Madhya Pradesh High Court
Smt. Sarlabai vs Komal Singh on 10 July, 1991
Equivalent citations: AIR1991MP358, II(1992)DMC44, 1992(0)MPLJ276, AIR 1991 MADHYA PRADESH 358, 1991 (2) HINDULR 304, (1992) 1 HINDULR 169, (1991) JAB LJ 650, (1992) MARRILJ 161, (1991) MATLR 365, (1992) 2 DMC 44, (1993) 1 CIVLJ 556, (1992) MPLJ 276
JUDGMENT K.L. Issrani, J.
1. This is a first appeal under 28 of the Hindu Marriage Act against the judgment and decree dated 30th March, 1990, passed by the Additional Judge to the Court of District Judge, Narsinghpur, at Gadarwara in Civil Suit No. 7-A of 1986 granting the decree to the respondent under Section 12(l)(c) of the Hindu Marriage Act, 1956.
2. An application under Section 12(l)(c) of the Act was filed by the respondent against the appellant after 8 years of the marriage, which took place according to Hindu rites. There are no issues out of the wedlock.
3. The case of the respondent was that about 8 years before the marriage of the appellant with the respondent was performed, but there was no cohabitation and no issues out of the wedlock. From the very beginning, the appellant was suffering from heart disease. As such, she was not able to do mental and physical work. She was not capable of sexual intercourse. All these facts were concealed from the respondent. The marriage was performed by fraud. The respondent came to know about it in the month of February, 1985. The respondent further pleaded that after two years of the marriage, the appellant had been to her parents to attend the marriage ceremony of her sister. She never returned to the respondent since then. The respondent, therefore, filed the suit for declaring the marriage as nullity and for divorce on that ground.
4. The appellant has denied the disputed facts and has submitted that since the respondent has married one Umabai, he does not want to keep the appellant. She also denied that there was no sexual inter-course between the parties after marriage as alleged by the respondent. Conjugal rights were performed between the parties. She denied that she is suffering from serious heart disease and that in February, 1985, the respondent came to know about it. The appellant lived with the respondent for five years. She never fell sick during that period. According to the appellant, the respondent has concocted and created a false evidence in order to get divorce as he has taken a second wife. According to the appellant, at the time of settlement of marriage, respondent's father's two sisters and one of their husbands Dorilal and uncle of the respondent and others had been to her village to see her and confirmed the marriage. It was only after two years of such talk the marriage had taken place. Nothing was concealed by her or her parents.
5. The trial Court has, however, held that there was no cohabitation between the parties. The appellant was suffering from heart disease since before, and as such, was not able to do mental and physical work and that she was also not able to perform sexual intercourse. This fact was concealed from the respondent before marriage. The decree of nullity was, therefore, passed against the appellant. Being aggrieved by the said judgment and decree, the present appeal has been filed.
6. The appellant has submitted that no ground under Section 12(l)(c) of the Act is made out by the respondent. The suit of the respondent was by time having filed after 8 years of the marriage. There is no proof that she is not fit for sexual intercourse and cannot barred bear the child. No fraud was committed either by the appellant or her parents. The medical evidence relied on by the lower Court is not an expert opinion. In any case, it is not believable and cannot be made basis for a decree of nullity. First of all, it is to be seen whether the petition of the respondent under Section 12(l)(c) of the Act was within time or barred by time? Sub-section (2) of Section 12 of the Act says:
"Notwithstanding anythig 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 enterained 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;"
7. Admittedly, the petition for divorce was filed 8 years after the date of marriage. It was filed on 24-2-86. In the plaint the respondent has not separately pleaded cause of action, which accrued to him. His pleading is that from the beginning the appellant is suffering from heart disease and is not able to work mentally and physically and also perform conjugal rights. This came to the knowledge of the respondent in February, 1985. But the respondent has not given the details as to how he came to know this fact in February, 1985 and from whom. Respondent Komal Singh (P.W. 1) did not disclose this fact in this examination-in-chief. However, in cross-examination, in para 2, he states that he came to know this fact in 1985 from Dr. Kur-chaniya and he filed the petition after one month from the date of information given by Dr. Kurchaniya, but as shown above, the petition under Section 12 of the Act was filed by the respondent on 24-2-1986 which falsifies the submission of the respondent that he came to know of the defect in appellant in February, 1985. Dr. Kurchaniya has been examined as P.W. 5, but he does not say that he informed this fact to the respondent Komal Singh (P.W. 1). The opinion of Dr. Kurchaniya that appellant is suffering from heart disease since birth is only on the basis that he once happened to see appellant Sarlabai 7-8 years before. He had not seen her before or after that period. The reason of seeing Sarlabai is that she had been to him for treatment, but in the same breath he states that Sarlabai used to get treatment from his wife but he is nol able to say whether she got the treatment or not. In para 3, this witness further says that he neither performed E.C.G. of Sarlabai nor she came with E.C.G. report to him. His only version is that he says so by his remembrance. He does not have any record of treatment of Sarlabai. In para 4 of his deposition, he further states that he had not seen any papers of Sarlabai from which he could say that she was suffering from heart disease since birth. He further says that Sarlabai was brought to him by the sister. The date, year and month is nowhere given by this witness. This witness also does not say that he ever gave this information to the plaintiff Komal Singh (P.W. 1). There is no other witness on the point. Therefore, it cannot be said that it was only in February, 1985, the plaintiff respondent came to know of the disease or defect in Sarlabai. The fact that he filed the petition one month thereafter is also falsified. The petition having been filed after 8 years of the marriage is apparently barred by time.
