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2009 DIGILAW 1562 (PNJ)

Jagdish Singh v. Kanta Devi

2009-09-03

VINOD K.SHARMA

body2009
JUDGMENT Vinod K. Sharma, J. (Oral) - The appellant-husband by way of this appeal has challenged the judgment and decree dated 21.12.1999 passed by the District Judge, Hoshiarpur vide which, petition filed by the appellant under Section 12 of the Hindu Marriage Act claiming a decree of nullity, stands dismissed. 2. As per the case set up by the appellant, the marriage between the parties was performed on 7.12.1996 at village Kahnuwan, Tehsil and District Hoshiarpur as per Hindu rites. The case set up by the appellant was that on the next day of marriage, when the appellant tried to consummate the marriage, the respondent-wife became furious and started behaving abnormally. She started shouting loudly and threw the articles lying in the rooms. She was overpowered by the family members of the appellant. After about an hour, her condition came under control and on enquiry, it was revealed that she was suffering of such kind of fit at regular intervals and was under treatment. The case pleaded therefore, was that respondent or her family members did not disclose the fact of mental disorder therefore, his consent to the marriage was obtained by fraud. It was further pleaded by the appellant that when the matter regarding this incident was told to the parents of the respondent, they admitted their fault and took the respondent with them and since then, she was living with her parents. It was also case of the appellant that marriage was never consummated. 3. The petition was contested while admitting the factum of marriage, the stand taken by the respondent was that Smt. Santosh is the sister of the appellant, and is married at village Mansar and one Pushpa is the sister of the husband of the sister of the appellant and married in village Kahnuwan. The marriage was arranged through her. It was also pleaded that the appellant and his family members were offered to see the respondent in the house of Vasudev of village Mahuiddinpur, who was husband of sister of the mother of the respondent, in the month of September, 1996. The appellant along with his parents, brother and his wife and Santosh along with 4-5 persons had come to village Mahuiddipur, where she was seen. 4. The parents of the appellant had also talked with the respondent and approved matrimonial proposal. The appellant along with his parents, brother and his wife and Santosh along with 4-5 persons had come to village Mahuiddipur, where she was seen. 4. The parents of the appellant had also talked with the respondent and approved matrimonial proposal. The marriage was said to have been performed with great pump and show, and the marriage party was of about of 70 persons. It was also case of the respondent that the appellant was given Bajaj Scooter, colour T.V., fridge, cooler, godrej almirah, gents watch, gold chain and one gold ring was also given to the father of the petitioner. In addition thereto, parents of the respondent also gave ornaments weighting about 15 totas of gold consisting of four gold bangles, ring, ear rings, bracelet, nose pin, nath and other ornaments and silver paijaibs. 5. Besides this, furniture, sewing machine, electric press, lady watch and other valuable clothes were also given at the time of marriage. The allegations of the appellant regarding her conduct at the first night referred above was denied. The case set up by the respondent further was that the appellant and his family members were greedy persons, who started taunting her for bringing less dowry after a week of the marriage, and demanded Rs.50,000/-from her parents. The respondent also pleaded that all ornaments and other valuable articles given by her parents were taken from her, and after 25 days of the marriage, she was asked to accompany the appellant to the house of her uncle (Maasar). After she was taken there, the appellant left her there cleverly and slipped away and thereafter never came back to see her. She further pleaded that during her stay in the house, the appellant had been doing sexual intercourse with her. The allegations that she was suffering from mental ailment were denied. From the pleadings of the parties, learned matrimonial Court was pleased to frame the following issues:- 1. Whether the consent of the petitioner was obtained by fraud and concealment? OPP 2. Relief. 6. When the case was fixed for arguments, it was pointed out that two applications for medical examination and for her admission in the psychiatric hospital, were pending, which were required to be disposed of, in order to confirm whether the respondent was suffering form any mental disorder. 7. OPP 2. Relief. 6. When the case was fixed for arguments, it was pointed out that two applications for medical examination and for her admission in the psychiatric hospital, were pending, which were required to be disposed of, in order to confirm whether the respondent was suffering form any mental disorder. 7. Learned matrimonial Court held that after filing of the petition, application under Section 24 of the Hindu Marriage Act was moved by the respondent. The case was refixed for reconciliation, where the respondent appeared on the date fixed but it was the appellant who chose not to appear. The Court further noticed on 9.5.1998, the appellant had offered to get the respondent treated from doctor for her alleged mental disorder wherein the respondent had shown her readiness, subject to the condition that parties should live together. However, the said compromise could not be effected. Learned matrimonial Court in view of the conduct of the appellant held that appellant had failed to come up with any explanation, as to why he did not take the respondent and get her treated as offered by him on earlier occasion. 