Can the court annul the marriage if the wife suppresses her mental illness before her wedding?

  The fact that the parties could not live together beyond nine weeks itself shows that the mental disorder suffered by the respondent is of a kind, and to such an extent as to be unfit for marriage and the procreation of children. It is not the case of the respondent that either of the conditions enumerated in Section 12(2)(a)(i), or (ii) exists in the present case, which would have debarred the appellant from seeking annulment of marriage on the ground contained in Section 12(1)(b) of the Hindu Marriage Act. That is not the defence set up by her, or established by her. The failure on the part of the respondent to disclose her mental disorder before her marriage with the appellant – as alleged by him, constituted a fraud perpetrated upon the appellant. Apart from stating that the parties had met a few times before the marriage, the respondent has not specifically averred, or established, that the appellant was made aware of the mental disorder suffered by the respondent, which was passed-off by her as mere “headaches”. Headaches–by themselves are not a disease. They are only symptoms of a disease. The Respondent does not state what caused her such serious and frequent headaches, which debilitated her from completing her studies. {Para 49}

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

 MAT. APP. (F.C.) 142/2020

 SANDEEP AGGARWAL Vs PRIYANKA AGGARWAL

CORAM:  MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE JASMEET SINGH

 Author: JASMEET SINGH, J

Dated: Pronounced on: 24.12.2021 

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Supreme Court: Male aged between 18 to 21 years can not be punished for marrying adult female

Section 9 of the 2006 Act must be viewed in the backdrop of this gender dimension to the practice of child marriage. Thus, it can be inferred that the intention behind punishing only male adults contracting child marriages is to protect minor young girls from the negative consequences thereof by creating a deterrent effect for prospective grooms who, by virtue of being above eighteen years of age are deemed to have the capacity to opt out of such marriages. Nowhere from the discussion above can it be gleaned that the legislators sought to punish a male between the age of eighteen and twenty-one years who contracts into a marriage with a female adult. Instead, the 2006 Act affords such a male, who is a child for the purposes of the Act, the remedy of getting the marriage annulled by proceeding Under Section 3 of the 2006 Act. Hence, male adults between the age of eighteen and twenty-one years of age, who marry female adults cannot be brought under the ambit of Section 9, as this is not the mischief that the provision seeks to remedy.

3.9. Our views are supported by the marginal note of Section 9, which reads "Punishment for male adult marrying a child". It is well settled that where any ambiguity exists with regard to the interpretation of a legislative provision, the marginal note can be used in aid of construction, having regard to the object of the legislation and the mischief it seeks to remedy.

In view of the above, the words "male adult above eighteen years of age, contracts a child marriage" in Section 9 of the 2006 Act should be read as "male adult above eighteen years of age marries a child".

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1331 of 2013

Decided On: 07.11.2019

 Hardev Singh Vs.  Harpreet Kaur and Ors.

Hon'ble Judges/Coram:

Mohan M. Shantanagoudar and Aniruddha Bose, JJ.

Citation: AIR 2020 SC 37

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When petition for annulment of marriage by husband is not maintainable?

