M. U. SHAH, J. ( 1 ) THIS is appellant-husbands second appeal against the judgment and decree dated October 31 1964 passed by the learned District Judge Baroda in Regular Civil Appeal No. 226 of 1963 refusing to grant him a decree of nullity of marriage prayed for under sec. 12 (1) (a) and (c) of the Hindu Marriage Act 1955 (Act No. XXV of 1955) hereinafter referred to as the Act. By his decree the learned District Judge has confirmed the decree of dismissal of the appellant-husbands petition for annulment of marriage passed by the learned Joint Civil Judge (Senior Division) Baroda in Regular Civil Suit No. 1140 of 1959 on March 30 1963 ( 2 ) THE proceedings arose out of a petition for annulment of marriage instituted by the appellant-husband. The petition as originally instituted on September 7 1959 was based on the ground that the appellants consent to the marriage was obtained by fraud. The allegation was that the respondent-wife was suffering from epilepsy of long standing prior to the date of marriage and as a result of this epileptic condition the respondent was unable to fulfill her marital obligations and was unable to perform domestic work like a house-wife. The allegation in the petition further was that the respondent as well as the respondents father has prior to the marriage represented to the appellant that the respondent had fever some time back and therefore she was anemic. The representation by the father of the respondent was allegedly made to the appellants elder brother on an enquiry being made by him in the presence of the appellant as to why the respondent was looking of delicate health. This happened some time prior to the betrothal when the appellant had gone to the house of the respondents father to see the respondent. The respondent herself had allegedly made a similar representation to the appellant some time prior to the marriage. This was the only allegation on which the petition as originally instituted was based. The cause of action is stated to have arisen on January 31 1959 after the petitioner had seen the report of Dr. The respondent herself had allegedly made a similar representation to the appellant some time prior to the marriage. This was the only allegation on which the petition as originally instituted was based. The cause of action is stated to have arisen on January 31 1959 after the petitioner had seen the report of Dr. Bharucha who had examined the respondent earlier at Bombay The relief prayed for in the petition as stated in paragraph 8 (1) of the petition was that the marriage was brought about by practising fraud and that consent to the marriage was obtained by practising fraud and therefore the decree of nullity of marriage be granted. ( 3 ) THE respondent had filed her written statement to this petition on December 11 1959 denying the material allegation of fraud. She had contended that during the course of negotiations before the marriage of the parties the respondents father had of his own accord told the appellant that some time the respondent used to get giddiness and that the cause given for the giddiness by the family doctor was anemia and general debility. She had in paragraph 11 of her written statement stated that she used to get fits only at times and that the respondents father had said so to the appellant and his brother before marriage and further that the appellant and his brother had verified the fact before the marriage and it was thereafter that the marriage was solemnized. The respondent had denied that she was suffering from chronic and serious epilepsy of long duration. She had stated that she was fulfilling the marital obligations and was capable of fulfilling the same even now. She had further stated that she was doing all the household work at the house of the appellant and was capable of doing so. She had denied that the consent of the appellant to the marriage was obtained by fraud. ( 4 ) LONG after the written statement was filed on behalf of the respondent the appellant had on August 29 1961 filed an application in the trial Court for amendment of his plaint by introducing two new material averments one of which stated that the fraud referred to in the original petition was also committed at the time of solemnization of the marriage. The second amendment that was sought was that the respondent was impotent and she was impotent qua the appellant at the time of the marriage and continued to be so till the institution of the suit with the result that she was incapable of having normal sexual intercourse and so she was impotent for giving sexual pleasure. On these two new grounds also the appellant prayed for the annulment of the marriage. Consequential amendments were sought in the relief clause. The learned trial Judge had granted the appellant leave to amend and accordingly the amendment was made in the original petition. Thus it will appear that prior to the amendment of the plaint the only ground that was alleged in the petition was that although the respondent was suffering from chronic epilepsy of long standing prior to the date of marriage her ailment was represented by the respondents father and the respondent herself to be due to an attack of fever some time back and the resultant anemic condition. This was alleged to be the fraud practiced not at the time of solemnization of marriage but at the time preceding the betrothal and during the course of negotiations for betrothal and some time prior to the solemnization of the marriage. There was no averment that the fraud was practiced at the time of the solemnization of marriage. Nor was there any averment that the respondent was impotent. The relief was claimed as aforesaid on the sole ground that the marriage was brought about by fraud meaning the agreement of marriage and the consent to the marriage was brought about by practising fraud. As aforesaid the petition was amended on August 29 1961 and this was after about two years of the institution of the original petition for annulment of marriage. ( 5 ) IN reply to the relevant amendment the respondent had filed her further written statement wherein she has denied the allegations of fraud having been practiced at the time of solemnization of marriage. She has also denied the alleged impotency. She has set up a case that the appellant had enjoyed marital happiness till August 15 1969 Her case further was that some two months after the marriage she had an occasion to go to her parental home on some religious day falling on the 11th day of the Hindu calendar month. She has also denied the alleged impotency. She has set up a case that the appellant had enjoyed marital happiness till August 15 1969 Her case further was that some two months after the marriage she had an occasion to go to her parental home on some religious day falling on the 11th day of the Hindu calendar month. Thereafter she was asked by the appellant to continue to remain at the parental home as she was suffering from some disease and was required to be shown to Dr. Munshi to find out the nature of her ailment. . . . . . . . . . . . . . . . ( 6 ) MR. Oza learned advocate appearing for the appellant-husband has contended before me that Hindu marriage is a religious sacrament according to which a bride who has been referred to as Apasmar by Katyayana in his Sanskar Prakash at page 759 was not an eligible bride to be offered in marriage. Mr. Ozas submission is that an epileptic bride is an Akanya meaning an impotent and as such not an eligible bride to be offered in marriage and as such the marriage solemnized with such a bride would be null and void and liable to be annulled at the option of the husband. Mr. Oza has also contended that there was an element of contract in Hindu marriages and that if fraud was practiced at the time of agreement of marriage that fraud would vitiate the contract of marriage and such a marriage according to Mr. Oza was liable to be annulled. Mr. Oza has further contended that fraud need not be practiced at the time of actual solemnization of the marriage. According to him even if a fraud was practiced at any time prior to the solemnization of marriage that was a fraud which was available to the other spouse as a ground for seeking annulment of the marriage. In this connection Mr. Oza has submitted that it was during the negotiations prior to the engagement (betrothal) of the parties that misrepresentation was made by the father of the respondent as well as by the respondent and the alleged representation was that the respondent-wife who looked pale at the time had suffered from fever some time back and her anemic look was the resultant effect. It was further contended that the respondent-wife herself was guilty of a fraudulent misrepresentation allegedly made a day or two after the betrothal while the parties had visited a cinema theatre and while they were witnessing a Hindi picture named Bhabhi in Baroda. These representations according to Mr. Oza were responsible for bringing about the consent of the appellant-husband to the marriage. Mr. Oza has contended that the respondent-wife was to her own knowledge suffering from the disease of epilepsy of a long duration or in any case of a chronic and permanent nature. It was contended that therefore there was an obligation on the respondent as well as on the respondents father to disclose these material facts to the appellant and the nondisclosure amounts to a fraud. It was contended that the respondent was impotent at the time of the marriage end continued to be so until the institution of the proceedings and as such the marriage was liable to be annulled at the instance of the appellant as provided by clause (a) of sub-sec. (1) of sec. 12 of the Act. These were the contentions which were raised by Mr. Oza. Incidentally Mr. Oza had contended that the learned Judge had misread the evidence of Dr. Dsouza as also the E. E. G. reports given by Dr. Dsouza and Dr. Bharucha. Mr. Oza had also contended that the learned Judge had not applied his mind to the relevant medical evidence and the connected evidence of the parties. He had contended that the learned Judge had committed an error of law in not admitting letter Ex. 114/1 which was allegedly written by the respondent - wife to the appellant-husband on September 2 1958 It was also contended that letters Exs. 79 80 and 81 of the respondent were not properly appreciated by the learned Judge. A grievance was made that the learned Judge had misread the evidence and drawn improper conclusions therefrom. Mr. Oza was therefore permitted to refer to the medical evidence and also to the reports clinical and E. E. G. of Dr. Dsouza and Dr. Bharucha. He was also allowed to refer to other evidence. It is precisely with a view to appreciate the grievances of Mr. Oza that I have earlier set out in extenso the relevant observations and findings of the learned Judge. Dsouza and Dr. Bharucha. He was also allowed to refer to other evidence. It is precisely with a view to appreciate the grievances of Mr. Oza that I have earlier set out in extenso the relevant observations and findings of the learned Judge. ( 7 ) BEFORE I deal with the aforesaid rival contentions of the parties it will be appropriate to narrate the relevant indisputable facts. The parties to the proceeding belong to Lad Bania community. The appellant - husband originally hailed from Dabhoi. His parents had moved from Dabhoi and settled down at Panvad a town in Chhota Udepur Taluka of Baroda District. The appellant who is a Graduate in Science of the Maharaja Sayajirao