Sunday, 17 July 2016

When non examination of doctor is not fatal in hindu marriage petition proceeding?


Taking the first point first, it may be noted that the court below has based its judgment on medical report of J.P. Memorial Hospital by Dr. S. Khanjuja. He has reported that the defendant wife has no ovary and as such she cannot conceive. Her uterus is also defective. It is a stated that the said doctor has not been examined to prove the medical report. But on bare perusal of the record, we find that there appears to be no dispute between the parties with regard to essential fact that the respondent wife cannot conceive. The husband in his statement has deposed besides many other things, that the respondent is unable to conceive and he was defrauded. In the statement of the respondent wife, the aforesaid fact has not been disputed at all. She in her short deposition has stated only this much that she was being ill treated by her husband and was turned out from the house. The husband is in job of printing sarees at Bombay. There appears to be no serious dispute with regard to vital fact that the respondent wife does not possesses ovary. 
In para-5 of the petition, it has been stated that the parents of the respondent got married the respondent with the petitioner fraudulently when they had full knowledge that the respondent has no ovary and she had no menstruation cycle ever at her parental house. The said paragraph of the petition has not been denied specifically by the respondent wife in her written statement. Reply is given in para-5 of the written statement. In para-5 of her written statement, there is a general denial. The written statement consists 14 paragraphs but in none of them, it has been stated that the allegation of the husband that she has no ovary has been denied specifically. The allegation of fraud has been pleaded in para-5 of the petition, has also not been denied in specific term. The only defence which can be read out from the written statement is that she was treated with physical cruelty and was subjected to abusive language calling her as Banjh (infertile lady) and used to demand of dowry. In absence of any specific denial and coupled with the evidence led by the parties; and keeping in view of Section 20 sub-section (2) of the Hindu Marriage Act read with section 10 of the Family Courts Act, we do not find substance on the facts of the present case, in the argument that medical report is not proved. Noticeably, except making a denial, the respondent wife has not led any evidence which she could have led easily in rebuttal. The plaint allegation having not been denied shall be treated as correct and uncontroverted. 
The petition was initially filed under Section 13 of the Hindu Marriage Act and the amendment was allowed by the order dated 20th July, 2005. The husband was permitted to convert the petition under Section 12 of the Hindu Marriage Act. He was also permitted to add the plea that on medical examination it has become clear that she has no ovary and the marriage is useless and there cannot be a relationship of husband and wife between the parties. The amendment was incorporated on 20th July, 2005 and the time was given to file additional written statement fixing 26th September, 2005. The order-sheet dated 26th September, 2005 records that no additional evidence was filed and the date was fixed for evidence. Evidence was recorded thereafter and the judgment was pronounced. This also leads to the conclusion that the pleadings with regard to lack of ovary remained uncontroverted by the present appellant and thus, is an admitted fact between the parties. Therefore, on uncontroverted pleadings and evidence even if, the medical report is put aside for the time being, the husband has proved his case. 
ALLAHABAD HIGH COURT
FIRST APPEAL NO. 319 OF 2006 
Parvati Devi--------------------------------Defendant/Appellant 
Versus 
Dharm Chandra Seth-------------------Plaintiff/Respondent 
Hon'ble Prakash Krishna,J 
Hon'ble Arvind Kumar Tripathi (II),J. 





