Telangana High Court
Sangyam Vidya Sagar vs Sangyam Vandana on 29 February, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
F.C.A.No.141 OF 2021
ORDER:(Per Hon'ble Sri Justice K. Lakshman) Heard Sri K. Laxman Rao, learned counsel for the appellant. Despite service of notice, there is no representation on behalf of respondent.
2. Challenging the order and decree dated 13.03.2020 in O.P.No.907 of 2017 passed by the learned Principal Judge, Family Court-cum-Additional Chief Judge, City Civil Court, Hyderabad, appellant-husband preferred the present appeal.
3. The marriage of the appellant-husband with respondent-wife was performed on 12.02.2017. He has filed the aforesaid O.P under Sections 12 (2) (b) (i) of Hindu Marriage Act to annul the marriage dated 12.02.2017 on the grounds of cheating with dishonest intention and fraud played by the respondent by suppressing the first marriage.
4. According to appellant-husband, respondent-wife has suppressed her earlier marriage and also decree of divorce obtained by her in O.P.No.374 of 2014 vide Ex.R6. Therefore, respondent has suppressed the said fact, played fraud on the appellant and married 2 him with dishonest intention. Therefore, the marriage has to be annulled.
5. To prove the said contention, he has examined himself as PW.1 and filed Exs.A1 to A6 documents. To disprove the same, respondent-wife has examined herself as RW.1 and filed Exs.R1 to R6 documents including Ex.R6-Decree of Divorce obtained by her in O.P.No.374 of 2014.
6. On consideration of the entire evidence both oral and documentary, learned Family Court dismissed the said O.P vide impugned order and decree dated 13.03.2020.
7. There is no dispute with regard to date of marriage of the parties i.e., 12.02.2017 as per Hindu rights and customs. Appellant-husband herein has filed the aforesaid O.P on 29.06.2017. According to appellant, respondent-wife suppressed her earlier marriage and thus she played fraud on him. Therefore, the marriage has to be annulled.
8. It is relevant to extract Section 12 of the Hindu Marriage Act, 1955 which deals with voidable marriages.
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 impotence of the respondent; or] 3
(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, 1978 (2 if 1978)] the consent of such guardian was obtained by force [ or by fraud as to the nature of the ceremony or as to any material fat or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
Therefore, by virtue of amendment dated 01.10.1978, or 'fraud' as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent was included in Section 12 (1) (c) of the Act.
9. As discussed supra, according to the appellant, respondent has suppressed her earlier marriage and thus she has played fraud on him.
10. During cross-examination, respondent-RW.1 has categorically admitted as follows:
"I am willing and ready to join the appellant and lead matrimonial life with my husband. Even though I made allegations that the appellant is impotent, doubtful about the character and harassment towards additional dowry. I want to lead marital life with the appellant, for the sake of society to maintain respect in the society. Witness adds that the appellant has accepted that it is a second marriage, I have no option only except to lead matrimonial life." 4
11. Respondent-wife further admitted about lodging a complaint against appellant for the offence punishable under Section 498-A of IPC. It is also not in dispute that she has filed a petition under Section 125 (1) of Cr.P.C vide MC.No.750 of 2022 (Old No.163 of 2020), she has withdrawn the said MC on filing of counter by appellant herein.
12. Without considering the said aspects, learned Family Court dismissed the aforesaid O.P only on the misconception that Section 5 of Hindu Marriage Act, 1955 envisages the conditions for Hindu Marriage, which includes that "neither party has a spouse living at the time of marriage" and the said condition is not violated by the respondent herein apparently.
13. As discussed supra, appellant filed the aforesaid O.P to annul the marriage on the ground of suppression of fact and fraud. According to appellant, there is suppression of earlier marriage by the respondent and decree of divorce obtained by her vide Ex.R6. Though, there is specific allegation, respondent failed to disprove the same during cross-examination. The said aspects were not considered by the learned Family Court in the impugned order.
14. As discussed supra, respondent herself categorically admitted that she made an allegation that appellant herein is an impotent and his 5 character is also bad. Even then, she expressed her willingness to lead happy marital life. The said aspects were not considered by the learned Family Court in the impugned order. It is an order without consideration of the entire evidence. It is liable to be set aside and accordingly it is set aside. This appeal is allowed, annulling the marriage of appellant with the respondent performed on 12.02.2017 on the ground of fraud and suppression of material facts. There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending shall stand closed.
_________________ K. LAKSHMAN, J __________________ P. SREE SUDHA, J 29.02.2024 ssy