University of Baroda and a Graduate in Law of the Gujarat University had received his collegiate education upto B. Sc. at Baroda. It appears that he was staying with his elder brother named Naginlal in Baroda. Naginlal is a practising Advocate residing in Baroda with his family since 1952. The appellant after having been enrolled as an advocate has started his practice in Baroda. At the material time of negotiation of marriage in May 1958 the appellant was aged about 27 years of age. The respondent-wife was a Graduate in Arts of the Baroda University at the material time and she was aged about 22. She was residing with her parents in Baroda her father being a Principal of a local school named Sayaji High School. The father of the appellant was an old and ailing man of about 58 years at the material time and was bed-ridden for the last about eight years. The negotiation about the engagement between the appellant and the respondent had started some time in the end of April 1958 or in the beginning of May 1958. On May 2 1958 the father of the respondent had made the offer of the respondent bride to the appellant and this was communicated to appellants elder brother Naginlal a practising advocate. Sometime in the afternoon of May 3 1958 the appellant and his friend Dr. Krishnakant Sheth who happens to be him cousin and who is a practising doctor since 1954 went to the house of the brides father. The bride was seen by them. The bride and the bridegroom are for some time left alone by the relations who had assembled. The party then left. Krishnakant Sheth who happens to be him cousin and who is a practising doctor since 1954 went to the house of the brides father. The bride was seen by them. The bride and the bridegroom are for some time left alone by the relations who had assembled. The party then left. It is the case of the appellant that Dr. Krishnakant as well as the appellant himself felt that the respondent was good-looking but looked anemic. But they said that they would talk it over later on. At this first meeting Mr. Naginlal the elder brother of appellant could not remain present as he was busy in the Sessions Court. On the next day afternoon another meeting was arranged at the house of Dr. Krishnakant and this was at about 4-00 P. M. The bride had gone to the place and so had the bridegroom. Thereafter the father of the respondent had gone to Mr. Naginlal on the next day and very probably asked about the reply to the offer. It was then agreed upon between the elders of the parties that the marriage was to be solemnized at Baroda on May 16 61958 The marriage was accordingly solemnized according to customary Hindu rites and ceremonies. The next relevant date is May 8 1958 on which the engagement of the appellant and the respondent was announced and the customary Chandla ceremony was made at the house of Mr. Naginlal with whom the appellant was residing. The parents of the appellant came to Baroda from Panvad on the next morning. On the same evening the respondent was invited at the house of Mr. Naginlal for a dinner. Some two days thereafter the appellant and the respondent had gone to a cinema theatre and had witnessed picture Bhabhi. At this time according to the appellant there were friends of the appellant with him. A day thereafter the parties had gone to purchase a Sari for the respondent. The respondent went to live with the appellant-husband on the very night of the solemnization of the marriage. The parties thus livid at Baroda. Then they went to Panvad at the parental home where they lived for about 22 days and then returned to Baroda were they lived together for a few days. The respondent went to live with the appellant-husband on the very night of the solemnization of the marriage. The parties thus livid at Baroda. Then they went to Panvad at the parental home where they lived for about 22 days and then returned to Baroda were they lived together for a few days. Some time in last week of June or first week of July 1958 the respondent-wife had gone to her parental home on a religious day known as Agiaras. The respondent-wife was then asked by the petitioner to stay at the parental home as medical check up of her health and investigation was necessary. ( 8 ) IT appears that the appellant had some how come to be in possession of a letter Ex. 111 written by the respondent to her friend one Usha. This letter bears date January 19 1955 and it appears it was not posted and was left in the beg of the respondent from which the appellant had found it out some time in July 1958 and was thus put on enquiry. It appears that about this time the respondent was having attacks of fits and this fact was known to the appellant and hence the medical attendance and investigation. He had first consulted his cousin and friend Dr. Krishnakant Sheth about the respondents health. Dr. Sheth had given some tonic medicine to the respondent and had advised that Dr. Munshi who was an M. D. (Bombay) and F. C. P. S. London and was practising as a medical consultant in Baroda and was attached as an honorary to Shree Sayajirao General Hospital in Baroda should be consulted. The respondent was first examined by Dr. Munshi in his private clinic and then on his advice the respondent was admitted to Shree Sayajirao General Hospital and was kept under observation for a period of about one month in July-August 1958. Dr. Munshi had made the necessary investigation. However he could not come to any definite conclusion about the cause of the fits which the respondent was suffering from. On the advice of Dr. Munshi the appellant took the respondent-wife to a Neuro Physician at Bombay. The respondents father had also accompanied them to Bombay. Dr. Dsouza who is M. D (Bombay) and who had specialised for neurology in London had examined the respondent some time on September 8 1958 Dr. On the advice of Dr. Munshi the appellant took the respondent-wife to a Neuro Physician at Bombay. The respondents father had also accompanied them to Bombay. Dr. Dsouza who is M. D (Bombay) and who had specialised for neurology in London had examined the respondent some time on September 8 1958 Dr. Dsouza had resorted to all available aids for finding out the nature of the disease of the respondent. He took the history of the patient made a clinical test and also took the electro encephalogram test which has been referred to as E. E. G. test. In the opinion of Dr. Dsouza Ex. 99 dated September 8 1958 E. E. G. revealed mild abnormality with slow waves of high voltage more or less generalized in all the areas of the brain strongly suggestive of Psychomotory type of Epilepsy. He had prescribed use of mysoline capsules to be continued for two years. The patient was advised to start with 1/2 tablet twice a day and gradually increase it to one tablet then thrice a day and this treatment was advised to be continued for two years. Some neuro-vitamin tablets were advised to be taken for a period of six months. It was for the first time that on the examination of Dr. Dsouza in September 1958 that the disease of the respondent was diagnosed as one of epilepsy and of the type known as psycho-motor type. The parties thereafter had returned to Baroda. However the respondent continued to stay at the parental home. Some time thereafter another attempt at diagnosis was made and some time in the end of December 1958 the respondent was taken to Bombay for consulting Dr. Bharucha. The respondent was examined by Dr. Bharucha in the King Edward VII Memorial (K. E M.) Hospital at Bombay and E. E G. test was also made. It appears that at the time of the test the respondent was given some photic stimulations. Dr. Bharucha found that E. E. G. tests was suggestive of epileptic disorder. Dr. Bharucha had found grandmal type of epilepsy. The treatment advised was use of dilantin capsules and also of gandenal capsules. The treatment was advised to be continued for five years without interruption. The E. E. G. report of Dr. Bharucha Ex. 107 bears date December 30 1958 and his prescription and clinical report Ex. 22 bears the same. Dr. Dr. Bharucha had found grandmal type of epilepsy. The treatment advised was use of dilantin capsules and also of gandenal capsules. The treatment was advised to be continued for five years without interruption. The E. E. G. report of Dr. Bharucha Ex. 107 bears date December 30 1958 and his prescription and clinical report Ex. 22 bears the same. Dr. Bharucha has however not been examined by the appellant in the case and the reason appears to be that Dr. Bharucha was abroad in Japan at that time. ( 9 ) LONG after the institution of the petition the respondent was again taken to Bombay for consultation of Dr. Dsouza and this was on August 8 1961 On this occasion also Dr. Dsouza had examined the patient and had taken the E. E. G. test. He had with him the history of the patient and the case-papers of the earlier examination. It may be remembered that Dr. Dsouza had examined the patient earlier on September 8 1958 In his second report Ex. 102 dated August 8 1961 he has stated that the respondent had only one attack after about two weeks after his first examination of the patient. His E. E. G. report Ex. 102 states that E. E. G. is within normal limits. The remarks made on Ex. 102 proved to have been made by Dr. Dsouza state that The patient is cured of psycho-motor type of epilepsy. No further treatment is necessary. This is the history of the medical investigation of the disease of the respondent made first by Dr. Munshi at Baroda then by Dr. Dsouza in September 1958 then by Dr. Bharucha in December 1958 and again by Dr. Dsouza in August 1961 on which date in the opinion of Dr. Dsouza the patient was cured of the disease of psycho-motor type of epilepsy and no further treatment was necessary. It may be stated that this last report Ex. 102 of Dr. Dsouza was produced in the cross-examination of Dr. Dsouza made on behalf of the respondent-wife and the report and the opinion given by him is proved by Dr. Dsouza. As this report was produced in the cross-examination of Dr. Dsouza the trial Court had permitted the learned advocate for the appellant-husband to re-examine Dr. Dsouza on the point and the doctor was re-examined in relation to the report Ex. 102. Dsouza. As this report was produced in the cross-examination of Dr. Dsouza the trial Court had permitted the learned advocate for the appellant-husband to re-examine Dr. Dsouza on the point and the doctor was re-examined in relation to the report Ex. 102. The learned trial Judge had also put questions to Dr. Dsouza in the matter. 