Madhya Pradesh High Court
Sunder Lal Soni vs Smt. Namita Jain on 17 November, 2005
Equivalent citations: AIR2006MP51, AIR 2006 MADHYA PRADESH 51, 2006 (4) ALL LJ NOC 867, 2006 (2) AJHAR (NOC) 501 (MP), 2006 (3) AKAR (NOC) 291 (MP), 2006 A I H C 1863, (2006) 2 HINDULR 320, (2007) 1 MARRILJ 464, (2006) MATLR 363, (2006) 3 RECCIVR 776
Bench: Dipak Misra, U.C. Maheshwari
JUDGMENT
1. In this appeal under Section 19 of the Family Courts Act, 1983, the non-applicant/appellant has called in question the defensibility of the judgment dated 21st day of September 2004 passed by the learned Judge, Family Court, Jabalpur in Civil Suit No. 85-A of 2001 (new No. 179-A of 2002).
2. Shorn of unnecessary details, the facts which are essential to be stated are that the applicant/respondent wife filed an application under Section 12(1)(c) of the Hindu Marriage Act (for short the Act) for annulment of her marriage performed with the non-applicant/appellant/husband and to pass a decree of nullity. It was pleaded in the application that she was a student of Post Graduation course and the appellant husband is a Vaidya and also engaged in astrology. The mother of the respondent wife was a patient of high blood pressure and her father a diabetic for many a year. Her parents used to have the treatment from the appellant husband who was practicing both Ayurvedic and Homoeopathic medicines. The respondent wife used to accompany her parents to the Dispensary of the appellant husband. As situation would have it, she used to go to the Dispensary of the appellant husband alone to fetch medicines for her parents. On some occasions, she was told that there was every chance of her suffering from diabetes in future and further her future was dark. The appellant husband saw her horoscope and informed her that there would be great loss to her father in his business and she would be required to seek a job. He predicted that there will be two marriages in her life. In view of the aforesaid prediction, the respondent wife got scared and sought the advice of the appellant husband to escape from such a situation. At that juncture, the appellant husband impressed her that the problem that is seen in her horoscope could be avoided if she performs a false marriage with him and thereafter take a divorce. He also impressed the respondent wife that he was competent to perform such false marriage. The respondent wife being in a total desperation, agreed for the same and accordingly the marriage between the appellant and the respondent was performed at Ayurvedic Samaj Mandir, Satna Building, Jabalpur on 24-11-2000. The appellant husband further assured the respondent wife that he would arrange a job for her through his resources and shall prepare necessary documents and obtained her signatures in blank papers. After obtaining the signatures of the respondent wife on blank papers, the appellant husband started black-mailing her on telephone by informing that he had some letters written by her on 26-2-2001 and demanded rupees one lac from her. The appellant husband told her that if she would not accede to his demand, he would disclose the fact of her marriage and get her and her family members defamed. Being a worried situation, the respondent wife apprised of the same to her parents, uncle and cousins and the matter was reported at the Police on 27-2-2001. It was alleged that the appellant husband was aged 55 years but he informed the respondent wife that he was 40 years. It was also told to her that his wife expired in 1999 and in the first wedlock, no child was born. After lodging the report with the police, the respondent wife came to know on enquiry that the appellant husband had four major daughters and one major son from his first wife which was suppressed by him from the respondent wife before performance of marriage and thus as the consent was obtained by the appellant husband by fraud, the marriage performed on 24-1 -2000 is a nullity.
3. The appellant husband entered contest and filed a written statement denying the assertions made by the respondent wife contending inter-alia that he had prepared the horoscope that had predicted that the respondent wife would have gyaenic problem but never advised her to go for a job or arrange a job for her. Obtaining of signatures of the respondent wife on blank papers was disputed by him. The allegation of blackmailing on telephone has been seriously disputed. It was pleaded before the Family Court that the respondent wife used to visit his dispensary very often and pass hours with him and eventually fell in love and proposed to enter into marriage with him. She was impressed with his status and understanding of astrology and became his admirer and a devotee. She had full knowledge about the members of the family of the appellant husband and on her consent, the marriage was performed in presence of many a witness. It was the further case of the appellant husband that he had clearly disclosed to her that he was a widower, aged 55 years and had four grown up daughters and a major son and it would not look appropriate if the marriage between her and him was solemnized but the adamantine attitude of the respondent wife to go for marriage with the appellant husband without caring for the opposition of her parents which made the appellant husband to accept the proposal and eventually the marriage was performed with the free consent of the respondent wife. The allegation of fraud or coercion was totally disputed.
