IN THE HIGH COURT OF KERALA AT ERNAKULAM [C.R.]
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938
Mat.Appeal.No. 415 of 2009 ( )
(AGAINST THE ORDER IN OP 12/2007 of FAMILY COURT,KALPETTA, DATED 27-03-2008)
POOLAKKAL HOUSE, ANCHUKUNNU.P.O.,MANANTHAVADY,, WAYANAD.
BY ADVS.SRI.P.V.KUNHIKRISHNAN, SMT.BINDU GEORGE, SMT.N.S.REHNA
SUJATHA, D/O. KAMALAM, KUNIYIL ELLAM,
PERSON OF UNSOUND MIND, REP. BY MOTHER AND NEXT FRIEND KAMALAM, KUNIYIL ILLOM, KEEZHPAYOOR.P.O., MEPPAYUR, CALICUT DIST.
BY ADVS.SRI.V.C.MADHAVANKUTTY, SRI.K.P.SUDHEER
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2017
AND THE COURT ON 15-02-2017 DELIVERED THE FOLLOWING:
A.M.SHAFFIQUE & [C.R.]
Mat. Appeal No.415 of 2009
Dated this the 15th day of February, 2017
K. Ramakrishnan, J Petitioner husband in O.P.No.12/2007 on the file of the Family Court, Kalpetta is the appellant herein. The original petition was filed by the husband for annulment of marriage under Section 12 of the Hindu Marriage Act, 1955 (hereinafter called the ‘Act’).
2. It is alleged in the petition that the marriage between the petitioner and the respondent was solemnised on 21st April, 2006 at Vatakara as per custom. It was a second marriage for the respondent and first marriage to the petitioner. Earlier the respondent was married to another person and that marriage did not last for long and that was dissolved through court by mutual consent later. It is thereafter on the basis of the advertisement made on the side of the respondent in the daily, the petitioner accepted the proposal and marriage was conducted. According to the petitioner, even before the marriage there was an agreement between them that the respondent being the only daughter of a widowed mother, petitioner has to stay in the respondent’s house and that was agreed by the petitioner. Though the marriage fixation ceremony was conducted in September 2005, the respondents wanted the marriage to be conducted during April, 2006 Mat. Appeal No.415 of 2009 and the petitioner was also agreeable for the same. He was under the impression that, the mother of the respondent wanted some time for arrangement of the marriage. After marriage, the respondent lived at the petitioner’s house in Wayanad for 15 days. On the very next day of the marriage, the petitioner found that the respondent was behaving strangely and she was not able to look after her own affairs including washing of cloth, cooking of food etc., she was not able to follow the petitioner’s words. He had to repeat the same more than one or two times. He was under the impression that the same can be set right in due course of time. After 15 days of their stay, they came to the house of the respondent and started residing there. At that time, he came to know that she was consuming some tablets and she was drowsy through out the day, she used to sleep in the day time. She was struggled to control sleep. There were abnormal behaviors in the attitude of the respondent. When he enquired about the same with the mother, it was revealed that she was consuming medicine for her mental disorder and she was sleeping and drowsy on account of the consumption of medicine. This shocked the petitioner and he came to understand that the marriage was conducted suppressing this fact of mental illness and she was under the treatment of Doctor Valsala Mannali, M.D., D.P.M., for psychiatric problems from 2001. He also Mat. Appeal No.415 of 2009 came to understand that she was treated at PVS Hospital on previous occasion by Doctor Meenu Pothen, a Psychiatrist and she had advised that respondent is not capable of being married owing to her mental disorder of accute nature. She was under strong medication from September 2005 to April 2006 before marriage. The mother of the respondent had shown the entire treatment records which revealed that she was under continuous treatment for psychiatric problems. The strange behavior of the respondent was also unbearable. She used to suspect the petitioner’s misconduct when ever he speaks to her own mother or her neighbours and she was resisting him from doing the same. She used to forget all her assignments and even important matter. On one occasion she had even failed to hand over the letter sent from his house and she handed over the same after a month of receipt of the same, when enquired she told that she had forgotten it. The respondent was in the habit of forgetting everything and suspecting everybody of having immoral character. She was not even allowing the petitioner to mingle with her own mother, his sister or sister-in-law. She had even told that after he started residing there, her mother had started dressing well to lure him. All these things were not expected from a woman of her standard. So it is difficult for him to live with her. Since the consent was obtained by fraud, suppressing Mat. Appeal No.415 of 2009 the material fact, the marriage is liable to be annulled. She had even made bad remarks about the petitioner’s sister-in-law and due to her irresponsible comments, she was even being unliked by her own family members. So he took her to her house and left there on 23rd September, 2006. The petitioner is convinced that it is difficult for him to continue the relationship, since the consent was obtained suppressing the material fact, the marriage is liable to be declared invalid and the same is liable to be annulled by the decree of nullity, hence this petition.
