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Divorce – Hiding illness before 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 a Appellant :- Mr. Ranjan Kumar Kali, Advocate,
Mr. Sukanta Ghosh, Advocate,

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

The benefaction interest is destined opposite a visualisation and sequence antiquated 23.12.2011 upheld by a schooled Additional District Judge, 1st Court, Barasat, North 24 Parganas in Mat. Suit No. 35 of 2009. The Suit was underneath Section 12 (I) (C) of a Hindu Marriage Act, 1955 praying for nullification of matrimony between a parties. The Petitioner in a Suit Sri Ashit Kumar Saha is a father and a Respondent Smt Rita Dey (Saha) is a wife. The Suit is intended on competition opposite a Respondent/wife.

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

2. The Petitioner/Husband and a Respondent/Wife were married on 10.02.2009 according to a Hindu Rites and Customs and all common rituals had been duly achieved and a Respondent/wife went to a Petitioner’s residence after execution of all ceremonies. In a night of 17.02.2009 a Respondent/Wife told a Petitioner/Husband that she compulsory to go to her elder sister’s residence for a surgical operation to mislay a swelling in her left breast and on asking, a Respondent/Wife unsuccessful to explain as to because such illness of her’s was not disclosed during a traffic of their marriage. However, in a following morning a members of a Petitioner/Husband’s family took a Respondent/Wife to a Homoeopath alloy for diagnosis and after hearing of a Respondent/Wife a alloy suggested for an Ultra Sonography Test that was finished now and on a successive date a news was shown to a pronounced alloy who after consulting a news suggested for a surgical operation immediately for a dismissal of a swelling and F. N. A. C. Test for serve investigation. In such conditions a Respondent/Wife disclosed that F. N. A. C. Test had already been finished in a month of January, 2009 and a news was fibbing with her elder sister. The Respondent/Wife’s sister was afterward contacted over write and a pronounced F. N. A. C. Test news was collected from her and afterward a Respondent/Wife was taken to a Gynaecologist on 21.02.2009 who after consulting a hearing reports and clinical hearing as well, opined that a Respondent/Wife was pang from high class infiltrating channel carcinoma. He, therefore, referred a Respondent/Wife to an Oncologist. The Respondent/Wife’s elder sister, who negotiated a marriage, was called for and she was asked as to because she and her family members carrying believe about a illness of a Respondent/Wife suppressed a fact during a traffic of marriage. The respond of a family members of a Respondent/Wife was that a illness was really elementary and curable by a teenager surgical operation and after such respond they took divided a Respondent/Wife to their residence in a night of 22.02.2009 for diagnosis of a Respondent/Wife during Chenni. Thereafter, in a night of 25.02.2009 a Petitioner/Husband was sensitive that a family members of a Respondent/Wife motionless to acknowledge a Respondent/Wife in Calcutta Medical College and Hospital on a following day. Hence, a sister of a Petitioner/Husband went to a Calcutta Medical College and Hospital on a following day and she was sensitive that a doctors in a Hospital diagnosed a swelling in a left breast of a Respondent/Wife as ‘duct carcinoma’ that compulsory evident surgical operation.

3. It is a specific box of a Petitioner/Husband that a family members of a Respondent/Wife had a believe that a Respondent/Wife was pang from breast cancer good before 21.01.2009 when a matrimony was finalised and a date of matrimony was also fixed. It is also a specific box of a Petitioner/Husband that had a illness of a Respondent/Wife been disclosed during a traffic of a matrimony he would not have married a Respondent. It is, therefore, a crux of a explain of a Petitioner/Husband that his matrimony with a Respondent is debauched by rascal and falsification and hence a matrimony should be annulled by a direct underneath Section 12 (I) (c) of a Hindu Marriage Act.

4. The Respondent/Wife filed her created matter and contested a Suit. In her created matter a Respondent/Wife denied some of a allegations of her Husband opposite her and it was her specific counterclaim that during a traffic of matrimony she and her father met on several occasions and had unchanging conversations over a write as well, and during such assembly as good as telephonic conversations she had disclosed her illness to her father and it was a perspective of her father that a illness was curable by a teenager surgical operation that could be organised for after their marriage. She serve purported that a F. N. A. C. Test news had been handed over to her Husband on 29.01.2009, i. e., before to their matrimony and during that theatre she herself had no believe that she was pang from carcinoma. It was so a specific box of a Wife/Respondent that before to their matrimony all was disclosed to her father and that she had not intentionally suppressed anything for any prejudicial benefit and hence a prayers of her Husband should be all dismissed. It was also a box of a Respondent/Wife that it was her Husband who had cheated her by secretly representing that he was a competent Cost Account. It was also her box that she was driven out from her matrimonial home on 22.02.2009.