18 It appears that some time after the respondent had to continue her stay at the parental home as she was suspected by the petitioner of some serious disease she had received further education. In June 1959 she had joined a College and studied there for one year during which time she had to give lessons and also to attend lectures daily. After taking her B. T. Degree she had joined a school in Halol as a teacher some time in June 1960. She was living there alone and was running the kitchen herself. After some time she had returned to Baroda and joined Government Basic Training College and was still working there as a teacher and supervisor at the date when her evidence was recorded in the trial Court in December 1962. Besides her qualifications as B. A. B. T. she has got linguistic diploma some time in 1962. These are the relevant facts not in dispute. . . . . . . . . . . . . . . . ( 10 ) MR. Oza has further contended that the fact that the respondent - wife was cured of the disease of epilepsy after the institution of the petition for annulment of marriage was not relevant. Mr. Ozas submission is that under clause (a) of sub-sec. (1) of sec. 12 of the Act if the respondent was impotent at the time of the marriage and continues to be so till the institution of the proceedings that was in itself a ground sufficient to entitle the appellant to avoid a marriage on the ground of impotency and to get it annulled by a decree of nullity. I am called upon no consider this argument which proceeds on an assumption found by me to be unwarranted viz. that epilepsy of the respondent-wife was at the date of the institution of the petition of such a nature as to induce impotency and I will proceed to do so. Now sub-sec. (1) of sec. I am called upon no consider this argument which proceeds on an assumption found by me to be unwarranted viz. that epilepsy of the respondent-wife was at the date of the institution of the petition of such a nature as to induce impotency and I will proceed to do so. Now sub-sec. (1) of sec. 12 of the Act reads as under:- 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 respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; or (b) (c (d)SEC. 12 provides for avoiding a marriage that has been solemnized before or after the commencement of the Act on any of the grounds stated in clauses (a) to (d) of sub-sec. (1) of sec. 12 of the Act. It is true that it provides that the alleged impotency of the respondent must exist at the time of the marriage and must continue to be so until the institution of the proceedings. That is the basic requirement of the section in order to invoke clause (a ). But that does not exclude the relevant considerations which exist at the time of granting the decree. Sec. 23 of the Act provides that: in any proceeding under this Act whether defend or not if the Court is satisfied that (A) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief and (b) (c (d) (e) there is no other legal ground why relief should not be granted then and in such a case but not otherwise the Court shall decree such relief accordingly. The language employed in sub-sec. (1) clearly shows that clauses (b) to (e) and the latter part of clause (a) lay down certain absolute bars to the granting of any relief under the Act. The words used at the close of sub-sec. (1) emphasize the nature of the proceedings and the special or delicate considerations involved. The language employed in sub-sec. (1) clearly shows that clauses (b) to (e) and the latter part of clause (a) lay down certain absolute bars to the granting of any relief under the Act. The words used at the close of sub-sec. (1) emphasize the nature of the proceedings and the special or delicate considerations involved. Even when the Court is satisfied that a ground for granting the relief exists and is available to the appellant and is proved to the satisfaction of the Court the Court must necessarily consider whether at the date of the grant of the decree there is no other legal ground why relief should not be granted. The Court must also consider whether the ground invoked does exist at the date of granting the decree. It is only when the Court is satisfied on these points that it will have jurisdiction to grant the decree; otherwise it would be open to the Court to refuse a decree. Again it must be remembered that a Hindu marriage is a sacrament and the marriage ties as far as possible are not to be severed and this appears to be the predominant thread running behind the Hindu Marriage Act 1955 and the Court deciding the petitions under the Act cannot lose sight of material subsequent events which have relation to marital bliss. To grant a decree to the petitioning husband on the alleged ground of an incurable disease of the wife which was said to induce impotency which disease in any case does not exist at the date of granting the decree as per the reliable medical opinion would be inequitable and it would tantamount to the granting of a decree on a non-existent material fact. It cannot be disputed that the State and the public are vitally concerned in the institution of the marriage and the law as it stands does not permit the grant of a decree of nullity unless strict proof and close investigation of the evidence lead to a necessary conclusion that the marriage tie must be cut. The decree cannot be granted lightly as in simple suits for money and cannot follow merely because a ground available to the petitioner has been made out. Further material conditions and circumstances obtaining at the date of the decree must be considered. The decree cannot be granted lightly as in simple suits for money and cannot follow merely because a ground available to the petitioner has been made out. Further material conditions and circumstances obtaining at the date of the decree must be considered. If the Court finds that at the date of the grant of the decree the very cause does not exist which in this case is epileptic disorder of the respondent-wife the reason of the rule goes away and the petition cannot be allowed. ( 11 ) IN S. v. S. (1954) 3 All England Law Reports 736 Karminski J. had an occasion to consider the case of a similar type. In that case the parties to the proceedings were married on January 19 1949 The parties made genuine but unsuccessful attempts to consummate the marriage. Towards the end of 1949 the husband had suggested that the wife should consult a doctor; he repeated the suggestion twice during 1950 and twice during 1951 but in fact the wife did not do so. At no time did the husband offer to take the wife to a doctor nor did he ever see a doctor himself. On September 11 1952 the wife left the husband and they never resumed cohabitation. In the autumn of 1952 the husband admittedly began an adulterous association which had continued. By a petition dated April 8 1953 the husband sought a decree of nullity alleging that the wife was at the time of the marriage and had ever since been incapable of consummating the marriage alternatively that she had willfully refused to consummate the marriage. On April 22 1953 the wife consulted a doctor who found her to be abnormal only in the thickness of her hymen which in his view could be corrected by a minor surgical operation. By her answer dated November 6 1953 the wife denied the allegations of the petition and alleged that she was not subject to any physical or mental abnormality save a hymeneal stenosis with a thickened hymen removable by a simple surgical operation which she is and was at all material times ready and willing to undergo. By way of cross-petition the wife sought a divorce on the ground of the husbands adultery. By way of cross-petition the wife sought a divorce on the ground of the husbands adultery. On December 14 1953 the wife was examined by the medical officer appointed by the Court who found that the hymen was of such an unusually thick and resistant nature that it constituted an effective barrier to penetration but that the operation would cause no danger to her life or health. In July 1954 the suit was heard and adjourned for argument by the Queens Proctor. At that hearing the wife stated in evidence that she was willing to undergo the operation. In October 1954 the operation of hymen-actomy was successfully performed on the wife. In November 1954 the case came on for further argument and one of the submissions for the husband was that the wifes incapacity should be determined as at the date of presentation of the petition. It was held that where both incapacity and willful refusal were alleged it was still necessary for the Court to ascertain the cause of non-consummation and the questions of incapacity and willful refusal would be considered separately. The true test of incapacity was the practical impossibility of consummation and a spouse must be regarded as incurable if the condition could be remedied by an operation attended by danger or if the spouse at fault refused to submit to an operation; in deciding whether a state of impotency at the date of the marriage and continuing to the date of the action was remediable the Court must take into consideration future medical or surgical treatment which might remove the cause of the disability; accordingly the test whether there was practical impossibility of consummation must be applied in the present case at the date of the hearing of the suit in July 1954 and as at that date the wife was willing to undergo and subsequently underwent an operation which remedied the impediment the husband failed to prove that the marriage had not been consummated owing to the wifes incapacity. The ratio of this decision will apply with equal force to the instant case. Here is the respondent-wife who was at all material points of time ready to submit to the medical opinion. She has in fact submitted to the medical test at the desire of the husband on four different occasions by Dr. Krishnakant Sheth Dr. Munshi Dr. Dsouza and Dr. Bharucha. Here is the respondent-wife who was at all material points of time ready to submit to the medical opinion. She has in fact submitted to the medical test at the desire of the husband on four different occasions by Dr. Krishnakant Sheth Dr. Munshi Dr. Dsouza and Dr. Bharucha. She had followed the medical opinion and adviser On a letter investigation in August 1961 made even before the petition was amended by the petitioning husband she was examined by Dr. Dsouza again and she has been found by the doctor to have been cured. The E. E. G report and the opinion of Dr. Dsouza are clear and conclusive on the point. The opinion clearly is that the respondent-wife was cured of psycho-motor type of epilepsy and no further treatment was necessary. The E. E. G. was found to be within normal limits. This medical opinion which comes from Dr. Dsouza a neurologist who has been examined as a witness on behalf of the appellant himself cannot be disputed. It clearly shows that the patient is cured meaning the symptoms have been arrested. It can therefore safely be inferred that the patient does no longer suffer from epileptic fits. In Dr. DSouzas opinion she does not require any further treatment. In this view of the matter it cannot be said that the learned District Judge was in error in considering this material fact viz. that the disease was nonexistent at the date of the hearing and at the date of the passing of the decree and therefore the appellant was not entitled to a decree of nullity on the grounds taken in the petition itself. It was argued by Mr. Oza that the disease of epilepsy was an incurable disease and that the evidence of Dr. Dsouza should not be accepted. Mr. Oza wanted to refer to some medical text books with a view to challenge the evidence of the appellants own witness Dr. Dsouza and to show that the disease of epilepsy was an incurable disease. This submission suffers from two infirmities. One is that Dr. Dsouza who was appellants own witness has in his evidence clearly stated that on his examination and E. E. G. report he found that the epilepsy was cured. The second infirmity is that Dr. Dsouzas attention was not invited to any standard text books while he was under examination. This submission suffers from two infirmities. One is that Dr. Dsouza who was appellants own witness has in his evidence clearly stated that on his examination and E. E. G. report he found that the epilepsy was cured. The second infirmity is that Dr. Dsouzas attention was not invited to any standard text books while he was under examination. In