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S. MAHENDER Vs. SHALINI

Judgement

 
Court: ANDHRA PRADESH HIGH COURT

Bench: JUSTICE L. Narasimha Reddy & M.S.K. Jaiswal

S. MAHENDER Vs. SHALINI On 2 January 2014

Law Point:
Suppression of an item of information cannot be treated as ground under Section 12(1)(c) of Act — Section 12(1)(c) gets attracted only when consent obtained by fraud or through force — Respondent has not made out case under Section 12(1)(c) of Act.

 

 

JUDGEMENT

 

The appellant is the husband of the respondent. Their marriage took place on 10.2.2005. The respondent filed FCOP No. 143 of 2006 in the Family Court, Hyderabad, against the appellant, under Sections 12(1)(c) and 27 of the Hindu Marriage Act, 1955 (for short ‘the Act’), for annulment of the marriage. She has also prayed for return of a sum of Rs. 6,50,000 said to have been given as dowry and Rs. 5,00,000 towards cost of gold, silver and other articles said to have been presented at the time of the marriage.

2. The ground pleaded by the respondent was that the appellant and his family members suppressed a vital information about him at the time of marriage viz., that he is suffering from psoriasis. It was stated that she has been subjected to serious harassment ever since the marriage on the ground that she did not bring adequate dowry and despite that she continued to live with the appellant. She alleged that the appellant never permitted her to see his body and he used to wear full sleeves shirts, and switch off the light during night hours. According to the respondent, she switched on the light during night when the appellant was sleeping and she was shocked to see that his skin was peeling off and that immediately she fainted. She further stated that on being questioned, the appellant replied stating that he is suffering from psoriasis for the past two years and that he is taking treatment from Dr. D.B.N. Murthy.

3. The respondent stated that she left the matrimonial home in December, 2005 and at a meeting of the members of their families, the appellant admitted that he is suffering from psoriasis, but the elders opined that it is not a ground for divorce at all. Ultimately, she pleaded that the marriage is liable to be dissolved, on account of the suppression of the vital information and that had she known about the same, she would not have agreed for the marriage with the appellant.

4. The appellant filed a counter opposing the O.P. He denied all the facts pleaded in the O.P. He stated that himself and the respondent were living happily, so much so, the respondent became pregnant, but she got it terminated, despite his opposition. He further stated that he never took treatment with the doctors mentioned in the O.P. According to him, on the advice of elders, he once went to a doctor and after verification, some medicines were prescribed observing that it would be cured very soon.

5. The Trial Court allowed the O.P. through its order, dated 12.3.2009. Hence, this appeal under Section 19 of the Family Courts Act, 1984.

6. Mr. G.M. Mohiuddin, learned Counsel for the appellant, submits that the O.P. was not maintainable in law, since the ingredients of Section 12 of the Act are totally absent in it. He contends that ‘psoriasis’, even if exists in a spouse, is not a ground for divorce. Learned Counsel further submits that the allegation of the respondent that the appellant always covered his body is not correct. He submits that at the time of the marriage, ceremonies are performed where the bridegroom is required to remove his shirt and that after marriage also, the families went to Komaravelli, where during Abhishekam his shirt was removed and nothing objectionable was noticed at any point of time. He contends that the psoriasis, wherever it exists aggravates periodically and that it does not hinder any human activities.

7. The learned Counsel further submits that the plea as to suppression of the vital information was not at all proved. Alternatively, he submits that the O.P. is barred, since it is not presented within the time stipulated or because the spouses lived together even after the respondent is said to have noticed the psoriasis on the appellant.

8. Mrs. S. Vani, learned Counsel for the respondent, on the other hand, submits that though ‘psoriasis’ may not be a disease that warrants divorce, the plea raised by the respondent is that at the time of settlement of the marriage, vital information about the health condition of the appellant was suppressed and that itself is sufficient for annulment of the marriage. She contends that the doctors, who examined the appellant, found that the disease very much exists. She further submits that the plea raised by the appellant about the limitation for filing of the O.P. is also incorrect. She contends that soon after the respondent noticed ailment of the appellant, she left the company and thereafter, the O.P. was filed before the time stipulated under Section 12 of the Act expired.

