Punjab-Haryana High Court
Rupinder Mann vs Gurpartap Singh Sidhu on 15 December, 2011
Author: Hemant Gupta
Bench: Hemant Gupta, G.S.Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 15.12.2011
FAO No.90-M of 2011
Rupinder Mann ....Appellant
Vs.
Gurpartap Singh Sidhu ....Respondent
Present: Mr. Anand Chhibbar and Ms. Harpriya, Advocates
for the appellant.
Mr. Girish Agnihotri, Sr. Advocate, with
Mr. Arvind Seth, Advocate, for the respondent.
FAO No.153-M of 2011
Gurpartap Singh Sidhu ....Appellant
Vs.
Rupinder Mann ....Respondent
Present: Mr. Girish Agnihotri, Sr. Advocate, with
Mr. Arvind Seth, Advocate, for the appellant.
Mr. Anand Chhibbar and Ms. Harpriya, Advocates
for the respondent.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE G.S.SANDHAWALIA
HEMANT GUPTA, J.
This order shall dispose of FAO No.M-90 of 2011 filed by Rupinder Mann - wife aggrieved against the judgment and decree dated 17.02.2011 dismissing her petition for declaring the marriage as nullity on the ground of limitation and FAO No.M-153 of 2011 filed by Gurpartap Singh Sidhu - husband aggrieved against the findings recorded by the learned trial Court to the effect that he has not disclosed his eye disease and FAO No.90-M of 2011 2 there is fraud committed by him. However, for facility of reference the wife namely Rupinder Mann hereinafter shall be called as 'the appellant' and the husband namely Gurpartap Singh Sidhu hereinafter shall be called as 'the respondent'.
Brief facts, which have led to the filing of the present appeals, are that the appellant, who is a Non-Resident Indian married respondent on 30.12.2001 by way of Anand Karaj at Chandigarh. Such marriage was registered as per the provisions of Section 8 of the Hindu Marriage Act, 1955 (for short 'the Act'). The parties cohabited and resided at different places of India including Mohali and Bathinda. A female child namely Jasleen Sidhu was born out of the wedlock on 16.12.2004. It is averred by the appellant in her petition for declaring the marriage as nullity that the respondent has not disclosed his correct education as he has not completed his medical education though he has projected himself to be a Doctor. The respondent could not see correctly having a retina detachment and long history of eye problem, which was never disclosed to her. It is further averred that the risk is so high that he can go blind. It is averred that the consent of the appellant was obtained by the respondent by playing fraud upon her and by not disclosing the material facts and circumstances as to his educational qualification as well as his retina detachment problem. The relevant paragraphs from the plaint read as under:
"7. That the petitioner was at the time of marriage absolutely ignorant of the facts and her consent has been obtained by not disclosing all these material facts to her. The facts have come to the light only when the respondent on 16.11.2005 threw the petitioner and her daughter out of the matrimonial home as the respondent and his parents and others became greedy and demanded Rs.20 lacs. The petitioner was thrown out of the matrimonial home whereas the respondent went to the USA and filed an FAO No.90-M of 2011 3 application for divorce as well as an application for equitable distribution of property on 21.02.2006. The petitioner had also field FIR against the respondent and other accused vide Annexure A-1. In the said case, the respondent has already been declared as Proclaimed Offender by the court of Sh. Lalit Kumar Singla, S.D.J.M., Mohali (Annexure A-1/A).
8. That the respondent has been fleecing the petitioner as well besides being cruel to her all through and after having played a fraud upon the petitioner by not disclosing his mental and physical disabilities. It is only during the pendency of the proceedings before the authorities in USA that the petitioner for the first time deposed relying upon a certificate dated 09.05.2007 issued by the University of Pennsylvania about the physical status of eye-sight. The said deposition was conducted between the Lawyers only a few months back and on 30.08.2007. A copy of the deposition was given to the petitioner alongwith the reports. The complete copy thereof alongwith the report of the Doctor is annexed herewith as Annexure A-2."