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5. On a basement of a aforesaid pleadings of a parties a Trial Court framed 5 issues in a Suit out of that issues No. 2 and 3 were a categorical issues and after deliberation a justification on record a Trial Court motionless those dual issues opposite a Respondent/Wife and hence upheld a direct of nullification of matrimony in foster of a Petitioner/Husband. Being depressed by and discontented with such preference a Respondent/Wife filed a benefaction appeal.

6. The indicate to be motionless in this interest is possibly or not a decisions and visualisation of a Trial Court humour from any illegality or element irregularities.

7. Mr. Ranjan Kumar Kali, schooled Advocate appearing for a Appellant, argued that all a decisions and a visualisation of a Trial Court is formed on some papers that have not been approved in justification according to a supplies in a Evidence Act, and a decisions of a Trial Court are also formed on some conjectures and surmises as well. His serve row is that a precedents cited by a parties during hearing have not been discussed or deliberate by a Trial Court and that a contribution purported by a Respondent opposite a Appellant have not been current during all and as such a visualisation and direct upheld by a Trial Court is not tolerable in law. Mr Kali has referred to a following decisions in his support. (I) we (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 a other hand, Mr. Gopal Chandra Ghosh, schooled Advocate for a Respondent has argued that a papers relied on by a Trial Court have been all approved in justification on agree and grave explanation carrying been dispensed with. He has serve submitted that simple contribution purported in a Suit by a Respondent have possibly been approved or not privately denied in a pleading by a Appellant and a decisions of a Trial Court are all formed on such papers as good as acknowledgment and non-denial by a Appellant during hearing and as such a direct upheld in a Suit is utterly fit in law. Mr Ghosh has also referred to a 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 a matrimony between a parties was a negotiated matrimony solemnised on 10.02.2009 according to a Hindu Rites and Customs.

10. It is a specific box of a Respondent that his mother was pang from a breast swelling that was famous to be channel carcinoma though a fact was totally suppressed during a traffic of matrimony and it is serve purported by a respondent that if he had a information and believe of such critical illness he would not have married a appellant and his agree to a matrimony was due to such rascal practised on him and hence a matrimony is zero and blank according to a sustenance in Section 12 (I) (c) of a Hindu Marriage Act, 1955. On such claims of a respondent, a counterclaim of a Appellant was that she had no believe before to her matrimony with a respondent and what she knew during a traffic of matrimony was usually that she had a swelling in her breast that she disclosed to a Respondent during their traffic of matrimony and after such believe it was a perspective of a Respondent that a illness was not really critical and it could be marinated by a teenager surgical division after marriage.

11. In para 4, 5 and 6 of a wail it has been purported by a Respondent that in a night of 17.02.2009 a Appellant sensitive him that she indispensable to go to her sister’s residence in a following morning to bear a medicine for dismissal of a swelling in her left breast and after such information he was terribly astounded and on his doubt as to because a fact was not disclosed progressing a Appellant had no answer whatsoever and on a successive morning a Appellant was taken by his family members during initial to a Homoeopathy alloy and as per a recommendation of that alloy Sonography Test was finished and F.N.A.C. Test was suggested and during that theatre his mother disclosed that F.N.A.C. Test was finished progressing before to their matrimony and a news was fibbing with a sister of a Appellant and after deliberation that F.N.A.C. news and other review reports a alloy opined that a swelling in a breast of a Appellant was of high class infiltrating channel carcinoma carrying a bent of serve spread. It was a serve box of a Respondent that after such illness of a Appellant was famous to all she was taken to her sister’s residence on 22.02.2009 by her sister’s father for treatment. The Respondent settled all those contribution during her justification also.

