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2012 DIGILAW 35 (PNJ)

Sant Ram Panthi v. Ram Swarath Bhushan

2012-01-05

TEJINDER SINGH DHINDSA

body2012
JUDGMENT : Tejinder Singh Dhindsa, J. The plaintiffs-appellants are in second appeal before this Court. A suit for recovery of damages was filed by the plaintiff-appellants against the defendant-respondents in the Court of Civil Judge (Jr. Divn.), Chandigarh. The entire basis of filing the suit was that plaintiff-appellant No. 3 had been enticed into matrimony with defendant-respondent No. 3 by suppressing material facts as regards the mental ailment of defendant-respondent No. 3, whereas he being of mental unstable mind and not being in a position to perform his marital obligations. The contention raised was that a fraud had been played upon the plaintiff-appellants. Briefly stated, it had been pleaded that a petition for annulment of marriage between plaintiff-appellant No. 3 and defendant-respondent No. 3 had been filed in the Court of Additional District Judge, Chandigarh and the same had been accepted and their marriage had been annulled by judgment and decree dated 3.8.2005. Plaintiff-appellant No. 1 in December, 2003 had invited proposals through internet for the matrimonial alliance of his daughter i.e. plaintiff-appellant No. 3. On 30.3.2004, defendant-respondent No. 3 had responded through e-mail and had stated his qualifications and employment details therein. It was pleaded that defendant-respondent No. 3 had, however, suppressed material fact that he was suffering from a mental disorder and such fact was known to his parents i.e. defendant-respondent Nos. 1 and 2. The marriage was solemnized on 27.6.2004, whereupon plaintiff-appellant Nos. 1 and 2 had incurred a huge expenditure amounting to the tune of Rs. 8 lacs. It is pleaded that in the year 2004, plaintiff-appellant No. 3 accompanied defendant-respondent No. 3 i.e. her husband at that point of time to the city of Zurich, Switzerland and thereupon discovered the unstable mental health of the defendant-respondent No. 3. In a nutshell it was pleaded that it was thereupon that the annulment of marriage was sought for and granted and it is on account of the fraudulent and wrongful acts of the defendant-respondents that the suit for recovery of damages had been instituted. The defendant-respondents contested the suit and it was pleaded on merits that the marriage was solemnized after due and free consent of the parties. It was also pleaded that there had been no concealment on their part. The factum of defendant-respondent No. 3 suffering from a mental disorder was also specifically denied. The defendant-respondents contested the suit and it was pleaded on merits that the marriage was solemnized after due and free consent of the parties. It was also pleaded that there had been no concealment on their part. The factum of defendant-respondent No. 3 suffering from a mental disorder was also specifically denied. The suit for recovery of damages was dismissed vide order dated 12.1.2009 by the Civil Judge (Jr. Divn.), Chandigarh. The Trial Court conclusively held that the plaintiff-appellants had failed to prove on record that any fraud had been played upon them by the defendants-respondents. It was held by the Trial Court that no cogent evidence had been led to return a finding that the plaintiff-appellants had been trapped into a matrimonial alliance and there was no evidence whatsoever to prove that defendant-respondent No. 3 was a person, who was lacking in physical/mental capacity with regard to his marital obligations. 2. The plaintiff-appellants being dissatisfied filed a civil appeal in the Court of Additional District Judge, Chandigarh and the same has been dismissed vide impugned judgment 31.5.2011. Resultantly, the plaintiff-appellants are in second appeal before this Court. 3. I have heard Mr. K.L. Kohli, learned Counsel appearing for the plaintiff-appellants at length. 4. Mr. Kohli has vehemently argued that the findings of both the Courts below are totally erroneous and based on surmises and conjectures. As per him on the basis of evidence led on record a conclusion could clearly be drawn that defendant-respondent No. 3 was suffering from a mental disorder and the same was never disclosed to the plaintiff-appellants and as such the consent for the matrimonial alliance between plaintiff-appellant No. 3 and defendant-respondent No. 3 had been obtained by playing fraud upon the plaintiff-appellants. Learned Counsel further contends that as soon as plaintiff-appellant No. 3 came to know about the mental disorder of defendant-respondent No. 3, he disclosed to her about the treatment that had been taken by him from various hospitals. As such learned Counsel contends that the plaintiff-appellants having incurred heavy expenditure at the time of solemnization of the marriage and coupled with the fact of the fraudulent activity on the part of defendant-respondents and the marriage having been annulled by the competent Court of Law, the plaintiff- appellants were entitled to claim damages amounting to Rs. 20 lacs. As such learned Counsel contends that the plaintiff-appellants having incurred heavy expenditure at the time of solemnization of the marriage and coupled with the fact of the fraudulent activity on the part of defendant-respondents and the marriage having been annulled by the competent Court of Law, the plaintiff- appellants were entitled to claim damages amounting to Rs. 20 lacs. I have given my thoughtful consideration to the submissions made by learned Counsel appearing for the appellants. The entire issue hinges around the fact as to whether the consent of the plaintiff-appellants as regards the matrimonial alliance regarding marriage between the plaintiff-appellant No. 3 with