The respondent filed written statement through his attorney i.e. his father. In the written statement it is averred that the appellant has been freely meeting the respondent and was fully aware about the personality of the respondent. It was denied that there is any concealment of any fact by the respondent from the appellant and her parents. It is pointed out that in bio-data everything was given in detail and during meetings before marriage everything was disclosed and consented by the appellant. In reply to para 7, the respondent averred that the marriage was performed after full satisfaction of the appellant as well as her parents. It was denied that the appellant was thrown out of the matrimonial home, but it was alleged that the appellant herself deserted the respondent without any reasonable cause and the respondent immediately filed the divorce complaint in the Court of Common Pleas of Comberland Country Pennsylvania, USA which is pending adjudication since March, 2006. It is alleged that the appellant lodged false FIR on 16.04.2006 under Section 406 & 498 IPC though she is FAO No.90-M of 2011 4 aware that the respondent is residing in USA. The respondent denied that any fraud has been played by him. The relevant paragraphs from the written statement are as under:
"5. ...In the bio-data everything was given in detail and during meetings before marriage everything was disclosed, which was consented by the petitioner. It may also be added that before the marriage and at the time of marriage, the answering respondent was not having any eye problem. But after marriage, there occurred some problem of glaucoma for which the answering respondent is getting the regular treatment and the same has no effect on his day to day working. It is also wrong that the answering respondent could not see properly due to retina detachment when the respondent was not having any such problem and could see correctly.
xxx xxx xxx
8. That para No.8 is wrong and hence denied. There was no question of concealment of any fact as the petitioner has been frequently meeting the answering respondent before marriage. The Annexure P-2 is not the certificate issued by any doctor but is only a letter which has been procured by the petitioner. It may be added that the answering respondent has got the driving license from USA authorities, which can only be issued on the basis of the medical fitness. The issuance of driving license by USA Government falsifies all the allegations levelled in the petition by the petitioner."
It may be stated that the respondent sought to amend the written statement so as to take a specific plea that the petition is barred by limitation. But such application was declined on 02.12.2010 for the reason that plea with regard to the limitation can be taken care of by the Court.
From the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether the marriage of the parties is liable to be declared nullity on the grounds as alleged in the petition?
OPP FAO No.90-M of 2011 5
2. Relief.
During the course of evidence, apart from examining her father namely Col. Sukhdev Singh Mann as PW-2, the appellant appeared into witness-box as PW-1 and tendered into evidence her affidavit Ex.P-1 alongwith documents Exs.P-2 to P-5. In her affidavit Ex.P-1, she stated to the following effect:
"4. That the respondent right from the beginning did not disclose his correct education to the deponent. He had not yet completed his medical education and had been projecting himself to be a Doctor while getting engaged with the deponent. Further, the respondent concealed the fact that he could not even see correctly having a retina detachment and long history of eye problem which was also never disclosed to the deponent and the risk in such is so high that he can go blind. The respondent has been projecting himself to be a man worth millions and as per the Hindu tradition that he would take his martial obligations on his own strength and finances.
5. That consent of the deponent was obtained by the respondent by playing fraud upon her and by not disclosing the material facts and circumstances as to his educational qualification as well as his retina detachment and the other factum of having no interest in the martial obligation on his own strength and finance.
6. That the deponent was at the time of marriage absolutely ignorant of the facts and her consent has been obtained by not disclosing all these material facts to her and it is specifically mentioned here that the medical status of the respondent was not ever disclosed to the deponent. The deponent came to know about the fraud committed upon her on account of medical ailment of respondent and its history, only on 10.08.2007, when the respondent deposed before the court of law in USA where he has filed a case for dissolution of marriage on false and fabricated grounds with aim to usurp the property of the deponent and in order to get legal advantage. On dated 16.11.2005, the respondent threw the deponent and her daughter out of the matrimonial home as the respondent and his parents specifically demanded Rs.20.00 lacs. The deponent was thrown out of the matrimonial home whereas the respondent went to USA and filed an FAO No.90-M of 2011 6 application for divorce as well as an application for equitable distribution of property on 21.02.2006...."
In her cross-examination, she admitted that the marriage was performed in Hotel Mountview, Sector-10, Chandigarh and at that time her parents and other relations also saw the respondent, but could not point out any defect in the appearance of respondent. She further stated that after marriage they went to Bathinda and cohabited together and saw the face of the respondent properly, but did not point out any defect in his appearance. It is admitted by her that the respondent joined her in USA in March, 2003 and lived with her at her residence for about two months. She admitted that the respondent has filed divorce petition against her in the Court at Pennsylvania and that she has not filed any complaint up to 21.02.2006 in USA. She denied the suggestion that she levelled false allegations against the respondent by pointing defect in his eyes, whereas there is no such defect of any kind. She deposed to the following effect:
"It is wrong to say that I deserted the company of respondent because I have found a better person than him for marriage or for that reason I have levelled false allegation against respondent by pointing defect in his eyes, whereas there is no such defect of any kind. It is wrong to say that I have filed the present petition with false and baseless allegations with a view to get rid of respondent. It is wrong to say that no demand was ever made by respondent or his family members."
