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Kerala High Court · body

2000 DIGILAW 510 (KER)

Jose Cherian v. Elsamma

2000-09-25

T.M.HASSAN PILLAI

body2000
JUDGMENT 1. The arranged marriage of the petitioner with the first respondent, which is alleged to have solemnised in accordance with the religious rites and ceremonies prevailing in Christian community on 11th September 1997 at St. Mary's Church, Mulakkulam, is sought to be declared null and void by the petitioner under S.19 of the Indian Divorce Act, 1869 (for short 'the Act') on the ground of playing fraud on him in obtaining his consent to marriage with the respondent. It is the common case that the parties are Christians governed by the provisions of the Act in the matter of dissolution of marriage, etc. Suppression of material fact alleged by the petitioner husband for getting broken the matrimonial bond is that the first respondent wife suffered mental illness right from the year 1993 and that fact was suppressed fraudulently from him by the first respondent and her near relatives. His consent for marriage was obtained concealing that fact from him. Non disclosure of the fact of her having intimacy with the corespondent before marriage is also projected as a ground for declaring the marriage null and void. Adultery with the corespondent during the subsistence of the marriage is also urged as a ground for dissolution of the marriage in case the Court declines to accept the case of the petitioner rested on fraud played on him in obtaining his consent to the marriage. The alternative relief thus prayed for by him under S.10 of the Act is to pass a decree nisi for dissolution of the marriage between him and the first respondent. 2. In the counter affidavit filed by the first respondent wife she refuted the accusation of alleged fraud played upon the petitioner in obtaining the consent of the petitioner to the marriage, i.e. suppression of the material facts that she suffered mental illness and also her premarital connection with the corespondent. In the counter statement she admits the fact of undergoing treatment for depression suffered by her at Sacred Heart Hospital, Paynkulam in the year 1993 and the case put forth by her in resisting the relief prayed for either under S.19 or under S.10 of the Act is that she was very much affectionate towards her father and grandmother and she suffered mental depression on account of the sudden demise of her father and grandmother and underwent treatment for the depression suffered. Her case is that undergoing treatment for the mental depression suffered by her on account of the sudden demise of her father and grandmother cannot be treated as insanity. Her case is also that after undergoing treatment for two weeks, she was "absolutely alright" and "continuing her avocation in life". The further case set up by her to resist the claim to declare the marriage null and void is that the fact that she suffered mental depression and underwent treatment for the mental depression was disclosed to the petitioner before marriage and there was no fraudulent suppression of any material fact from the petitioner. She denied the allegation of having premarital connection with the corespondent. She also denied the grave charge of committing adultery by her with the corespondent after she left the matrimonial home on 28th November 1997. Her definite stand taken in resisting the claim is that the marriage was consummated and thus controverted the allegations in the petition that whenever the husband made attempts to consummate the marriage, she became violent and upset. She also denied the abnormal behaviour alleged to be noticed by the petitioner after the marriage, while she was residing along with the petitioner ia the matrimonial home and put forth a case that she was abused and harassed by the petitioner without any rhyme or reason. 3. So, the point that is to be considered by me for determining the question whether any ground is made out for declaring the marriage of the petitioner with the first respondent null and void is whether fraud was played on the petitioner in obtaining his consent to the marriage as alleged by him. The other question that is to be considered is whether the first respondent wife is guilty of adultery after her parting company with the petitioner on 28th November 1997. 4. Both the parties adduced evidence in support of the rival cases put forth by them. On the side of the petitioner/husband, he got himself examined as PW 1. He examined PW 2, who is a psychiatrist attached to Sacred Heart Hospital, Paynkulam, who treated the first respondent wife subsequent to the marriage for the alleged mental depression suffered by her on account of the alleged driving away of the wife from the matrimonial home by the husband without any reasonable cause. He examined PW 2, who is a psychiatrist attached to Sacred Heart Hospital, Paynkulam, who treated the first respondent wife subsequent to the marriage for the alleged mental depression suffered by her on account of the alleged driving away of the wife from the matrimonial home by the husband without any reasonable cause. PWs 3 and 4 are examined by the husband to prove that Ext. A1 was written by the wife admitting the fact of her undergoing treatment for mental illness in the year 1993 and also confessing the fact that she had premarital connection with the corespondent. They are also examined by the husband to prove the fact that Ext. A2 agreement was entered into between the wife and husband on 28th November 1997 and it was pursuant to Ext. A2 agreement entered into on 28th November 1997 that they started to live separately. 