interference after marriage.

11. In para 4, 5 and 6 of the plaint it has been alleged by the Respondent that in the night of 17.02.2009 the Appellant informed him that she needed to go to her sister’s house in the following morning to undergo a surgery for removal of a tumour in her left breast and after such information he was terribly surprised and on his question as to why the fact was not disclosed earlier the Appellant had no answer whatsoever and on the next morning the Appellant was taken by his family members at first to a Homoeopathy doctor and as per the advice of that doctor Sonography Test was done and F.N.A.C. Test was advised and at that stage his wife disclosed that F.N.A.C. Test was done earlier prior to their marriage and the report was lying with the sister of the Appellant and after considering that F.N.A.C. report and other investigation reports the doctor opined that the tumour in the breast of the Appellant was of high grade infiltrating duct carcinoma having the tendency of further spread. It was the further case of the Respondent that after such disease of the Appellant was known to all she was taken to her sister’s house on 22.02.2009 by her sister’s husband for treatment. The Respondent stated all those facts during her evidence also.

12. In reply to the aforesaid facts in para 4, 5, 6 and 7 of the plaint the Appellant in her written statement admitted that she was suffering from breast tumour prior to her marriage and F. N. A. C. Test was also done and that all those facts were disclosed and a photocopy of that F. N. A. C. report was handed over to her husband on 29.01.2009, i. e., prior to her marriage (para 4, 5 of W. S.). In para 6 of her written statement the Appellant stated further that although the date noted in the F. N. A. C. report was 15.01.2009 but the report was handed over to them on 28.01.2009 and the doctor did not tell her that the tumour was duct carcinoma having chance of further spread. In fact, some of the facts stated in para 4, 5, 6 and 7 of the plaint are admitted by the Appellant and there are evasive denials to the rest of those facts. Evasive denial is not supported by law. The decision reported in 2015 (4) ICC 451 (S. C.) cited by Mr Ghosh on the point is very much relevant on the point in this case.

13. During her further cross examination on 07.12.2011 the Appellant admitted that she had a breast tumour at the time of her marriage but it was not known to her that it was cancerous. On that very day she further admitted that during a proceeding under Section 125 Cr. P. C. she produced some documents. The certified copy of her deposition along with some documents exhibited in that case were shown to her and those documents were marked in the present case as exhibit- 4 series formal proof having been waived, as noted in the deposition sheet (page 20 of the paper book). The said exhibit 4 is the F. N. A. C. report repeatedly mentioned and admitted by the Appellant to be the report of the F. N. A. C. Test which was done prior to her marriage with the Respondent. It is relevant to mention here that the Appellant has never disputed the genuineness of the document, i. e., exhibit- 4, on the other hand it was her specific claim that a photocopy of the report was handed over to the Respondent prior to their marriage. So, when exhibit-4 was admitted in evidence, formal proof having been dispensed with and also when the existence and the genuineness of the document is never disputed, we find nothing wrong in admission of the document in evidence and relying on it by the Trial Court. It has been clearly held in the decisions reported in AIR 2009 Supreme Court 2463 and AIR 1968 Calcutta 550 cited by Mr. Ghosh that a judgment of a criminal case may not be admissible in any subsequent civil suit but admission made by a party in an earlier proceeding is very much relevant and admissible in any subsequent proceeding.

14. It has been emphatically argued by Mr. Kali that the contents of the F. N. A. C. report, i. e., exhibit-4 has not been proved by the evidence of the doctor issuing the report and hence the Trial Court committed error in law by relying on it. He has cited two decisions on the point, one reported in AIR 1968 Bombay 112 and the other reported in AIR (37) 1950 Calcutta 173.

15. It has been held in the case reported in AIR 1968 Bombay 112, that until the writer of a document is examined the document cannot be admitted in evidence and the truthfulness of the document cannot be accepted. Almost a similar view has been expressed in the judgment reported in AIR (37) 1950 Calcutta 173. It has been discussed earlier that the F. N. A. C. report, i. e., exhibit-4 has been admitted in evidence, formal proof having been dispensed with and the Appellant never disputed the existence or the genuineness of the document. So, none of the aforesaid two cases comes to any help to the Appellant. The other documents referred to in the judgment of the Trial Court were the exhibit- A, A/1 and B and all those three documents were admitted in evidence on behalf of the Appellant herself. So, the contention of Mr Kali that the judgment of the Trial Court was based on some inadmissible and unreliable documents cannot be accepted on any logic.

16. So, the case gets confined on two points only, firstly, whether the Appellant had the knowledge prior to her marriage that the tumour in her breast was cancerous, or not and secondly, whether or not the fact of Appellant’s suffering from cancer was disclosed to the Respondent prior to their marriage.