9. The O.P. was filed for annulment of the marriage under Section 12 of the Act. The Trial Court framed only one point for consideration, namely, whether the petitioner is entitled to the relief of annulment of their marriage.

10. On behalf of the respondent, PWs. 1 to 7 were examined and Exs.Pl to P9 were filed. On behalf of the appellant, RWs.l and 2 were examined and Ex.Rl was filed. Apart from that, a letter addressed by the In-charge Medical Officer, ESI Dispensary, was taken on record as Ex.XI.

11. In this appeal, the points for consideration are as to:

(1) Whether the respondent proved that her consent to the marriage with the appellant was obtained by force or by fraud as to any material fact, concerning the appellant; as mentioned under Section 12(1)(c) of the Act?

(2) Whether the O.P. filed by the respondent is covered by the exception, carved out under Section 12(2)(a) of the Act?

Point No. 1:

12. There is no dispute that the marriage between the parties herein has taken place on 10.2.2005. They lived together, till May, 2005. The appellant pleaded that the respondent became pregnant, but she got it terminated despite his opposition. The evidence is not clear about this, and it is not material fact, for adjudication of the O.P. It is referred only to point out that the parties lived together at least till 2005.

13. The respondent pleaded that in May, 2005, she noticed that the appellant is suffering from ‘psoriasis’ and at once she became shocked. She is said to be residing in the house of her parents. Ever since then, there is some uncertainty about this. While in the O.P., the respondent stated that in May 2005 she went to the house of her parents soon after noticing that the appellant is suffering from psoriasis, in her evidence as PW1, she admitted that it is only in July, 2005 that she went to the house of her parents. Mention was also made in the O.P., to the meeting of elders and relations in December, 2005.

14. Just as in any other contract, the consent in relation to a marriage between a Hindu male and female must be the result of a free will. In case the consent of one spouse is obtained by the other, through coercion or fraud, law recognizes the same as basis for annulment of marriage. The Hindu Marriage Act, which is a sacred union, partakes the character of a contract, to this limited extent.

15. Section 12 of the Act reads as under:

“Voidable marriages—(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:

(a) that the marriage has not been consummated owing to the impotency 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; 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 Clause (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.”

A perusal of this provision makes it clear that two important words, namely, ‘force’ and ‘fraud’ are employed in it. The word ‘suppression’ does not occur in this. Nowhere in the O.P., it was mentioned that any force was exerted upon the respondent or her parents, for obtaining her consent to the marriage with the appellant. It appears that the failure on the part of the appellant to inform that he is suffering from psoriasis was treated as an act of fraud. Since the decree that may be granted with reference to Section 12 of the Act has the effect of terminating the marriage, the language employed therein must be kept in mind while analyzing the facts. Neither its purport can be expanded nor can it be restricted.

16. Fraud or other related acts and omissions, wherever pleaded as the basis for the relief in a suit or a petition, must be stated with necessary details, so that the party accused of it, is provided with an opportunity to accept or contradict the same. Rule 4 of Order VI of CPC make this obligatory. Though the pleading in a suit or a petition is required to be precise and not comprising of evidence, an exception is carved out, if fraud and other related acts or omissions, are pleaded. The O.P. filed by the respondent is totally silent about the details. Except stating that the appellant did not inform the respondent and her parents that he is suffering from psoriasis, no other act of fraud or use of force was mentioned.