5. On the side of the wife, she got herself examined as RW 1 and examined her brother as RW 2. 6. Admittedly, the marriage of the petitioner with the first respondent was solemnised in accordance with the customary rites prevalent in Christian community, to which the parties belong, on 11th September 1997 at St. Mary's Church, Mulakkulam, and there is evidence before the Court to prove that before solemnisation of the marriage, on more than one occasion the husband met the wife and talked to her. He went before betrothal for seeing the first respondent (bride seeing) and talked to her. No abnormality in her behaviour was noticed by the petitioner at that time. It has also come out in evidence that at the time of betrothal also the petitioner/husband and his relatives had occasion to talk to the first respondent/wife and it is not the case of the husband that any behavioural change was noticed by him or any one of his relatives on the date of the betrothal. The evidence available would also show that before solemnisation of marriage, both the husband and wife went to Ernakulam for purchasing gold ornaments and bridal costumes and the evidence of wife to the effect that on that day they spent together from morning to evening remains unchallenged in cross examination. 7. The evidence available would also show that before solemnisation of marriage, both the husband and wife went to Ernakulam for purchasing gold ornaments and bridal costumes and the evidence of wife to the effect that on that day they spent together from morning to evening remains unchallenged in cross examination. 7. It is admitted in the petition that when the petitioner and his relatives paid a visit to the first respondent's house in the first week of August, 1997, the petitioner and his people could not find anything abnormal about the first respondent and it is also admitted in the petition that local enquiry did not yield any adverse report about the first respondent. The marriage proposal was accepted by the petitioner and the marriage was solemnised on 11th September 1997. 8. Before proceeding to deal with the evidence adduced by the parties in support of their rival contentions regarding the suppression of the material fact of suffering from mental illness by the first respondent from 1993 onwards, it is worthwhile to deal with the case of living in adultery by the wife put forth by the husband/petitioner. In order to prove his case on that aspect, the petitioner/husband mainly relied on Exts. A1 and A2 and the fact of receiving summons by the corespondent from the house of the first respondent. The authorship of Ext. A1 letter is denied by the wife and it has to be held on the basis of evidence available that that letter was written by the wife to the husband. The case of the husband that Ext. A2 agreement was entered into between the parties voluntarily is to be accepted on the ground that PWs 3 and 4 testified the fact of entering into such an agreement voluntarily by the parties in their presence at the house of the petitioner on 28th November 1997 and their evidence is acceptable. The first respondent, her mother, her brother (RW 2) and another relative of her, (one Lukia) were present at the time of entering into Ext. A2 agreement and they signed in that agreement. That fact is testified by PWs 1, 3 and 4. That fact is also admitted by the first respondent/wife and her brother (RW 2) in their evidence. Nothing substantial has been brought out in the evidence given by PWs 3 and 4 about entering into Ext. A2 agreement and they signed in that agreement. That fact is testified by PWs 1, 3 and 4. That fact is also admitted by the first respondent/wife and her brother (RW 2) in their evidence. Nothing substantial has been brought out in the evidence given by PWs 3 and 4 about entering into Ext. A2 agreement by the parties voluntarily to discard the same. Though a suggestion was put to them to the effect that such an agreement was brought about under threat or coercion or duress, they stoutly denied that suggestion. 