3. The respondent was represented by her mother in the petition and a counter statement was filed through her. She denied the allegations. She had also contended that, the petition is not maintainable and there is no necessity to appoint a next friend or guardian for the respondent as she is capable of looking after her affairs and she is not suffering from any mental illness as alleged. She had denied all the allegations of mental illness, suppression of material fact and committing fraud and obtaining consent by perpetuating fraud etc.,. She had also denied the allegation that though the marriage fixing ceremony was conducted during September, 2005, they wanted to conduct the marriage in April. She denied the allegation that the respondent was suffering mental illness even prior to the marriage. Mat. Appeal No.415 of 2009 She had also contended that the family members of the petitioner had consulted and discussed and only thereafter the marriage was fixed. There was no suppression of any material fact. The allegation that she was not able to understand things and she was drowsy throughout the day and she was consuming medicine for her mental illness and this fact was disclosed by her to the petitioner etc., are not correct and have denied. She had admitted that there was an earlier marriage for the respondent and that was dissolved through court within a month of the marriage as they were not liking each other and they felt that the marriage could not be continued, so they dissolved the marriage by mutual consent through court. These facts were disclosed to the petitioner. The father of the respondent died in her young age and she was looked after by the mother and though she was having required qualification, since she did not get employment, that caused some unpleasantness in her for which she was consulted a doctor, except that there was no mental illness for her. This fact was also disclosed to the petitioner and he was aware of the same and only thereafter the marriage was conducted. They lived together for six months as husband and wife at their house as well as in the house of the respondent and during September 2006 for Onam, they came to their house and thereafter left the respondent there and he left the house Mat. Appeal No.415 of 2009 and thereafter he did not enquire about her and filed the petition for divorce. The respondent is always interested in the company of the petitioner, she is capable of performing the marital duties as a dutiful wife. So the petitioner is not entitled to get the relief and they prayed for dismissal of the application.
4. The petitioner himself was examined as PW1 and the doctor was examined as PW2 and Exts.A1, A2 series and A3 were marked on his side. The mother of the respondent was examined as RW1 and the respondent herself was examined as RW2 and Ext.B1 was marked on their side. After considering the evidence on record, Court below had come to the conclusion that there was no serious mental illness, warranting interference of the Court to annul the marriage and the petitioner is not entitled to the relief claimed and dismissed the application. Aggrieved by the same, the present appeal has been filed by the appellant/petitioner before the Court below.
5. Heard Sri.P.V.Kunhikrishnan, counsel appearing for the petitioner and Sri.K.P.Sudheer, counsel appearing for the respondent.
6. The counsel for the appellant submitted that the evidence adduced on the side of the petitioner both oral and documentary and also the medical evidence adduced on his side will go to show that the respondent was undergoing treatment for some mental illness from Mat. Appeal No.415 of 2009 2001 onwards. She was even admitted in the hospital for that purpose. This fact was suppressed and if it was brought to the notice of the petitioner, he would not have consented for the marriage. He had not condoned the act as well. The Court below had mis-appreciated the case as though it was filed for divorce on the ground of incurable mental disease. But the degree of mental illness to be proved under Section 12 of the Act is not so grave as in the case of getting divorce on the ground of mental illness. This aspect had not been properly appreciated by the Court below. If it is proved by the petitioner that she was suffering from some mental illness, and this fact was suppressed and the consent was obtained by fraud suppressing material fact, then the consequence of annulment of marriage has to follow, if the fraud has not been condoned by the petitioner and the petition was filed within the time specified under that section.
7. He had relied on the decisions reported in Thulasi Bhai v.Manoharan (1998 KHC 587), Joy v. Shilly (1995 KHC 349) and Vandana J. Kasliwal v. Jitendra N.Kasliwal (2007 KHC 6987) in support of his case.
8. On the other hand, the counsel for the respondent submitted that the evidence adduced on the side of the petitioner is not sufficient to grant the relief of annulment of marriage. Even the Mat. Appeal No.415 of 2009 medical evidence on the side of the petitioner himself will go to show that the mental disorder or mental illness is not so grave and she was relieved from the same and the petitioner was aware of the same and as such the Court below was perfectly justified in coming to the conclusion that the allegations are not sufficient to grant the relief and no interference is called for.