17. It would be an ideal situation where the parties to a marriage are hale and healthy. However, the instances of one or the other spouse suffering from some ailment or deformity, are not lacking. Happiness of a person is not entirely dependent upon the health condition of such person or his or her spouse. It is mostly a state of mind. If the parties have understood each other, the illness or sickness that occurs to one would be an occasion for the other, to help and serve. One of the promises that the spouses make at the time of a Hindu marriage is that the respect to each other should not get diluted at the testing times or in adverse circumstances. This said, it must be noted that law itself recognizes certain types of ailments, as grounds for granting divorce. Section 13(l)(iii), (iv) and (v) of the Act makes this aspect clear.

18. In relation to the plea raised by the respondent, two aspects became clear. The first is about the nature of ailment. The second is as to whether the appellant was under legal obligation to reveal the same and if so, whether there was any omission on his part.

19. The respondent as PW1 has repeated the contents of the O.P. in the affidavit filed in lieu of her chief examination. In her cross-examination, she stated that the appellant and his family members suppressed the fact that the appellant is suffering from a disease. It is that suppression, which according to her, constitutes fraud. In her petition, the respondent did not state as to when she noticed the ailment or disease of the appellant. The relevant portion in the O.P. reads:

“The petitioner submits that the behaviour of the respondent used to be strange in privacy. Being a man, he never undressed before the petitioner. He never as much as removed his shirt in the presence of the petitioner. He always wore full sleeves shirts. Even in bed, he used to be dressed fully. During private moments, he had intimacy with the petitioner only in full darkness. The petitioner was given strict instruction that she should wake up while it is still dark and step out of the bedroom only after bathing. The petitioner was not allowed to be around when the respondent used to bath or get dressed and strangely, his mother used to help him. The petitioner used to find peels and scales in her bedroom every day in the morning. They appeared like human skin. When questioned, respondent threatened her to mind her own business and not to ask such questions. She saw some medicine prescriptions of Dr. Batra in her bedroom when she asked respondent, he said that he is taking treatment for hair loss. The said strange behaviour continued, until one night, the petitioner accidentally switched on the light in the bedroom while respondent was sleeping. To her utter shock and dismay, the petitioner saw skin peeling off the body of respondent. She fainted at the said sight. On further inquiry from the respondent he informed that he has been having this problem for over two years and that he is taking treatment from Dr. D.B.N. Murthy. Immediately, the petitioner went to her parental house, which was in the month of June, 2005 ever since she is living with her parents. The petitioner is filing herewith a copy of the medical prescription and the same is marked as Document No. 4.”

20. In her evidence also, she was not clear as to when she has noticed it, and in what form. In the cross-examination, she stated that in May, 2005 the appellant informed her that he was taking treatment from Dr. D.B.N. Murthy for the last two years. It was elicited from her that though she knew in May, 2005 about the ailment of the appellant, she lived with him till July, 2005. It was also elicited that between July and December, 2005 as many as seven meetings have taken place.

21. A Medical Certificate, said to have been issued by a Civil Assistant Surgeon of ESI Hospital, to the effect that the appellant is suffering from psoriasis, was filed by the respondent. In relation to that document, PW2, a doctor from ESI Hospital, was examined. This witness stated that the certificate (Ex.Xl) was issued by Dr. V. Sukhajeevana Chary. In the cross-examination, it was elicited from her that ESI Hospital has no pathological laboratory and that she is not the in-charge of the dispensary. The following was elicited from her:

“It is true complete blood picture and biopsy must be conducted, to say a person who is having skin disease is suffering with psoriasis. Certificate dated 8.11.2004, 15.11.2004 and 22.11.2004 which are part of Ex.Xl were issued to the patient Mahender only. As per Ex.Xl, Mahender came to our dispensary for the first time on 27.10.2004. I do not know when Mahender approached our dispensary and when he was examined by Dr. Sukhajeevana Chary, he was having only chicken pox. The witness says Dr. Sukhajeevana Chary diagnosed for chicken pox also. Dr. Sukhajeevana Chary is not a qualified dermatologist. It is true when I examined in chief I did not say that the patient S. Mahender was suffering from chicken pox also.”