The appellant has also produced on record the bio-data (Ex.P5) sent by the respondent in pursuance of the matrimonial advertisement published on behalf of the appellant. The said bio-data reads as under:
"BIODATA Name-Gurpartap Singh Sidhu Height - 6-1"FAO No.90-M of 2011 7
Build - Well built athletic body Complexion - Very Fair Date of Birth - 4 Jan., 1973.
I am a computer engineer from Bangalore University. I completed my Engineering in 1996. After finishing Engineering I was not very happy with the job prospects relating to my engineering field therefore, I took my exams for entrance into a medical college and very successfully got admission in Medical College, Patiala. I shall be starting my internship in January, 2002.
I am a 28 year old Jat - Sikh from Bathinda. I am the only child of my parents. My father is a very well known lawyer practicing in Bathinda. My mother is a Housewise. We hail from a very renowned, high status landlord family belonging to Village Abulkhurana, Tehsil Malout. We own about 320 acres of agricultural land. We also own urban property in Bathinda including a house and several residential plots." On the other hand, the respondent did not appear as a witness, but examined his father Baldev Singh Sidhu, as DW-1, who has tendered into evidence his affidavit Ex.DA along with copy of Income Tax Return Mark-D. In his affidavit Ex.DA, he averred to the following effect:
"11. That the allegations levelled by the petitioner are totally false and baseless. As already explained above, all the facts were fully disclosed to them and they had themselves verified the educational qualifications family background and health and personality of Gurpartap Singh Sidhu and nothing was concealed. There was no defect of any kind in the eyes of Gurpartap Singh Sidhu and at the time of his marriage he was student of final professional year of MBBS at Patiala. During his stay in USA, he got his driving license which is only issued after fully satisfying about the eye sight of the licencee and the said license was subsequently renewed by the USA authorities and Gurpartap Singh is driving the Car etc. The copies of the above said license have already been placed on the case file as Annexures A & B. While in USA Rupinder Mann in July 2002 i.e. after just seven months of the marriage filed her income tax return for the year 2001 in the name of Gurpartap S. Sidhu and Rupinder Mann in which she clearly listed him as a student. The copy of the income tax return is enclosed as Annexure-C. The above referred documents clearly proved FAO No.90-M of 2011 8 that petitioner was fully aware about the educational qualifications of the respondent and have now levelled false and baseless allegations of defect in eyes and also about concealment of educational qualifications."
It was in the cross-examination, the attorney of the respondent i.e. DW-1 Baldev Singh admitted that the respondent suffers from eye ailment and his retina got detached while he was in school as he had fallen. The Doctor advised him not to lift any weight. The relevant extract from the cross-examination reads as under:
"....Respondent suffers from eye ailment. His retina got detached while he was in school as he had fallen. The Doctor advised him not to lift any weight.......
....A divorce petition is pending between the parties in USA. Statement of my son has been recorded therein. My son send me the proceedings to me. Respondent has admitted in his statement that he had got eye ailment since his childhood. It is incorrect to suggest that we did not disclose the defect in the eye of the respondent to the petitioner and her parents."
The documents produced by the parties include the testimony of respondent before a Court Reporter-Notary Public authorized to administer oaths to take depositions in the trial of causes of action in Pennsylvania transcribed into 135 pages of written testimony as Ex.P-3. The correctness of such statement is not disputed by the respondent as is evident from the cross-examination, reproduced above. A perusal of the said statement Ex.P-3, shows that the respondent has admitted that he is suffering from glaucoma. He has explained to mean that inside the eye, the pressure is more than what it should be in normal eye. Such pressure compresses the nerve cells at the back of the eye and slowly kills them and this is basically an irreversible disease. Still further, in respect of another question, the respondent has admitted that he has a problem with eyes, FAO No.90-M of 2011 9 which is not just localized to glaucoma alone. He has a long history of eye problem. He further stated that he has lost sight in his left eye and that was because of retinal detachment and he has ongoing issues with his right eye as well. He has a history of spontaneous retinal detachments. He has admitted that he has grown up with this disease since the time he was six years of age. He admitted that none of the surgery has taken place in United States. In respect of another question, the respondent admitted that there was no discussion with the parents of the parties regarding the problems of the respondent principally his eyes.