8. However, on merits, regarding the fraud or misrepresentation, the plaintiff has not pleaded specifically the fact of fraud or misrepresentation except in para 4 of his plaint he has pleaded that he came to know of this fact last year in the month of February, 1985, but in para 2 of his cross-examination he only says that Dr. Kurchaniya had told this fact about the appellant in the year 1985. But he does not remember the date, month or year etc., but he is definite by saying that after one month of the above information he filed the petition in the Court. But Dr. Kurchaniya does not support this fact. He does not state about disclosing the information to the respondent. Admittedly, the marriage took place 8 years before. Learned lower Court for granting the decree for annulling the marriage relied on Ex.P-l, dated 15th November, 1989 signed by 3 doctors, which says that appellant is patient of Congenital Cyanotic Heart Disease. Her internal and external genitals are developed. She can bear a child but looking to her heart disease, she is advised not to venture for pregnancy as it might make her condition critical. Though the respondent says that there was no cohabitation between the parties because the appellant always used to give excuse of her illness. This fact that there could be no sexual intercourse "because defendant always used to give excuse of her sickness", does not find place in the plaint allegations. He further states that Dr. Kurchaniya informed him when he went to Gadarwara that the defendant is sick since birth and she is not fit for sexual intercourse. Dr. Kurchaniya does not say so. According to his version, he is not definite whether appellant Sarlabai was treated by him or not. He never says about the medical examination report of E.C.G. etc. of the appellant Sarlabai nor he has any record of his own. He also does not give the date, time and place. The version of Dr. Kurchaniya is not believable. In order to prove Ex.P-1, Dr. L. N. Paradkar, who is one of the signatories, claims that appellant Sarlabai is suffering from heart disease from birth. But he states that her internal and external genitals are developed and she can bear a child. He does not say that appellant Sarlabai is vergin, for that no intercourse has ever been performed with her. In para. 3, he says that intercourse can be had with her but she was advised not to have intercourse. He further goes on to say that there could be control over the disease, but it cannot be completely cured. He says that E.C.G. of Sarlabai was taken but it cannot be said that after seeing E.C.G. only the report can be given. Her E.C.G. report and chest X-ray report were not placed on record before"the Corut as according to him, they were kept in District Medical Hospital, Narsinghpur. Basis of the report Ex.P-1, according to him, is (he external examination of Sarlabai (para 4) He is of the opinion that by intercourse such patient has to undergo ordinary labour. Such patient can also carry on his daily life and work himself. In such case the opinion of Dr. L. N. Paradkar given after external examination of Sarlabai, without referring to E.C.G. report, chest X-ray and other materials, cannot be said to be an expert's definite opinion when he says that such person is fit for sexual intercourse and carry on the ordinary daily life. Other witness Dr. (Smt.) Paradkar (P.W. 7) admits in cross-examination in para 2 that she is not the heart specialist. So her opinion is also of no use. As against that, Sarlabai (D. W. 1) has stated that she was alright when the persons from the side of respondent came to see her. She was also alright throughout when she remained with her husband in her in-law's house. She has denied the fact that ever she had been to Dr. Kurchaniya for her treatment. She has denied the fact that she is sick since birth. This fact is also corroborated by Amol Singh (D.W. 2), who is also the relative of Komal Singh (respondent). So there is no definite and conclusive medical evidence that appellant Sarlabai is suffering from heart disease since birth and because of that she is not fit for sexual intercourse and bear the child. It cannot be said to be such a fact that the decree of divorce could be granted to the respondent. The particulars of fraud and misrepresentation are not pleaded by the respondent. As held in the case of Bishundeo v. Seogenj Rai, AIR 1951 SC 280, general allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be. It is also pertinent to note that this fact could not be known through some earlier medical record. The conduct of the parties had been that the marriage took place 2 years after settlement of the marriage. The parties lived together for about 5 years after marriage. There is no proof or medical opinion that there was no consumation of marriage or sexual intercourse between the parties at any time. The findings of the lower Court on this point are based on no evidence except the sole statement of respondent, which is not believable and is not corroborated by any other evidence. Such type of patients, as is