Jharkhand High Court
Kiran Kumari vs Sharvan Jha & Anr on 23 November, 2016
Author: H.C. Mishra
Bench: H.C. Mishra, S.N. Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal (D.B.) No.45 of 2012
With
First Appeal (D.B.) No.82 of 2012
---------------
F.A No.45 of 2012
Kiran Kumari ....... Appellant
-Versus -
1. Sharvan Jha
2. Jharkhand Jha ..... Respondents
With
F.A No.82 of 2012
1. Sharvan Jha
2. Jharkhand Jha ..... Appellants
-Versus-
Kiran Kumari ..... Respondent
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE Dr. S.N. PATHAK
.....
For Kiran Kumari : M/s Vandana Singh, Advocate.
For Sharvan Jha & Anr. : M/s Sanjeev Thakur, Advocate.
.....
Reserved on: 23.11.2016 Pronounced on: 7.12.2016
H.C. Mishra, J. - Heard learned counsels for the appellants and the learned counsel
for the Respondents in both the cases.
2. Both these appeals arise out of the common Judgment and Decree
dated 13th February, 2012, passed by the learned Principal Judge, Family Court,
Bokaro, in T.M.S. No.82 of 2005, filed by the petitioner Kiran Kumari, against her
husband Sharvan Jha and her father-in-law, Jharkhand Jha, for annulment of the
marriage of the petitioner with her husband under Sections 12(1)(b)&(c) of the
Hindu Marriage Act, and also for refund the amount of Rs.5,00,000/- as 'Stridhan'
with interest and the marriage expenses. The suit was allowed by the Court
below, annulling the marriage between the parties, by a decree of nullity, being
voidable marriage, and the respondents were directed to return the amount of
Rs.4,60,000/- to the petitioner within a period of three months. The petitioner-wife
is aggrieved as there is no decree in her favour for returning of amount of
Rs.40,000/- given in cash and the other marriage expenses and compensation,
whereas the respondents are aggrieved by the entire Judgment and Decree.
3. The case of the petitioner wife is that the marriage between the
parties, i.e., Kiran Kumari and Sharvan Jha was solemnized according to the
Hindu rites and customs at Bokaro on 23.5.2005. This was an arranged marriage
and at the time of marriage, nothing was informed to the bride's side that the
bridegroom was suffering from mental and physical disorder. In the said
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marriage, rupees five lakhs in form of cheques and cash were given to the
respondent, Jharkhand Jha, the father of the bride groom and his two sons, as
the gift of marriage. The cheques were encashed by the respondent and his two
sons, namely Amrendra Kumar Jha and Ashok Kumar Jha on different dates.
Through cheques the sum of Rs.4,60,000/- was given, whereas Rs.40,000/- was
given in cash on the date of Shagun, i.e., on 20.5.2005. Thereafter, the marriage
was solemnized between the parties on 23.5.2005. After the marriage, the bride
groom stayed at his in-laws' house for performing the Chaturthi, according to the
Mithila customs. On 29.5.2005, it was noticed that the husband was unable to
perform his routine works on his own. He was unable to button or unbutton his
shirt, unable to take meal with spoon due to trembling of hands and his
movement became very slow as he could not walk fast. The brother of the bride,
namely, Dr. Vijay Chandra Jha, who is a Heart Specialist at Escorts Hospital at
New Delhi, inquired upon the matter, whereupon, the respondent husband
disclosed that he was suffering from Bipolar Mood Disorder (mania) and he was
taking Lithium tablets on the recommendation of the doctor of Suyash Hospital
Pvt. Ltd., Indore, where he was admitted for treatment of the disease from
20.7.2004to 28.7.2004. The respondent husband thereafter went with the brother of the bride to his parental house at Sector VIII/B, Bokaro, and handed over his medical prescriptions. From the medical prescriptions, they came to know that the respondent husband was suffering from Bipolar Mood Disorder (mania) and he was also having the Astrial Septal Defect (ASD), i.e., the hole in the heart. The respondent husband also informed that for the last one week, he could not take Lithium tablet, and his disease re-appeared due to non-taking of tablets and salty food during the period of Chaturthi and he admitted that these facts were knowingly suppressed at the time of settlement of marriage with a greed to get a nurse wife (as the wife was working as a Nurse in a Heart Hospital in Delhi), and Heart Specialist as his brother-in-law. After coming to know about these diseases and the fact that the marriage was performed after fraudulently obtaining the consent of the parents of the bride, a Panchayati was also held, in which, they agreed for annulling the marriage and also returning the money but the money was not returned. Hence, the suit for annulment of the marriage by a decree of nullity of marriage, under Section 12 (1) (C) of the Hindu Marriage Act, being voidable marriage.
