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Divorce on concealing ill health, Maintenance only after considering husband assets

Bombay High Court

Vandana J. Kasliwal
Jitendra N. Kasliwal on 28 September, 2006

Equivalent citations: AIR 2007 Bom 115, II (2007) DMC 227

Bench: N Dabholkar, P Borkar
JUDGMENT P.R. Borkar, J.

1. This is an appeal, preferred by a wife, whose marriage with the respondent was annulled by the decree passed on 31-3-2004, by the learned Principal Judge, Family Court, Aurangabad, in Petition No. 73 of 2003.

2. Brief facts leading to the decision may be stated as follows.

It is no more disputed that marriage of the appellant and the respondent was solemnized on 5-1-2003 at Aurangabad. The marriage was performed as per the custom in the Digambar Sect of Jainism. The respondent/husband was a graduate and doing service as an accountant. The respondent/husband filed petition for annulment of marriage with averments that as per the custom in the community, the bride wears Parda at the time of marriage. The behaviour of the appellant bride was not normal. However, it was staled that she was sleepless and, therefore, the abnormal behaviour might be a temporary phase.

3. It is averred that at the time of MuhDekhi ceremony, the bridegroom is supposed to offer some gifts in the form of gold ornament to the bride and when the respondent/husband offered a gold chain to the appellant, she refused to accept the same and behaved in abnormal way. She even refused to give any response to the advances made by the respondent/husband and unbolted the bed-room and joined the sisters of the respondent/husband, which was even a rude shock to the sisters. They pushed the appellant into the bed room again. On the next day, attempts for consummation of marriage made also went in vain. There was a ceremony called “Churma”. She was staring at a fixed point keeping pallu of the sari loose and it was not as per the custom. Her behaviour showed that some thing was being concealed. After three days, the father and sister of the appellant/wife came to take the appellant away. They were informed about the abnormal behaviour of the appellant/wife and to have medical advise. On 8-1-2003, which was the fourth day after the marriage, the respondent/husband and the appellant’s father and sister had taken the appellant to Dr. Barhale. At that time Dr. Barhale asked the father of the appellant/ wife what was new problem and Dr. Barhale also disclosed that already the appellant/ wife was his patient since June, 1997 and the medication was continued. From Dr. Barhale, the respondent/husband and his family came to know that the appellant was suffering from acute schizophrenia which was incurable and categorized as, “acexcerbation.”

4. It was alleged by the respondent/husband, who was original petitioner in the trial Court that the appellant/wife was suffering from Schizophrenia which was incurable. The said fact was suppressed by the appellant’s family. It is also alleged that the marriage was not consummated. With these averments, the petition for annulment of marriage was filed in the Family Court at Aurangabad.

5. The appellant/wife filed the written statement denying the allegations that the marriage was not consummated or that there was any concealment. It is denied that the appellant was suffering from any mental disease or schizophrenia which is incurable. It is alleged that it was a settled marriage. The appellant/wife was meritorious student throughout her career in school and college. However, due to some mishap in the final year examination of graduation, she failed in one subject and there was some mental stress and, therefore, medical aid was provided to the appellant/wife. But even thereafter, the appellant/wife was serving in private sector in different departments and was getting income and that itself showed that the behaviour of the appellant/wife was very much right and she was not having any mental disorder.

6. It is further stated in the written statement that the parents of the appellant had given complete understanding about the treatment and illness of the appellant before settling the marriage. They had handed over the entire file of the prescriptions advised by doctors and thereafter only the present respondent/husband had consented for the marriage. It is further contended that on the next day of the marriage itself, the cousin brother of the appellant/ wife had talked with her on telephone and from that time, the respondent/husband and members of his family started making heinous allegations raising doubts about her character and, therefore, the appellant was disturbed, but she still tolerated all the acts and the conduct. She was treated with cruelty and she was forcibly brought to the house of her father. It is because of lust for money and due to doubts regarding character of the appellant/wife, the false petition was filed.

