Sunday, 17 July 2016

Whether concealment of serious incurable ailment amounts to fraud for annulment of marriage?

 This general proposition, however, in my opinion, would not hold good after the amendment of clause (c) of Sec. 12 (1) of the Act by Marriage Laws (Amendment) Act 1976. The Legislature in its wisdom has added the words ''as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent". Thus the emphasis cannot be laid only regarding the nature of ceremony or factum of marriage but in case there is a deception as to any material fact or circumstance concerning the respondent the said case would also be covered by sub-clause (c) of Section 12 (1). A marriage cannot be annulled on the basis of any and every misrepresentation or concealment. How ever, if there is a misrepresentation or concealment regarding a material fact concerning the respondent then the provisions contained in Section 12 (1) (c) would definitely be attracted. Concealment about the ailment of schizophrenia, which is a mental illness and is incurable according to the expert opinion of Doctor Munjal would, in my opinion, amount to obtaining the consent of the respondent by fraud as to any material fact concerning the appellant. The provisions contained in Section 12 (1) (c) would be attracted. In Harbhajan Singh's case (AIR 1964 P&H 359) (supra) the allegation was that the consent of the appellant had been obtained by making wilful misrepresentation and fraudulent statement as to the fact of virginity and good character of the respondent. It was not a case of concealment in respect of an incurable disease. Moreover, one of the reasons for disallowing the annulment was that the Legislature by providing clause (d) in this very section did not intend that the past conduct of the respondent except what is mentioned in clause (d) should become a ground for the annulment of the marriage. In the present case the appellant was suffering from a mental illness which was incurable. It was a ground of divorce under Section 13 of the Act. In Raghunath Gopal's case (MANU/MH/0055/1972 : AIR 1972 Bom 132) referred to above, the respondent was suffering from epilepsy which was curable. Similarly, the disease from which the respondent was suffering in Madhusudan's case (MANU/MP/0032/1975 : AIR 1975 MP 174) (supra) was curable. Not a single case has been cited before me in which even before the amendment of clause (c) of Section 12 (1) it has been held that concealment about a very serious ailment which was incurable did not amount to fraud. To the present case the provisions contained in Section 12 (1) (c) in my view, are fully attracted.
Equivalent Citation : AIR 1981 Delhi 253
IN THE HIGH COURT OF DELHI
F.A.F.O. No. 90 of 1978
Decided On: 01.05.1981
Appellants: Smt. Asha Srivastava 
Vs.
Respondent: R.K. Srivastava
Hon'ble Judges/Coram:
Gian Chand Jain, J.


1. The appellant, Asha Srivastava, was married to R. K. Srivastava on May 2, 1976 according to Hindu rites. On August 24, 1970, the respondent filed a petition under Section 12 (1) of Hindu Marriage Act (for short 'the Act') for annulment of the marriage by a decree of nullity. This relief was claimed on the allegations that after the marriage the appellant was taken to the respondent's house. Her behaviour was found abnormal not expected of a sane person. She did not respond to the salutations of the relations and kept on gazing and it appeared that she was not mentally sound. After a day or two of the marriage, she broke down the crockery lying in the house and tore the clothes. The marriage was not consummated as she was always cold. On enquiry it was revealed that she was impotent and mentally disordered and that the consent of the respondent for this marriage had been obtained by playing fraud and making misrepresentation that the appellant was potent and enjoyed perfect health.
2. The appellant resisted this application. She denied that the consent of the respondent to the marriage was obtained by fraud or misrepresentation. The respondent and his mother had seen the appellant at the time of the engagement and talked to her for more than two hours and were fully satisfied about her health and mental condition. Her behaviour after the marriage was absolutely normal. She properly responded to the wishes of the relatives and showed respect to the elders and was mentally sound. The respondent had sexual intercourse with her practically daily. The respondent was a drunkard and forced the appellant to drink with him. The respondent had illicit relations with a Sindhi girl and wanted to lodge her in the same house. The respondent was in need of money because of his illicit relations with the Sindhi girl and drinking habits and forced the appellant to bring money from her father but her father could not fulfil the repeated demands of the appellant. For these reasons the respondent treated the appellant with cruelty and resorted to give her beating every now and then. The appellant, besides resisting the claim of the respondent herself prayed for dissolution of the marriage by a decree of divorce under Section 13 (1) of the Act.
3. On the pleadings of the parties the following issues were framed by the learned trial court :-
"1. Whether the marriage has not been consummated owing to the impotence of the respondent?