defendant-respondent No. 3 was obtained fraudulently and by concealing any material fact in the nature of his qualifications, status, mental/physical health etc. The first Appellate Court upon appreciation of the entire evidence led on record has clearly noticed that all the material averments as regards the alleged fraud, concealment of the nature of mental illness, etc. have been made in paras 7 to 12 of the plaint. In the reply filed on behalf of the defendant-respondents to the corresponding paras, there has been a categoric denial. In such a situation, the plaintiff-appellants having raised a plea that on account of the act and conduct of defendant-respondent No. 3 of concealment and further the fact of self disclosure of the mental disorder and the same having been categorically denied, it was incumbent upon the plaintiff-appellants to have confronted the defendant-respondent No. 3 with such factual situation in cross-examination so as to substantiate and corroborate their plea. However, the first Appellate Court has noticed that the instances of imperfect marital intercourse, beatings to plaintiff-appellant No. 3, self-disclosure of mental ailment and treatment thereof by defendant- respondent No. 3 were never put to DW-3, Pritesh Bhushan, defendant- respondent No. 3. On the other hand, PW-3 Amarpali Panthi, i.e. plaintiff- appellant No. 3 has herself admitted that she has no documentary proof to show that her former husband was abnormal. It has also been noticed by the Courts below that even the judgment and decree dated 3.9.2005 passed in Petition No. 6 of 2005 Ex. P-2 for annulment of marriage was allowed ex parte. Even in that case, plaintiff-appellant No. 3 had not brought forth any documentary evidence with respect to the mental ailment of defendant-respondent No. 3. It has also been noticed by the Courts below that even the judgment and decree dated 3.9.2005 passed in Petition No. 6 of 2005 Ex. P-2 for annulment of marriage was allowed ex parte. Even in that case, plaintiff-appellant No. 3 had not brought forth any documentary evidence with respect to the mental ailment of defendant-respondent No. 3. Still further, the plaintiff-appellants have not been able to prove on record any fraudulent act having been committed by the defendant- respondents. Such is the concurrent finding by the Courts below. Ex. R-6 is a copy of the order passed on the application for interim maintenance, wherein it was stated that the petition u/s 25 of the Special Marriage Act, 1954 for grant of interim maintenance was filed by plaintiff-appellant No. 3 and the same was disposed of. After disposal of the main petition the plaintiff-appellant No. 3 again moved an application to decide her application for grant of interim maintenance. The same was dismissed vide order dated 16.8.2005 passed by the Additional District Judge, Chandigarh. Being aggrieved thereof a revision petition in the High Court was filed by the plaintiff-appellant No. 3 and the same was registered as Civil Revision No. 5135 of 2005 and the same was also dismissed by the High Court on 29.9.2005. As such the Trial Court has clearly held that the plaintiff-appellant No. 3 has availed all the opportunities available to her for maintenance as well as for permanent alimony. It has also been held that the plaintiff-appellants have failed to prove that the consent for marriage had been obtained by any fraudulent means and nothing has been placed on record in the nature of any medical evidence to prove the mental/ physical incapacity. No report of any doctor or any medical prescription has been placed on record. On the other hand, defendant-respondent No. 3 has placed on record a copy of the salary certificate as Ex. R-7 to demonstrate that he was working as a Senior Software Engineer in a reputed firm. The plaintiff-appellants are basing their claim for recovery of damages on the ground of having been enticed into matrimony and as such a fraud having been played upon them by concealing the fact of a mental disorder of defendant-respondent No. 3. R-7 to demonstrate that he was working as a Senior Software Engineer in a reputed firm. The plaintiff-appellants are basing their claim for recovery of damages on the ground of having been enticed into matrimony and as such a fraud having been played upon them by concealing the fact of a mental disorder of defendant-respondent No. 3. It was incumbent upon the plaintiff-appellants by leading cogent and independent evidence and that too specifically on the aspect of the mental ailment being allegedly suffered by defendant-respondent No. 3. Such onus has not been discharged by the plaintiff-appellants as has been held by both the Courts below. On the other hand the first Appellate Court has referred to the testimony of DW-3 i.e. defendant-respondent No. 3 that he had passed a degree of Electrical Engineering from I.I.T., Kanpur in the year 1999 and thereafter he qualified a diploma course in the management from I.I.M., Bangalore in the year 2000-2002. It was upon being armed with such qualifications that he was working as a Senior Business Analyst and working in the city of Zurich, Switzerland. The Courts below have held that it was not possible for the defendant-respondent No. 3 to be holding such a senior and responsible post in a multi national company, if, he was suffering from any mental disorder. I do not find it to be a fit case that would warrant any interference in the findings and conclusions of the Courts below. The testimony and evidence of the parties have been discussed threadbare. There is no question of law much less substantial question of law that arises for determination in the present second appeal. The present second appeal for the reasons and discussion recorded above must fail and is, accordingly, dismissed.