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Karnataka High Court · body

2012 DIGILAW 444 (KAR)

Shridhar v. Seeta

2012-05-30

K.L.MANJUNATH, RAVI MALIMATH

body2012
Judgment 1. These two appeals are filed by the husband against his wife challenging the dismissal of his petition filed under Section 12(1)(b) of the Hindu Marriage Act [ for short ‘the Act’ ] and allowing of the petition filed by the respondent/wife under section 9 of the Act in M.C.No.19/2007 on the file of the Civil Judge (Sr.Dn.), Honnavar, dated 21.12.2009. 2. The facts leading to these appeals are as hereunder: The marriage between the parties was solemnized on 18.12.2006 at Shantika Parameshwari Temple at Holegadde village. It is an arranged marriage. The husband is from Holegadde village and the respondent/wife hails from a nearby village known as Karki in Honnavar Taluk. The respondent has no parents. She was brought up by her maternal uncle Sri.Dattatraya Ishwar Hegde. 3. According to the averments made in the petition filed by the husband, he had no occasion to know the background and history of the respondent and her family. It is further averred that though the respondent is suffering from a disease known as erratic psychic and though she was under medication, suppressing the material facts, the maternal uncle of the respondent negotiated the marriage of the petitioner and immediately after the marriage, it was noticed by the husband and other members of the family that there is suppression of the material facts which resulted in the marriage of the petitioner with the respondent even though the respondent was continuously taking medication from Dr.Antonio Karvalho in Honavar without any progress. Therefore, on the ground that the marriage was solemnised by suppression of material facts, he has sought the decree of nullity of the marriage. 4. The respondent/wife contested the case and was contended that she is not suffering from any mental disorder and there is no suppression of material facts as alleged by the husband. It is her case that the marriage was solemnised on 18.12.2006 and after the marriage, due to change in food and water, she fell ill and she was taken to Dr. T.N. Hegde of Kumta. She was treated for two days and then she was taken to Dr. Antony Karvalho of Honavar. 5. It is her case that the marriage was solemnised on 18.12.2006 and after the marriage, due to change in food and water, she fell ill and she was taken to Dr. T.N. Hegde of Kumta. She was treated for two days and then she was taken to Dr. Antony Karvalho of Honavar. 5. It is also her case that she is a Diploma Holder of Computer Science and prior to the marriage, she was working for 1 ½ years at Swadeshi Shop at Honavar and thereafter at Hegde Agencies in Prabhatnagar and the respondent was known to the petitioner and her family members and that she is not suffering from any psychiatric disorder. Therefore, she requested the Court to dismiss the petition. 6. She also filed the counter-claim in the same petition under Section 9 of the Act for the restitution of conjugal rights. The appellant/husband filed detailed objections to the counter-claim filed under Section 9 of the Act re-iterating the averments made by him in his petition for grant of decree of nullity of the marriage. 7. To prove their respective contentions, in all five witnesses were examined by the appellant as PWs-1 to 5 and he relied on Ex.P-1 to Ex.P-4 and out of PWs-1 to 5, PW-1 is none other than the appellant. The wife got herself examined as RW-1. She relied upon Exs.R-1 to 17. 8. The trial court after hearing the parties, formulated the following points for its consideration: (i) Whether the petitioner proves that the respondent is suffering from any metal disorder of such a kind and to such an extent that he cannot reasonably be expected to live with the respondent as averred? (ii) Whether the petitioner proves that the marriage of the respondent has been performed with him suppressing the fact that the respondent was suffering from mental disorder and thereby the respondent played fraud in getting the marriage performed? (iii) Whether the respondent proves that she is entitled to the relief of restitution of conjugal rights as prayed for in the counter claim? (iv) Whether the petitioner is entitled to the relief as prayed for in the petition? (v) What order and decree? 9. The trial court, on appreciation of the entire evidence let-in by the parties, held Issue Nos.1, 2 and 4 in the negative and Issue No.3 in the affirmative. (iv) Whether the petitioner is entitled to the relief as prayed for in the petition? (v) What order and decree? 9. The trial court, on appreciation of the entire evidence let-in by the parties, held Issue Nos.1, 2 and 4 in the negative and Issue No.3 in the affirmative. In the result, the petition filed by the husband for grant of divorce was rejected and cross-objection filed under Section 9 of the Act by the wife has been allowed. Challenging the same, the present two appeals are filed. 