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12. In respond to a aforesaid contribution in para 4, 5, 6 and 7 of a wail a Appellant in her created matter approved that she was pang from breast swelling before to her matrimony and F. N. A. C. Test was also finished and that all those contribution were disclosed and a photocopy of that F. N. A. C. news was handed over to her father on 29.01.2009, i. e., before to her matrimony (para 4, 5 of W. S.). In para 6 of her created matter a Appellant settled serve that nonetheless a date remarkable in a F. N. A. C. news was 15.01.2009 though a news was handed over to them on 28.01.2009 and a alloy did not tell her that a swelling was channel carcinoma carrying possibility of serve spread. In fact, some of a contribution settled in para 4, 5, 6 and 7 of a wail are approved by a Appellant and there are shy denials to a rest of those facts. Evasive rejection is not upheld by law. The preference reported in 2015 (4) ICC 451 (S. C.) cited by Mr Ghosh on a indicate is really most germane on a indicate in this case.

13. During her serve cranky hearing on 07.12.2011 a Appellant approved that she had a breast swelling during a time of her matrimony though it was not famous to her that it was cancerous. On that really day she serve approved that during a move underneath Section 125 Cr. P. C. she constructed some documents. The approved duplicate of her deposition along with some papers exhibited in that box were shown to her and those papers were remarkable in a benefaction box as exhibit- 4 array grave explanation carrying been waived, as remarkable in a deposition piece (page 20 of a paper book). The pronounced vaunt 4 is a F. N. A. C. news regularly mentioned and approved by a Appellant to be a news of a F. N. A. C. Test that was finished before to her matrimony with a Respondent. It is germane to discuss here that a Appellant has never doubtful a genuineness of a document, i. e., exhibit- 4, on a other palm it was her specific explain that a photocopy of a news was handed over to a Respondent before to their marriage. So, when exhibit-4 was approved in evidence, grave explanation carrying been dispensed with and also when a existence and a genuineness of a request is never disputed, we find zero wrong in acknowledgment of a request in justification and relying on it by a Trial Court. It has been clearly hold in a decisions reported in AIR 2009 Supreme Court 2463 and AIR 1968 Calcutta 550 cited by Mr. Ghosh that a visualisation of a rapist box might not be accessible in any successive polite fit though acknowledgment finished by a celebration in an progressing move is really most germane and accessible in any successive proceeding.

14. It has been emphatically argued by Mr. Kali that a essence of a F. N. A. C. report, i. e., exhibit-4 has not been current by a justification of a alloy arising a news and hence a Trial Court committed blunder in law by relying on it. He has cited dual decisions on a point, one reported in AIR 1968 Bombay 112 and a other reported in AIR (37) 1950 Calcutta 173.

15. It has been hold in a box reported in AIR 1968 Bombay 112, that until a author of a request is examined a request can't be approved in justification and a truth of a request can't be accepted. Almost a identical perspective has been voiced in a visualisation reported in AIR (37) 1950 Calcutta 173. It has been discussed progressing that a F. N. A. C. report, i. e., exhibit-4 has been approved in evidence, grave explanation carrying been dispensed with and a Appellant never doubtful a existence or a genuineness of a document. So, nothing of a aforesaid dual cases comes to any assistance to a Appellant. The other papers referred to in a visualisation of a Trial Court were a exhibit- A, A/1 and B and all those 3 papers were approved in justification on interest of a Appellant herself. So, a row of Mr Kali that a visualisation of a Trial Court was formed on some unfit and dangerous papers can't be supposed on any logic.

16. So, a box gets cramped on dual points only, firstly, possibly a Appellant had a believe before to her matrimony that a swelling in her breast was cancerous, or not and secondly, possibly or not a fact of Appellant’s pang from cancer was disclosed to a Respondent before to their marriage.

17. Admittedly a F. N. A. C. Test before to their matrimony was finished during a instance of a Appellant herself. It is, therefore, totally unimaginable that after such exam a Appellant took no follow adult stairs to know about a outcome of a exam and follow adult treatment. So, a Appellant’s explain that she had no believe before to her matrimony that a swelling in her breast was a ‘high class infiltrating channel carcinoma’ as disclosed in a F. N. A. C. report, is not during all acceptable.