7. The learned Principal Judge, Family Court, Aurangabad considered the evidence on record, particularly those of two doctors examined and the circumstances of the case and passed the decree of nullity.

8. The case of the appellant is covered by Section 12(l)(c) of the Hindu Marriage Act, 1955 (for short, “the Act of 1955”). Section 12(1) of the Act of 1955 reads thus:

12. 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 Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under Section 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].

(Emphasis supplied) At the time of the arguments before us, the learned Advocate for the respondent has specifically stated that the case of the respondent is covered by Section 12(1)(c) of the Act of 1955, quoted above.

9. The learned Advocate for the respondent argued that if we consider the written statement filed by the appellant/wife, it is in three parts. In the first part, mental illness was denied and it is stated that it was a case of temporary mental stress. In the second part, again it is stated that due to failure in the last year examination of graduation, there was mental stress and, therefore, medical aid was given, and that before the marriage, entire file of prescriptions was handed over to the party of bridegroom and, thereafter, consent for the marriage was given. In the last part of the written statement, it is alleged that the reason for filing the petition was the telephonic talk of the appellant/wife with her maternal cousin which gave rise to suspicion and it is added that the lust for money was one of the reasons for giving rise to the petition. We have to consider whether this version can be accepted.

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10. It is worth noting that the marriage was solemnized on 5-1-2003. On 8-1-2003 i.e. on the fourth day, the appellant/wife was taken to Dr. Barhale and she was under treatment for couple of days. So, this short period of 3 to 4 days rules out any possibility for petition being filed out of lust for money. In the written statement, it is stated that for the marriage, the father of the appellant/wife had spent about Rs. 3 to 3.30 lac. So, it is improbable that within such a short period there will be any lust for money and that the money could be the reason for filing the petition. Moreover, it is nowhere stated that any particular sum was demanded or any dissatisfaction was expressed for non-fulfilment of any demand.

11. It is also argued before us that sofar as the so called suspicion and torture because of the talk of the appellant/wife with her cousin brother on telephone is concerned, it will have to be considered whether it was a plausible and reasonable explanation.

12. In the trial Court, the respondent/ husband is examined on oath at Exh. 14 and he stated that it was an arranged marriage. One Mr. Gangwal was the mediator. There is nothing on the record to show that the families knew each other prior to the marriage, though both families were residing at Aurangabad at the time of the marriage. The native place of the family of the respondent/husband was Waradi, Tq. Sangamner; whereas the family of the appellant/wife is native of Maliwadgaon. It has also come in the cross-examination that 7 years before the deposition on 2-1-2004, the respondent/husband came to reside at Aurangabad. It is denied that Mr. Gangwal had given any information. It was disclosed that before the marriage, the appellant/wife was serving for 2 to 3 years in some departmental stores. The respondent/husband deposed that no lady member was with them when the respondent’s side had gone to see the appellant/wife. It is also stated that for the first time the respondent/husband saw the appellant on 31-12-2002 and on 5-1-2003 there was marriage. So, within five days the marriage was solemnized. This is relevant while considering fraud by concealment of material fact or circumstance concerning the appellant/wife, within the meaning of Section 12(1)(c) of the Act of 1955.

13. The parties mainly deposed as per their pleadings. As per the respondent/husband, when they had taken the appellant/ wife to the hospital, at that time the doctor gave him original file. It is denied that prior to the marriage the file of the prescriptions was given to the husband’s sides and that with full knowledge the marriage had taken place. Whereas it is stated by the father of the appellant/wife examined at Exh. 40 that he had handed over the original papers of prescriptions of Dr. Barhale to the father of the respondent and thereafter the proposal for the marriage was accepted. It is argued before us that the name of the doctor was not disclosed prior to filing of the petition. Even, name of Dr. Barhale was not disclosed and that is why, we find, a question put to the appellant Vandana in paragraph 11 of her cross-examination as to whether she was taking treatment of Dr. Patil and she stated that she was not taking treatment of Dr. Patil. This has a relevance to contents of the reply sent which is produced at Exh. 15.