Sunderlal v. State of Madhya Pradesh A. I. R. 1954 S. C. 28 Their Lordships of the Supreme Court have disapproved the practice of Judges drawing conclusions adverse to the accused by relying upon passages of the text books in absence of their being put to medical witnesses. Mr. Oza therefore cannot be permitted to refer to any medical text books on his point and was not permitted in the first instance. But at the conclusion of the arguments when I had invited Mr. Oza to refer to the text books he liked he could not draw my attention to any specific passage from any one of the standard text books. He merely submitted that epilepsy was considered as an incurable disease and a heritable one. This general statement is quite unacceptable to me. Modern medicine is a living science. What was accepted yesterday may be discarded to-day if scientific research reveals a better medicine or a better way. Medical science has made great strides of late. It is not unknown that research is made even to find out cancerous cells in the blood. Tuberculosis which was considered as incurable in the past is now no longer a scourge. So in the case with many other diseases which were considered incurable in the past In cannot therefore be generalized that because epilepsy was considered some time in 1936 or 1940 as Mr. Oza wants us to believe as a disease for which no remedy was available it remains incurable even to-day. There is the evidence of appellants own witness Dr. Dsouza an eminent neurologist that the disease has been cured and arrested and no further treatment is necessary. Mr. Oza cannot therefore be believed when he says that epilepsy is an incurable disease and therefore I must presume that the respondent-wife was still suffering from the disease and therefore she was impotent. These desired (by Mr. Oza) inferences are long strides not shown to have any basis either in fact or in medicine or in law. Mr. Mr. Oza cannot therefore be believed when he says that epilepsy is an incurable disease and therefore I must presume that the respondent-wife was still suffering from the disease and therefore she was impotent. These desired (by Mr. Oza) inferences are long strides not shown to have any basis either in fact or in medicine or in law. Mr. Ozas submission must therefore be rejected. ( 12 ) AS aforesaid the learned Judge has found that although the wife was suffering from epilepsy prior to her marriage it was not proved that she knew that she was suffering from the disease before she was examined by Dr. Dsouza. He has found that the respondent had no knowledge that she was afflicted by a disease of epilepsy. Therefore the question of making a disclosure to the appellant-husband as to the nature of the disease of the respondent-wife did not arise. The learned District Judge has found that there was ho fraudulent misrepresentation and there was no concealment. It is clear that a party cannot be expected to disclose a fact which is not within his or her knowledge. The evidence medical and other points to the way that the respondent did not know about the nature of the disease. It cannot also be said that the respondents father knew about the disease. These are findings of fact. On the question of impotency it has been found that it was not proved that the respondent-wife was impotent qua the appellant as was the appellants case. It has been proved by the subsequent examination of the respondent by Dr. Dsouza in August 1961 that the respondent-wife was cured of the disease of epilepsy and she did not require any further treatment. She cannot therefore be said to be suffering from epilepsy a disease which in the opinion of Dr. Dsouza was arrested and of which the respondent-wife was cured. This is a material circumstance which has to be considered by the Courts before passing an appropriate decree. Mr. Oza has read before me the medical evidence and the other connected evidence and I do not find that he has been able to make out a case that the learned District Judge has drawn improper legal conclusions from the proved facts. It cannot be said that the learned Judge has misread the evidence or has omitted to consider any relevant evidence. It cannot be said that the learned Judge has misread the evidence or has omitted to consider any relevant evidence. It cannot also be said that the learned Judge was in error of law in his approach to the letter Ex. 114/1. There is thus no case made out for my interference in the second appeal. The appellants case must therefore necessarily fail on these two findings alone namely that it was not proved that the respondent wife knew that she was suffering from epilepsy and that it was not proved that she was impotent qua the appellant at the time of marriage and continued to be so until the institution of the proceedings. It cannot be said that the epilepsy has led to the alleged impotency. These facts have been rightly found against the appellant by the two Courts below. Therefore taking any view of the matter there is no case which calls for my interference. ( 13 ) HAVING regard to the aforesaid findings it is not necessary for me to consider the question as to whether there was an obligation on the respondent-wife or on her father to disclose that she (respondent) was suffering from epilepsy. The learned District Judge was of the view that having regard to his finding that the wife was not suffering from epilepsy to her knowledge and that she was not impotent it was not necessary to further consider the question whether there was a fraud in fact practiced by the wife at the time of the marriage. I also share the same view. However as the learned District Judge has considered all those questions and as I have been addressed at length by the learned advocates of the parties on these questions I think it would be proper for me to consider those questions and arrive at my own findings thereon. ( 14 ) THE first question therefore that I am called upon to consider is whether there was any obligation on the respondent-wife to disclose her disease and this is on the hypothesis that she knew it. Mr. Oza has advanced his arguments on this point on the basis that marriage amongst Hindu was a religious sacrament. He has also made his submissions from the view that it was a contract and as such it was obligatory upon the respondent-wife to make a disclosure of the material fact viz. Mr. Oza has advanced his arguments on this point on the basis that marriage amongst Hindu was a religious sacrament. He has also made his submissions from the view that it was a contract and as such it was obligatory upon the respondent-wife to make a disclosure of the material fact viz. that she was suffering from epilepsy. In order to better appreciate the arguments it will be useful to first consider the scheme of the Hindu Marriage Act 1955 (Act XXV of 1955) which will hereafter be referred to as the Act and the relevant sections thereof. The preamble of the Act reads: An Act to amend and codify the law relating to marriage among Hindus. Sec. 4 of the Act provides that: 4 Save as otherwise expressly provided in this Act (A) any text rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter fro which provision is made in this Act; (B) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. Sec. 5 of the Act deals with the conditions for a Hindu marriage. It reads as under: 5 A marriage may be solemnized between any two Hindus if the following conditions are fulfilled namely: (I) neither party has a spouse living at the time of marriage; (II) neither party is an idiot or a lunatic at the time of the marriage; (III) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage; (IV) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (V) the parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two; (VI) where the bride has not completed the age of eighteen years the consent of her guardian in marriage if any has been obtained for the marriage. Sec. 5 thus lays down the conditions for a Hindu marriage solemnized after the commencement of the Act. Sec. 5 thus lays down the conditions for a Hindu marriage solemnized after the commencement of the Act. The section has to be read with sec. 7 which deals with marriage ceremonies. Non-fulfillment of the conditions relating to mental capacity and age laid down in this section do not however render null and void a marriage otherwise valid. Sec. 7 of the Act provides for ceremonies for a Hindu marriage. It reads as under:7 (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptapadi (that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire) the marriage becomes complete and binding when the seventh step is taken. Sec. 8 permits registration of Hindu marriage. Sec. 9 deals with restitution of conjugal rights when either the husband or the wife has without reasonable excuse withdrawn from the society of the other. Sec. 10 provides for judicial separation on the grounds stated therein. 38 Secs. 11 12 and 13 of the Act are the next relevant sections. These sections deal with nullity of marriage and divorce. Sec. 11 provides for void marriages and reads as under:11 Any marriage solemnized after the commencement of this Act shall be null and void and may on a petition presented by either party thereto be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) (iv) and (v) of sec. 5sec. 12 deals with voidable marriages. The relevant part of sec. 12 which is material for our purpose reads as under :12 (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 respondent was important at the time of the marriage and continued to be so until the institution of the proceeding; or (b) that the marriage is in contravention of the condition specified in clause (ii) of sec. 5; or (c) that the consent of the petitioner or where the consent of the guardian in marriage of the petitioner is required under sec. 5; or (c) that the consent of the petitioner or where the consent of the guardian in marriage of the petitioner is required under sec. 5 the consent of such guardian was obtained by force or fraud; or (d) that the respondent was at the time3 of the marriage pregnant by some person other than the petitioner. Sub-sec. (2) of sec. 12 of the Act is not material for our purpose. Sec. 13 deals with divorce and provides for a remedy of obtaining divorce on any one of the grounds stated therein. Clauses (iii) (iv) and (v) of sub-sec. (1) of sec. 13 of the Act are material for the present purpose and therefore they may be set out herein below:13 (1) Any marriage solemnized whether before or after the commencement of the Act may on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the ground that the other party (i) x x x x; (ii) x x x x; (iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or (iv) has for a period of not less than three years immediately preceding the presentation of the petition been suffering from a virulent and incurable form of leprosy; or (v) has for a period of not less than three years immediately preceding the presentation of the petition been suffering from venereal disease in a communicable form. Sec. 14 requires that no petition for divorce is ordinarily to be presented within three years of marriages. Sec. 15 provides for the period whereafter divorced persons can marry again. Sec. 16 deals with legitimacy of children of void and voidable marriages. The relevant part of sec 16 reads as under:16 Where a decree of nullity is granted in respect of any marriage under sec. 11 or sec. Sec. 15 provides for the period whereafter divorced persons can marry