Telangana High Court
Moturu Venkata Ramana vs Moturu Anika on 6 February, 2024
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
FAMILY COURT APPEAL No.199 of 2013
JUDGMENT:(per Hon'ble Smt. Justice P.Sree Sudha) This appeal is filed against the Order dated 01.03.2013 in F.C.O.P.No.53 of 2011, passed by the learned Family Court Judge, Secunderabad.
2. Appellant/husband filed F.C.O.P.No.53 of 2011, against respondent/wife under Section 12 (2)(a)(i) of the Hindu Marriage Act seeking to declare marriage between the parties as null and void. The trial Court examined P.Ws.1 to 3 and marked Exs.A1 to A7 on behalf of the appellant/petitioner. The respondent/wife examined herself as R.W.1 and marked Exs.B1 to B4. The trial Court after considering the arguments of both sides dismissed the petition. Aggrieved by the said Order, petitioner therein preferred the present appeal.
3. Parties herein are referred as petitioner and respondent as arrayed in the trial Court for the sake of convenience. 2
4. Petitioner/husband in O.P stated that he completed M.Tech in the year 2005 and respondent completed M.B.A in IIPM Osmania University Campus. Their marriage was solemnized on 21.03.2008. He was working as Software Engineer in Geometric Limited Company, Pune and set up family at Pune in June, 2008. He stated that he was not satisfied in conjugal bliss with respondent due to her health problem and he was under the impression that she was feeling shy. In August 2008, she was conceived and went to her parent's house at Tarnaka, Secunderabad, but in October, 2008, her pregnancy was failed and she turned back to Pune. Again in November, 2009, she became pregnant and it was failed in the same month.
5. Petitioner went to Korea on office work and he took the respondent along with him with his own expenses. They spent time together from December, 2008 to March, 2009. At that time, he observed some difference in the attitude of the respondent. Sometimes she behaved with some delusions and used to think that bad would happen to them and he should remarry after her death. Further, sometimes she expressed that she want to commit suicide. He also stated that respondent allowed him for sex monthly twice or thrice and in all other days 3 postponing the same on one or other pretext. Due to congenitally corrected transposition of great arteries VSD, PS, respondent is suffering from depression and anxiety. Respondent again became pregnant in the month of June, 2010. He took the respondent to Dr.Nandini Shete at Pune and she advised the Sonography examination on 02.07.2010. The report discloses that "USG findings are suggestive of blighted Ovum." It means pregnancy is not viable, again pregnancy was aborted. Due to repeated abortions, Dr.Nandini Shethe suspected that respondent had some other problems and suggested for some other tests. Later, he took the respondent to Medipoint Hospitals at Pune, there when Dr.Shivaram Bhonagiri, examined her and asked some questions, respondent gave wrong information, on suspicion she was directed for medical test, as such C.D.Echocardiography was done and the report dated 03.07.2010, clearly shows that respondent is suffering from "Echo suggestive of congenitally corrected transposition of great arteries, VSD, PS." She may not have normal life and span of her life is very short. She had large Non-Restrictive Inlet VSD (17 MM), as such her heart not able to pump required purified blood to all parts of the body and she is suffering from breathlessness.
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6. On 24.07.2010, Dr.B.Somaraju, who is one of the eminent doctor in Cardiology, in CARE Hospital, Hyderabad stated that SPO2 is 77%. As per the report dated 03.07.2010, "Morphologic RV on the left and Morphologic LV on the right." It means it is in reverse position. Due to that impure blood from right ventricle is escaping into the left ventricle because of the abnormal opening of VSD. Stenosis lost and the gate is not functioning when blood is pumping to lungs and thus respondent is suffering from VSD defect and pulmonary wall stenosis, and thus on the basis of the above said findings, she is unfit for normal life and mortality is very high. Due to non and proper circulation of blood from the heart to the entire body, she is feeling breathlessness and sometimes she is losing mental balance and entering into delusions. When she became pregnant, heart is not able to pump the blood not only to the body of the mother, but also to the Ovum and thus respondent's pregnancy became abortive.