2. Whether the consent of the petitioner was obtained by fraud as to the material fact or circumstance concerning the respondent?
3. Whether the petitioner-husband has after the solemnization of the marriage treated the respondent with cruelty?
4. Whether the petitioner-husband has after the solemnization of the marriage had voluntary sexual intercourse with any person other than the respondent?
5. Relief."
4. Shri B. B. Gupta, Additional District Judge, Delhi, vide his judgment dated January 23, 1978, decided issue No. 1 against the respondent and issues 3 and 4 against the appellant. Issue No. 2 was, however, found in favour of the respondent and consequently the marriage was annulled by a decree of nullity under clause (b) of Section 12 (1) of the Act.
5. Feeling aggrieved, the appellant has filed the present appeal.
6. The appellant claimed dissolution of the marriage by a decree of divorce on two grounds, namely, (i) that the respondent-husband had, after the solemnization of the marriage, had voluntary sexual intercourse with a Sindhi girl; and (ii) that the respondent had, after the solemnization of the marriage, treated the appellant with cruelty. These grounds were subject-matter of issues Nos. 4 and 3 respectively before the trial Court. Both the issues were found against the appellant by the learned Additional District Judge and in my opinion rightly. To prove that the respondent had voluntary sexual intercourse with the Sindhi girl, named Miss Neelam Saini, the appellant examined several witnesses. The appellant as R. W. 1 simply stated that the respondent used to tell her that he would keep another woman as his wife. There is nothing in her statement to suggest that she saw the respondent having sexual intercourse with the said Miss Neelam Saini. She has not given any circumstance or circumstances from. which the alleged charge of adultery could be inferred. Her statement in my view is of no consequence. R. W. 7, Mahinder Kumar, deposed that respondent had intimacy with Miss Neelam Saini. In July 1977 he was called to a dinner at the house of Miss Neelam Saini. R. W. 8., Harnam Singh, deposed that he saw respondent going along with Miss Saini to her residence. This evidence is not at all satisfactory and sufficient to prove that the respondent had voluntary sexual intercourse with the said Miss Saini.
7. In this appeal the appellant filed an application (C. M. 1954 of 1978) under Order 41, Rule 27, read with Section 151 of the Code of Civil Procedure for permission to produce photostat copy of a letter purported to have been written by the respondent to the said Miss Saini. It was averred that Mahinder Kumar made available this letter to the appellant and the letter would go to show that the respondent had adulterous relations with Miss Saini. This application was opposed. It was alleged that the said Mahinder Kumar had appeared as a witness (R. W. 7) on November 3, 1977 and did not utter a single word about this letter. It was a photostat copy and not admissible in evidence and was not at all relevant. It was also stated that this photostat copy was of a letter written by the respondent to Shrimati Geeta Srivastava whom he had now married.
8. No satisfactory explanation is forthcoming for not producing this letter during the course of evidence, especially when Mahinder Kumar, who is alleged to have delivered this letter to the appellant, had been examined as a witness. No case has been made out for allowing the appellant to produce this additional evidence. Even if this letter is admitted in evidence, it would not improve the case of the appellant. This letter is undated and does not refer to Miss Saini. At the most it shows that the respondent was having some love affair with some lady. From this letter alone it cannot be presumed that he had sexual intercourse with that lady.
9. On the point of cruelty the appellant's own statement is very vague and of no help. She simply stated that the respondent used to give her beating. No particulars, i.e., date, time, etc., of the alleged occurrence have been given. No other independent witness has been produced to corroborate this fact. This evidence was rightly rejected by the learned trial Judge. Appellant's father and brother have also stated that the appellant complained to them about the misbehaviour of the respondent. This again is a hearsay evidence and is not sufficient to prove cruelty.
10. I may add here that the relief of divorce was claimed by the appellant in the written-statement on which due court-fee was paid. This written statement was filed on October 4, 1976, i. e., within one year of the marriage, which was performed on May 2, 1976. Sec. 14 of the Act bars the entertainment of a petition for dissolution of marriage by a decree of divorce unless on the date of the presentation of the petition one year has elapsed since the date of marriage. This application was, therefore barred under Section 14 of the Act. No application was made for allowing the appellant to move this application before the expiry of one year.