again. Sec. 16 deals with legitimacy of children of void and voidable marriages. The relevant part of sec 16 reads as under:16 Where a decree of nullity is granted in respect of any marriage under sec. 11 or sec. 12 any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity: x x x x x x x the other section in the Act are not relevant for the purpose of finding out the nature of a marriage under the Act viz. whether it is a religious sacrament or a contract. Mr. Oza has founded his arguments alternatively. ( 15 ) NOW the scheme of the Act appears to treat of marriages under three distinct categories viz. (i) valid (ii) void and (iii) voidable. A marriage may be void ipso jure. A marriage may be voidable at the instance one of the parties to the marriage. A voidable marriage remains valid and binding and continues to subsist for all purposes unless a decree is passed by the Court annulling the same on any of the grounds mentioned in sec. 12 of the Act. The ground under clause (a) of sub-sec. (1) of sec. 12 of the Act would involve an element of incapacity of either spouse to consummate the marriage. Clause (b) would be attracted when there is a want of mental capacity of the spouses. Clause (c) would be attracted where there is absence of free consent of the parties or of a guardian in marriage in case of a bride who had not completed the age of eighteen years at the time of the marriage. Clause (d) which is very significant relates to the avoidance of marriage when there is suppressio veri by woman who was pregnant at the time of marriage. Thus clause (d) specifically provides for a fraudulent suppression of a material fact and deals with a specific case of pregnancy. Sec. 12 provides for the marriage being annulled at the instance of a party. Thus clause (d) specifically provides for a fraudulent suppression of a material fact and deals with a specific case of pregnancy. Sec. 12 provides for the marriage being annulled at the instance of a party. What is contemplated to be avoided is the marriage which has been solemnized under the Act which means according to the customary rites and ceremonies of either party thereto as provided by subsec. (1) of sec. 7. Clause (a) of sec. 12 (1) of the Act it may be stated deals with incapacity and this has been understood in matrimonial cases as meaning incapacity to consummate a marriage that is one of the objects of the marriage. As observed by the learned Commentator in Mullas Hindu Law 13 Edition at page 677 capacity for sexual intercourse must exist at least in posse at the time of the marriage and it is for this reason that impotency by which is meant permanent and incurable impotency existing at the time of marriage and continued until the institution of proceedings for nullity is recognized as a ground for annulment of marriage. Sec. 13 provides a remedy for divorce under the law and a Part from the custom of the parties if any. Thus divorce so provided for is entirely statutory. It is available in cases amongst others of a virulent and incurable leprosy and venereal disease in a communicable form. The statutory right of divorce is not given to a spouse on the ground of any other disease. It is thus clear that the remedy under sec. 13 will not be available to a spouse in cases other than the stated diseases. The epileptic condition of a spouse will not afford a ground for divorce. The Legislature has thus in its wisdom provided specifically for only two diseases viz. leprosy and venereal diseases besides unsoundness of mind as grounds for divorce. But these diseases again must have been incurable. The annulment is permissible on the ground of non-disclosure of a factum of pregnancy of the respondent at the time of the marriage from a person other than the petitioner. Now sec. 12 does not contemplate annulment of a marriage on the ground of any particular disease. Epilepsy has not been made a ground of avoidance of marriage under sec. 12 of the Act. Now sec. 12 does not contemplate annulment of a marriage on the ground of any particular disease. Epilepsy has not been made a ground of avoidance of marriage under sec. 12 of the Act. It is only when it can be proved that a particular disease has brought about the impotency of the respondent at the time of the marriage and such impotency continues until the institution of the proceedings that that affliction or disease would be a ground available. Clause (c) can be invoked only when the consent of the petitioner to the marriage which has been solemnized has been obtained by force or fraud. The contemplated consent is not to the proposal of marriage or agreement to marry which includes a betrothal or an engagement; but a consent to the marriage itself. Therefore a misrepresentation or concealment of the time of proposal of marriage does not effect the validity of a marriage to which marriage the parties freely consented with the knowledge of its nature and with the clear and distinct intention of entering into the marriage. Sec. 16 is illustrative of the fact that marriage is considered to be a religious sacrament and the marriage ties are to be respected unless they have to be severed and this only in the manner and for the causes specified by law. Sec. 16 protects the child begotten or conceived before the decree of annulment is made and provides that the child concerned would be the legitimate child notwithstanding the decree of nullity. In Hindu L3w marriage is treated as a sanakara or a sacrament. The Act merely amends and codifies the law relating to the marriage among Hindus. It thus retains its nature of a religious sacrament. ( 16 ) IT is no doubt true that some considerations in the nature of a contract have incidentally crept in the Hindu Law. But this is only in a limited sense. The scheme of the Act and the relevant provisions contained in the Act show that Hindu marriages is both a sacrament and a civil contract. However the Act maintains the effect of any text rule or interpretation of any Hindu Law or usage as custom immediately before the commencement of this Act unless in such matters a corresponding relevant provision is made in the Act. However the Act maintains the effect of any text rule or interpretation of any Hindu Law or usage as custom immediately before the commencement of this Act unless in such matters a corresponding relevant provision is made in the Act. The Act recognizes the rights of the spouses to severe the marriage ties in specified cases and in certain circumstances. It treats the marriage as null and void only on specified grounds stated in sec. 11 of the Act. It recognizes certain state of things as grounds of divorce as specified in section 13 of the Act. It provides for avoidance of marriage in certain specified cases provided in sec. 12 of the Act and non-disclosure of pregnancy of the wife at the time of the marriage is made a specific ground covered by clause (d) of sub-sec. (1) of sec. 12 of the Act It also makes the force or fraud in obtaining the consent of the petitioner or the guardian as the case man be at the time of marriage a ground for a audience of marriage. It is terms provides for avoidance of marriage on the ground of impotency of respondent at the time of the marriage which must also continue at the time of the institution of the proceedings. But all the same subsec. (1) of sec. 23 of the Act provides that the Court before granting a decree must be satisfied that any of the grounds for granting relief exists and that there is no bar of clauses (a) (b) (c) (d) and/or (e) of sub-sec. (1) of sec. 23 to grant a decree. It is only then and in such a case but not otherwise that the Court can decree such relief. Sub-sec. (2) contemplates at the initial stage that the Court in the first instance must make endeavour to bring about reconciliation between the parties. Thus it will appear that it is only in the extreme cases and only under strictly specified circumstances that marriage ties are to be served. No doubt fraud is made one of the grounds. Sub-sec. (2) contemplates at the initial stage that the Court in the first instance must make endeavour to bring about reconciliation between the parties. Thus it will appear that it is only in the extreme cases and only under strictly specified circumstances that marriage ties are to be served. No doubt fraud is made one of the grounds. But having regard to the scheme of the Act and the basic idea underlying the Hindu marriage institution that marriage is a sanskara or sacrament the fraud which would entitle a party to avoid a marriage or to have a decree of annulment of marriage must be fraud practiced at the time of the marriage. Clause (c) of sub-sec. (1) of sec. 12 clearly speaks of impotency at the time of marriage. Clause (c) which relates to fraud when read with sec. 5 of the Act will impliedly show that the fraud contemplated by clause (c) must be a fraud practiced at the time of marriage. Thus fraud which is made a ground for decree of nullity of marriage must be a fraud practiced at the time of marriage which would mean at the time of solemnization of the marriage. In my opinion considerations of sec. 17 of the Indian Contract Act (Act IX of 1872) which defines fraud will be available to the parties to the Hindu marriage. Otherwise sec. 12 (1) (c) of the Act does not speak of fraud in any general way. Otherwise; it will run counter to the basic idea of a Hindu marriage which is a sanskara or a sacrament performed with the basic idea of procreation and continuation of the line of descent. If that were not so any ground may be availed of by the parties to avoid a marriage because sec. 17 contemplates a suggestio falsi and suppressio veri as constituting a fraud. But the Act contemplates and provides remedy only for a fraud committed at the time of the marriage and which will affect the validity of the marriage to which the parties freely consented. It may have relation to the identity of the person marrying. It may as well have relation to the very nature of the act namely whether it is a marriage or any other ceremony. It may have relation to the identity of the person marrying. It may as well have relation to the very nature of the act namely whether it is a marriage or any other ceremony. These and like would be the only grounds which would be available to a party to avoid a marriage under clause (c) of sub-sec. (1) of sec. 12 of the Act and for this purpose the aggrieved party must prove that in fact the fraud was practiced on him at or about the time of solemnization of the marriage. A fraud said to have been practiced at the time of an agreement to marry which would include also a betrothal or an engagement would not ipso facto be a ground available to an aggrieved party to avoid a marriage. It also appears that epilepsy per se is not made a ground of any of the reliefs contemplated under the Act. The basic idea underlying the Hindu marriage institution is that the parties to the marriage must have capacity to marry and they must have capacity to consummate the marriage that is to say capacity to have conjugal intercourse which is one of the objects of marriage and unless it is shown that by reason of a particular incurable form of disease or deformity marriage is not capable of being consummated the disease complained of cannot per se be made a ground of avoiding a marriage. Here again it must be remembered that the Legislature has in its abundant wisdom provided for specific diseases and deformities of mind and body as grounds available to the married parties for severing the marriage