14. We may consider the evidence of the doctors first. Dr. Anil Kale is examined at Exh, 22. He is specialist in Psychiatry. He stated that the appellant Vandana had come to him for treatment and he gave prescription Exh. 23. He has given treatment for psychosis which is a mental illness. There was change in behaviour and thus before coming to his hospital the appellant Vandana had taken treatment of Dr. Barhale and he had also seen papers of said treatment. Dr. Kale stated that her illness might be due to biological, psychological or environmental causes. He further stated that only once the appellant Vandana had approached his hospital and that he had come to such a conclusion as per the history given by the patient and on her examination. Therefore, we can say that Dr. Anand Kale had no opportunity to examine and observe the behaviour of the appellant Vandana except once. On the other hand, the appellant Vandana had visited Dr. Barhale several times and for long periods.

15. Dr. Kale has stated in cross-examination that Schizophrenia comes under psychosis and if proper treatment is given, the patient may give response to it. He further stated that if recovery is there, patient is in a position to give marital happiness and/or perform matrimonial obligations. So, this opinion of Dr. Kale is based on one time examination and what is stated is a general proposition that if a patient responds to the treatment and recovers, the patient is in a position to give marital happiness and to perform all matrimonial obligations. Dr. Kale even admitted that when he interviewed, the appellant was under influence of previous medication. This is material when we consider the opinion of doctors, and we find, the evidence of Dr. Barhale more reliable, as Dr. Barhale had several occasions to examine the appellant, observe her behaviour, give her treatment and see the effect of medication prescribed by him. Though, Dr. Kale has stated that torture of a newly married girl, by allegation that she is of a loose character comes under environmental cause, it is still a general proposition, not necessarily applicable to the appellant. It is not the say of Dr. Kale that in the history given to him, the appellant had made out a case of torture and /or of allegations of loose character by her inlaws. It is worth noting that only for three days the appellant lived with the respondent and on the fourth day after marriage she was taken to Dr. Barhale for treatment and this conduct fortifies that there must be abnormal behaviour which led the respondent and the members of his family to take the appellant to a Psychiatrist. It is worth noting that while taking the appellant to Dr. Barhale, the father and the sister of the appellant had accompanied her. Dr. Kale also admitted that the appellant patient was not in a position to giye interview because she was under influence of medication. Therefore, the evidence of Dr. Kale is not much helpful.

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16. On the other hand, Dr. Vinay Barhale; examined at Exh. 27, has stated that from 30-6-2002, as per the available record, the appellant was under his treatment. It can be said that even before that, the appellant had visited his hospital. The appellant was suffering from Schizophrenia. She was in hospital from 30-6-2002 to 20-7-2002. Dr. Barhale stated that she was admitted; in the hospital due to irritability, uncooperativeness and hostility. He gave medicines and electro convulsive therapy. Dr. Barhale further stated that probably before 5 to 6 years, the appellant had come to him for treatment. Dr. Barhale was shown the discharge card and the prescriptions which were proved at Exhs. 28 to 30. Dr. Barhale has stated that those were the prescriptions for schizophrenia disease and that due to the medicines the symptoms were controlled. He also stated that schizophrenia is a treatable disease. When the appellant approached him from time to time, she was recovered 90 per cent or more and that she could lead the marital life. However, at the same time he stated that Schizophrenia is a continuous disease, which can be kept under control with the help of continuous medicines. So, in that sense, Schizophrenia is incurable disease. Dr. Barhale has specifically stated that schizophrenia is not a curable disease. He further stated that mental distress may be one of the causes for schizophrenia.

17. The respondent/husband examined his sister Manisha at Exh. 32 to support his case. Manisha has stated that the behaviour of the appellant was not normal. On the 1st night after the marriage when all guests went to sleep and when she, her sister and others were chitchatting in the hall, the appellant had come out of the room and sat with them in the hall. Manisha stated that her sister reached the appellant back to the room.