22. PW3 is another doctor. He is said to have prescribed medicines to the appellant, through Ex.X2. The statement of this witness in the cross-examination is important. The relevant portion reads:

“The petitioner, her father and respondent, his father come back with reports. The father of the petitioner had approached me dated 6.2.2006 with a photo copy of my list of investigations recommended on 4.7.2005 and requested for certificate as issued as Ex.X2. The father of the petitioner told me that the matter between pending in the Court and requested me to issue a certificate. Normally, the expression used on the list of investigated on dated 4.7.2005 “Not for Medico-Legal Purpose” is not usually written by me, but is written on this as I suspected that to avoid my involvement in legal proceedings. The original certificate dated 6.2.2006 of Ex.X2 is issued to the petitioner’s father. The Ex.X2 does not contain any statement that the respondent suffers from psoriasis in the certificate dated 6.2.2006. It is not true to suggest that the respondent’s father raised an objection with regard to my including the observation that the patient as past history of similar condition two years back. The certificate dated 6.2.2006 was issued at the request of some persons who claimed to be authorized by the Court in some legal proceedings. I never verified the claim of the said persons while issuing the certificate dated 6.2.2006. I recollect having seen a document requesting me to issue the above certificate I did not verify the said authority nor do I keep a copy of the same.”

The trustworthiness of this witness is further exemplified from the following statement:

“I would not have issued Ex. X2 dated 6.2.2006 to any person except when it is requested judicial or authorized authority. The petitioner, her father accompanied the person who was claiming to be authorized by a judicial authority. I do not maintain any medical records of the patients. Patients themselves maintain their records.”

23. PW4 is the father of the respondent. In the cross-examination, he stated “the petitioner told me that the respondent suffered from the skin disease and that she learnt about the same after two months from the date of marriage”. The evidence of PW5 does not have any relevance on this aspect. PW6 is a person who is said to have accompanied the respondent and her father, PW3. According to this witness, PW3 is a Skin Specialist. However, PW3 himself did not claim to be so. The other portion of the evidence of this witness is of not any relevance.

24. Psoriasis is not a contagious disease nor does it constitute a ground for divorce. The word ‘suppression’ does not occur in Section 12 of the Act. The Parliament has employed the words ‘force’ and ‘fraud’. Before a party gives consent for the marriage with the other, there is bound to be exchange of information. While a part of information may emerge voluntarily, it is not necessary that the parties must present, to each other, their entire life history thus far. If one is curious to know any particular information about the other, certainly the same can be procured directly or from the persons who act as mediators. There are certain important informations, such as, whether the person was already married earlier, whether he or she suffers from any serious disease which, if known to the other party, would not agree for the match.

25. Parliament has taken care to ensure that even if such important factors which, if known to a party, would not get diluted simply because marriage was performed. If the information pertaining to such objectionable conduct is noticed at a later stage also, that can be cited as a ground for dissolution. Section 13 of the Act enlists the factors of this nature. In case, the information of that nature is suppressed and the consent was obtained, the aggrieved party, no doubt, may have been subjected to certain inconvenience with the marriage, but whenever he or she notices the same, it can be pleaded as ground for divorce. For instance, if a party to the marriage was married to another, it can be pleaded as a ground for divorce, as and when the fact is known.

26. The ground mentioned under Section 12(c) of the Act stands on a slightly different footing. This section cannot be treated as a provision placing burden upon a spouse to the marriage, to reveal the entire information about him or her to the other. If that were to be so, it would have become unworkable. It is too difficult to stuff the provision with the types of information that a person must share with would be spouse at the time of settlement of the marriage.

