Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 984 (HP)

Vinod Jaswal v. Anuradha

2012-12-17

Dev Darshan Sud

body2012
JUDGMENT Dev Darshan Sud, J. (oral) The appellant, who is the husband, is aggrieved by the judgment of the learned Additional District Judge, Una dismissing his petition under Section 12 (1) (c) of the Hindu Marriage Act. The judgment reproduced paras 4 to 15 of the petition. The ground urged for annulment of marriage was that the respondent was suffering from lack of movement from hip joints; as a result she could not sit on her legs, cannot work while sitting cannot stand up from the sitting position and cannot perform day to day work. She is not physically fit. This fact was discovered at the time of consummation of marriage which had taken place after great difficulty. The respondent was taken to the doctor as also to the Civil Hospital, Una for consultation and for treatment from an orthopedic surgeon who opined that this is a defect which she suffers from birth and it is incurable. This is in short the pleadings of the petitioner who seeks annulment of the marriage on the ground that his consent was obtained by fraud. Section 12 (1) (c) of the Hindu Marriage Act, 1955 provides:- “(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner (was required under Section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978), the consent of such guardian was obtained by force (or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent); or” So far as the physical condition of the respondent is concerned it is not disputed. What is urged before me is that the learned trial Court was not correct in holding that once the marriage has been consummated, the petitioner had condoned the defect and accepted the marriage. The learned trial Court had placed reliance on the judgment of the Punjab and Haryana High Court in Smt. Mohinder Kaur v. Bikar Singh, AIR 1979 Punjab & Haryana 248. 2. Learned counsel appearing for the appellant places reliance on the judgment of the Supreme Court in Pankaj Mahajan vs. Dimple alias Kajal (2011)12 SCC 1 to urge that even when there has been consummation of the marriage, the ground for annulment of marriage would still be available with the petitioner. 2. Learned counsel appearing for the appellant places reliance on the judgment of the Supreme Court in Pankaj Mahajan vs. Dimple alias Kajal (2011)12 SCC 1 to urge that even when there has been consummation of the marriage, the ground for annulment of marriage would still be available with the petitioner. In Pankaj Mahajan’s case the Supreme Court while dealing with the case holds that the marriage was solemnized on 2.10.2000 at Amritsar and after the marriage, the parties cohabitated and resided together as husband and wife at Amritsar in the house of parents of the appellant. One child was born, who is in the custody of the wife. The Supreme Court on facts holds that after the marriage, the appellant-husband found that the respondent was acting in a very abnormal manner as she used to abruptly get very aggressive, hostile and suspicious in nature. In a fit of anger, she used to threaten that she would put an end to her life by committing suicide and involve the appellant and his family members in criminal cases unless she was provided a separate residence. On one occasion, she attempted to commit suicide by jumping from the terrace but was saved because of timely intervention of the appellant. Adverting to the evidence on record as also the provision of law, which included that of one Dr. Virendra Mohan (PW3) who was psychiatrist, the Court concluded that the husband had brought on record enough material to show that the wife was suffering from schizophrenia which fact stood proved by the testimony of Dr. Paramjit Singh (PW1), Dr. Ravinder Mohan Sharma (PW2), Dr. Virender Mohan (PW3) and Dr. Gurpreet Inder Singh Miglani (PW7). The Court then proceeds that no doubt, it was pointed out that after the marriage, the husband and wife were blessed with a female child, but that would not make any difference to the case of the appellant. The Court (in Pankaj Mahajan’s case) then holds:- “35. It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant-husband has placed adequate materials to show that the respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant-husband has placed adequate materials to show that the respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the respondent-wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant-husband which amounted to cruelty in matrimonial law. 36. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated. They are: i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace. ii. Pushing the appellant from the staircase resulting into fracture of his right forearm. iii. Slapping the appellant and assaulting him. iv. Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him. v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself. vi. Not taking care of the baby. vii. Insulting the parents of the appellant and misbehaving with them. viii. Forcing the appellant to live separately from his parents. ix. Causing nuisance to the landlord’s family of the appellant, causing the said landlord to force the appellant to vacate the premises. x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant. xi. Always quarreling with the appellant and abusing him. xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant. 37. All these factual details culled out from the pleadings and evidence of both the parties clearly show the conduct of the respondent-wife towards the appellant-husband. With these acceptable facts and details, it cannot be concluded that the appellant-husband has not made out a case of cruelty at the hands of the respondent-wife. 37. All these factual details culled out from the pleadings and evidence of both the parties clearly show the conduct of the respondent-wife towards the appellant-husband. With these acceptable facts and details, it cannot be concluded that the appellant-husband has not made out a case of cruelty at the hands of the respondent-wife. We are satisfied that the appellant-husband had placed ample evidence on record that the respondent-wife is suffering from “mental disorder” and due to her acts and conduct, she caused grave mental cruelty to him and it is not possible for the parties to live with each other, therefore, a decree of divorce deserves to be granted in favour of the appellant-husband. In addition to the same, it was also brought to our notice that because of the abovementioned reasons, both appellant-husband and the respondent-wife are living separately for the last more than nine years. There is no possibility to unite the chain of marital life between the appellant-husband and the respondent-wife. 38. In the light of the facts and circumstances as discussed above, in our view, the impugned order of the High Court resulted in grave miscarriage of justice to the appellant husband, more particularly, the High Court failed to consider the relevant material aspects from the pleadings and the evidence, the ultimate conclusion cannot be sustained. The appellant-husband established and proved both grounds in terms of Section 13 of the Act. In the result, the appeal stands allowed. The divorce petition filed by the appellant-husband stands accepted and a decree of divorce is hereby passed dissolving the marriage of the appellant with the respondent from today, i.e. 30.09.2011. The impugned order of the High Court dated 06.08.2009 in Dimple v. Pankaj Mahajan (2010)1 ICC 265 (P&H) is set aside.” (at pp.16-17) 3. The submission made by learned counsel appearing for the appellant is that the law laid down by the Supreme Court in the above case is squarely covers the case of the petitioner and the fact that the marriage has been consummated would not make any difference to the grant of relief. 4. The submission made by learned counsel appearing for the appellant is that the law laid down by the Supreme Court in the above case is squarely covers the case of the petitioner and the fact that the marriage has been consummated would not make any difference to the grant of relief. 4. According to Section 12 (1) (c) supra, the consent of the petitioner has been obtained by force, which is not the ground in the present case or by fraud as to the nature of the ceremony which is also not the ground in this case and any material fact or circumstance concerning the respondent. It is the last circumstance urged before me. The nature of the defect, which has been confirmed by the orthopedic surgeon, prevents the respondent from performing normal duties i.e. sitting, getting up or walking etc. Considering the nature of the disability of the respondent, it cannot be said that there was active concealment for the simple reason that if what was pleaded is true, it could not be concealed by the respondent. The reason is that when the ceremonies of the marriage were performed, sitting down, getting up and walking have been performed by the parties, in that eventuality, the defect should have been absolutely patent and disclosed by the daily loco-motor action of the respondent. In these circumstances, I do not find that precedent laid down in Pankaj Mahajan’ case is attracted to the facts of the present case. I do not find any merit in this appeal which is accordingly dismissed.