18. Appellant Vandana did state in her statement that on fourth day after marriage, there was phone call from her cousin brother. He was making enquiries regarding her and she talked with him for 10 to 15 minutes. The respondent made inquiries with her and then the respondent started suspecting her character. The fourth day was 8-1-2003 after the marriage. It was the day, on which the appellant was taken to Dr. Barhale. So, the story of suspicion due to telephonic talk and the allegations of torture appears to be concocted and false.

19. In the cross-examination, appellant Vandana has stated that 7 to 8 years prior to recording of her deposition on 21 -2-2004, she was taking treatment of Dr. Barhale and two years before the marriage she was taking treatment for mental illness. Her parents financial condition was weak, so she wanted to do service. As she was not getting good service, she was having mental tension. This falsifies the allegation that false petition was filed by the respondent due to lust of money. The appellant Vandana further stated that she did service for three years, but it was not to her liking and, therefore, she had mental tension. She also admitted that for 8 days she was admitted in the hospital as indoor patient.

20. The appellant Vandana further stated that one Tarachand Gangwal, who was the mediator, was a friend of her father. She alleged that it was Tarachand Gangwal who had dragged and reached her at the house of her father. She also stated that she had told the respondent regarding the telephonic talk between herself and her brother Pradeep. Then she has specifically admitted that the respondent has not made allegations that she had illicit relations with Pradeep and that (he had not promised that) he would not disclose the same if her father gave more money. This statement made by the appellant clearly falsifies the defence of alleged suspicion and ill-treatment. She has also specifically stated that the respondent or has father did not demand money and that there was no dispute over money.

21. Taking into consideration all the circumstances, it is very clear that the mental illness, which requires continuous medica-lion and due to which there was irritability, unco-operativeness and hostility on the part of the appellant/wife and which is incurable, is something which is a material fact or the circumstance concurring the present appellant. In the clinical history given at Exh. 31, it was mentioned that the appellant had come to the hospital of Dr. Barhale as she was overtalkative, abusive, irritable, angry, biting to any one, not mixing with people, talking on one topic, crying, shouting, trying to run away, biting to mother, laughing to herself, not working at home. If these were the symptoms of the mental illness, we cannot say that the mental illness of the appellant was a fact, which need not have been disclosed or which was not material. Therefore, concealment of such thing is definitely a fraud within the meaning of Section 12(l)(c) of the Act of 1955. Such bahaviour materially affects the marital life, so also tranquillity and happiness in the home.

22. The learned Counsel for the respondent cited the case of Smt. Kiran Bala Ashthana v. Bhaire Prasad Shrivastava . In that case, it Is observed that:

If it is shown that the facts and circumstances about one of the parties were such that the other party could not have readily consented to marry the other, and there was an element of deception or misrepresentation in bringing about the marriage at the instance of a party, such as to amount to fraud, a Hindu marriage could surely be annulled under Section 12(1)(a) of Hindu Marriage Act, notwithstanding its sacramental character.

We agree with the said observations in para 11 in the above case.

23. In this case, the respondent, who is a normal young man, graduate working as an accountant and earning, would not have consented to marry a girl having background of such mental illness, had he known about the said fact before the marriage. No special reason was disclosed. We are more inclined to believe the words of the respondent/husband that the papers regarding prescriptions and discharge card were handed over to him by Dr. Barhale, rather than by the father of the appellant/wife prior to the marriage. In our opinion, the said theory put forward by the appellant was unnatural and improbable.

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24. Section 12(1)(b) r/w Section 5(ii)(c) of the Act of 1955 was also argued by the learned Counsel for the appellant, but the learned Counsel for the respondent has chosen to restrict his case to Section 12(1)(c) of the Act of 1955, as stated earlier. From the evidence of the appellant Vandana, we can also say that the present case falls under Section 5(ii)(c) r/w Section 12(l)(b) of the Act of 1955, as there were recurring attacks of insanity and the appellant had taken treatment of Dr. Barhale prior to and after the marriage and she was also indoor patient. In this case, the other conditions as laid down in Section 12(2) of the Act of 1955 are satisfied sofar as ground under Section 12(1)(c) of the Act of 1955 is concerned. The petition for annulment was filed on 17-2-2003 and the marriage had taken place on 5-1 -2003. Thus, the petition was filed within one and half months’ of the marriage. This is not a case where the respondent has with his full consent lived with the appellant after the fraud had been discovered.