11. The respondent claimed annulment of the marriage by a decree of nullity on two grounds, namely, (i) that the marriage had not been consummated owing to the impotency of the appellant; and (ii) that the consent of the respondent had been obtained by fraud as to the material fact concerning the appellant, viz., her health. The first plea, subject matter of issue No. 1, was decided against the respondent. The correctness of this finding was not much assailed before me by the respondent's learned counsel. Impotency means incapacity to have normal sexual intercourse. There is no evidence to prove that the appellant was incapable of having normal sexual intercourse. The appellant (respondent?) as P.W. 1 has deposed that the marriage was not consummated in spite of his efforts because of complete lack of warmth and response from the appellant. The appellant has repudiated this statement and has stated that they cohabited practically daily. In view of this rebuttal the statement of the respondent has not much value. In any case, from this statement it cannot be said that the appellant was incapable of consummating the marriage. No effort was made to get the appellant examined by some Doctor or to produce any medical evidence which is the best evidence to prove impotency. For all these reasons the learned trial Court was justified in deciding the issue against the respondent.
12. Assailing the finding of the trial Judge on issue No. 2, the learned counsel for the appellant has made threefold submissions. Firstly, it was contended that there was no legal evidence to prove that the appellant was suffering from schizophrenia and the trial Court committed an error in believing the evidence of Dr. Munjal (P. W. 4). Secondly, whatever the ailment the appellant was suffering from, the same had been disclosed to the respondent at the time of the engagement. The appellant had led evidence to prove this fact and learned trial Court was not justified in brushing aside the said evidence. Thirdly, the concealment of the said ailment or making a statement that the appellant enjoyed good health would not attract the provisions contained in clause (c) of Section 12 (1) of the Act.
13. Dr. G. C. Munjal, head of the Psychiatric Department, Maulana Azad Medical College, associated with G. B. Pant Hospital, appeared as P. W. 4. He brought with him the record regarding Asha Rani, appellant. According to his statement the appellant was registered in the Psychiatric O. P. D. of G. B. Pant Hospital on January 12, 1970. The Doctor who examined the appellant diagnosed her as a case of schizophrenia. Dr. Munjal examined the appellant for the first time on July, 5, 1973 when she was reported to have been progressing well but her condition had relapsed because she had stopped taking medicine. Dr. Munjal felt that the diagnosis earlier recorded (that the appellant was suffering from schizophrenia) was correct. The appellant thereafter reported from time to time till March 20, 1975. The last report recorded by Dr. Munjal was that the appellant got unwell on stopping the drugs and was advised to continue treatment for one month more. According to the history recorded at the time of first examination the appellant was withdrawn, had auditory hallucinations plus oriented to place and persons and did not know about the time. Inside was lacking and sleep was disturbed. According to the report recorded by Dr. Munjal on September 12, 1974, she talked in sleep. There was pulsation in head, pain in body, restlessness, got too much angry, became abusive at times and had stopped her Sangeet. She was found unwell even on March 20, 1975. In reply to a Court question as to whether the disease was curable or not, the Doctor opined that this disease was characterised by spontaneous or induced remissions. The remissions between two attacks might be as short lasting as 24 to 48 hours or might be as long lasting as a couple of years, However, in view of the recurrence of the disease, it ultimately caused an insult to the brain leading to its deterioration. This disease was one of the diseases under insanity.
14. From the examination of the statement of Dr. Munjal it has been proved that the appellant was examined by a psychiatrist in the psychiatric O.P.D. of the G. B. Pant Hospital on January 12, 1970 and she remained under their treatment till March 20, 1975. Dr. Munjal who personally examined the appellant for the first time on July 5, 1973, and several times thereafter confirmed the diagnosis that she was suffering from schizophrenia. The evidence of Dr. Munjal, further shows that the disease was incurable though it was characterised by spontaneous or induced, remissions. The only criticism advanced against this evidence by the appellant's learned counsel is that Dr. Munjal had not examined the appellant on January 12, 1970, nor he recognised the handwriting or the signatures of the Doctor who had examined her on that date and for that reason Dr. Munjal's evidence was not sufficient to prove that she was a case of schizophrenia. This argument cannot be accepted for the simple reason that Dr. Munjal himself examined the appellant on July 5, 1973, and thereafter and confirmed the finding that she was suffering from schizophrenia. Thus the finding that the appellant was suffering from schizophrenia was based on the personal opinion of Dr. G. C. Munjal who had examined the patient several times and it cannot be said that his evidence was only a hearsay evidence. It may be mentioned here that the appellant as R. W. 1 has admitted that she had been under treatment at Irwin Hospital before her marriage. The appellant's father, Shri R. N. Saxena (R. W. 3), admitted that he got the appellant treated at Irwin Hospital before her marriage and gave the history regarding her ailment to the Doctor concerned. Not only this, he further admitted that the appellant was suffering from loss of sleep and used to remain quiet and had sleepless nights. R. W. 6, Smt. Pushpa Saxena, appellant's brother's wife, deposed that she disclosed to the respondent that the appellant was not feeling hungry and did not enjoy proper sleep. I will come to the question of disclosure of this fact to the respondent later on, but this part of her statement suggests, without any doubt, that the appellant was suffering from sleeplessness and loss of appetite. This evidence, which was produced by the appellant herself, corroborates the statement of Dr. Munjal. In my view, therefore, it has been proved that the appellant was suffering from schizophrenia which was an incurable disease as deposed by Dr. Munjal.