described by the doctors, cannot lead ordinary life without taking medicines of whatsoever sort in order to keep themselves fit. But it is surprising that there is no evidence on record that during such period Sarlabai is reported to have taken any such medicines or medical treatment. No such complaint was also ever made by the respondent before filing the suit that appellant Sarlabai was suffering from such disease. It seems, as alleged by the appellant, though not proved, that because of the second wife having been taken by the respondent, the respondent had filed the present suit in order to get rid of the appellant. It is such type of disease, which cannot be kept hidden for a long. It is surprising that the respondent and his witnesses, who had been to see her before settlement of marriage and happened to be there again for confirmation of marriage could not come to know about the disease of Sarlabai from the parents or neighbours and others etc. Halke (P.W. 2) states that he had been to see appellant Sarlabai before settlement of marriage and thereafter also. Though he says that Sarlabai was weak and they were informed that she is suffering from fever and at the time of Saptabadi she was not feeling alright; but it is surprising that on this she was not got checked up even after marriage. The lower Court perhaps has believed Hemraj (P.W. 3) that the appellant Sarlabai never used to take water from the hand-pump because of weakness. But it is again surprising that this witness though resident of the same village had never asked the reason of it from her. This cannot be said to be the reason to believe that Sarlabai was suffering from heart disease since birth. The other witness Tejsingh Kaurav (P.W. 4), who is son of father's sister of respondent, says that whenever he used to visit the house of the respondent, the appellant was seen breathing very high. This is not the case of the respondent. Even if it is so, this could also be knowledge of sickness of the appellant and no steps were taken by respondent to get her examined by the doctor. Had she been so sick, naturally she would have been got examined by any doctor. It is only for the first time she was got examined from the doctors at the direction of the Court and there is a report Ex. P-l which cannot be said to be definite and based on any test/report.
9. The rulings cited in the trial Court's judgment are not applicable to the facts of the present case. However, learned counsel for the respondent before this Court has relied on the judgment of this Court in (Smt. Alka Sharma v. Abhinesh Chandra Sharma, First Appeal No. 72 of 1989, decided on 4-2-1991 (reported in AIR 1991 Madh Pra 205), which was a case of mental disorder of the type schizophrenia, which is not the case here. The case is covered under Clause (b) of Sub-section (2) of Section 12. In that case, the wife had refused the sexual intercourse on the very first night being suffering from mental disorder; which is not the case here. Here the knowledge of heart disease is shown to have been given by Dr. Kurchaniya in the year 1985. In Smt. Alka Sharma's case (supra), though the Court has dealt with Section 12(l)(c) also but in the present case, the alleged misrepresentation given on the side of the parents o]' the appellant at the time of settlement of marriage or the performance of marriage, is not amply proved, which is also contrary to the conduct of the respondent, who never thought for getting the appellant examined from any expert doctor in spite of the information behind it that she always remained sick. None of the ladies, who are said to have seen the appellant at the time of negotiations of marriage are also examined. Therefore, the facts of Smt. Alka Sharma's case (supra) are different than the facts of the present case. The facts of the case of Ruby Roy v. Sundarshan Roy, AIR 1988 Cal 210, relied on by this Court in Smt. Alka Sharma's case (supra), are also not applicable to the present case. The present case does not give specific pleadings of the allegations of force or fraud as a result of non-disclosure of material facts and definite sickness. Material particulars are lacking in this case. After consulting Dr. Kurchaniya and filing the case thereafter, respondent has not specifically pleaded even the disease of the appellant which is said to have been, concealed by appellant or her parents. The conduct of the respondent in this case has been such that the force or fraud, if any, was condoned by the respondent. No ground of annulment under Section 12(1) of the Hindu Marriage Act has been specifically pleaded and proved. The sickness of the appellant shown by the doctors now cannot also be a ground for granting a decree of divorce under Section 13(1) of the Hindu Marriage Act as heart disease is not covered in the grounds for grant of divorce mentioned therein.
10. The appeal is, therefore, allowed. The judgment and decree passed by the lower Court is set aside. However, the parties are direeted to bear their own costs. Consequently, the suit of the respondent stands dismissed.