17. Admittedly the F. N. A. C. Test prior to their marriage was done at the instance of the Appellant herself. It is, therefore, completely unbelievable that after such test the Appellant took no follow up steps to know about the result of the test and follow up treatment. So, the Appellant’s claim that she had no knowledge prior to her marriage that the tumour in her breast was a ‘high grade infiltrating duct carcinoma’ as disclosed in the F. N. A. C. report, is not at all acceptable.

18. It was the Appellant’s case that after the marriage negotiation was almost finalised she met the Respondent on three days, i. e., on 17.01.2009, 18.01.2009 and 29.01.2009 and that during such meetings she disclosed her disease to the Respondent and that she was advised by the Respondent to ignore it at that stage as the disease was curable by minor surgical operation which could be done after marriage. It was also a claim of the Appellant that she had handed over a photocopy of the F. N. A. C. report to the Respondent prior to their marriage. On the contrary it was the claim of the Respondent that the Appellant suppressed her disease during the negotiation of marriage and it was only a few days after the marriage he came to know about the Appellant’s disease when the Appellant disclosed it to him for the first time on the night of 17.02.2009, i. e., only seven days after their marriage.

19. The Appellant’s claim that she met the Respondent on three days prior to their marriage did not find support from any neutral source.

20. The Respondent during his evidence stood firm on his claim that it was only in the night of 17.02.2009 when he was informed for the first time about the disease of the Appellant and immediately thereafter his family members took the Appellant to doctors for confirmation of the disease of the Appellant and after the fact was confirmed by the doctors the Appellant was taken away from his house on 22.02.2009 by the husband of the Appellant’s sister and thereafter the Appellant never returned to his home and within a very short period thereafter the Suit was filed on 09.03.2009. it is, absolutely improbable in our view that the Respondent proceeded to marry the Appellant without consulting any doctor for such a serious disease of the Appellant. So, the conduct of the Respondent and the chain of events discussed above lead to a logical conclusion that the disease of the Appellant was intentionally suppressed by the Appellant and her family members during the negotiation of the marriage.

21. On the point of suppression of Appellant’s disease Mr Kali has relied on two decisions, one reported in AIR 1997 Madrass 135 and the other reported in AIR 1988 Calcutta 210. In the first case the dispute was in connection with the wife’s date of birth and it was proved in that case that the real date of birth was informed to the husband by in-laws and the wife as well, prior to marriage. In the present case it has not been proved that the Appellant’s disease was informed to the Respondent prior to their marriage. In the aforesaid second case the physical defects of the wife were disclosed to the father of the husband during the negotiation of marriage, but the father of the husband was not examined by the husband. So, an adverse presumption was drawn against the husband. The principal of none of those two cases discussed above is, therefore, applicable in the present case.

22. Exhibit – B is a certificate issued from Christian Medical College, Vellor on 10.09.2011, suggesting that the Appellant fully recovered from her disease. It is also mentioned in the certificate that the Appellant was fit to join her duty. Mr Kali argued that after such certificate the Respondent could not have any valid reason to refuse to live with the Appellant. The certificate was issued long after the initiation of the Suit by the Respondent. That apart, matrimonial relation always rest upon trust and faith. In the present case the trust and faith between the parties stand totally lost. So, whether the Appellant’s disease is totally cured after treatment, or not is of no consequence.

23. The facts in the case reported in AIR 1974 Madhya Pradesh 52, AIR 1997 Madrass 394 and AIR 1972 Bombay 132, cited by Mr Kali, are completely different to the facts in issue in this case. So, the principal laid down in any of those three cases cannot be applied here.

24. As discussed earlier, the Appellant had been suffering from malignant cancer prior to her marriage with the Respondent. It has been further proved that the disease and its nature were wellknown to the Appellant and the Appellant has failed to prove that the disease and its nature were disclosed to the Respondent prior to their marriage. We are, therefore, compelled to take the view that the Appellant had intentionally suppressed the material fact concerning her health. Such a suppression definitely amounts to fraud stated in Section 12 (I) (C) of the Hindu Marriage Act, 1955. The Respondent has repeatedly asserted that had the disease of the Appellant been disclosed to him prior to the marriage he would not have given his consent to the marriage. The Respondent’s consent to the marriage was not, therefore, a free consent. The marriage between the parties is, therefore, liable to be annuld under Section 12 (I) (C) Hindu Marriage Act, 1955. The Trial Court has, therefore, rightly passed a decree in the Suit against the Respondent. The judgment and the decree passed by the Trial Court do not suffer from any illegality. We, therefore, find no reason to interfere with the judgment and decree passed in the Suit.

25. In view of our decisions above, the appeal is dismissed without any order as to costs. The judgment and decree passed in the Suit by the Trial Court are affirmed.

26. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.

Appeal dismissed.

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