25. The case of Raghunath Gopal Daftardar v. Sau Vijaya Raghunath Daftardar is relied upon by the learned Counsel for the appellant. In that case, it is observed that:

Mere non-disclosure prior to marriage or concealment of curable epilepsy disease of girl and false representation that she was healthy does not amount to fraud within the meaning of that word used in Section 12(1)(c).

It is also observed that:

Section 17 of the Indian Contract Act, 1872 does not apply to a case of fraud under Section 12(1)(c) of the Hindu Marriage Act, 1955.

In our considered opinion, though marriage is sacrosanct, it requires consent of both spouses or their guardians, if spouses are not capable of giving consent, and it must be a free consent and in that sense, we have to consider whether the consent was given voluntarily. Here aid of definition of fraud, even from the Indian Contract Act, 1872 need not be overlooked and we, therefore, respectfully differ from the view taken by the single Judge in the case of Raghunath Gopal (supra), that mere non-disclosure prior to the marriage or concealment of curable epilepsy disease of girl and false representation that she was healthy does not amount to fraud within the meaning of the word used in Section 12(1)(c) of Hindu Marriage Act, 1955. If regard be had to Section 12(1)(c) of the Act of 1955, it is clear that if a fact or circumstance is so material as to affect decision of giving consent to marriage and if there is fraud regarding the same, may be by express words or even by concealment, then, marriage could be annulled. However, we hasten to make it clear that it is not every fact or circumstance which would be covered by the provision, but it must be substantially something which goes to the root of the matter, which definitely would weigh with any prudent person to change his mind. It must not be easily detectable. The Court would be very circumspect, cautious and pragmatic in identifying such fact or circumstance. In this case, the first part of the written statement itself shows that when query regarding abnormal behaviour of the appellant was made during marriage ceremony, it was stated that it might be because of mental stress due to failure in the examination and for want of sleep.

26. We may also refer to a Division Bench judgment of this Court in the case of Chandrakala alias Vandana Subhash Gaokhandkar v. Subhash Dhondiba Gaokhandkar 1994 (2) Mh LR 490. In that case, the wife was suffering from leprosy since prior to marriage, though not virulent and incurable. The said fact was not brought to the notice of the husband before marriage. It was held that there was fraud committed by wife upon the husband and that declaration of annulment of marriage between the husband and the wife under Section 12(1)(c) of Hindu Marriage Act, 1955 was justified. The case, as para 4 discloses, is one of fraud by non-disclosure of material fact, So, in the circumstances of the case, we hold that this is not a case where interference in appeal is called for.

27. It is argued before us that alimony may be awarded under Section 25 of the Act of 1955. No doubt, the Court while exercising Jurisdiction under Hindu Marriage Act, 1955, may, at the time of passing any decree or at any time subsequent thereto, on application made to it, order maintenance – any such gross sum or such monthly or periodical sum as permanent alimony or maintenance. However, while considering such application, regard has to be made to the respondent’s own income, other property, the income and property of the applicant, the conduct of the parties and other circumstances of the case. In this case, the learned Counsel for the appellant has argued that this Court can pass an order under Section 25 of the Act of 1955. Reliance was placed on the case of Smt. Rajeshbai v. Smt. Shantabai . It is pointed out by the learned Counsel for the respondent that no application for permanent alimony or maintenance was made in the trial Court or in this Court. There was no such issue and, therefore, the parties, particularly the respondent had no opportunity to bring on record the necessary evidence as contemplated by Section 25 of the Act of 1955. The evidence on record does not disclose the income and the abilities of the husband. Therefore, in the absence of necessary evidence and material on record, we give liberty to the appellant to make separate application under Section 25 of the Act of 1955, if so advised. In view of the above circumstances, the appeal must fall.

28. In the result, appeal is dismissed. The parties are directed to bear their own costs.

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