9. PW 4 stated in his evidence that in the presence of others the husband handed over to him Ext. A1 and he questioned the wife about that letter. It is also his evidence that she admitted that it was written by her. No dent is made in cross examination to doubt the acceptability of the evidence given by PW 4 on that aspect. PW 3 spoke to the fact that on the date of entering into Ext. A2 agreement, the petitioner visited his house and showed him Ext. A1 letter. After perusing Ext. A1, he met the first respondent and questioned her about it. From his evidence it is not possible to say that when questioned about Ext. A1, the first respondent denied the authorship of that letter. It is clear from his evidence that when relatives of wife questioned her (first respondent) about her behaviour and other details, she persisted that she should leave the petitioner and go to her house and the reason given by her was she wanted to rejoin her lover by name Biju. In the absence of any material brought out in cross examination to doubt the trustworthiness of evidence given by PW 3 on that aspect, I am inclined to accept his evidence. 10. Thus, it is clear from the materials on record that the first respondent was eager to join the company of the corespondent, with whom she fell in love before marriage. I have compared the signature of the first respondent contained in Ext. A1 with the admitted signatures of her contained in Ext. A2, her counter affidavit and C.M.P. No. 4527 of 1998 filed in this Original Petition to set aside the ex parte order and satisfied that there is no striking dissimilarity between her admitted signatures and the signature contained in Ext. A1. A1 with the admitted signatures of her contained in Ext. A2, her counter affidavit and C.M.P. No. 4527 of 1998 filed in this Original Petition to set aside the ex parte order and satisfied that there is no striking dissimilarity between her admitted signatures and the signature contained in Ext. A1. A cursory glance at those signatures would satisfy that the signature in Ext. A1 is that of the first respondent/wife. In Ext. A1 she made a categorical admission that at the time of emanating the marriage proposal she was not at all willing or liking or prepared to marry the petitioner on account of her intimacy with the corespondent. She even went to the extent of stating in Ext. A1 that she could not even dream of a life without the company of corespondent. Thus, the evidence available would clearly prove the case of the husband that before marriage the wife had love affair with the corespondent and she was extremely reluctant to part company of the corespondent. She in fact wanted to continue her relationship with corespondent and for that she wanted to part company with petitioner. From the available evidence it is clearly established that the wife is not interested in continuing the marital relationship nor does she wanted to live as a faithful, dutiful and loyal wife severing or foresaking her connection with the corespondent. There is no case for the parties that at any time before marriage, i.e. after the marriage proposal was mooted, the fact that the first respondent was having a love affair with the corespondent was disclosed to the petitioner husband. The premarital connection of the wife with the corespondent could not be made a ground for dissolution of the marriage and the reason is that S.10 does not provide for dissolution of the marriage on the ground that the wife had premarital connection with any other man. 11. The evidence available on record is not sufficient or satisfactory to prove the case of the husband that the wife is guilty of committing adultery. It is the case of both parties that after solemnisation of the marriage both of them lived together under the same roof for a short period of 78 days till they parted company on 28th November 1997. It is the case of both parties that after solemnisation of the marriage both of them lived together under the same roof for a short period of 78 days till they parted company on 28th November 1997. No case is pleaded or attempted to be proved by the husband that during the period while the wife was living with him in the matrimonial home, the corespondent visited his house or that his wife had illicit sexual relationship with the corespondent during that period. It is evident from the testimony of the husband that he has no direct knowledge regarding the adultery said to have been committed by the wife and his assertion is only that the enquiry made by him revealed that the wife was living ia adultery after starting to reside separately from him. The very fact that the corespondent is a casual worker under RW 2 in his bakery or ha received summons from the house of wife is not a ground to hold that there was sexual intercourse between the respondents after the marriage. Such a conclusion is not possible even if he is residing in the house of the 1st respondent. So, I have to hold that no ground is made out for dissolution of the marriage of the petitioner with the first respondent under S.10 of the Act on the ground of committing adultery by the first respondent/wife. 12. I am not prepared to accept the evidence given by the husband! regarding non consummation of the marriage. Impotency of the wife at the time of marriage or her continuing as an impotent till the date of filing of the petition is not pleaded as a ground for breaking the marital tie. The principle of law laid down by the Full Bench of this Court in Beena v. Varghese ( 2000 (1) KLT 684 ) is that the burden of proving the allegation of one's invincible repugnance to act of