4. As set forth, the respondent came to the house of the appellant husband with bag and baggage on 26-2-2001 to stay with him permanently but when the parents of the respondent wife came to know about this facet, they took her away, assaulted her and reported the matter to the Police. Reference has been made to several letters written by the respondent wife to, the appellant husband before and after the marriage. It is also pleaded that the appellant husband was taken to Kotwali Police Station and was abused, harassed and tortured and the concerned Police Inspector got his signatures on number of stamp papers and water marked papers which were blank. The marriage between the two had been consummated as the respondent wife used to remain in his clinic throughout the day and left for parental home in the evening so that the factum of marriage could not be known to her parents. With the aforesaid assertions, the grant of relief to the respondent husband was opposed.
5. The respondent wife examined herself as A.W. 1, Jai Kumar Jain as A.W. 2, Smt. Indira Jain - her mother as A.W. 3 and uncle Sumer Chand Jain as A.W. 4. The learned Judge of the Family Court, on the basis of evidence brought on record and on the analysis of oral evidence, came to hold that the respondent wife was under the influence of the appellant husband because of his special skill in astrology coupled with the skilled as Ayurvedic and Homeopathic physician; that she was overtaken by fear of the prediction of her two marriages and suffering of diabetes in future as was being suffered by her father; that she was scared of the forecast that her father would sustain severe loss in business; that she was impressed by the factum that her problem would be solved if she entered into a formal marriage with the appellant husband; that there has been admission by the appellant husband expressing her remorse about the marriage; that the respondent wife was a prey of the impressions cast on her by the appellant husband; that the consent of the respondent wife was obtained by fraud inasmuch as he had suppressed the material fact of having five issues who were major; and that he had taken the respondent wife in his spell by non-disclosure of facts. Because of being of this view, on the basis of the scrutiny of evidence on record, the Family Court decreed that the marriage of the respondent wife with the appellant husband performed on 24-11-2000 deserved to be annulled and accordingly annulled the same by passing a decree of nullity.
6. Questioning the correctness of the judgment and decree passed by the learned Judge of the Family Court, Mr. T. S. Ruprah, learned senior counsel along with Mr. Harpreet Kaur, Advocate, has contended that the respondent (who was the non-applicant before the Family Court) had taken a contradictory pleas which are in a way destructive of each other and hence, the learned Judge, Family Court has fallen into grave error by directing annulment of marriage. It is his further submission, had there been concealment of material facts, the same should have been mentioned in the FIR but the same having not been stated, there has been embellishment in the suit to get a benefit of decree of nullity of marriage. Learned Senior Counsel further argued that there has been a improper pleadings with regard to the distinctive nature of fraud and the plea that the respondent wife had signed several documents out of fear has to be thrown overboard as she was quite a grown up and qualified woman, who understood what she was doing and hence, the aforesaid plea should have been thrown over-board by the learned Judge, Family Court. Mr. Ruprah has further criticized that the evidence brought on record runs counter to the pleas put forth and by no stretch of imagination, it can be held that there was a practicing of fraud by the present appellant. To bolster his submissions, he has placed reliance on Bishnudeo Narain and Anr. v. Seogeni Bai and Ors. , Nandkishore v. Smt. Munnibai , and Smt. Alka Sharma v. Abhinesh Chandra Sharma AIR 1991 MP 205. The learned senior counsel has further propounded that the documents were the testimony that the respondent wife had developed a sense of admiration, devotion and love for the appellant husband which culminated in a marriage and in such a situation, it could not have been held that the marriage is a nulliiy.
7. Mr. H.S. Dubey, learned Counsel for the respondent wife countering the aforesaid submissions, has contended that no efforts had been made to show that the respondent wife had written the alleged letters. It is his further submission that the non-disclosure of material facts is writ large inasmuch as the respondent wife had never told the appellant husband that he had so many major children. Mr. Dubey has proposed that the documents on record would go a long way to show that the facts which were exclusively within the knowledge of the appellant husband were not told to the respondent wife who was quite a young woman and such suppression of material facts tantamounts to fraud.