27. If suppression of an item of information can be treated as a ground under Section 12(c) of the Act, it would not be difficult to imagine the serious repercussions thereof. What constitutes the necessary information, would depend upon the likes and dislikes of the person concerned. A habit, information or incident, which is close to the heart of an individual, may not be so for the other. Take for instance that a person who is looking for a match is a doctor and he obtained the seat by paying capitation fee, not being able to procure the seat on merit, and he did not inform the factum of payment of capitation fee or donation for procuring the seat, to his spouse at the time of discussions preceding the marriage. It may so happen that the woman with whom the marriage was fixed dislikes to the core, any practice of procuring admission through payment of capitation fee and the fact that her husband got the seat through such method comes to her knowledge, after marriage. It can be successfully argued that the man did not inform his wife that he procured the seat through donation. However, it cannot be treated as a suppression of the relevant information, much less a ground for annulment of marriage. Similarly, persons may have their own likes or dislikes and the mere fact that the information which is otherwise not to their liking was not revealed before the marriage, cannot be cited as a ground under Section 12 of the Act. Viewed from this angle, the omission of the word ‘suppression’ in Section 12 of the Act is not without basis.

28. Section 12(1)(c) of the Act gets attracted only when the consent was obtained through force or by playing fraud. The content of these words can be better understood, if one takes into account, the purport of Section 12(2)(a) of the Act. In the relevant clause, the words used are “force has ceased to operate or as the case may be fraud has been discovered”. This provision cannot at all be operated vis-a-vis the suppression of information. Therefore, the respondent cannot be said to have made out a case under Section 12(1)(c) of the Act.

29. Reliance is placed by the learned Counsel for the respondent, upon the judgment of the Delhi High Court in Smt. Praveen Kumari v. Man Mohan Kumar, II (1984) DMC 127=AIR 1984 Del. 139. That was a case where the disease of epilepsy was not revealed. It hardly needs any mention that epilepsy if proved, would fit into Section 13(1)(3) and it constitutes a ground for divorce.

30. Judgment in M. Devender v. A. Sarika, 2008 (4) ALD 728 (DB), relied upon by the respondent, is a case where the information as to the educational qualifications and financial and economic status furnished by the husband turned out to be false. If a particular information, knowing it to be false is presented as true, it amounts to fraud and on proof of fraud, a marriage can certainly be annulled under Section 12(1)(c) of the Act. In the instant case, the allegation is about suppression and failure to inform a particular fact cannot be treated as fraud, unless the person failing to mention it was under legal obligation to state it.

31. In Sunita Jain v. Suresh Kumar Jain, II (1992) DMC 244, the ground pleading annulment was that the husband was suffering from mental disorder even before the date of marriage and that it was not revealed. A learned Single Judge took the view that the consent in such case can be said to have been obtained by fraud. Here again, the mental disorder, if proved, would fit into Section 13 of the Act. We, therefore, find that the respondent failed to prove the ingredients of Section 12(1)(c) of the Act against the appellant. The point is answered accordingly.

Point No. 2:

32. Assuming that the ground referable to Section 12(1)(c) is proved, it needs to be seen as to whether the exception carved out under Sub-section (2)(a) of Section 12 of the Act gets attracted. Though an attempt is made that the aspect of limitation covered by Section 12(2)(a) of the Act gets attracted, we are not at all impressed by that. The marriage took place on 10.2.2005 and the O.P. was presented within one year from the date of marriage itself. It is only when the O.P. is not filed within one year from the date on which the fraud was discovered or the force ceased to operate, that can be treated as barred.

33. There is another facet of Sub-section (2). In case the petitioner in O.P. filed under Section 12(1)(c), with his or her full consent lived with the other party to the marriage after the force, ceased, or the fraud has been discovered, the Court cannot entertain the O.P. In the instant case, even according to the respondent, the fact that the appellant is suffering from psoriasis came to her knowledge in May 2005. Even if her consent is said to have been obtained by fraud, she can maintain the O.P. if only she stopped living with him and filed the O.P. thereafter. The evidence discloses that she lived with the appellant till July, 2005. That disentitles the respondent to maintain the O.P.

34. We, therefore, allow the Family Court appeal and set aside the decree passed by the Trial Court. There shall be no order as to costs.

35. The miscellaneous petitions, if any, pending in the appeal shall stand disposed of.

Appeal allowed.

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