9. It is an admitted fact that the marriage between the appellant and the respondent was solemnised on 21.04.2006. It is also an admitted fact that the respondent and appellant resided together in his house for 15 days and thereafter went to the house of the respondent and resided there for sometime. They lived only for six months. According to the petitioner, even from the next day of marriage, the behavior of the respondent was not normal, she was always drowsy and sleeping throughout the day and when she was residing in her house, he came to understand that she was consuming some medicine and when it was enquired with her mother, she told that she had some mental illness earlier and it was on account of the medicines that she was drowsy. This fact shocked him and so when he made enquiry, it was reveled that she was under constant treatment from 2001 March onwards for her mental illness and this fact was suppressed, so there is fraud in obtaining consent and it is not Mat. Appeal No.415 of 2009 possible for him to reside together that prompted him to leave her house and then filed the petition for annulment of marriage. These facts were denied by the respondent and according to her she was having only anxiety for not getting employment for which she has consulted a psychiatrist for sometime and there was no serious mental illness. It is also an admitted fact that it is a second marriage for the respondent and her earlier marriage lasted only for one month and thereafter it was separated by filing a joint petition for divorce through Family court. It is thereafter a matrimonial advertisement was made and it is on that basis the petitioner contacted and agreed for the marriage. It is also seen from Ext.B1 that at the time of engagement, they have agreed to conduct the marriage on 21st April 2006, so the Court below came to the conclusion that the allegation that though the engagement was during September 2005, it is at the request of the respondents mother the marriage was conducted in April 2006 is not correct. It is seen from Ext.B1 that the engagement ceremony was conducted on 19.02.2006 from the house of the respondent and both the petitioner and the mother of the respondent had signed the same.
10. Section 12 of the Hindu Marriage Act deals with voidable marriages and the grounds under which annulment of marriage can be sought, which reads as follows:
Mat. Appeal No.415 of 2009
12. Voidable marriages.- (1) Any marriage solemnised, 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 Cl.(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 Sect.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-section (1), no petition for annulling a marriage-
(a) on the ground specified in Cl.(c) of sub-section (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;
(b) on the ground specified in Cl.(d) of sub-section (1), shall be entertained unless the Court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriage solemnised after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground].
11. The ground alleged by the petitioner will fall under Section 12(i)(c) of the Act, namely the consent was obtained by force or by fraud or any material fact or circumstances connecting concerning the Mat. Appeal No.415 of 2009 respondent. Further Sub Section (2) of Section 12 says that the petition for annulment of marriage on the ground mentioned under Section 12 (c) has to be filed within one year of the date on which force had ceased to operate or as the case may be the fraud had been discovered. If the petitioner had lived with the respondent with their full consent even after the discovery of fraud or the force ceased to operate for more than one year, then the petition is not maintainable.
12. So the petitioner has to prove that the consent was obtained by suppression of material fact or circumstance concerning the respondent and a fraud was committed on him obtaining the consent by suppressing the material fact relating to the respondent and within one year from the discovery of that fraud, he had not condoned the act of fraud and accepted the respondent as his wife and decided live together for more than one year. Admittedly in this case the respondent came to know about the act of suppression of some mental illness for the respondent during September 2006 within five months of their marriage, when he enquired about the conduct of the respondent with her mother and when she disclosed these facts, he left the respondent in her house and immediately filed the petition. The marriage was conduced on 21.04.2006 and the petition was filed on 27.01.2007 within one year mentioned under Section 12 of the Mat. Appeal No.415 of 2009 Act.
13. In order to prove the case of the petitioner, apart from examining himself as PW1, he had produced Ext.A2 series and A3, the documents relating to the treatment of the respondent from the hospital for her mental illness and also examined PW2, the Doctor who treated her. Though the respondents have a case that this fact was also disclosed to the petitioner, except the interested testimony of RWs 1 and 2, there is no other evidence adduced on their side to substantiate this fact. They had even denied the fact that she was treated in a hospital as inpatient for this purpose. They have also denied the fact that she was treated for some mental illness during 2001 and thereafter it was continued for some time and even prior to the marriage there was occasion for consulting the Doctor. So under such circumstances, it is not possible to believe the evidence of RWs 1 and 2, that they have disclosed these facts to the petitioner before marriage.