The above appeal has been has been filed under Section 19 of the Family Courts Act, 1984 against the judgment and order dated 12th May, 2006 passed by Additional Judge Family Court, Allahabad declaring the marriage performed in the year May, 1992 as null and void under Section 12 of the Hindu Marriage Act. 
The appeal is at the instance of the wife. Marriage Petition No. 502 of 2001 was instituted by husband, who is respondent herein on the allegations that in the year 1992 marriage between the parties was performed. A fraud was played on him by parents of the wife. They were aware from the very beginning that the wife has no uterus, having no menstrual cycle, concealing this fact, the marriage was performed. It was further pleaded that the respondent wife is a cruel lady by nature and used to reside most of the time with her parents. The petitioner husband got the wife medically treated but without any success. A declaration that the marriage is void was sought for. 
In reply, the wife came out with the case that the husband is greedy person. She has been turned out from her matrimonial house because her parents could not fulfill the demand of dowry. 
The only issue which was involved before the court below as is clear from the order is whether the wife was suffering from sterility as has been mentioned in the objection. The said issue having been decided in affirmative in favour of husband, wife has filed the present appeal. 
Heard the learned counsel for the appellant and perused the record. 
Learned counsel for the appellant has argued out the following two points. 
(1) The medical report is not proved as the doctor was not examined. 
(2) No statutory ground as provided for under Section 12 of the Hindu Marriage Act for declaring a marriage voidable, has been made out. 
Taking the first point first, it may be noted that the court below has based its judgment on medical report of J.P. Memorial Hospital by Dr. S. Khanjuja. He has reported that the defendant wife has no ovary and as such she cannot conceive. Her uterus is also defective. It is a stated that the said doctor has not been examined to prove the medical report. But on bare perusal of the record, we find that there appears to be no dispute between the parties with regard to essential fact that the respondent wife cannot conceive. The husband in his statement has deposed besides many other things, that the respondent is unable to conceive and he was defrauded. In the statement of the respondent wife, the aforesaid fact has not been disputed at all. She in her short deposition has stated only this much that she was being ill treated by her husband and was turned out from the house. The husband is in job of printing sarees at Bombay. There appears to be no serious dispute with regard to vital fact that the respondent wife does not possesses ovary. 
In para-5 of the petition, it has been stated that the parents of the respondent got married the respondent with the petitioner fraudulently when they had full knowledge that the respondent has no ovary and she had no menstruation cycle ever at her parental house. The said paragraph of the petition has not been denied specifically by the respondent wife in her written statement. Reply is given in para-5 of the written statement. In para-5 of her written statement, there is a general denial. The written statement consists 14 paragraphs but in none of them, it has been stated that the allegation of the husband that she has no ovary has been denied specifically. The allegation of fraud has been pleaded in para-5 of the petition, has also not been denied in specific term. The only defence which can be read out from the written statement is that she was treated with physical cruelty and was subjected to abusive language calling her as Banjh (infertile lady) and used to demand of dowry. In absence of any specific denial and coupled with the evidence led by the parties; and keeping in view of Section 20 sub-section (2) of the Hindu Marriage Act read with section 10 of the Family Courts Act, we do not find substance on the facts of the present case, in the argument that medical report is not proved. Noticeably, except making a denial, the respondent wife has not led any evidence which she could have led easily in rebuttal. The plaint allegation having not been denied shall be treated as correct and uncontroverted. 
The petition was initially filed under Section 13 of the Hindu Marriage Act and the amendment was allowed by the order dated 20th July, 2005. The husband was permitted to convert the petition under Section 12 of the Hindu Marriage Act. He was also permitted to add the plea that on medical examination it has become clear that she has no ovary and the marriage is useless and there cannot be a relationship of husband and wife between the parties. The amendment was incorporated on 20th July, 2005 and the time was given to file additional written statement fixing 26th September, 2005. The order-sheet dated 26th September, 2005 records that no additional evidence was filed and the date was fixed for evidence. Evidence was recorded thereafter and the judgment was pronounced. This also leads to the conclusion that the pleadings with regard to lack of ovary remained uncontroverted by the present appellant and thus, is an admitted fact between the parties. Therefore, on uncontroverted pleadings and evidence even if, the medical report is put aside for the time being, the husband has proved his case. 
So far as second submission is concerned, we find that the argument is attractive but there is no merit. Section 12 of the Hindu Marriage Act enumerates the grounds on which a marriage can be declared void and one of those grounds is - (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is 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. 
The free consent of the parties is sine quo non for valid marriage. Where consent has been obtained by force or fraud as to the nature of the ceremony or as to the material fact or circumstance concerning the respondent, such marriage is voidable and can be declared void under Section 12(1)(c) of the Act. It is essential to note that this section does not speak of fraud or of every misrepresentation or concealment which may be fraudulent but fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. The case herein falls in the clause 'any material fact or circumstance concerning the respondent'. It has been pleaded which has not been denied by the respondent, that the respondent's parents knew about the fact that the respondent who was fully grown-up and had attained the age of majority was not having menstruation cycle, which is a normal incident in respect of an ordinary healthy woman. Menstruation cycle relates to the formation of sex hormones in the body that the lady may be conceived. The respondent was not having menstruation cycle, was indicative of the fact that sex hormones are not being formed for fertilization in her body and she is incapable to conceive. Normal and regular ovulation, or release of a mature egg, is essential for women to conceive naturally. Ovulation often can be detected by keeping a menstrual calendar or using an ovulation predictor kit. 
There are many disorders that may impact the ability for a woman to ovulate normally. The most common disorders impacting ovulation include polycystic ovary syndrome (PCOS), hypogonadotropic hypogonadism (from signaling problems in the brain), and ovarian insufficiency (from problems of the ovary). If your cycles are infrequent or irregular, the doctor will examine you and perform the appropriate testing to discover which problem you may have and present the appropriate treatment options. This was a material fact concerning the respondent which was not disclosed to the petitioner before the marriage. The pleadings and evidence of the husband in this regard is almost uncontroverted. Under Hindu Law, marriage is a sacrament. Nonetheless party to a marriage who is incapable to giving birth a child due to physical incapacity if known before the marriage, relates to essential fact concerning the said party which should have been disclosed to the other party before hand of marriage. In view of the facts which are not much in dispute, the argument of the appellant that the facts of the present case are beyond the purview of grounds as mentioned under Section 12 of the Act to declare a marriage null and void, has no substance. The pleadings and evidence filed by the parties do show that this case relates to fraud as to the material fact concerning the respondent wife within the meaning of Section 12(1)(c) of the Act. 
No other point was pressed. 
There is no merit in the appeal. The appeal is dismissed but no order as to costs. 

(Arvind Kumar Tripathi (II),J) (Prakash Krishna,J) 
Date: 28th August, 2012 
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