15. The appellant in her written statement has averred that the respondent and his mother saw her at the time of the engagement and talked to her for more than two hours. The appellant has also led evidence to prove that the respondent had been informed about her ailment. This evidence, however, is not at all satisfactory or sufficient to prove this fact. The appellant, in cross-examination, admitted that she had no separate talk with the respondent. Appellant's father admitted that he never disclosed the fact about the treatment of the appellant in Irwin Hospital to the respondent. He also admitted that on the occasion of the engagement the appellant had no separate talks with the respondent. R. W. 6, Shrimati Pushpa Saxena, sister-in-law of the appellant, has no doubt deposed that the respondent had been informed that the appellant was suffering from loss of appetite and lack of sleep and also about her treatment at the Irwin Hospital. The solitary statement of this witness, especially when the appellant and her father are silent on this point, cannot be accepted. In my opinion, it has not been proved that the respondent had been informed that the appellant was suffering from schizophrenia or loss of appetite or sleeplessness or had remained under treatment of psychiatric department at G. B. Pant Hospital or Irwin Hospital.
16. The most important question which now falls for determination is whether the concealment of the fact that the appellant was suffering from schizophrenia and had been under the treatment of psychiatric department of G. B-Pant Hospital would attract the provisions contained in clause (c) of Sec. 12 (1) of the Act which reads as under:-
"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) & (b) ** ** **
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, 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 words underlined by me were substituted by the Marriage Laws (Amendment) Act, 1976 for the words "or fraud".
17. The word "fraud" has not been defined under the Act. Section 17 of the Indian Contract Act, 1972 defines 'fraud' as under:-
"17. "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:-
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent. Explanation. - Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech."
This definition, however, in my opinion, would not be applicable to the word "fraud" used in clause (c) of Section 12 (1) of the Act for the simple reason that the marriage under the Hindu Law is not a civil contract but a sacrament. I am fortified in this view by two decisions, one of the Punjab High Court and the other of the Bombay High Court, namely, Harbhajan Singh v. Smt. Brij Balab Kaur (AIR 1964 P&H 359) and Raghunath Gopal v. Sau. Vijaya Raghunath (MANU/MH/0055/1972 : AIR 1972 Bom 132). No authority where a contrary view may have been taken has been brought to my notice.
18. "Fraud", according to Chambers's Twentieth Century Dictionary, Revised Edition, means "deceit". Thus in case where the consent to the marriage has been obtained by deception it was liable to be annulled under Section 12 (1) (c). Before the amendment of clause [c) of Section 12 (1) of the Act and insertion of the words "as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent" by the Marriage Laws (Amendment) Act, 1976 the emphasis was in respect of the "consent" as to the nature of ceremony or the factum of marriage itself, "Fraud" did not include such fraud as procured the appearance without the reality of consent. In Mulla's Hindu Law, Thirteenth Edition, at page 682, the relevant observations read as under:-
"A person who freely consents to a solemnization of the marriage with the other party in accordance with customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot raise an objection to the validity of the marriage on the ground of any fraudulent representation or concealment. The test to be applied is whether there was any real consent to the solemnization of the marriage."
19. In Harbhajan Singh v. Smt. Brij Balab Kaur (AIR 1964 P&H 359), at p. 362, it was observed as under:-
"The word "fraud" as a ground for the annulment of the marriage under the Hindu Law is limited only to those cases where the consent of the petitioner at the solemnization of the marriage was obtained by some sort of deception. For example, take a case where A was given to understand that he was being married to B and, in fact, he was married to C. Again, where the marriage of the petitioner was solemnized when he or she, as the case may be, was under the influence of liquor. In case of a marriage under the Hindu Law, 'fraud' is not used in a general way and on every misrepresentation or concealment, the marriage cannot be dissolved. If the term 'fraud' is to be interpreted according to the definition given in the Indian Contract Act, then it would become impossible to maintain the sanctity of the marriage. All sorts of misrepresentations will be alleged by the petitioners in order to break the marriage tie. This, obviously, could not be the intention of the Legislature. The fact that the respondent was of bad character before the solemnization of the marriage cannot be a ground for the annulment of the marriage, because there is a specific clause (d) of this very section dealing with this matter. Under that, if the respondent was pregnant by some person other than the petitioner at the time of the marriage then this can afford a ground for the annulment of the same. It means that the Legislature did not intend that the past conduct of the respondent, except what is mentioned in el. (d), should become a ground for the dissolution of the marriage."