7. Petitioner further submitted that respondent and her family members concealed the medical problem of the respondent with an ulterior motive. If he had full knowledge about the respondent's congenital disease before marriage, he would not have married her. Therefore, requested the Court to declare their marriage as null and void and also claimed for 5 compensation of Rs.10,00,000/- for turning life into miserable, for sustaining mental agony, lowering his image in the society and for emotional distress.
8. In the counter filed by the respondent/wife along with counter claim for restitution of conjugal rights, she admitted her marriage with appellant and denied all other allegation made by the appellant/husband. She mainly contended that on 17.07.2010, appellant before starting to Hyderabad, both of them had conjugal bliss. She further stated that petition is based on the terminology used by the doctors, but not on the ingredients of the Hindu Marriage Act. It is not a ground enumerated under Section 12 of the Hindu Marriage Act, enabling declaration of marriage to be null and void. No doctor, to whom she was referred to, had ever opined that she may not live normal life or that her life is very short. She was always meritorious in her studies. She completed her intermediate during 1997-1999, studied B-Tech (Mechanical) during the years 2000-2004 and later completed M.B.A during the years 2005-2007. She never had any health problem during her childhood and never had an occasion to consult a doctor. 6
9. She further stated that when the report dated 03.07.2010, reveals that she has congenital heart, both herself and appellant were under shock. Therefore, her parents came to Pune and stayed with her till 17.07.2010. From 25.07.2010, appellant started avoiding her and also her phone calls. He had sent all the household articles from Pune to respondent's parent's house at Tarnaka. She stated that her mother-in-law was the cause for filing the petition. They were complaining to the petitioner that she did not get the expected dowry and before marriage petitioner used to send them Rs.20,000/- per month, but after marriage he could not send the same, as such she instigated him to file a petition to annul their marriage. She is ready and willing to join him at any point of time and as per the advice, she has also filed the counter claim for restitution of conjugal rights. Appellant neglected and abandoned her from 18.07.2010 onwards, without any justifiable cause. Therefore, requested the Court to grant restitution of conjugal rights and to direct the petitioner to take her into his company.
10. The petitioner examined himself as P.W.1 and also got examined P.Ws.2 and 3 on his behalf and got marked Exs.A1 to A7. The respondent was examined herself as R.W.1 and marked Exs.B1 to B4 on her behalf. The trial Court after considering 7 both oral and documentary evidence dismissed the petition. The trial Court observed that divorce cannot be granted in case of diseases like Leprosy, Schizophrenia, unsoundness of the mind with incurable form and vernal disease and also relied upon the evidence of P.W.3-Doctor and mainly considered the conjugal life between appellant and respondent on 17.07.2010, and dismissed the petition. Aggrieved by the said Order, petitioner therein/husband preferred the present appeal.
11. Now, it is for this Court to see whether the Judgment of the trial Court is on proper appreciation of facts or not.
12. P.W.2 was working as Head of the Department, Medical Record Officer in KIMS Hospital, for the past 8 years. He stated that Ex.A4 was issued by their hospital. P.W.3 is the Gynecologist, Ex.A5-case sheet and Ex.A6-Discharge Summary, which contains her signature were marked through her. Section 12(2)(i) of Hindu Marriage Act, reads as follows:
"i) The petition presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered;"
13. The learned Counsel for respondent is present and argued before the Court, but the appellant or his Counsel did not turn 8 up in spite of giving sufficient opportunity and hence matter is reserved for Judgment after hearing the arguments of learned Counsel for respondent.
14. The learned Counsel for respondent mainly contended that appellant has to file the petition within one month from the date of marriage, but he failed to do so. Appellant contended that respondent is having congenital heart disease and as per the medical reports, it was diagnosed at the age of 9 years, but neither respondent nor her parents disclosed about the same at the time of marriage. As she was having the heart problem, she had three abortions, she cannot beget the child and she was not cooperating for the conjugal life. Initially, he thought that she was feeling shy, as such she could not move with him freely, but later when she had abortion for three times, he got tested by a Gynecologist and Cardiologist and came to know about the said disease. Her SPO2 is 77%. He also got tested her by Dr.B.Somaraju, who is the eminent doctor in Care Hospital. As per the report dated 02.07.2010, her heart cannot pump the blood while she was carrying pregnancy. Even P.W.3 stated that they took the consent for aborting pregnancy as she was suffering from heart problem. As the respondent and her family members concealed the matter before the marriage, he filed O.P 9 for annulment of the marriage. He stated that when fraud was brought to his notice, he filed O.P for annulment and it is within the limitation. It seems that she was also suggested to undergo cardiac surgery, but she did not undergo the same because of the disputes between herself and the petitioner.