8. The Court in view of the conduct of the appellant, further held that the application was not bona fide and only an attempt to dump, the respondent under the care and supervision of a psychiatric of his own choice, where the psychiatric should administer certain medicine so that she loses her normalcy and actually becomes a psychiatric patient. Learned matrimonial Court also held that respondent had appeared in the witness box as RW1, wherein she made a detailed statement, which in no way gave any inclination of any sort that she was suffering from any mental ailment, disturbance or disorder. 9. In spite of lengthy cross-examination, her evidence could not be shattered. The learned Court therefore held that she suffers from no mental disorder, or ailment as alleged by the appellant. The learned Court held that statement made by her, was consistent and uniform, with regard to the treatment meted out to her by the appellant and his family members, which proved she was not suffering from any mental disorder. The applications moved were dismissed. 10. The learned Court held that statement made by her, was consistent and uniform, with regard to the treatment meted out to her by the appellant and his family members, which proved she was not suffering from any mental disorder. The applications moved were dismissed. 10. The plea of the appellant that marriage was not consummate due to mental disorder of the respondent, and the evidence led in support thereof was not accepted by the learned matrimonial Court, in view of the specific stand taken by the respondent that the marriage was in fact consummated, but no steps were taken to get her medically examined. Only attempt was made to get her treated for mental disorder. The stand that marriage never stood consummated was neither challenged nor proved. 11. Learned matrimonial Court also held that the evidence led proved, the fact that the appellant had a genuine source to verify the antecedents and mental ailment of the respondent, from his very close relations before the marriage with the respondent. Learned Court also held that parties had the opportunity to meet for three months, and in fact the family members of the appellant had gone to see the respondent in the house of Vasudev. Therefore, there was opportunity with appellant to know about her mental ailments if there was any. 12. Learned matrimonial Court held that fraud is required to be proved beyond a shadow of reasonable doubt, and no finding on preponderance of evidence or probability can be recorded to hold that the fraud was played. 13. The plea of the appellant that huge dowry was only given because the fact that she was suffering from mental ailments, was also rejected by holding that no such inference can be drawn. 14. Learned Court further held that the plea of concealment of alleged ailment remained unsubstantiated. The Court further held that in order to succeed, besides mental disorder, the appellant was also required to prove that the mental derangement of the respondent was of the level which was to adversely affect the capacity of the respondent to consummate the marriage. Learned matrimonial Court further held that lengthy cross-examination of respondent showed that she was not suffering from any mental disorder, as alleged. 15. Mr. Learned matrimonial Court further held that lengthy cross-examination of respondent showed that she was not suffering from any mental disorder, as alleged. 15. Mr. P.K. Gupta, Advocate for the appellant contended that the judgment and decree cannot be sustained, inasmuch as in view of refusal of the respondent to get her medically examined, adverse inference was required to be drawn. It is also the contention of learned counsel that learned matrimonial Court failed to notice, that besides appearing in the witness box, no other independent evidence was produced to prove the factum that respondent was not suffering from mental disorder. 16. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. Learned matrimonial Court rightly refused to draw adverse inference, as the respondent had not refused to get herself treated, besides an offer was also made to the respondent to join the appellant and get treatment as desired by the appellant, but it was appellant, who backed out from the offer made. The applications moved by the appellant for medical examination were dismissed by the matrimonial Court by recording a valid and good reason. The question of drawing any adverse inference against the respondent does not arise. 17. The other contention of the learned counsel for the appellant that for want of independent evidence by the respondent, the petition was to be allowed also cannot be sustained as evidence led by the appellant was rebutted by the respondent while appearing in the witness box. 18. Learned matrimonial Court, on appreciation of her statement recorded a positive finding that respondent was mentally alert, and her evidence inspired a confidence. The learned matrimonial Court rightly held that the plea of fraud was required to be proved beyond reasonable doubt, but the appellant failed to prove the plea of fraud. It was also proved that the period of three months available with the appellant to know more mental state of the respondent. The family members of the appellant, had even talked to respondent, and the meeting did not disclose any mental disorder. The learned Court rightly held that the appellant failed to prove that his consent to the marriage was obtained by fraud and concealment. The contentions raised by learned counsel for the appellant being without merit deserve to be rejected. For the reasons stated, the findings of learned matrimonial Court on Issue No.1 are affirmed. The learned Court rightly held that the appellant failed to prove that his consent to the marriage was obtained by fraud and concealment. The contentions raised by learned counsel for the appellant being without merit deserve to be rejected. For the reasons stated, the findings of learned matrimonial Court on Issue No.1 are affirmed. No ground is made out to interfere with the judgment and decree passed by the matrimonial Court. Dismissed with no order as to costs. Appeal Dismissed.