 The husband has contended and deposed that, he came to know about the fact of first marriage of his wife only when the quarrel broke between him and wife on 02-02-2013. He contends that, thereafter he made investigation and came to know about the other details. The wife says that, she had disclosed everything to the husband at the time of settlement of marriage. The husband obviously denied the suggestion to that effect in his cross, however it is to be noted that he has not examined anybody else to support his contention or even in contemplation of the fact that the wife would lead evidence to prove that, at the time of settlement of marriage such fact was disclosed to the husband. He admits in his cross examination that, his marriage with wife was performed in a temple in the form of "Shiv Vivah". In fact it ought to have been extracted by the concerned Court who was recording the evidence as to what is the meaning of "Shiv Vivah"; may be by asking Court question. But it appears that, the learned First Appellate Court has tried to extract it at the time of submissions of arguments before him and it has been specifically observed that, both the learned advocates representing the respective parties submitted that the mode and ceremony of "Shiv" marriage is marriage like a marriage of "Gandharva" marriage which generally followed in cases of second marriage of either of the spouses. That means, this fact is even admitted by the advocate who was representing the husband before the First Appellate Court. Independently also it is to be noted that, the wife has examined D.W.3 Devidas Arjun Patil and D.W.4 Kishor Laxman Aadhav who were present at the time of marriage. They are not related to the wife but the father of the wife was their friend. Both of them have stated that, information regarding first marriage of wife was given to the husband at the time of marriage. In the cross-examination except denial there is nothing. There was no reason to disbelieve these two persons. Therefore, taking into consideration the said admission given by the husband and the evidence that has been led by the wife in her testimony as well as by examining two witnesses on the point, it will have to be held that the wife had given knowledge about the alleged divorce between her and the first husband to him prior to the marriage. Here it is to be noted that, though the wife has not been able to prove the custom yet from the evidence regarding intimation about the said information to the husband prior to the marriage reveals that, even the husband was under the impression that the said divorce document which has been got executed between wife and first husband, was a correct document and then he did not question the legality of the same. Therefore, the knowledge of the husband regarding first marriage of the wife will have to be attributed to the date of his marriage, and therefore, the petition that has been filed by him for annulment of marriage on 01-03-2013 was beyond the period of limitation.

18. The period of limitation that is prescribed for filing such petition for declaration of divorce is one year and for that purpose the learned First Appellate Court has rightly considered Section 12 and 23 of the Hindu Marriage Act. The evidence on the point of knowledge adduced by the husband is absolutely not acceptable and it cannot prove that for the first time he came to know about the first marriage of wife on 02-02-2013 when the quarrel broke out between them. The learned Trial Court had not considered the said point in proper perspective and thus the petition filed by the husband for getting the marriage annulled is beyond the period of limitation.

Therefore, though the wife had failed to prove the custom and she had living spouse when her marriage with the present petitioner had taken place, yet the petition will have to be dismissed on the ground that it is beyond period of limitation.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 124 of 2017, 

Decided On: 11.09.2019

 Sudarshan Vs.  Pallavi

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: AIR 2020(NOC) 69 Bom

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Leading Supreme Court Judgment on grant of permanent alimony

 In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void - meaning non-existent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan's case (supra), the expression used in the opening part of Section 25 enabling the 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as 'at the time of passing of any decree,' it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

19. Learned counsel for the husband has argued that extending the benefit of Section 25 to even marriages which have been found null and void under Section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages.

20. It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship.

21. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts, and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1774 and 1775 of 2001

Decided On: 13.12.2004

Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga

Hon'ble Judges/Coram:

D.M. Dharmadhikari and H.K. Sema, JJ.

Citation: (2005) 2 Supreme Court Cases 33 : (AIR 2005 SC 422)

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Whether wife can be subjected to virginity test if she pleads non consummation of marriage in divorce petition?

The suit
was filed by the wife seeking annulment of marriage by a decree of nullity under
Section 25 (i) and alternatively for divorce under Section 27 (1) (d) of the Special
Marriage Act, 1954. However, initially the suit was based on cruelty but
subsequently by way of amendment the wife also incorporated the ground of
nullity under Section 25 (i) of the said Act. From the pleading it appears that the
wife claimed that the marriage was void inasmuch as the same was not
consummated. In the above background after the amendment was allowed the
wife filed an application before the Court below praying potency test of the
husband. Such prayer of the wife was allowed by the order impugned. Since the
wife opposite party also pleaded in the suit that the marriage was not
consummated because of the impotency of the husband and that the same was a
void marriage, the husband also filed an application seeking virginity test of the
wife. By the order impugned the husband’s application seeking virginity test has
been rejected by the learned Court below. While rejecting the application the
learned trial Court relied on a passage of a renowned author that “Virginity test is
not a reliable indicator of a female having actually engaged in sexual intercourse
because the tearing of the hymen may have been the result of an involuntarily
sexual act” and held that it does not appear to the Court to be a sound
proposition of law. Therefore, in my view also the contention raised by the
husband that since the wife made an allegation that the marriage was not
consummated she should be subjected to virginity test cannot be accepted,
particularly, when it is undisputed that the marriage took place on 30th
November, 2006. Therefore, I do not find any illegality and/or material
irregularity in the impugned order. I do not also find any jurisdictional error on
the part of the learned trial Court in rejecting petitioner’s application for virginity
test.

IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
B E F O R E :
The Hon’ble Justice SAHIDULLAH MUNSHI
C.O. No.3309 of 2018
With
C.O. No. 3310 of 2018

SRI SANDIP KUMAR DASGUPTA  Vs SMT. DIPANWITA DASGUPTA

Judgment on : June 21, 2019.

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Whether it is mandatory for court to hold enquiry in petition for annulment of marriage if wife is suffering from mental illness?

After considering the various rulings cited before me and referred herein above, I have no doubt that both the Courts below erred in completely overlooking the provisions of Order 32 Rule 15 which are mandatory in nature. If those provisions are not followed and a decree is passed against a person having mental disorder, it would be nullity. It will not be proper not to interfere even when both Courts below have passed Judgments and orders which amount to nullity. Both the Courts below were bound to hold enquiry as contemplated under Order 32 Rule 15. When any plaint or petition is filed by a person either himself or through next friend, claiming himself to be a person suffering from mental infirmity or suit is filed by a person against a defendant or respondent, who is alleged to be suffering from mental infirmity, it is bounden duty of the Court to hold enquiry in this regard.

17. Giving opportunity of hearing should be meaningful and with a purpose. If a person is too poor to appoint a lawyer, unless legal aid is given to him, he cannot defend himself. Similarly, giving opportunity of hearing to a person suffering from mental illness, is giving him no opportunity unless he is given the assistance of a Guardian-at-litem, who can take care of this defence. It may be that a person may not appear to be mentally insane sometimes, If he is having lucid attacks at intervals. When he is not having such attacks, he may look perfectly normal, but whenever, he is having attack, he would be incapable of defending himself. Even in such cases, Order 32 Rule 15 must be strictly complied. Otherwise, a person looking normal, may contest the proceedings against him, but at any crucial moment, if he suffers from attack of mental disorder, he would not be in a position to take necessary steps to defend himself.

18. It was therefore, necessary for the trial Court to hold enquiry as contemplated under Order 32 Rule 15.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 284 of 2018 and Civil Application No. 5300 of 2018

Decided On: 21.11.2018

Seema Ambadas Khedkar  Vs. Ambadas Jagannath Khedkar

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 384

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Whether the court must appoint Guardian-at-litem to wife prior to passing of decree for annulment of marriage on ground of her mental illness?

The facts referred above, disclose that there are serious allegations of mental disorder of Seema, the respondent in the HMP filed by her husband. In fact, the husband has claimed annulment of marriage on the ground of mental disorder. Even the medical evidence was laid showing that she was taking treatment for mental disorder. In such circumstances, it was bounden duty of the trial Court as well as the First Appellate Court to hold inquiry as to whether she was capable of defending herself or not.

9. In Ramchandra Arya Vs. Mansingh-MANU/SC/0352/1967 : AIR 1968 SC 954, it is held that decree against the lunatic without appointment of Guardian-at-litem is nullity and the sale held in execution of the decree is also void-ab-initio.

10. In Tipanna Vs. Somnath 1990 I BCR 677, it is held that decree against the person of unsound mind, without appointment of Guardian-ad-litem is void ab-initio.

After considering the various rulings cited before me and referred herein above, I have no doubt that both the Courts below erred in completely overlooking the provisions of Order 32 Rule 15 which are mandatory in nature. If those provisions are not followed and a decree is passed against a person having mental disorder, it would be nullity. It will not be proper not to interfere even when both Courts below have passed Judgments and orders which amount to nullity. Both the Courts below were bound to hold enquiry as contemplated under Order 32 Rule 15. When any plaint or petition is filed by a person either himself or through next friend, claiming himself to be a person suffering from mental infirmity or suit is filed by a person against a defendant or respondent, who is alleged to be suffering from mental infirmity, it is bounden duty of the Court to hold enquiry in this regard.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 284 of 2018 and Civil Application No. 5300 of 2018

Decided On: 21.11.2018

 Seema Ambadas Khedkar  Vs. Ambadas Jagannath Khedkar

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: AIR 2019 Bom 22

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Whether court should grant decree for divorce if wife makes false allegations of demand of dowry?

