Punjab-Haryana High Court
Jagroop Singh Son Of Harbhajan Singh Son ... vs Jaswinder Kaur Wife Of Jagroop Singh Son ... on 22 November, 2010
Author: K.Kannan
Bench: K.Kannan
F.A.O.NO. 2-M OF 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
F.A.O.NO. 2-M OF 2003
Date of decision:22nd November, 2010
Jagroop Singh son of Harbhajan Singh son of Babu Singh resident of
village Kilaraipur Teh. & Distt. Ludhiana.
.......Appellant
Versus
Jaswinder Kaur wife of Jagroop Singh son of Harbhajan Singh resident
of village Kilaraipur the. & Distt. Ludhiana and daughter of Gurpal
Singh son of Karnail Singh resident of village Kokri Kalan, P.S.Mehna
the. & Distt. Moga.
........Respondents
BEFORE: HON'BLE MR. JUSTICE K.KANNAN
Present: Mr. Gurcharan Dass, Advocate,
for the appellant.
None for the respondents.
1. Whether Reporters of local papers may be allowed to see
the judgment? Yes/No
2. To be referred to the Reporters or not?Yes/No
3. Whether the judgment should be reported in the Digest?
Yes/No
K.Kannan, J.(Oral)
1. The appellant is the husband who has filed this petition for annulment on the ground of alleged fraud relating to disability due to loss of vision of the wife and that it was suppressed to the husband at the time of marriage to secure his consent to the marriage. The marriage took place on 24.01.1994 and the petition had been filed on 24.07.1997 on a plea that he came to know that her wife was blind only just prior to the filing of the petition. The wife had contended F.A.O.NO. 2-M OF 2003 2 that there was no visual impairment at the time of marriage but since she had developed difficulty in vision, she took some medicines which her sister-in-law gave to her to improve her vision. At the trial, the appellant secured the evidence of the doctor, who was treating her wife and who gave evidence to the effect that he was giving treatment to the respondent for over 2-1/2 years and that she was brought to him by the husband's sister. He would recall again that for the first time he had seen her about 4 or 5 years earlier. He further stated that the critical condition of the wife was congenital Aniridia and that disease was mostly by birth. His evidence clearly showed that by mere application of some medicines, the vision could not have been impaired in the manner spoken to by the wife.
2. The trial court dismissed the husband's petition only on the ground that the husband had noticed the defect in vision about a month after marriage and when she was showing signs of blindness she was being taken to the doctor by husband's sister herself. The court therefore, held that the appellant had discovered the eye ailment in the year 1994 and the petition having been filed more than a year afterwards, the petition was barred by limitation.
3. I will not find any fault with the reasoning of the trial court. The learned counsel points out that there is an averment in the petition that he came to know about her blindness only in January, 1997, when his sister informed her. This averment could not be true at all. Blindness is a condition that is the easiest thing for a F.A.O.NO. 2-M OF 2003 3 husband to recognise. The disability is never latent and by the very nature of things, the husband could not have omitted to notice the fact of blindness for three years. I cannot believe the evidence also for the reason that the husband's sister was accompanying the wife at every visit to the doctor and therefore, it could not have been without a knowledge of the husband that she was getting blind.
2. Significantly, in this case, it was not as if she was totally blind even at the time of marriage. The evidence was only that her condition regressed over a period of time inspite of treatment and she had become totally blind by about the time when the petition was filed. A further fact to be noticed was that their own conjugal living did not seem to suffer in the initial phases of marriage and the wife gave birth to a child during the subsistence of marriage. The attempt of the learned counsel was to show that the wife had undergone a surgery even prior to the marriage and that had been suppressed. If this fact had been brought in evidence, I would have no difficulty in accepting the plea of the husband. There is no clear evidence anywhere to suggest that the wife had undergone a surgery earlier to the marriage and that she had serious impairment in vision prior to the marriage. In the manner in which the whole evidence has come about, I can only see that there had been a gradual loss of vision for the wife and at the incipient stage the wife may not have been known that the condition was congenital and that it was regressive. If she had a failing eye sight even within one month of marriage, it must F.A.O.NO. 2-M OF 2003 4 only be taken that the stage had been known to her only subsequent to her marriage and there was no deliberate concealment on the part of the wife relating to her condition which was material for obtaining the consent of the husband for the marriage.
3. The petition seeking for divorce in my view has been correctly dismissed that calls for no intervention. The husband would be at liberty to seek for dissolution of marriage, if any other condition exists under any other provision but this case only decides the issue that there is no active concealment of any condition relating to her physical status to vitiate the marriage and which could have attracted Section 12 of the Hindu Marriage Act. Subject to this liberty, the appeal filed by the husband is hereby, dismissed.
[K.KANNAN] JUDGE 22nd November, 2010 Shivani Kaushik