In this case it was held that concealment of the fact regarding the past marital conduct of the respondent and fraudulent misrepresentation about her character at the time of obtaining consent of the petitioner did not attract the provisions contained in clause (c) of Section 12 (1) of the Act. Similar observations were made in Madhusudan v. Smt. Chandrika (MANU/MP/0032/1975 : AIR 1975 MP 174), at p. 179, which read as wider:-
"......the word "fraud" in matrimonial law has a technical meaning. It does not include cases of misrepresentation or active concealment even of material facts including (sic) (inducing?) consent of a party. Fraud, as already stated, in the context of annulment of marriage means such fraud which procures the appearance without the reality of consent, i.e. where there is no real consent at all. In our opinion, the word "fraud" in Section 12 (1) (c) of the Hindu Marriage Act must be understood in the same sense."
In the above case it was held that even assuming that the wife knew that she was suffering from syphilis which was curable, which fact was concealed from the husband, this could not be held to be fraud within the meaning of Sec. 12 (1) (c) making the marriage voidable and entitling the husband to obtain a decree for annulment of the marriage.
20. Similar view was taken by a single Judge of the Bombay High Court in Raghunath Gopal v. Sau. Vijaya Raghunath (MANU/MH/0055/1972 : AIR 1972 Bom 132). The relevant observations at p. 137 are in the following terms;-
"It would thus be seen that the word "fraud" used in Section 12 (1) (c) of the Hindu Marriage Act does not speak of fraud in any general way, nor does it mean every misrepresentation or concealment which may be fraudulent. If the consent given by the parties is a real consent to the solemnization of the marriage, the same cannot be avoided on the ground of fraud. The marriage, therefore, solemnized under the Hindu Marriage Act cannot be avoided by showing that the petitioner was induced to marry the respondent by fraudulent statements relating to her health."
In this case it was held that 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) of the Act.
21. This general proposition, however, in my opinion, would not hold good after the amendment of clause (c) of Sec. 12 (1) of the Act by Marriage Laws (Amendment) Act 1976. The Legislature in its wisdom has added the words ''as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent". Thus the emphasis cannot be laid only regarding the nature of ceremony or factum of marriage but in case there is a deception as to any material fact or circumstance concerning the respondent the said case would also be covered by sub-clause (c) of Section 12 (1). A marriage cannot be annulled on the basis of any and every misrepresentation or concealment. How ever, if there is a misrepresentation or concealment regarding a material fact concerning the respondent then the provisions contained in Section 12 (1) (c) would definitely be attracted. Concealment about the ailment of schizophrenia, which is a mental illness and is incurable according to the expert opinion of Doctor Munjal would, in my opinion, amount to obtaining the consent of the respondent by fraud as to any material fact concerning the appellant. The provisions contained in Section 12 (1) (c) would be attracted. In Harbhajan Singh's case (AIR 1964 P&H 359) (supra) the allegation was that the consent of the appellant had been obtained by making wilful misrepresentation and fraudulent statement as to the fact of virginity and good character of the respondent. It was not a case of concealment in respect of an incurable disease. Moreover, one of the reasons for disallowing the annulment was that the Legislature by providing clause (d) in this very section did not intend that the past conduct of the respondent except what is mentioned in clause (d) should become a ground for the annulment of the marriage. In the present case the appellant was suffering from a mental illness which was incurable. It was a ground of divorce under Section 13 of the Act. In Raghunath Gopal's case (MANU/MH/0055/1972 : AIR 1972 Bom 132) referred to above, the respondent was suffering from epilepsy which was curable. Similarly, the disease from which the respondent was suffering in Madhusudan's case (MANU/MP/0032/1975 : AIR 1975 MP 174) (supra) was curable. Not a single case has been cited before me in which even before the amendment of clause (c) of Section 12 (1) it has been held that concealment about a very serious ailment which was incurable did not amount to fraud. To the present case the provisions contained in Section 12 (1) (c) in my view, are fully attracted.
22. In conclusion, the appeal is dismissed. No order as to costs.

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