4. Upon notice, the respondents appeared in the case and according to the respondents' case, the respondent husband was not suffering from any such disease so as to be unfit for marriage. The respondent husband had acquired the Masters' degree in Management and he was also selected for a job. It is a further case of the respondent that both the families were closely known to each other from much before and they used to go to Deoghar together in the month of Shravan every year and as such, the marriage between the parties was -3- solemnized without any fraud and deception and there was no monetary demand for the marriage. The respondent husband had some stress and strain problem. Hence, he was admitted in Suyash Hospital at Indore, from 20.7.2004 to 28.7.2004 and after his treatment, he was quite fit and having no problem. The respondent husband denied having suffering from Bipollar Mood Disorder just before his marriage and has stated that he was fully cured. The Astrial Septal Defect was also cured after an operation in AIIMS at New Delhi and thereafter, the husband was quite fit to lead a happy conjugal life with his wife. According to the respondents' case, the petitioner wife desired to marry the younger brother of the respondent No.1 and as her desire was not fulfilled, the suit was filed. It is also the case of the respondents that the signature of the respondents' side in the agreement prepared in the Panchayati was obtained by force. The respondents accordingly, objected the suit, stating that the husband was always ready to keep his wife with him and lead a conjugal life.
5. On the pleadings of the parties, several issues were framed by the Court below, most important being Issue Nos. IV & V, i.e., whether the marriage of the applicant was based on fraud as to concealment of material fact; and whether the marriage of the applicant with respondent was solemnized by concealing the ailment of respondent No.1. Apart from the above, the Issues also included whether the plaintiff was entitled to return the marriage gift, worth rupees five lakhs with interest and the plaintiff was entitled for compensation together with marriage expenses.
6. In course of trial, five witnesses were examined on behalf of the petitioner, whereas four witnesses were examined on behalf of the respondents. The documents were also proved in the Court below, including the cheques, which were given to the respondents and the bank statement showing the payments, which were marked as Exts.-7 Srs., and Ext.-6 respectively. P.W.1, Deo Chandra Jha, the father of the petitioner wife, P.W.2, the petitioner herself and P.W.3 Vijay Chandra Jha, the brother of the petitioner wife, are the most important witnesses, examined on behalf of the petitioner. These witnesses have fully supported the case of the petitioner and they have also stated that they were not informed about the illness of the respondent husband at the time of settlement of the marriage. These witnesses have also stated about the payments made at the time of shagun through cheques and cash, as also the other expenses in the marriage. P.W.1 and P.W.3 have also stated that they saw the respondent husband only in course of the settlement of marriage between 15.5.2005 to 18.5.2005 and he appeared to be fit, but they were not informed by the groom's side about the ailments of the groom. P.W.2, Kiran Kumari who is the petitioner herself, has also supported her case and has stated that the marriage was performed on 23.5.2005 and on 29.5.2005, the respondent husband was unable to walk and was trembling and he was not able to button or -4- unbutton his shirt and taking food by spoon. On being asked, he disclosed that he was suffering from Bipolar Mood Disorder and that he has a hole in his heart and he was admitted in Suyash Hospital at Indore from 20.7.2004 to 28.7.2004. On 29.5.2005, the petitioner learnt that by hatching up a conspiracy, she was cheated and a mentally and physically ill boy was married to her and her 'Stridhan' of rupees five lakhs was kept by the respondents.
7. P.W.3 Vijay Chandra Jha, who is a Heart Specialist at Escorts Hospital, New Delhi, and also the brother of the petitioner, has also stated that after marriage, on 29.5.2005 the respondent husband disclosed that he was suffering from Bipolar Mood Disorder and for that he was taking Lithium and valporate tablets which he had left at his parents' place. He also showed him the documents of the hospital, which disclosed that he was suffering from Bipolar Mood Disorder and he was also having a hole in his heart and these facts were not disclosed at the time of settlement of the marriage. The other two witnesses examined on behalf of the petitioner have also supported the petitioner's case.