15. The main grievance of the petitioner is that because of the health condition of the respondent, she cannot beget the child. In spite of having knowledge, respondent and her parents did not disclose the same to him prior to the marriage. When she had abortion for three times and got her tested, he came to know about the same. Whereas, respondent stated that she was healthy from her childhood, as such she completed her Post-Graduation. She has no knowledge of her health problem. She never had any inconvenience even after the marriage. She never deprived the petitioner in their conjugal life due to her health condition. After the marriage, there is no hindrance for their conjugal life as alleged by the petitioner and she is always ready and willing to stay with him. Since 25.07.2010, petitioner started avoiding and evading the phone calls of the respondent. Even on 25.08.2010, he has sent all the household articles from Pune to her parent's house at Tarnaka. Respondent mainly contended that the mother of the petitioner is the main cause 10 for all these problems. P.W.1 informed that he used to send Rs.20,000/- to his mother before marriage, but he could not send it after the marriage, as such she instigated P.W.1 to file a petition.
16. The learned Counsel for respondent mainly contended that this will not fall in any of the grounds mentioned under Section 13 of the Hindu Marriage Act and it is not a ground for annulment of the marriage under Section 12(2)(i) of Hindu Marriage Act, as such he is not entitled for declaring the marriage as null and void. He also submitted that respondent was always ready and willing to join the appellant, but from 2010 onwards, parties are not residing together. They have no children, as the respondent is suffering from congenital heart disease. It cannot be said that petitioner is entitled for annulment of the marriage as the respondent is suffering from congenital heart disease, but the petitioner contended that she is suffering from the said disease from the age of 9 years, but not disclosed the same before the marriage.
17. Petitioner further contended that she had several complications like breathlessness and illness and thus she made his life miserable, lowered his image, status in the society 11 and induced him for marriage. There is a popular saying in the Indian Marriage System that "a person can tell thousand lies for performing the marriage", but after introducing the concept of divorce in the Hindu Marriage Act, suppression of the fact or telling lies regarding any material fact amounts to cheating or fraud played upon. In this case, though the respondent is having heart problem, it was not disclosed by her or by her parents to the petitioner. She conceived thrice, but did not beget the child and thus deprived the petitioner from his right of paternity and he cannot become father due to the conduct of respondent and her parents and she had abortion for three times. He waited till then and got her tested through a Gynecologist and Cardiologist and came to know about the fact that she had heart problem and it was diagnosed at the age of 9 years as per medical record and it clearly amounts to fraud played upon him for performing marriage of the respondent with the petitioner. When once he came to know about the fraud basing on three abortions, he got filed O.P for annulment of the marriage. Therefore, it cannot be said that he has not filed the O.P for annulment within one year from the date of marriage. The limitation starts from the date of knowledge of the fraud. Suppression of the material facts amounts to fraud. In this case, regarding the health condition of the respondent was 12 suppressed, as a result, appellant could not enjoy his paternity and compelled to file O.P for annulment. The trial Court without appreciating the facts properly dismissed the application filed by the appellant herein. In view of the above reasoning, this Court finds that it is just and reasonable to declare the marriage of the appellant with respondent dated 21.03.2008, as null and void.
17. In the result, the Family Court Appeal is allowed setting aside the Order of the trial Court dated 01.03.2013 in F.C.O.P.No.53 of 2011. The marriage between the parties is annulled and the counter claim of the respondent for restitution of conjugal rights is dismissed.
Pending miscellaneous petitions, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA DATE: 06.02.2024 tri