coitus rendering him or her incapable of submitting to sexual intercourse is on the spouse who seeks to declare the marriage null and void on the ground of impotency. The Full Bench also laid down that to succeed in the petition on the ground of impotency alleged by the husband or wife, the party who raises the allegation has to prove not only that the marriage had not consummated, but also that any impediment was incurable. The Full Bench also laid down that to succeed in the petition on the ground of impotency alleged by the husband or wife, the party who raises the allegation has to prove not only that the marriage had not consummated, but also that any impediment was incurable. There is no such evidence forthcoming. It has come out in evidence that after marriage the husband and wife visited the houses of their relatives. PW 3, who is a relative of the petitioner, has spoken to the fact of visiting his house by the couple after marriage and I prefer to accept the evidence of the wife regarding consummation of marriage to the evidence given by the husband regarding non consummation of marriage. 13. It cannot be disputed that the first respondent underwent treatment as an indoor patient at Sacred Heart Hospital Paynkulam and Ext. A3 is the case sheet maintained in that Hospital. The evidence given by PW 2, who is a psychiatrist attached to that hospital, coupled with Ext. A3, proved the fact that the first respondent underwent treatment for schizophrenia and from the medicines prescribed on the date of admission on 5th July 1993 it is clear that those medicines were given at a time when the patient was found to be in a violent and restless condition. She underwent treatment as an indoor patient till 25th October 1993 and it is proved that the entries in Ext. A3 relating to admission of wife are in the handwriting of Dr. Unnikrishnan, who is no more, (PW 2 is acquainted with Dr. Unnikrishnan's handwriting) and the last entry made by him is, dated 5th August 1993. After the death of Dr. Unnikrishnan, Dr. Mary Angel, Chief Psychiatrist of the same hospital continued the treatment of the first respondent and she started giving treatment on 11th October 1993. It could also be seen from Ext. A3 that Dr. Mary Angel referred the patient to Dr. Geko K. John of the same hospital for treatment and it has come out in evidence that he is also a Psychiatrist of the same hospital. From the evidence available it could be seen that he continued to treat the first respondent till 12th January 1994. History of the patient recorded in Ext. A3 is, "history of psychosis 10 years ago and treated at Medical College". From the evidence available it could be seen that he continued to treat the first respondent till 12th January 1994. History of the patient recorded in Ext. A3 is, "history of psychosis 10 years ago and treated at Medical College". Though RW 2 has stated in his evidence that his sister (first respondent) was treated for headache at the medical college hospital, his evidence is not to be accepted at its face value on the ground that he is not in a position to deny the suggestion put to him that his sister underwent treatment at the medical college hospital for her mental illness. The history given in Ext. A3 also furnish material to reach such a conclusion. Her mental status recorded at the time of admission on 5th July 1993 was that she has persecutory delusions and auditory hallucinations. Her speech was guarded and Psyche motor activity was raised. The impression recorded by the doctor was schizophrenia not otherwise specified. PW 2 is acquainted with the handwriting of Dr. Mary Angel, Dr. T. J. Hormis and Dr. Geko K. George, who treated the first respondent/wife. It could be seen from Ext. A3 that the first respondent continued treatment for her mental illness in the year 1994 also ie., on 5th January 1994, 12th January 1994, 22nd: February 1994, 9th May 1994 and 25th August 1994 and Ext. A3 also shows that in the year 1995 also she was treated for her mental illness. She was treated as an outpatient on 23rd January 1995, 22nd May 1995 and on 18th April 1995. Subsequent to her leaving the matrimonial home on 28th November 1997 also she underwent treatment for her mental illness and that fact is clearly proved by the evidence given by PW 2 and Ext. A3. Ext. A3 shows that she underwent treatment as an outpatient after 28th November 1997 i.e. on 1st December 1997, 8th December 1997 and 18th December 1999. So it is evident that she was not cured completely at the time of marriage of the mental illness suffered by her. 14. It is unnecessary for me to consider the question whether the wife was capable of understanding the nature of marital union and probable consequences at the time of marriage and the reason is that declaration is sought on the ground that petitioner's consent for marriage was obtained by fraud. 