14. Ext.A2 series is the prescription of the medicines that has been prescribed for the respondent for her mental illness. It is seen from the documents produced that she was treated at PVS Hospital in Psychiatric department during 2001. Ext.A3 is a certificate issued from the PVS Hospital, Calicut which shows that she was treated as Mat. Appeal No.415 of 2009 inpatient from 14.03.2001 to 21.03.2001 by doctor Valsala Mannali, a Psychiatrist attached to the hospital. The diagnosis shows that she was suffering from bipolar mood disorder, suspected mania and mixed affective stage. It is noted that at the time of admission, she had complaint of excessive talk, vague fear, grandiose behaviour, inappropriate crying and laughter and loss of sleep that was worse for 2 or 3 days. She was discharged with the advise to consume tablet namely epival 200 mg, emetil plus 100 mg, phenergan 25 mg, and she was advised to take medicine for one week and advised to review on 28th March, 2001.
15. It is seen from Ext.A3 case sheet that was produced from PVS Hospital, Calicut that she was admitted earlier on 14.03.2001 and treated as inpatient up to 21.03.2001 and she was referred from a local Doctor with a prescription of medicines. She was brought by her mother. It was diagnosed as bipolar mood disorder with suspected mania and mixed affective state. It is seen from the case sheet that she was treated by Doctor Valsala Mannali. It was noted that she was relieved and she was advised to continue medicine. It is also seen from the case sheet that she again visited the hospital on 15.01.2003 with same complaint and again on 28.02.2003 with a complaint of relax of vague fear and she was advised medicine. It is also seen that she was Mat. Appeal No.415 of 2009 again seen at the hospital on 27.03.2005 and treated by Doctor Valsala Mannali, where it was stated that she was better. Again she was seen on 15th May, 2003 and she was advised medicine. It is seen that she was seen attending the PVS Hospital on 01.07.2003, 01.09.2003, 10.09.2005, 19.09.2005, 04.10.2005, 15.11.2005 and 17.01.2006. On all occasions she was treated for obsessive fear and multiple clair voyance. On 7th January, 2006 though the patient was seen by PW2, it was observed that the patient was very cheerful and enthusiastic, but mother says there is no hypo manic flavour. Even at that time she was advised medicine for 6 months. So all these things will go to show that she was undergoing for some type of mental illness, which is described in the case sheet though not of serious nature and under constant treatment and taking medicines, even just prior to the marriage. During January 2006 also, she consulted a psychiatrist for some mood disorder and she was advised to take medicine for six months. So the contention of the respondent that, she was not consuming medicine after the marriage appears not correct.
16. The behavior of the respondent being drowsy and sleepy may be due to the impact of the medicine that is being consumed by her. The question is as to whether the consent has been obtained by fraud or suppression of fact has to be considered from the Mat. Appeal No.415 of 2009 circumstances of the case. If a normal person, if such things were disclosed whether he would have accepted her is a matter to be considered from the evidence given by the petitioner. Normally if a person is disclosed about the continuous treatment of some mental illness of the respondent prior to the marriage is disclosed, he will not be accepting her as such. Such a possibility is remote. Unless he was satisfied that the mental illness for which she is undergoing treatment is not of that grave nature after getting himself satisfied with the consultation of the Doctor, there is no possibility of accepting her consent for the marriage. There is no such possibility in this case, because neither the petitioner nor the respondent had a case that prior to the marriage they had consulted any psychiatrist or clinical psychologist to ascertain or to evaluate the mental status of the respondent and as to whether she had seen fully relieved of the same.
17. In order to attract Section 12, it is not necessary that the petitioner has to prove that the mental disorder alleged is of incurable nature and it is difficult for him to live with the respondent on account of the same, as is required to be proved for getting a decree for dissolution of marriage under Section 13(1)(iii) of the Act. He need only to allege and prove that certain material fact relating to the mental illness of the respondent has been suppressed and his consent Mat. Appeal No.415 of 2009 was obtained by fraud by suppressing such material fact relating to the respondent and if the same has been disclosed earlier, he would not have given consent for the same. Then the burden is on the respondents to prove that these facts were disclosed to the petitioner and with that knowledge he had agreed for the alliance and thereafter he condoned the same and started residing with the respondent as husband and wife. If this fact is not proved by the respondent and earlier part of the burden was discharged by the petitioner, then he is entitled to get a decree for nullity of marriage under Section 12(1)(c) of the Act.