ties. On these considerations also it cannot be argued that epilepsy per se is a ground for avoiding a marriage. ( 17 ) MR. Oza had contended that an epileptic bride is an Akanya meaning an impotent bride and as such not an eligible bride to be offered in marriage. On the aforesaid reasoning this argument is not tenable. However Mr. Oza has relied upon a decision of the High Court of Bombay in A-Plaintiff v. B-Defendant A. I. R. 1952 Bom. 486. Oza had contended that an epileptic bride is an Akanya meaning an impotent bride and as such not an eligible bride to be offered in marriage. On the aforesaid reasoning this argument is not tenable. However Mr. Oza has relied upon a decision of the High Court of Bombay in A-Plaintiff v. B-Defendant A. I. R. 1952 Bom. 486. The Bombay case was one filed by a Hindu husband against his wife for a declaration that their marriage was null and void or in the alternative for a decree for divorce under the Bombay Hindu Divorce Act 1947 The parties were married on 12th May 1950 at Bombay according to Hindu Vedic rites. At the date of the marriage the defendant was sixteen years of age having been born on 16th August 1934. The plaintiff alleged that the defendant did not have at the time of marriage either a vagina or uterus and she still had neither the vagina nor uterus or to use medical expressions she has had no development of vaginal cervix uterine or the genital tract and the internal organs and therefore she was impotent and incapable of having sexual intercourse with any male. The plaintiff also alleged in the plaint that the parents of the defendant had practiced fraud and deception upon him as they did not disclose there physical defects of the defendant which they should have known as the defendant had no menstruation periods prior to marriage and did not have them still. The defendant by her written statement admitted that she had no vagina at the time of marriage and has not got one even now; but she says that she has been advised that a vagina could be created by a surgical operation. As regards the uterus it was her case that she has underdeveloped uterus. She admitted that she was at the time of marriage and still is incapable of having sexual intercourse and is unable to consummate the marriage. At the hearing the allegations of fraud and deception were unreservedly withdrawn; and the defendant whilst maintaining that her alleged impotence was not permanent and was curable did not lead any evidence to show that a vagina can be created by a surgical operation. Mr. At the hearing the allegations of fraud and deception were unreservedly withdrawn; and the defendant whilst maintaining that her alleged impotence was not permanent and was curable did not lead any evidence to show that a vagina can be created by a surgical operation. Mr. Tendolkar J. dealing with the case on the original side treated the case on the footing that the defendant-wife had not and had never had a vagina and was therefore and had always been incapable of consummating the marriage or having sexual intercourse with her husband. The case was treated on the footing that the wife must be considered to have been impotent at the time of marriage and she still continued to be impotent. In the course of his judgment the learned judge has observed that the marriage under Hindu Law was both a sacrament and a civil contract. The learned Judge while dealing with the doctrine of factum valet observed that whether there is a violation of any rules which regulate mere matters of form if the act is performed it shall be deemed to be valid. That doctrine concerns itself with rules which are of a recommendatory nature or directory in their character or are mere matters of form. It has no application in a case where the parties to the marriage did not have the capacity to marry. The learned Judge further observed that the marriage of an impotent whether a male or female is absolutely null and void under Hindu Law. There can be no dispute about this proposition of law and it is not disputed by Mr. M. C. Shah on behalf of the respondent. It has been further observed in the Bombay case that the marriage under Hindu Law is a gift and to that extent. It being a contract can be rescinded. The learned Judge then assumed that a Hindu marriage is a sanskara (sacrament) only and proceeded to observe that as an impotent is unable to perform a sanskara the fact that marriage is a sanskara cannot stand in the way of a declaration that an attempted marriage is a nullity. The further relevant observation was that even if a Hindu marriage was a mere sacrament still in order that two persons should be capable of getting married they must have the physical capacity to get married. The further relevant observation was that even if a Hindu marriage was a mere sacrament still in order that two persons should be capable of getting married they must have the physical capacity to get married. The text in Manu VII-226 which prescribes that an Akanya cannot get married clearly lays down that an impotent female cannot get married at all. These observations go to show that the learned Judge had treated that a marriage under Hindu Law could be severed if either party to the marriage has not the physical capacity to get married. The expression Akanya has been equated with the expression impotent lady and accordingly it has been held that an impotent person has not the physical capacity to get married and therefore even if Hindu marriage is considered to be a sacrament a decree of nullity can be passed in such cases. Thus it is clear that in the Bombay case it was not disputed that the respondent-wife vas Akanya that is to say an impotent person. It was on this finding that the learned Judge appears to have made the aforesaid observations. With respect these observations still hold good and they have an application to the limited class of cases where the respondent is found to be an impotent person that is to say a person not having physical capacity to marry and to consummate the marriage. It is difficult to find how this decision can help Mr. Oza. But Mr. Oza has relied upon a text of Katyayana quoted in Virmitrodaya Sanskar Prakash p. 759 and contended that an epileptic person was per se an impotent person. The text has been referred to in paragraph 21 of the Bombay case at page 491. The agreed translation of the Sanskrit text considered by the learned Judge reads: A lunatic one guilty of grave sins a leper an impotent a sagotra one bereft of eye-sight and hearing or epileptic; these defects are to be avoided both in the bride and the bridegroom whether these defects arise prior or subsequent to the marriage the gift of the daughter shall be nullified. Mr. Oza also relied upon a verse from Manu IX-8 which is translated in the Sacred Books of the East Vol. XXV (p. 329) and is referred to in the judgment in para 37 at p. 493. The verse reads:. . . . . . . Mr. Oza also relied upon a verse from Manu IX-8 which is translated in the Sacred Books of the East Vol. XXV (p. 329) and is referred to in the judgment in para 37 at p. 493. The verse reads:. . . . . . . . . . . for that is the wifehood of a wife (Jaya) that he is born (Jayate) again by her. x x x x x of spring (the due performance of) religious rit es faithful service and highest conjugal happiness x x x x x x x. Now considering these texts the learned Judge has observed at page 493: It is clear therefore that in order that two persons he capable of getting married they must have the physical capacity at least to cohabit if not procreate children and indeed in my opinion Manu VIII-226 which prescribes that an akanya cannot get married clearly lays down that an impotent female cannot get married at all. This verse of Manu would be wide enough to include the illustration that I took of a male draped in female garb getting married to another male. Thus this decision is an authority for the proposition that an impotent person is not capable of marrying and therefore his or her marriage can be annulled. But it cannot be taken as an absolute rule that a person suffering from any disease or deformity referred to in the texts is physically incapable of getting married and that such a marriage can be avoided. To take a narrow and literal meaning of the text of Katyayana as is suggested would mean that besides a lunatic a leper an impotent and a sasotra for whom specific provisions are to be found in the Act viz. in secs. 5 (ii) (iv) (v) 12 13 (ii) of the Act any person who is guilty of grave Sills any person who is bereft of eye-sight and hearing or an epileptic person would be incapable of marriage. It may be emphasized that the Act has provided specific deformities of mind and body as grounds to severe the marriage ties in Specified circumstances. Neither the epileptic condition nor the weakness of the eye-sight or hearing nor the alleged sin of which a party is alleged to be guilty is made a ground available to the other spouse to avoid 3 marriage. Neither the epileptic condition nor the weakness of the eye-sight or hearing nor the alleged sin of which a party is alleged to be guilty is made a ground available to the other spouse to avoid 3 marriage. If such were the grounds to be accepted for breaking up of a marriage tie amongst Hindus one does not know where one can stop at because the diseases of mind and body are many in this complex society and it may be easy for a person to avoid a marriage on flimsy grounds and this would go and cut at the very root of the Hindu marriage institution which has still in essence remained a sanskara or a sacrament. In my view such cannot be the scope and ambit of the Act. It is only when the alleged disease has a relation to the physical incapacity of a spouse to consummate the marriage that it could be considered as a ground for avoiding a marriage. I cannot therefore accept Mr. Ozas submission that an epileptic wife is an Akanya meaning an impotent woman and therefore her epileptic condition would pet se be a ground for granting a decree of nullity for annulment of marriage. Likewise Mr. Ozas contention that an epileptic wife is not capable of performing religious and other oblations must also be rejected. I must say that in the instant case it is not shown that the respondent-wife had an incapacity to marry. It is not shown that she was unable physically to consummate the marriage. ( 18 ) MR. Oza then relied upon a decision in Haji Ahmad v. Abdul Gani Khan and another A. I. R. 1937 Nagpur 270 and he argued that the marriage is a contract and that there is an obligation on the party to the marriage to make a disclosure or a material fact. Mr. Oza relied upon the doctrine of uberrimae fidei in support of his submission. In the Nagpur case the parties to the proceedings were Mahomedans. It cannot be disputed that a marriage under the Mahomedan Law is a contract. There is a fundamental difference in the very basic idea of a Mahomedan marriage when considered vis--vis the Hindu marriage institution In the Nagpur case the marriage was arranged between a son of a Mahomedan and a Mahomedan girl. It cannot be disputed that a marriage under the Mahomedan Law is a contract. There is a fundamental difference in the very basic idea of a Mahomedan marriage when considered vis--vis the Hindu marriage institution In the Nagpur case the marriage was arranged between a son of a Mahomedan and a Mahomedan girl. The father of the bridegroom conducted the negotiations on behalf of his son and some third person acted on behalf of the prospective