8. The respondents have examined four witnesses, out of whom, D.W.3 Shravan Kr. Jha is the respondent husband himself. The witnesses examined on behalf of the respondents have stated that both the parties were known from before and the marriage negotiation had started in the year 2002 itself. It is also stated that the petitioner's side had the knowledge of the ailment of the respondent husband from before. D.W.2, Jharkhand Jha, who is the father of the respondent husband, and D.W.3 Shrawan Kumar Jha who is the respondent husband himself, have stated in their evidences that before the marriage took place, the medical advise of the brother of the girl had also been taken by the respondent husband. However, no document with respect to this evidence has been proved by the respondents. In his cross examination, D.W.3 the respondent husband has admitted that the ASD closure operation was conducted at AIIMS New Delhi on 5.9.2005 (i.e., after the marriage) and he was discharged on 12.9.2005. He has also admitted in his evidence that one year prior to the operation, he was taking Lithium and Disvol tablets for Bipolar Mood Disorder. He has admitted that he was suffering from ASD since his birth, but he came to know about it for the first time at Indore during the treatment in Suyash Hospital and the doctor advised him for immediate surgical operation. This witness has also admitted in his cross examination that he was taking Lithium and Disvol tablets at the time of his marriage also, but he had stopped taking the medicines one week prior to the marriage, even though, the doctor had advised him not to stop the medicines. He has admitted that he had given his prescriptions to the brother of the petitioner (P.W.3) on 29.5.2005 and he had never given those documents to P.W.3 or Kiran Kumari or her father prior to that. He has also admitted that he was under treatment on 23.5.2005 (i.e., on the date of marriage). This witness has also admitted that prior to his marriage, he had no -5- talks with the petitioner. D.W.4., Amrendra Kumar Jha, who is the brother of the respondent husband, has also supported the respondents' case. This witness has admitted receiving the payments through cheques, marked as Ext.-7 Srs., and has also admitted his signatures appearing on the back side of the cheques.
9. Learned counsel for the petitioner wife has submitted that from the evidence on record, it is thus, apparent that at the time of marriage, there was fraudulent concealment of the mental illness of the respondent husband, as also the concealment of the fact that he was suffering from ASD, i.e., the hole in the heart and accordingly, the petitioner has been able to prove that the consent for marriage was obtained by fraud as to the material fact concerning the respondent, that he was suffering from those ailments. It is submitted by the learned counsel for the petitioner wife that accordingly, the marriage between the parties has rightly been annulled by a decree of nullity, being voidable marriage, but the Court below failed to pass the decree for payment of Rs.40,000/- cash, which was also paid at the time of shagun and the other marriage expenses, which were done at the time of marriage.
10. Learned counsel has pointed out from the record that the respondent husband had filed I.A No.8410 of 2013 for staying of the operation of the impugned Judgment and Decree, which has been disposed of by order dated 13.5.2015, directing the respondent to deposit the amount of Rs.4,60,000/- with the Registry of this Court within four weeks and on its deposit, the same be kept in FDR in any Nationalized Bank. It is submitted that the said order has been carried out and the amount has been deposited in FDR, which may be released in favour of the petitioner wife.
11. Learned counsel for the respondent husband, on the other hand, has opposed the prayer and has submitted that according to the petitioner's case, the cheques were given to the respondent No.2, i.e., the father of the husband and his two brothers. It is submitted that both the brothers have not been made party to the suit. It is also submitted that the payment through cheques were the marriage gift and not the 'Stridhan' of the petitioner and accordingly, there is no question of returning any 'Stridhan'.
12. It is further submitted by the learned counsel for the respondents that even if it is admitted that the respondent husband was suffering from Biopolar Mood Disorder and ASD, but the fact remains that the ASD had been fully cured after the surgical operation in AIIMS after the marriage and the Biopolar Mood Disorder was also curable by medicine, and at the time of the marriage, the respondent was completely fit. It is also submitted that this illness of the respondent husband is not such type of illness so as to make him unfit for marriage and procreation of children, and accordingly, no case is made out for any annulment of the marriage between the parties.
-6-13. In support of his contention, learned counsel has placed reliance upon the decisions of the Supreme Court of India in R. Lakshmi Narayan Vs. Santhi, reported in AIR 2001 SC 2110 and in Ram Narain Gupta Vs. Smt. Rameshwari Gupta, reported in AIR 1988 SC 2260, wherein, it has held that the mere fact that the spouse had some mental disease is not sufficient for annulling the marriage, rather the burden is heavy upon the petitioner to prove that the respondent had been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children and that it was not possible for the petitioner to lead a conjugal life with the respondent. Placing reliance on these decisions, learned counsel submitted that the Judgment and Decree passed by the Court below is fit to be set aside.