18. In the decision reported in Thulsi Bai v. Manoharan (1989 KHC 587), this Court has held that, if the marriage was solemnized at a time when the petitioner was not aware of the mental illness of the respondent and immediately after marriage she was taken to his house and immediately when he came to know about the same, he had initiated the proceedings, then it cannot be said that he had condoned the matrimonial offence. Condonation of matrimonial offence has to be a conscious and deliberate act and it must convey full ratification of the matrimonial status after coming to know of the fraud. It is also held in the same decision that only in a petition under Section 13(1)(iii) of the Act, the Court need examine whether the Mat. Appeal No.415 of 2009 disease is of such a kind and of such an extent that the other party cannot reasonably be expected to live with her. The conclusion is that the petitioner’s consent to marriage was obtained by fraud, then he is entitled to a decree for nullity under Section 12(1)(c) of the Act and he need not prove as in the case of getting a divorce on the ground of insanity under Section 13(1)(iii), but he need only to prove that fraud was perpetuated in obtaining the consent for the marriage by suppression of material fact or circumstances relating to the respondent.
19. In the decision reported in Joy v. Shilly (1995 KHC 349), it has been held that, it would amount to fraud, if there is concealment of the fact that one of the parties to the marriage was insane.
20. Further in the decision reported in Vandana J. Kasliwal v. Jitendra N.Kasliwal (2007 KHC 6987), the Bombay High Court has held that, if the consent for the marriage was obtained by suppression of material fact regarding the mental illness of the respondent and the consent of the husband was obtained by concealing the fact that she was suffering from schizophrenia, it cannot be said that it was a free consent and the husband is entitled to get annulment of marriage on that ground.
21.It is true in all these cases the wife was suffering from Mat. Appeal No.415 of 2009 schizophrenia and she was treated for the same even prior to the marriage and this fact was not disclosed. Further those are all cases were the consent of the wife cannot be said to be free consent as she was suffering from mental illness and this fact was suppressed and getting the consent of the husband also there was fraud. But it may be mentioned here that, it is not the gravity of the mental illness that is required to be considered by the Court while considering the question as to whether there was any suppression of material fact regarding the respondent in obtaining the consent of the petitioner for the marriage. But whether the factum of illness and treatment given prior to the marriage was disclosed to the petitioner and in spite of that, he had given consent is the question to be considered. If this fact was not disclosed and immediately after disclosing this fact, he was diligent in filing of this petition for dissolution of marriage, then it cannot be said that he had condoned the act of suppression of material fact and in spite of the suppression he had decided to continue the relationship. It is seen from the records and also from the evidence that within 5 months of marriage, when he came to know about the suppression of fact of treatment given to the respondent for her mental illness, he left the house of the respondent and immediately filed the application for annulment of marriage as well. As has been Mat. Appeal No.415 of 2009 discussed earlier, it is not the gravity of the mental illness to be considered, but whether such a fact was disclosed to the petitioner and knowing this fact, the petitioner had given consent for conducting the marriage. Such an evidence is absent in this case.
So under such circumstances, the appreciation of evidence by the Court below while considering the question of granting the relief under section 12(1)(c) of the Act is erroneous and the Court below had appreciated the evidence as though there is a burden on the petitioner to prove that the respondent was suffering from mental illness of such incurable nature so as to make it impossible for him to lead a normal marital life and with that perception, appreciated the evidence and dismissed the petition, which according to us is not the correct approach while considering the question of annulling the marriage on the ground of fraud under Section 12(1)(c) of the Act. From the evidence available on record, it can be safely concluded that the factum of treatment for mental illness whatever be the nature from 2001-2006 intermittently and even prior to the marriage she was consulted with the doctor who advised to take medicine for six months was suppressed and consent was obtained suppressing that material fact regarding the mental status of the respondent and thereby the consent was obtained by fraud and the petitioner is entitled to get a Mat. Appeal No.415 of 2009 decree for annulment of marriage under Section 12(1)(c) of the Act. So the dismissal of the petition by the Court below is unsustainable in law and the same is liable to be set aside and the petition has to be allowed and the marriage between the petitioner and the respondent has to be declared null and void under Section 12(1)(c) of the Act.
So the appeal is allowed and the order passed by the Court below, dismissing the application is set aside. OP.No.12/2007 is allowed. The marriage solemnised between the petitioner and respondent on 21.04.2006 is hereby declared as null and void and a decree for nullity of marriage is granted in favour of the appellant. Considering the circumstances, the parties are directed to bear their respective costs in the appeal.
(K. Ramakrishnan, Judge)