10. Learned counsel Mr. R.G. Hegde contends that the trial court did not appreciate the provisions of Section 12 of the Act and also did not appreciate the evidence of PWs-2 to 5. According to him, the marriage was solemnised at the instance of the maternal uncle of the respondent and whether he had informed the appellant and his well-wishers prior to the marriage about the illness of the respondent are not, could be spoken to only by the maternal uncle of the respondent. Due to non-examination of him, the Court was required to draw an adverse inference. According to him, the evidence of Dr. Antony Karvalho discloses that prior to the marriage, the respondent was taking treatment for her illness and which illness was not disclosed to the appellant. Therefore, it amounts to material suppression of facts and he further contends that if the illness of the respondent had been disclosed to him prior to the marriage, he would not have married the respondent. Under the circumstances, he requests the Court to allow the appeal and set aside the order and decree of the court below. 11. Per Contra, learned counsel for the respondent contends that when the respondent is not suffering from any mental disorder, when the respondent has not hidden anything from the appellant, the trial court is justified in dismissing the petition of the appellant. He further contends that the appellant is mainly relying upon the evidence of Dr. Antony Karvalho, but considering the evidence of Karvalho, the Court cannot hold that the respondent is suffering from any mental disorder and non-disclosure of the same amounts to suppression of the material facts. Under the circumstances, he requests the Court to dismiss the appeal. 12. He further contends that the appellant is mainly relying upon the evidence of Dr. Antony Karvalho, but considering the evidence of Karvalho, the Court cannot hold that the respondent is suffering from any mental disorder and non-disclosure of the same amounts to suppression of the material facts. Under the circumstances, he requests the Court to dismiss the appeal. 12. In regard to the appeal filed by the appellant challenging the order passed under Section 9 of the Act, the learned counsel appearing for both the parties fairly submit that if the appeal filed by the appellant/husband challenging the order passed under Section 12 of the Act is dismissed, there is no necessity to consider the case of the appeal filed by the appellant challenging the order passed under Section 9 of the Act. 13. Under the circumstances, what is to be considered by us is: (i) Whether there is a suppression of material facts and due to which the appellant married the respondent or not? 14. On perusal of the evidence of two doctors, it is clear to us that the respondent was not taking any treatment for any illness prior to November 2006, Ex.P.2 is a prescription dated 16.11.2006, Ex.P-3 is a prescription dated 30.11.2006 and Ex.P-4 is a prescription dated 07.12.2006. Admittedly, the marriage between the parties was solemnised on 18.12.2006. Therefore, it is clear that Exs.P-2 to 4 have come into existence after the marriage was negotiated and date was fixed. In other words, prior to negotiation of marriage with the respondent, she was not suffering from any disease as could be seen from Exs.P-2 to 4. 15. In addition to that, we have seen the evidence of Dr. Antony Karvalho, who does not say the nature of illness of the respondent, in order to find out if there is any suppression of material facts. According to Dr. Karvalho, the respondent had come to his Clinic in December 2007 and January 2008 for a mood disorder. If it is so, after the marriage of the respondent has taken place with the appellant on 18.12.2006, it only discloses that she was not suffering from any mood disorder either on the date of the engagement or on the date of marriage. Therefore, the whole theory of the appellant has to be discarded. 16. We have also seen the evidence of Dr. Therefore, the whole theory of the appellant has to be discarded. 16. We have also seen the evidence of Dr. Karvalho where it is stated that the respondent has taken treatment between 01.01.2007 to 10.01.2007 at St. Ignatius Hospital where he was working. But unfortunately, for the reasons best known to the appellant, the case-sheet pertaining to the admission of the respondent at St. Ignatius Hospital between 01.01.2007 to 10.01.2007 is not summoned or placed before the Court to show the nature of the illness she was suffering during the said period and the nature of treatment given to her. If for any reasons, she was admitted to the hospital for treatment for other illness, the same cannot be a ground to hold that there is suppression of the material facts. Therefore, it is clear that there is nothing to show that there is suppression of material facts and in addition to that, the doctor who has been examined as PW-3 has stated that she can lead a normal life and there is no difficulty for the appellant to live with the respondent as husband. 17. When no material is placed before the Court that the respondent was suffering from mental disorder, which was required to be brought to the notice of the appellant prior to his marriage, the petition filed by the appellant has to be dismissed on the ground that the same is filed with a mala fide intention and the allegation made are all false and misconceived. In the circumstances, point no.1 is held against the appellant. In the result, both the appeals are dismissed. Parties to bear their own costs.