Though the husband would be entitled to a decree of nullity, we must add that if at all we were not to grant a decree of nullity in favour of the husband, we would have granted a decree in his favour under Section 13(1)(ia) of the Act on the ground of cruelty as the wife has levelled serious allegations that the husband had asked huge amount from her father at the time of the marriage and had also sought a large amount from him for purchasing a luxury bus and since her father had not paid the amount, he had filed a false case that she suffers from sickle cell anemia. The fact that the wife suffers from sickle cell anemia is proved by the husband and it is also held so, by the Family Court. The wife has not proved the serious allegations that she has levelled against the husband in the written statement. She has not entered into the witness box to prove the allegations about the wrongful demands made by the husband at the time of the marriage or even thereafter. It is well settled that levelling of false allegations against the husband, specially in respect of demand of dowry and failing to prove the same would tantamount to cruelty. Be that as it may, since we are granting a decree of nullity in favour of the husband, it would not be necessary to grant a decree of divorce on the ground of cruelty as, as soon as we hold that the marriage is a nullity, there is no question of dissolving the marriage under Section 13 of the Act.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Family Court Appeal No. 158/2014

Decided On: 26.04.2017

 Pradeep Vs. Sau. Pallavi Pradeep Ambhore

Hon'ble Judges/Coram:

V.A. Naik and Swapna Joshi, JJ.

Citation: 2017(6) MHLJ 627

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When court shall grant decree for annulment of marriage on ground of fraud?

 Having regard to the above, without even any necessity for this Court while sitting in appeal to invoke, Section 23(1)(c) and (e) of H.M. Act to a lesser relief for divorce under Section 13(2)(iv) of the H.M. Act with causus omissus supplying by reading with Section 5(iii) of 15 and 18 years as 18 and 21 years respectively to dissolve their marriage, from the very marriage is null and void ab initio for no valid conversion of the respondent husband by voluntarily and with faith in Hinduism and to the acceptance of the Hindu neighbourhood and otherwise from the force proved against her to maintain the claimwithin one year after its cessation as one of the grounds to annul besides the fraud regarding his qualifications and employment which are part of deliberate false representations regarding his status, qualifications, properties etc., and from within one year of said fraud detected, the petition is maintained by her in this regard and also in relation to the material facts and circumstances regarding him discussed supra that entitles her to seek annulment of marriage.
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

Civil Miscellaneous Appeal No. 28 of 2014

Decided On: 29.09.2015

 Shaik Mahammad Rati

Vs.

 Grandhi Poorna Seetha Manoja

Coram:

R. Subhash Reddy and Dr. B. Siva Sankara Rao, JJ.
Citation:2017(1) ALLMR(JOURNAL)84

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When marriage can be declared as void on ground of impotency of wife?

It will therefore be seen that while the appellant filed the application on the ground that the respondent was impotent, the respondent, in turn, had alleged that it was the appellant who was impotent. The material provision of the Act under which the application was filed by the appellant is s. 12(1) (a) which is as follows :

" 12(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 respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding;

A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility'. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.

Supreme Court of India

Yuvraj Digvijay Singh vs Yuvrani Pratap Kumari on 2 May, 1969

Equivalent citations: 1970 AIR 137, 1970 SCR (1) 559

Bench: Vaidyialingam, C.A.

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How to prove impotency of wife for annulment of marriage?