The other evidence includes a certified copy of the statement of the father of the appellant recorded in a criminal case for an offence punishable under Sections 406 & 498-A IPC Ex.RY and some of the photographs produced on record as Mark A-1 to A-5 as well as an affidavit of consent to the divorce by the appellant Mark-RX dated 01.07.2008 submitted before the authorities in USA.
After considering the entire evidence led by the parties, the learned trial Court did not find any merit in the grounds for seeking declaration of marriage as nullity with regard to the concealment of fact regarding educational qualifications and the property, whereas dismissed the petition holding the same to be barred by limitation in respect of concealment of material particulars in respect of eye problem of the respondent, inter alia, for the reason that the appellant came to know about the eye disease of the respondent on 16.11.2005 as per the averments made in Para 7 of the petition, whereas the petition for declaring the marriage as nullity was filed on 03.01.2008. Such petition has been filed after one year of discovery of fraud and therefore, the same is barred by limitation. The FAO No.90-M of 2011 10 learned trial Court also returned the finding that it cannot be believed that the appellant could not locate the eye problem of the respondent. The relevant finding reads as under:
"30. Moreover, it cannot be believed that the petitioner even if after the marriage could not locate the eye problem of the respondent. On the other hand, the counsel for the petitioner had argued that there was no sight in the left eye of the respondent whereas, on the other hand, it is argued that the disease was of such a nature which could not be visualized by the petitioner and her parents. The respondent herself is a Dentist doctor and she could very well visualize the retinal detachment of left eye of the respondent. The fact should not loose sight that the marriage between the parties took place on 30.12.2001 and they continued with the matrimonial bond till 16.11.2005. A daughter was also born to the parties to the petition. The respondent must be consuming the medicines or using eye drops for his eyes. Therefore, how can it be believed that a wife was not aware about all this. The petitioner stayed with the respondent and cohabited with each other for fairly long period. Therefore, the version of the petitioner cannot be believed that after the marriage and till the time she was allegedly turned out from the matrimonial home, she was not aware about the physical condition of the respondent. Thus, in view of my above discussion, the petition is barred by limitation."
Before this Court, learned counsel for the appellant has not disputed the findings recorded by the learned trial Court in respect of lack of proper disclosure of educational qualification and the property, but only disputed the findings recorded by the learned trial Court to the effect that the petition is barred by limitation. Learned counsel for the appellant has relied upon Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha 2010(10) SCC 512 to contend that the respondent filed written statement through his Attorney and has not appeared as a witness. It is contended that the evidence in respect of physical condition of the respondent could be deposed only by the respondent, as it was the facts within his personal knowledge and could not be deposed by his father as Attorney. It is FAO No.90-M of 2011 11 contended that even as per the testimony of the father of the respondent, it stands proved that the fact regarding eye problem of the respondent were concealed from the appellant and her consent was obtained by concealing and misstating the facts. It is contended that such fact came to be known to the appellant only on the deposition of the respondent in August 2007.
On the other hand, learned counsel for the respondent supported the findings recorded by the learned trial Court that the petition is barred by limitation, as the same has been filed after six years of marriage and that the eye problem was not such a problem, which could not be found out by the appellant soon after the marriage during the period the appellant was staying with the respondent. It is argued that the entire story of alleged fraud having come to her notice either in the year 2005 or 2007 is a made up story unbelievable, unnatural and is not worthy of any credence. It is argued that the appellant cannot be permitted to travel beyond her pleadings and as per Para 7 of the plaint, she came to know about the alleged fraud on 16.11.2005. Therefore, presentation of the petition on 03.01.2008 is beyond the period of limitation.
We have heard learned counsel for the parties at length. The only issue required to be examined is; as to when the alleged fraud i.e. defect in the eye leading to threat of blindness consequent to retina detachment came to the notice of the appellant i.e. whether at any time prior to 09.05.2007/ 30.08.2007, as averred by the appellant or it was known to the appellant on the date of marriage or soon thereafter during the period, the appellant remained with the respondent before the parties separated and living separately on 16.11.2005.