14. Having heard learned counsels for both the sides and upon going through the record, we find that it is an admitted case that the respondent husband was suffering from Biopolar Mood Disorder (mania) as also from ASD i.e., a hole in the heart from before the marriage. It is the case of the petitioner that these facts were concealed at the time of settlement of marriage and according to the respondent's case, these facts were known to the petitioner's side, as both the families were known to each other from before and the respondent husband had taken the medical advise even from the brother of the petitioner, who is a Heart Specialist, before the marriage itself. However, the evidence of D.W.3., the respondent husband himself, shows that even on the date of marriage, i.e., on 23.5.2005, he was undergoing treatment for Biopollar Mood Disorder and he has admitted in his cross examination that at the time of his marriage, he was taking medicines for the disease but he had stopped taking the medicines one week prior to the marriage, even though, the doctor had advised him not to stop those medicines. He has also admitted that on 29.5.2005 i.e., after the marriage, he had given his prescriptions to P.W.4 and prior to 29.5.2005, he had never given those documents either to P.W.3, or to the petitioner or her father. He has also admitted that he had no talks with the petitioner before marriage. These admissions on part of the respondent husband clearly prove the case of the petitioner that at the time of marriage, the petitioner's side was not informed about the ailment of the respondent husband and this fact was suppressed at the time of settlement of marriage. The petitioner's side got the knowledge about the ailments of the respondent husband only some days after the marriage, on 29.5.2005. The respondent husband had never taken the medical advise from the brother of the petitioner prior to the marriage. In my considered view, in normal course, if the family of the bride had the knowledge of these ailments, her parents would not have liked to marry their daughter with a boy, suffering from such ailments, particularly, taking into consideration the family background of the petitioner, Kiran Kumari, who was -7- herself working as a Nurse in a Heart Hospital at Delhi, and her brother is a Heart Specialist in Escorts Heart Hospital at Delhi.
15. Section 12(1)(c) of the Hindu Marriage Act reads as follows :-
"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) ..................
(b) ..................
(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, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or
(d) ..................."
16. Thus, a bare reading of this Provision clearly shows that if the consent of the petitioner or her guardian was taken by fraud, as to any material fact or circumstance concerning the respondent, the marriage is voidable. In the present case, we find that the consent was obtained by practicing fraud by suppressing the material fact and circumstance regarding the illness of the respondent, and as such, the marriage between the parties was voidable and has been rightly annulled by the Decree of nullity of marriage by the Court below. Section 12(1)(c) of the Hindu Marriage Act does not require any prove of the fact that the respondent had been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children and that it was not possible for the petitioner to lead a conjugal life with the respondent. The only fact that was required to be proved is that the consent was obtained by practicing fraud by suppressing the material fact and circumstance regarding the illness of the respondent, which the petitioner had been able to prove beyond all doubts, and as such, she was entitled to the relief.
17. Accordingly, we do not find any illegality in the impugned Judgment and Decree, annulling the marriage between the parties by a Decree of nullity of marriage, being voidable marriage.
18. As regards the submission of the learned counsel for the respondent husband that the cheques were given as a marriage gift to the two brothers of the husband, which cannot be treated as 'Stridhan', we find that certainly the cheques were given for the settlement of marriage between the parties and the petitioner's side had agreed to the marriage with the respondent husband, presuming that he was not suffering from any ailment, mental or -8- physical, but the material facts about the illness were suppressed from the petitioner's side and the consent for marriage was obtained suppressing these facts. In that view of the matter, the petitioner is entitled to the payment made to the respondent's side at the time of settlement of the marriage. We find from the record that the petitioners have been able to prove only the payments made through cheques, amounting to Rs.4,60,000/- and accordingly, the Court below has directed the respondents to return back the amount to the petitioner within a period of three months. We do not find any illegality in the same also.
19. We find from the record that the said amount has since been deposited in FDR. We direct that the said FDR be released in favour of the wife, Kiran Kumari, forthwith.
20. Thus, we do not find any illegality in the impugned Judgment and Decree dated 13th February 2012, passed by the learned Principal Judge, Family Court, Bokaro, in T.M.S Case No.82 of 2005.
21. There is no merit in both these appeals, which are accordingly, dismissed with the directions as above. In the facts of this case, the parties shall bear their own costs.
22. Let the Lower Court Record be sent back to the Court concerned forthwith, along with a copy of this Judgement.
(H.C. Mishra, J.) Dr. S.N. Pathak, J.
(Dr. S.N. Pathak, J.) Jharkhand High Court, Ranchi Dated 7th December, 2016.
NAFR/BS