So far the allegation of impotency of appellant-wife and her inability to have physical and sexual relationship is concerned, this fact is specifically mentioned in petition/plaint but were not specifically denied in written-statement filed by opposite party/appellant. In her statement, opposite-party/appellant had vaguely end evasively denied the facts of petition/plaint on this point, but had nowhere specifically pleaded that she is physically and sexually fit and has been able to makes consummation of the marriage possible, or have sexual relationship with husband. Such non-specific denial technically amounts to admission on part of opposite party-defendant on these points. Rule-3 of Order VIII CPC provides it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. Under Rule-4 such evasive denial shall not be sufficient to be taken up as denial. On this ground alone, main allegation of alleged impotency and inability of appellant to have physical relationship should have been taken to be admitted by the lower court. Absence of specific denial of such facts should be treated as their non-denial and admission. Since there is no pleading of defendant-appellant that she was not impotent or was able to have physical relationship with her husband. There is no averment in her written statement that she had informed petitioner about her physical inability to consummate; therefore, in absence of such pleading her oral evidence could not be accepted on these points. 
Apart from it, the lower appellate court had considered those points also, which were ignored by trial court. The learned Additional District Judge had considered the facts that request of petitioner-husband for medico legal examination of defendant-wife could not be materialized because of non-cooperation of wife-appellant herself who had declined to undergo such examination. Respondent-husband had given other evidences, which were appreciated by the lower appellate court in light of other circumstances, and on the basis of which finding was given by first appellate court that appellant-wife was not able to have physical relationship with husband, and she is impotent. 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
Case :- SECOND APPEAL No. - 239 of 2016 
Appellant :- Smt. Sulekha 
Respondent :- Ashok Kumar 

Hon'ble Pramod Kumar Srivastava,.
 Dated: 14.03.2016 
Citation:AIR 2016(NOC)452 ALL

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Whether concept of fraud as mentioned in contract Act is applicable to matrimonial proceeding?

The word 'fraud' has not been defined in the Act. It has, however, been defined in Section 17 of the Indian Contract Act thus--

'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 J 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 would not be applicable to a marriage under the Hindu Law, because it is undisputed that a Hindu marriage is a sacrament and not a contract. As observed by B.K. Mukherji J. in a Full Bench decision of the Calcutta High Court in Kshitish Chandra v. Emperor MANU/WB/0001/1937 : AIR 1937 Cal 214--

It is well settled that a Hindu marriage is a sacrament and not a contract, and the presence of a consenting mind is not indispensable. If the marriage rites are duly performed and there is no impediment to the marriage in the shape of identity of gotra or prohibited degrees of relationship, the doctrine of factum valet applies and makes the marriage indissoluble in the absence of proof of any force or fraud Brindabun Chandra v. Chundra Kurmokar ILR 12 Cal 140. The reason for the exception seems to be that where the girl is abducted by force or fraud and married, there is neither any gift by the lawful guardian nor the performance of any religious ceremony in the proper sense and there is, consequently, an absence of the essential ingredients necessary to constitute a valid marriage.

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 older to break the marriage tie. This obviously, could not be the intention of the Legislature. 

Equivalent Citation : AIR 1964 P and H 359

IN THE HIGH COURT OF PUNJAB AND HARYANA

F.A.F.O. No. 5-M of 1961

Decided On: 20.05.1963

 Harbhajan Singh  Vs. Smt. Brij Balab Kaur

Hon'ble Judges/Coram:
P.C. Pandit, J.

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Whether court can grant decree for annulment of marriage on ground of prenuptial unchastity of wife?

As a general rule prenuptial unchastity of the wife though unknown to the husband at the time of the marriage is not a ground for a decree of nullity.

Nor is express misrepresentation by a woman as to her chastity of itself ground for avoidance of the marriage, though, of course, it may be taken into consideration together with other circumstances indicative of fraud.

Chastity, it is said, is a mere personal quality, and its non-existence at the time pf the marriage does not amount to absence of an essential condition of the marriage relation. Moreover, it is declared, prenuptial unchastity does not necessarily prevent the woman from becoming a faithful wife or from performing her part in the bearing of off spring, and to consider misrepresentation in regard thereto a ground for decreeing nullity of marriage would be inconsistent with reason and sound policy.