FAO No.90-M of 2011 12
We may notice that no argument has been addressed on the question that such non-disclosure would, in fact, not amount to fraud. The entire controversy is discovery of fraud at the time of marriage or later and that the petition has been filed after one year of discovery of such fraud.
The respondent has filed written statement signed by his Attorney i.e. his father. Such written statement is to be treated as evidence in terms of Section 20(2) of the Act. It is specifically pleaded therein, as reproduced above, that respondent was not having eye problem. He has also stated that he has got driving license from USA authorities, which can only be issued on the basis of medical evidence. The issuance of driving license by USA Government falsifies all the allegations levelled by the appellant. Such was the evidence by way of an affidavit Ex.DA, wherein it is averred that respondent has not concealed any aspect of his health and personality and there was no defect of any kind in the eyes of the respondent. The attorney of the respondent has not disputed the deposition of the respondent in the divorce proceedings before the U.S. authorities, wherein he has admitted that he has got problem of retina detachment and that his problem in eye occurred, when he was of the age of six years. In fact, the attorney in his cross-examination has admitted the problem of the respondent in the eye since the age of 6 years. Therefore, the evidence led by the respondent is at complete variance with the pleadings raised and the evidence led in affirmative.
It may be noticed that evidence in respect of physical fitness of the respondent or in other words, the problem of eye could be deposed by the respondent himself, being the facts in his personal knowledge. Even the fact, whether the appellant was aware of such eye problem after his FAO No.90-M of 2011 13 marriage with her could be deposed only by him. The discovery of fraud at the time of marriage or soon thereafter or at any point of time prior to 09.05.2007 could have been deposed by the respondent himself. But the respondent has not appeared as a witness. The Hon'ble Supreme Court in Man Kaur's case (supra) has laid down the principles, when a statement of attorney can be read into evidence on behalf of the principal. It has been held to the following effect:
"12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge :
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) ...
(e) ...
(f) ...
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder.
....Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter FAO No.90-M of 2011 14 exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
In view of the aforesaid judgment, the statement of the attorney in respect of matters, which are in the personal knowledge of the principal, cannot be admitted into evidence. The evidence of the attorney does not fall in the exceptions carved out in the aforesaid judgment. Therefore, the evidence of the attorney on behalf of the respondent in respect of his health, non-disclosure of material facts and the knowledge of the appellant of such facts, is not admissible into evidence.
Faced with this situation, learned counsel for the respondent has vehemently argued that from the conduct of the appellant itself, it is evident that she was aware of eye problem of the respondent. He has referred to the photographs Mark A-1 to A-5 in support of his contention. Relying upon such photographs, it is contended by Mr. Agnihotri that it can be made out that eye of the respondent is not proper. Reference is also made to the statement of father of the appellant Ex.RY in support of such contention. Mr. Agnihotri has also argued that since such documents are on record, therefore, this Court should take judicial notice of such photographs and the statement.
We find that the argument raised by the learned counsel for the respondent is wholly misconceived. The photographs have not been proved in accordance with law. Such photographs have been tendered into evidence on 17.08.2009 by the learned counsel for the respondent vide his separate statement. The person, who has taken the photographs, has not been examined, nor the negatives of such photographs, are produced on record. FAO No.90-M of 2011 15 Such photographs are not put to the appellant, when she stepped into witness box. There is no cross-examination conducted on the appellant to the effect that the abnormality in the eye of the respondent was noticed by her at any point of time. The entire cross-examination is silent in respect of time and period as to when the abnormality or any problem of eye was noticed by the appellant. In fact, the appellant stated that she saw the face of the respondent properly, when they went to Bathinda after marriage, but did not point out any defect in his appearance. Therefore, the photographs on which learned counsel for the respondent wanted this Court to read into evidence is misconceived. No judicial notice on such photographs can be taken, as such photographs are not admissible into evidence nor any presumption of correctness of such photographs in terms of Section 114 of the Evidence Act, is available. It is well-settled that physical availability of a document on record does not mean that such document is admissible in evidence and can be relied upon. In fact, the Hon'ble Supreme Court in Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and another (2003)8 SCC 745 has held that even if a document is exhibited, it cannot be read into evidence, unless it is proved in accordance with law. Therefore, mere physical availability of photographs on record without proof thereof cannot be read into evidence. It observed as under:
"16. .... The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the `evidence of those persons who can vouchsafe for the truth of the facts in issue.' The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures FAO No.90-M of 2011 16 of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as an admitted documents."