bride. The negotiations were concluded with the usual pan rusum ceremony which did cost certain amount to the father of the bridegroom. Soon after the father of the bridegroom discovered that the girl suffered from epileptic fits and so he broke off the engagement. He brought a suit for the amount spent by him over the pan rusum ceremony on the ground of non-disclosure of the defect which it was the duty of the opposite party to disclose. Thus this was a case for recovery of a certain amount as damages arising out of the non-disclosure of the epileptic condition of a girl proposed to be married to the plaintiff-husband. The question of epilepsy as a ground for divorce was not the question in issue. The case had nothing to do on merits with the annulment of marriage or severance of the marriage ties. The question at issue was whether the expenses incurred by the bridegroom party at the pan rusum ceremony as a consequence of non-disclosure of a not disputed material defect could be recovered. In this case Vivian Bose J. as he then was held that the action could not be found upon negligence in tort as the law imposed no general duty on any one to broadcast the blemishes of his female relations. The opposite party not being charged with an intention to deceive the action also could not be founded on deceit nor could it be founded upon fiduciary relationship. It was further observed that right arose only out of contractual relationship and there being breach of duty to disclose the opposite party was only liable on the ground of fraud under sec. 17 Contract Act. The father of the bridegroom therefore was entitled to rescind the contract but the damages claimed by him being due to its rescission and not to the non-fulfillment he was not entitled to damages under sec. 75 Contract Act. 17 Contract Act. The father of the bridegroom therefore was entitled to rescind the contract but the damages claimed by him being due to its rescission and not to the non-fulfillment he was not entitled to damages under sec. 75 Contract Act. This was a case of a breach of contract pure and simple and a case in which sec. 17 of the Indian Contract Act was attracted. Presumably the agreement to marry under the Mahomedan Law was a part of the contract. The decision can have therefore no application to the facts of the instant case which is governed by the Hindu Marriage Act. On the contrary as the learned Judge has observed at page 271 of the judgment :the law imposes no general duty on anyone to broadcast the blemishes of his female relations: not even to those who are contemplating matrimony with them. If the right arises at all it must arise out of a mere special relationship either contractual or fiduciary. ( 19 ) RELYING on some observations in the Nagpur case it was contended that a contract to marry was in the nature of contracts uberrimae fidei. In my view to attract the doctrine of uberrimae fidei there must be a something more than a mere relationship either contractual or fiduciary. The most common examples of such contracts are contracts of insurance sale surety ship releases and compromises. Even in the Nagpur case where the learned Judge has considered that contracts to marry also come under it is category the learned Judge had to observe that the case law on the subject was meager and conflicting. The observations were made in the context of the marriages amongst Mahomedans which are admittedly contractual. In my view this doctrine cannot be made applicable to Hindu marriages as according to the concept of a Hindu marriage the marriage is not a contract but is a religious sacrament and it is only for a limited purpose that the notions of contract have crept in sec. 17 of the Indian Contract Act cannot have any application to the cases covered under the Act. Besides as aforesaid in the instant case the evidence that has been found by the Courts below is that the respondent-wife did not know that she was suffering from the disease of epilepsy. 17 of the Indian Contract Act cannot have any application to the cases covered under the Act. Besides as aforesaid in the instant case the evidence that has been found by the Courts below is that the respondent-wife did not know that she was suffering from the disease of epilepsy. The evidence further found is that the respondent s father had informed the petitioner that she was suffering from fits and had also informed that she was treated by one Dr. Shantilal and this was at the time before the agreement to marry. Therefore taking any view of the matter and even assuming the marriage to be a contract it cannot be said that there was a non-disclosure of a material fact which lay with the respondent or even her father so as to enable the appellant to avoid the marriage. ( 20 ) MR. Oza then relied upon a decision of Bimla Bai v. Shankerlal and others A. I. R. 1959 Madhya Pradesh 8 and submitted that a non-disclosure of a material fact would enable a petitioner to avoid the marriage. Now in the Madhya Pradesh case there was a misrepresentation as to the material fact and that had relation to the identity of the person to be given in marriage. The fraud alleged consisted of a false representation of a fact made knowingly namely that the defendant-respondent was a Brahmin boy and was the son of one Kundanlal born of a wedded Brahmin wife although he was the illegitimate son of said Kundanlal born of an adulterous intercourse with a Kurmi woman. The plaint allegation was that the said misrepresentation was made both before and at the marriage. It was in this connection that the learned Judge has observed that when a person speaks of another as his son he holds him out as his legitimate natural or adopted son. It cannot possibly include an illegitimate son. The only sons possessing any legal status are the legitimate natural and adopted sons. Hence where the father of the bridegroom who was his illegitimate son represented him as his son the representation is false. At any rate it would only be a half-truth and it is well established that a partial statement verbally accurate may be as false a statement in effect as if the fact had been misstated altogether. Hence where the father of the bridegroom who was his illegitimate son represented him as his son the representation is false. At any rate it would only be a half-truth and it is well established that a partial statement verbally accurate may be as false a statement in effect as if the fact had been misstated altogether. In the Madhya Pradesh case it was found as a fact that there was a material misrepresentation a regards the status of the person and that it was a representation which amounted to fraud and consequently the marriage was liable to be set aside. It was observed that the fraudulent misrepresentations did in fact induce the plaintiff and her father to agree to the solemnization of the marriage. Thus the case cannot have any application to the instant case. . ( 21 ) NOW as against the aforesaid decisions which in my view have no application to the instant case there are a number of decisions of different High Courts and of an English High Court which give a very narrow and a limited meaning to the term fraud to be considered in avoiding a marriage and in obtaining a decree of nullity for annulment of marriage. In Bai Appibai v. Khimji Cooverji A. I. R. 1936 Bom. 138 B. J. Wadia J. had an occasion to consider a case of misrepresentation or concealment while sitting on the original side of the High Court. It appears that the plaintiff therein had filed a suit for a declaration that she was validly married to the defendant on 31st March 1934 at Ujjain in the Gwalior State and for an order for separate maintenance and residence against the defendant. The defendant had resisted the suit on several grounds. He had denied that there was any ceremony of marriage according to Hindu rites. His case was that he was induced to go through a marriage ceremony on certain representations made to him by the plaintiff or on her behalf and with her authority which representations turned out to be false and therefore rendered the marriage null and void in law. The representations allegedly made were that the plaintiff was the widow of one Ramchandra Kamat that she was a Brahmin by caste that she was a person of good character and that she was willing to live with the defendant at Ujjain. The representations allegedly made were that the plaintiff was the widow of one Ramchandra Kamat that she was a Brahmin by caste that she was a person of good character and that she was willing to live with the defendant at Ujjain. The defendant had also alleged that the plaintiff had suppressed from him the fact that she was a Naikin by profession and the fact of her having been in the keeping of more than one person prior to her meeting the defendant in Bombay. In this connection the learned Judge dealing with the question of fraudulent misrepresentation or concealment has observed at page 144 as under: It has been held that fraudulent mis-representation or concealment does not affect the validity of a marriage to which the parties freely consented with knowledge of its nature and with the clear and distinct intention of entering into the marriage unless one of the spouses is induced to go through a form of marriage with the other by threats or duress or in a state of intoxication or in an erroneous belief as to the nature of the ceremony and without any real consent to the marriage. A marriage might also be invalid if the girl was abducted by force or fraud and married against her wish or that of her guardian. The test of validity is whether there was a real consent to the marriage. The learned Judge has in this connection referred to Halsbury Vol. XVI para 514 p. 278 which is to be found in the Third Edition of Halsburys Laws of England Volume 19 in para 1243 at page 776. The passage may with benefit be quoted here in below: fraud and duress. Fraudulent misrepresentation or concealment does not apart from duress or imbecility of mind amounting to insanity and apart from the concealment of pregnancy by another man or of a venereal disease in a communicable form affect the validity of a marriage to which the parties freely consented with a knowledge of the nature of the contract. But if a person is induced to go through a ceremony of marriage by threats or duress or in a state of intoxication and without any real consent to the marriage it is invalid. In all such cases the test of validity is whether there was any real consent to the marriage. But if a person is induced to go through a ceremony of marriage by threats or duress or in a state of intoxication and without any real consent to the marriage it is invalid. In all such cases the test of validity is whether there was any real consent to the marriage. This will show that the fraudulent misrepresentation or concealment available as a ground for avoiding a marriage must be of one of the types referred to in this passage. In the earlier part of my judgment while dealing with the scheme of the Act I have observed that the marriage can only be avoided on specified grounds and in specified circumstances. In my view representation of the type in question before me in this case viz. that the respondent-wife had represented that she was suffering from fever and was thus anemic and had suppressed the fact that she had fits not knowing the nature of the disease as being epilepsy cannot be considered to be a fraudulent misrepresentation or concealment of the type that is available to a