14. It is unnecessary for me to consider the question whether the wife was capable of understanding the nature of marital union and probable consequences at the time of marriage and the reason is that declaration is sought on the ground that petitioner's consent for marriage was obtained by fraud. It is true that there is no documentary evidence to prove that after she (RW 1) underwent treatment as an outpatient in the year 1995 and before marriage she underwent any treatment for her mental illness. Wife admits in her evidence that whenever she got upset she used to take medicines. Her brother in his evidence stated that she; was under medication from 1993 onwards, though he pretended ignorance about how long his sister continued under medication. So it may be possible' to infer from the evidence available that at the time of contracting marriage wife was under medication. 15. It is not possible to accept the case set up by the wife in her pleadings that the husband was informed of the fact of suffering mental illness by her in the year 1993 before marriage. In her chief examination her assertion is that her cousin brother told her husband about the mental illness suffered by her in the year 1993 before marriage and that cousin brother of the wife is not examined to prove that fact. I am also not impressed by the evidence given by RW 2 to the effect that husband was told about the mental illness suffered by the wife in the year 1993 before marriage. Husband's evidence to the effect he was not told about the mental illness suffered by RW 1 is believable and acceptable and, therefore, I have no hesitation to hold that the consent for the marriage was obtained by suppressing the fact of suffering mental illness by the wife from the year 1993 onwards. 16. In Sally Joseph v. Baby Thomas (1999) (1) KLT 74) Division Bench of this Court approvingly cited a passage from the book "Law of Marriage and Matrimonial: Relief for Christians in India," by William E. Pinto and the passage reads thus: "Deceit or fraud is a deliberate act of cheating by which one person hides a significant fact from another. The person being cheated makes an erroneous judgment as a result. The person being cheated makes an erroneous judgment as a result. The deceit is perpetrated to effect an error so that the other party will act according to the will of the deceiver. Therefore, it is a false or misleading representation which can lead to disastrous consequences." The Division Bench, held in the above cited decision that for deceit or fraud to be an invalidating factor, four necessary elements should be proved: "(1) Deceit must be deliberately perpetrated in order to obtain consent to marriage; (2) The error produced must be related to some quality or lack of it in one or both of the parties; (3) The quality must be unknown to the other party and deceit must have led directly to the decision to marry; and (4) The discovery of the absence of the quality must precipitate the end of the marriage." 17. A marriage cannot be annulled on the basis of any or every misrepresentation or concealment. However, if there is a misrepresentation of concealment regarding a material fact concerning the 1st respondent then the provisions of S.19 of the Act would definitely be attracted. From the evidence of PW 2 it is clear that though a number of new drugs are now available and excellent research work had been reported it is not possible to say with confidence that schizophrenia is completely curable in chronic cases. From the evidence available, it is possible to hold that wife's case is a chronic case of schizophrenia and therefore a further conclusion is possible that it is not curable. Concealment about the ailment of schizophrenia, which is a mental illness and is incurable according to PW 2, which is a material fact concerning the first respondent, amounts to obtaining the consent of the husband for marriage by fraud. 18. It is clear from the evidence that no case is pleaded by the first respondent that she had disclosed her premarital connection with corespondent before the marriage. Our society is not a permissive society and it is still conservative in its outlook in matrimonial matters. It is not possible to say that the petitioner husband is so broad minded and magnanimous enough to give consent to the marriage had the fact of 1st respondent having an affair with corespondent before the marriage was disclosed or known to him. It is not possible to say that the petitioner husband is so broad minded and magnanimous enough to give consent to the marriage had the fact of 1st respondent having an affair with corespondent before the marriage was disclosed or known to him. So on the basis of materials placed before court an inference is inevitable that consent of the petitioner for the marriage was obtained by fraud and husband has stated that he would not have given consent to the marriage if those material facts were disclosed to him. So, a case is made out to declare the marriage of the petitioner with the first respondent null and void under S.19 of the Act. From the materials available it can be inferred clearly that there is no collusion between the parties in filing this petition. In the result, the petition is allowed declaring the marriage of the petitioner with the first respondent null and void under S.19 of the Act.