Similarly, the statement Ex.RY is the statement recorded in proceedings for an offence under Sections 406 & 498-A IPC. Such statement has not been put to PW-2 Col. Sukhdev Singh Mann, father of the appellant, when he appeared as a witness. The previous statement cannot be read into evidence unless the same is put to the witness and the witness is confronted with the same. Therefore, such statement is also not relevant for any purpose.
The learned trial Court has dismissed the petition as barred by limitation in view of Section 12(2)(a) of the Act, which reads as under:
"12. Voidable marriages (1) xxx xxx xxx (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"
The learned trial Court has found that as per the facts pleaded, the appellant came to know about the eye problem of the respondent on 16.11.2005, whereas the petition was filed on 03.01.2008 and, thus, has been presented after one year as contemplated by Section 12(2)(a) of the Act. We are of the opinion that the approach of the trial Court suffers from patent illegality. The pleadings have to be read as a whole and a line cannot be picked up out of the context to draw an inference against the person. FAO No.90-M of 2011 17 This is so held in Udhav Singh Vs. Madhav Rao Scindia AIR 1976 SC 744 and Popat and Kotecha Vs. Property State Bank of India Staff Association 2005(7) SCC 510. In Udhav Singh's case (supra), it was observed as under:
"30. We are afraid, this ingenious method of construction after compartmentalisation, dissection ,segregation and inversion of the language of the paragraph, suggested by Counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole."
Though a cursory reading of Para 7, as reproduced above, would show that the facts in respect of respondent came to light of appellant, when she was thrown out of the matrimonial home on 16.11.2005. But such para has to be read along with para 8 of the plaint, when the appellant is asserting that it was during the pendency of the proceedings before the authorities in USA, she came to know about the physical status of eye sight of the respondent. After filing of the plaint, the appellant averred in his evidence giving detailed facts in respect of discovery of fraud. There is no cross-examination in respect of discovery of fraud any time prior to 09.05.2007. In fact, the entire cross-examination is on the lines that the eye sight of the respondent is proper. This is evident from the suggestions given on 21.11.2008, as reproduced above. The appellant has not been suggested that she became aware of the eye problem of the respondent at any point during the parties resided together. In fact, FAO No.90-M of 2011 18 the father of the appellant as PW-2 when cross-examined on 15.01.2009 was given suggestion that the respondent has got no eye defect.
On the other hand, the attorney of the respondent in his affidavit dated 11.04.2009 asserted the physical fitness of the respondent at all times. It is only in the cross-examination on 29.7.2009, he had to admit that retina of the respondent got detached while he was in school and Doctor advised him not to lift any weight. He has admitted the proceedings recorded by the authorities in U.S., wherein there is categorical admission of the respondent about his problem in eye. Therefore, the pleadings and evidence led by the respondent is contrary to the arguments sought to be raised in appeal.
Still further, we are of the opinion that the findings recorded by the trial Court in para 30 are purely on surmises and conjectures. The trial Court disbelieved that the appellant could not locate the eye problem. Such finding could not have been returned without any evidence. The trial Court records that the appellant is a Dentist and, therefore, could very well visualize the retinal detachment of left eye. The retinal detachment is not a physical condition which can be made out from naked eye by a third person. It requires an expert opinion of ophthalmologist as to whether the person has got retinal detachment. It is not an apparent physical condition, but a medical condition, which can be made out only by experts.
The trial Court has presumed that the respondent must be consuming medicines or using eye drops and it is unbelievable that the appellant-wife was not aware about all these things. In the absence of any evidence and in the absence of evidence of the respondent, who was the best FAO No.90-M of 2011 19 witness to depose, such findings are nothing, but based upon assumptions and presumptions and cannot be made basis for returning findings against the appellant.
In view of the above, we find that the findings recorded by the learned trial Court suffer from patent illegality and irregularity and cannot be sustained in law. We set aside the judgment and decree passed by the learned trial Court dismissing the petition for the reason that the petition has been filed after one year of discovery of fraud.
Consequently, we allow FAO No.M-90 of 2011 filed by the appellant-wife and declare the marriage to be a nullity having been solemnized by fraudulently concealing the physical condition of the respondent. However, FAO No.M-153 of 2011 filed by the respondent- husband stands dismissed.
(HEMANT GUPTA)
JUDGE
15.12.2011 (G.S.SANDHAWALIA)
Vimal JUDGE