8. To appreciate the rivalised submissions raised at the Bar, it is appropriate to refer to Section 12 of the Act. It 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) that the marriage has not been consummated owing to the impotency of the respondent; or
(b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1976, the consent of such guardian was obtained by force or by fraud as to the value of the ceremony or as to any material fact or circumstance concerned the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in Sub-section (1) no petition for annulling a marriage -
(a) on the ground specified in Clause (c) of Sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered: or
(ii) the petitioner has, with 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;
(b) on the ground specified, in Clause (d) of Sub-section (1) shall be entertained unless the Court is satisfied -
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
9. It is worth noting here that the Marriage Laws (Amendment) Act 1976 has modi fled the clause by inserting the words 'as to any material fact or circumstance concerning the respondent. After the amendment, the scope of fraud has been encapsulated in a different compass and there has been expansion of the concept in a connotative sense. In this context, I may refer with profit to the decision rendered in the case of Smt. Asha Srivastava v. R.K. Srivastava AIR 1981 Delhi 253, wherein the Delhi High Court has expressed the view as under :
After the amendment of Section 12(1)(c) 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 circumstances 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. However, 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. Thus, where there was concealment about the ailment of schizophrenia from which the respondent-wife suffered which is a mental illness and the same was incurable according to the expert opinion of doctor examining the respondent, the same would amount to obtaining the consent of the respondent by fraud as to any material fact concerning the respondent, the provisions contained in Section 12(1)(c) would be attracted.
10. In the case of P. v. K. AIR 1982 Bom 400, the High Court of Bombay while dealing with the aforesaid facet expressed the view that it may be safely said that the fact and circumstance which is of such a nature as would materially interfere with the marital life and pleasure inclusive of sexual pleasure would be the material fact or circumstance. The only limitation is that the material fact or circumstance must be concerning the respondent meaning thereby that it must be in respect of the person or character of the respondent.
11. In Bal Krishnan v. Lalita AIR 1984 AP 225, it was held that when the wife was suffering from epilepsy and continued to be affected so when she came to her husband's place and this very fact was concealed from him at the time of betrothal and thereby his consent was obtained, the marriage deserved to be annulled.
12. The High Court of Punjab & Haryana in the case of Som Dutt v. Smt. Raj Kumari AIR 1986 P&H 191, it was held as under :
6. Where by an arranged matrimonial alliance, a marriage takes place between an older woman and a younger man, it must raise a presumption, rebuttable no doubt of some concealment or misrepresentation regarding the woman's true age, as common experience shows that it is indeed unusual for a young man to knowingly and willingly marry some elder than him in age. Seen in this light where fraud on this account is alleged, the burden must shift on to the wife to bring on record evidence or circumstances to dispel the suspicion of any such concealment or misrepresentation. This is a burden which Raj Kumari has been unable to discharge. It would be relevant to advert here to the matter relating to the horoscope of Raj Kumari, which according to Som Dutt was given to his parents when talks of their marriage were going on. This he got examined by AW-3 Madan Lal. Comparison or tallying of horoscopes is a well known feature of arranged marriages and this is what lends assurance to the testimony of AW-3 Madan Lal in this behalf, who deposed that the date of birth of Raj Kumari as mentioned in this horoscope was April 29, 1955, which would mean that it showed her to be a year younger than Som Dutt, which was palpably false. In other words, it cannot be accepted that Som Dutt was aware of Raj Kumari being considerably older than him and that knowing this he agreed to marry her. The evidence and circumstances, on the other hand, go to show that he was the victim of deliberate deception designed to conceal her true age from him with a view to dupe him into marrying her believing her to be younger than him. There can be no manner of doubt that had he known her correct age he would not, as he deposed, have married her.
13. In this context, I may refer with profit to the decision rendered in the case of Brijlnder Bir Singh v. Vinod wherein it has been held as under :
9. There is no manner of doubt that under Section 12(1)(c) of the Act if the consent of the appellant was obtained by fraud as to the nature of the ceremony or as to the nature of the material fact or circumstance concerning the respondent, the marriage can be annulled. It is not necessary that consent is obtained by practising fraud at the time of solemnization of the marriage, it is enough if it was obtained without going into the other allegations levelled by the parties against each other, 1 hold that the consent of the appellant, was obtained by fraud and misrepresentation as to material facts concerning the respondent and that he is entitled to a decree for annulment under Section 12(1)(c) of the Act.