18. It was a Appellant’s box that after a matrimony traffic was roughly finalised she met a Respondent on 3 days, i. e., on 17.01.2009, 18.01.2009 and 29.01.2009 and that during such meetings she disclosed her illness to a Respondent and that she was suggested by a Respondent to omit it during that theatre as a illness was curable by teenager surgical operation that could be finished after marriage. It was also a explain of a Appellant that she had handed over a photocopy of a F. N. A. C. news to a Respondent before to their marriage. On a discordant it was a explain of a Respondent that a Appellant suppressed her illness during a traffic of matrimony and it was usually a few days after a matrimony he came to know about a Appellant’s illness when a Appellant disclosed it to him for a initial time on a night of 17.02.2009, i. e., usually 7 days after their marriage.

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19. The Appellant’s explain that she met a Respondent on 3 days before to their matrimony did not find support from any neutral source.

20. The Respondent during his justification stood organisation on his explain that it was usually in a night of 17.02.2009 when he was sensitive for a initial time about a illness of a Appellant and immediately afterward his family members took a Appellant to doctors for acknowledgment of a illness of a Appellant and after a fact was reliable by a doctors a Appellant was taken divided from his residence on 22.02.2009 by a father of a Appellant’s sister and afterward a Appellant never returned to his home and within a really brief duration afterward a Suit was filed on 09.03.2009. it is, positively extraordinary in a perspective that a Respondent proceeded to marry a Appellant though consulting any alloy for such a critical illness of a Appellant. So, a control of a Respondent and a sequence of events discussed above lead to a judicious end that a illness of a Appellant was intentionally suppressed by a Appellant and her family members during a traffic of a marriage.

21. On a indicate of termination of Appellant’s illness Mr Kali has relied on dual decisions, one reported in AIR 1997 Madrass 135 and a other reported in AIR 1988 Calcutta 210. In a initial box a brawl was in tie with a wife’s date of birth and it was current in that box that a genuine date of birth was sensitive to a father by in-laws and a mother as well, before to marriage. In a benefaction box it has not been current that a Appellant’s illness was sensitive to a Respondent before to their marriage. In a aforesaid second box a earthy defects of a mother were disclosed to a father of a father during a traffic of marriage, though a father of a father was not examined by a husband. So, an inauspicious hypothesis was drawn opposite a husband. The principal of nothing of those dual cases discussed above is, therefore, germane in a benefaction case.

22. Exhibit – B is a certificate released from Christian Medical College, Vellor on 10.09.2011, suggesting that a Appellant entirely recovered from her disease. It is also mentioned in a certificate that a Appellant was fit to join her duty. Mr Kali argued that after such certificate a Respondent could not have any current reason to exclude to live with a Appellant. The certificate was released prolonged after a arising of a Suit by a Respondent. That apart, matrimonial propinquity always rest on trust and faith. In a benefaction box a trust and faith between a parties mount totally lost. So, possibly a Appellant’s illness is totally marinated after treatment, or not is of no consequence.

23. The contribution in a box reported in AIR 1974 Madhya Pradesh 52, AIR 1997 Madrass 394 and AIR 1972 Bombay 132, cited by Mr Kali, are totally opposite to a contribution in emanate in this case. So, a principal laid down in any of those 3 cases can't be practical here.

24. As discussed earlier, a Appellant had been pang from virulent cancer before to her matrimony with a Respondent. It has been serve current that a illness and a inlet were wellknown to a Appellant and a Appellant has unsuccessful to infer that a illness and a inlet were disclosed to a Respondent before to their marriage. We are, therefore, compelled to take a perspective that a Appellant had intentionally suppressed a element fact concerning her health. Such a termination really amounts to rascal settled in Section 12 (I) (C) of a Hindu Marriage Act, 1955. The Respondent has regularly asserted that had a illness of a Appellant been disclosed to him before to a matrimony he would not have given his agree to a marriage. The Respondent’s agree to a matrimony was not, therefore, a giveaway consent. The matrimony between a parties is, therefore, probable to be annuld underneath Section 12 (I) (C) Hindu Marriage Act, 1955. The Trial Court has, therefore, righteously upheld a direct in a Suit opposite a Respondent. The visualisation and a direct upheld by a Trial Court do not humour from any illegality. We, therefore, find no reason to meddle with a visualisation and direct upheld in a Suit.

25. In perspective of a decisions above, a interest is discharged though any sequence as to costs. The visualisation and direct upheld in a Suit by a Trial Court are affirmed.

26. Urgent approved photocopy of this judgment, if practical for, be granted to a schooled Counsels for a parties on correspondence of all formalities.

Appeal dismissed.

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