married spouse to avoid the marriage. ( 22 ) IN Anath Nath De v. Smt. Lajjabati Devi A. I. R. 1959 Cal. 778 S. Datta J. had an occasion to consider a case of a consent to marriage obtained by alleged fraud. The decision was given in an original side suit. Some time in January 1955 negotiations for marriage between the parties to the suit were opened through a watchmaker. The terms as to the marriage regarding cash dowry and other things were settled. The petitioner was represented by his mother and his elder brother. The respondentwife was represented by her mother and brothers On February 6 1955 the Ashirvad ceremony took place at the house of the respondent. On February 13 1955 the marriage was solemnized. On February 20 1955 the respondent went back to her brothers house. After her return she had an attack of fever In or about April 1955 it was discovered after examination that she suffered from Tuberculosis. On or about June 1955 she was sent to Kursoong for treatment where she remained for about a few months. After her return from Kursoong on or about January 19 1957 she was examined at a hospital and it was found that she had almost recovered. On or about June 1955 she was sent to Kursoong for treatment where she remained for about a few months. After her return from Kursoong on or about January 19 1957 she was examined at a hospital and it was found that she had almost recovered. The plaint dated September 8 1955 was founded on the basis that during the course of negotiation for marriage the respondents Nos. 2 3 and 4 had represented to the petitioner that the respondentwife was of sound health and was not suffering from any disease. The petitioner had relied upon such representation and given his consent to the proposal for marriage and went through the from of marriage. After the marriage it was discovered that she was suffering from T. B. since before the marriage. It was on these grounds that the marriage was said to have been brought about by false and fraudulent representation and as such was sought to be avoided. S. Datta J. had in this connection examined the relevant provisions of the Act and has observed at page 779 that: The marriage according to Hindu Law not being a contract the consent at the first stage though obtained by fraud cannot affect the validity of the marriage. The consent at the time of the solemnization is the material consent. It is well settled that the consent at the time of solemnization of marriage though a marriage is a sacrament according to the Hindus if obtained by fraud affects the validity of the marriage. The learned Judge has further observed that: Section 12 (1) (c) also implies that at least one of the grounds must be existing at the time of the marriage. This is made clear by express words in Clauses (a) (b) read with sec. 5 (ii) and (d ). This is also impliedly indicated in sub-clause (c) of the said clause. This construction is also in consonance with the accepted principles of Hindu Law as to marriage prevalent prior to the enactment of the Hindu Marriage Act. The learned Judge has further observed: Therefore in order to find out whether a marriage is invalid on the ground of fraud it is necessary to find out whether there was consent of the petitioner at the time of the solemnization of the marriage. The learned Judge has further observed: Therefore in order to find out whether a marriage is invalid on the ground of fraud it is necessary to find out whether there was consent of the petitioner at the time of the solemnization of the marriage. On these considerations the learned Judge has reached a conclusion that Where therefore in a petition under Sec. 12 the husband avers that there was fraudulent misrepresentation at the time when the petitioner gave his consent to the proposal for marriage and there is no allegation that there was fraud at the time of the solemnization of marriage the petition does not disclose any cause of action against the wife. This decision has an important bearing in this case. It is significant that in the Calcutta case the disease of Tuberculosis with which the respondentwife was afflicted was later on cured. This Calcutta case thus supports the view which I am taking in the appeal before me. ( 23 ) IN Harbhajan Singh v. Smt. Brij Balab Kaur A. I. R. 1964 Punjab 3594 the question of fraud and the application of considerations of sec. 17 of the Indian Contract Act (1872) had come up for consideration before Pandit J. The learned Judge has considered the import of the word fraud to be found in sub-clause (c) of sub-sec. (1) of Sec. 12 of the Act and has observed that:the word fraud as a ground for the annulment of the marriage under the Hindu Law is limited only to those cases where the consent of the petitioner at the solemnization of the marriage was obtained by some sort of deception It is not used in a general way and on every misrepresentation or concealment the marriage cannot be dissolved. If the term fraud is to be interpreted according to the definition given in the Indian Contract Act then it would become impossible to maintain the sanctity of the marriage. All sorts of misrepresentations will be alleged by the petitioners in order to break the marriage tie. This obviously could not be the intention of the Legislature. The fact that the respondent was of bad character before the solemnization of the marriage cannot be a ground for the annulment of the marriage because there is a specific clause (d) of this very section dealing with this matter. This obviously could not be the intention of the Legislature. The fact that the respondent was of bad character before the solemnization of the marriage cannot be a ground for the annulment of the marriage because there is a specific clause (d) of this very section dealing with this matter. Sec 12 (1) (d) means that the Legislature did not intend that the past conduct of the respondent except what is mentioned in clause (d) should become a ground for the dissolution of the marriagethe Punjab case was one wherein the petitioner had alleged that he had given his consent at the time of the solemnization of the marriage on the assurance of the respondents father that the respondent was a virgin and her character was unblemished but soon after the marriage he came to know that a child was born to her before her marriage. The learned Judge has on the aforesaid considerations hold that the allegations made in the petition did not come within the meaning of fraud as used in sec. 12 (1) (c) of the Act and therefore the petition was liable to be dismissed as not disclosing any cause of action. This decision will go to support the view which I have taken that Hindu marriage is essentially a sacrament or sanskara and that considerations of sec. 17 of the Indian Contract Act have no place while considering the question of fraud within the meaning of clause (c) of sub-sec. (1) of sec. 12 of the Act. ( 24 ) IN Consterdine v. Samaine A. I. R. 1918 Lower Burma 83 while dealing with a case of divorce under the Christian Marriage Act (15 of 1872) the learned Judge has made the following relevant observations: There is no degree of deception which can avail to set aside a contract of marriage knowingly made unless the party imposed upon has been deceived as to the person and thus has given no consent at all. The learned Judge has further observed that: When fraud is spoken of as avoiding a marriage it means such fraud as procures the appearance without the reality of consent; it does not include such fraud as induces a consent nor fraud which is practiced on a third party in order to procure a license. The learned Judge has further observed that: When fraud is spoken of as avoiding a marriage it means such fraud as procures the appearance without the reality of consent; it does not include such fraud as induces a consent nor fraud which is practiced on a third party in order to procure a license. Thus the concept of fraud has been considered to have a limited meaning while considering the scope and ambit as of the Christian Marriage Act. These considerations will also prevail in the present case. ( 25 ) THUS I am fortified in my view that Hindu marriage is essentially a religious sacrament a sanskara and that considerations of contract have crept in only for the limited purpose of annulment of marriage or avoidance of marriage on the grounds aforesaid. The fraud to be considered within the meaning of clause (e) of sec. 12 (1) would be fraud practiced at the time of the solemnization of the marriage viz. at the time of marriage and that will have relation to the identity of the person to marry and also to the actual form of the ceremony. The deformities or diseases of mind and body which are clearly referred to in secs. 12 and 13 of the Act would be the only ones which would afford a ground for a decree of nullity of marriage or of divorce as the case may be. No other disease infirmity or blemishes are required to be disclosed to a party to a marriage. There was no obligation on the respondent-wife or on her father to disclose that the respondent was suffering from epilepsy etc. even if they know of it. Having regard to all the facts and circumstances of the case found by the learned District Judge and considered by me earlier it cannot be said that the respondent-wife was guilty of having obtained the consent of the appellant-husband to the marriage by fraud within the meaning of clause (c) of sub-sec. (1) of sec. 12 of the Act. It have no reason to disagree with the finding of the two Courts below that the respondentwife was not proved to have been impotent at the time of the marriage and to have continued to be so until the institution of the proceedings. The further fact that is found by the two Courts below viz. 12 of the Act. It have no reason to disagree with the finding of the two Courts below that the respondentwife was not proved to have been impotent at the time of the marriage and to have continued to be so until the institution of the proceedings. The further fact that is found by the two Courts below viz. that the respondent-wife was cured of the disease is a fact which is held proved on satisfactory evidence and there is no reason to disturb that finding either. The resultant effect is that the respondent-wife cannot be said to have been afflicted with the disease of epilepsy at the time of the grant of the decree. The finding that the respondent-wife did not know that she was afflicted with a disease named epilepsy is acceptable to me and it appears to have been made on proved facts. Mr. Ozas submission that the findings arrived at by the learned District Judge were not proper conclusions from proved facts is found to be not substantiated. The learned District Judge has considered all the relevant facts and circumstances of the case and has concurred with the findings of the trial Court that the wife was not suffering from epilepsy to her knowledge and that the wife was not impotent Thus no ground for interference in this second appeal has been made out. As aforesaid Mr. Oza has taken me through the entire record in order to show the alleged perversity of the findings of the learned District Judge. I have considered his arguments in extenso and they have been found to have no merit for the reasons stated. The learned District Judge has in a well-reasoned judgment arrived at proper conclusions and I must maintain the decree of dismissal of the appellant-husbands petition. ( 26 ) IN the result the appeal fails and is dismissed with costs. Appeals dismissed. .