14. In Anurag Anand v. Sunita Anand , it was held that when the monthly income and property status of the husband declared in bio-data of the husband have been found to be false, it tantamounts to false representation of material facts and circumstances. True it is, this view was expressed when the difference of falsity is only trivial, a different view may be taken but it will depend upon case to case. The Court expressed the view that the tendency to give false and inflated informations regarding material facts in the bio-datas exchanged in marriage negotiations should be curbed. It was also ruled that benefit of such an action must be given to the party which has suffered the fraud.
15. In Bindu Sharma v. Om Prakash AIR 1997 All 429, it has been held that when the husband had made a representation that he was having an attractive job which led the wife to give consent to marriage despite having higher academic qualification, a case of misrepresentation of facts was made out and the petition for annulment of marriage deserved to be decreed.
16. Keeping in view the aforesaid pronouncements of law, the obtaining factual matrix is to be appreciated. The respondent wife has clearly and categorically stated in her evidence that she was overtaken by fear of forecast of her two marriages and there had been non- disclosure of earlier marriage of the appellant husband and the birth of his children from the first spouse. The said testimony has received corroboration from AW4 Sumer Chandra Jain and AW2 Jai Kumar Jain. It has also come out in the evidence that the appellant husband had asked her if she performs a false marriage with him and take a divorce, nothing would happen to her. She has also stated that the appellant husband had never disclosed his age and that he had got major daughters and a son. Mr. T. S. Ruprah, learned Counsel for the appellant husband has submitted with vehemence, there is no pleading to that effect. From Paragraphs 17-A and 17-B, of the petition it is apparent that such facts have been pleaded. In addition, it is also urged by him that the respondent wife knew about the said facts as is evincible from her letters. There is no proof that the said letters had been sent by the respondent wife. That apart, the appellant husband has filed an affidavit. It has been proved that the said affidavit was received by coercion. Even if the affidavit is ignored, the fact remains that the appellant/husband had not disclosed his age and his having grown up children. This is a suppression of material fact for the purpose of marriage as far as it relates to the respondent wife. This would come within the ambit and sweep of language employed in Section 12(1)(c) of the Act.
17. From the above said, it is absolutely manifest that the appellant entered into wedlock by practising fraud inasmuch as he had suppressed the material fact which had a bearing on the marriage. Had the respondent wife been aware of the fact that the appellant husband had four major daughters and a major son, she would not have conceived the idea of getting married to the appellant. It is noteworthy to state that marriage is a sacred institution, which cements a bond between two persons. It is a sacrosanct relationship for the purpose of carrying on the light of human race. The basic conception of procreation is at the foundation of marriage. Marriage, saves an individual from the tyranny of sex. It is not an institution meant for personal thirst and wantonness. The purpose of marriage is to establish accord, harmony and suitable balance in the society No man or woman should play with such a collective institutional principle. No man should harbour the idea that a woman is to be made a life partner by marriage as marriage is a conquest or a victory. Long back, it has been said that consent gives sacrosanctity to the marriage and the same holds true in law. A cynic may propagate that in marriage the husband is the monarch or proclaim that a woman cries before the wedding and the man afterwards, but, the marriage is a socially sensible and respectable institution and has a great human purpose. In the case at hand, the appellant husband has created a concavity in the institutional paradigm by employing his skills in astrology and medicine. In addition, he has suppressed the most material fact of his having five major children. Such a fraud may or may not invite criminal culpability but indubitably satisfies the requirement of Section 12(1)(c) of the Act. It is well settled that fraud vitiates all acts, be it ecclesiastical or mundane. Thus, we have no doubt that the marriage between the appellant and the respondent has been founded on fraud from the very inception and hence, it is bound to founder and accordingly it is a nullity. Ergo, we perceive no infirmity in the judgment of the learned Family Judge, the same being totally presentable and absolutely impeccable.
18. Resultantly, the appeal preferred by the appellant being devoid of merit stands dismissed with cost throughout.