Punjab-Haryana High Court

Surjit Kumar Harichand vs Smt. Raj Kumari on 1 December, 1965

Equivalent citations: AIR 1967 P H 172

Bench: S Kapur

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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

Smt. Asha Srivastava  Vs. R.K. Srivastava

Hon'ble Judges/Coram:
Gian Chand Jain, J.

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How to appreciate evidence in case of petition for annulment of marriage?

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 xxx xxx xxxx

(b)that the marriage is in contravention of the conditions specified in clause (ii) of section 5.

Section 5 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein in sub-section (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and section 12(1)(b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in clause (ii) of section 5. On a plain reading of the said provision it is manifest that the conditions prescribed in that section, if established, disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the Court for breaking a marriage already solemnized.

An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety.

Supreme Court of India

R. Lakshmi Narayan vs Santhi on 1 May, 2001

Bench: D.P. Mohapatra, U.C. Banerjee

           CASE NO.:
Appeal (civil) 5028  of  1999

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Whether court should grant annulment of marriage on ground that wife is suffering from mental illness?

The Hon'ble Supreme Court in R. Lakshmi Narayan v. Santhi (supra) held that Section 9 provides that a marriage may be solemnised between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein in Clause (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from a mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and Section 12(1)(b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in Clause (ii) of Section 5. On a plain reading of the said provision it is manifest that the conditions prescribed in that section, if established disentitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the court for breaking a marriage already solemnised. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The court will examine the matter with all possible care and anxiety.

22. In our opinion, the Family Court was justified in denying the decree of annulment of marriage on the ground of Section 12(2) of the Act that even after coming to know of such illness, the appellant husband continued to live with the respondent wife and cohabit as husband and wife and, therefore, on the ground of fraud or on the ground of such mental disorder he could not be awarded the decree of annulment of marriage.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

Decided On: 23.01.2007

Prakash Kumar Bachlaus
Vs.
 Smt. Chanchal @ Jaya

Hon'ble Judges/Coram:
Gyan Sudha Misra and Vineet Kothari, JJ.

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When husband is entitled to get annulment of marriage on ground of impotency of wife?

In my view, therefore, if the condition of a spouse is such as to make intercourse imperfect or painful it would amount to impotency. Even the aversion or abhorence shown by spouse to having intercourse caused by prolapse can amount to impotency. In the present case in my view the respondent was impotent for two reasons. Firstly, it is proved that the respondent resisted all the approaches of the petitioner to consummate the marriage, possibly with a view to conceal the condition or prevent the pain which may possibly result because of the intercourse and secondly, because with such a prolapse the intercourse is possible only after manipulation with hands. The sight of the protruding uterus is more likely than not to cool down the ardour and desire of the husband to perform the sexual act resulting in frustration for the husband. Even if the ardour and desire survive the sight of the protruding organ, the manipulation itself will cool it down. In any case an intercourse which demands previous manipulation of the uterus before penetration cannot be said to be an intercourse in the normal way. Therefore, both reasons independently of each other are indicative of impotency and this coupled with non-consummation which I have already held, to have been established, entitle the petitioner to annulment of the marriage.

Bombay High Court

P.V. Gopalkrishnan vs Kanaksha Gopalkrishnan (Mrs.) on 14 July, 1981

Equivalent citations: 1982 (1) BomCR 454 a

Bench: A Mody

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When court can allow annulment of marriage on ground of concealment of material fact amounting to fraud?

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 toSection 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.

Bombay High Court

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

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

Bench: N Dabholkar, P Borkar

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Whether husband is entitled to get annulment of marriage on ground of concealment of mental illness of wife?

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.

Bombay High Court

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

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

Bench: N Dabholkar, P Borkar

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When court can declare marriage as void on ground of fraud?

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. 

ALLAHABAD HIGH COURT

FIRST APPEAL NO. 319 OF 2006 

Parvati Devi V Dharm Chandra Seth

Coram:

Hon'ble Prakash Krishna,J 

Hon'ble Arvind Kumar Tripathi (II),J. 

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