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2013 DIGILAW 554 (KER)

N. L. Treasa Bency @ Bency v. Preceline George @ Antony Preceline George

2013-07-04

ANTONY DOMINIC, P.D.RAJAN

body2013
Judgment : Antony Dominic, J. 1. These appeals arise from the judgment of the Family Court, Ernakulam in O.P.No.1561 of 2009, 1698 of 2009 and 919 of 2010. Among the appeals, M.A.No.29 of 2013 against the judgment in O.P.No.1698 of 2009, is filed by the husband and the other two appeals are filed by the wife. 2. The marriage between the parties was solemnized on 7.6.2009 and the couple got separated on 27.7.2009. It is thereafter these OPs were filed. The prayer in O.P.1561 of 2009 filed by the husband was for a declaration that his marriage with the respondent wife is a nullity. According to him, facts regarding her ailments were suppressed from him and that his consent was obtained by fraud entitling him for the relief prayed for. 3. In O.P.No.1698 of 2009 filed by the wife, she prayed for return of Rs.15,00,000/- paid to the husband as partimoney and a wedding ring of one sovereign. In O.P.No.919 of 2010 filed by the wife, she sought divorce on the ground of cruelty and non-consummation of marriage. The cases were tried together and on behalf of the husband, himself and two other witnesses were examined as Pws 1 to 3 and on behalf of the wife, herself, her father and three other witnesses were examined as Rws 1 to 5. Exts.A1 to A8 and Exts.B1 to B6 were produced by both sides. 4. Thereafter, Family Court passed a common judgment dated 21.7.2012 allowing O.P.No.1561 of 2009 filed by the husband and declaring the marriage as a nullity. O.P.No.919 of 2010 filed by the wife for divorce was dismissed. In O.P.No.1698 of 2009 filed by the wife, a decree entitling her for return of Rs.15,00,000/-and the wedding ring was passed. It is aggrieved by this common judgment, these appeals are filed by the parties aggrieved. 5. We shall first consider Mat Appeal Nos.29 of 2013 and 85 of 2013 filed against the judgment in O.P.Nos. 1561 of 2009 and 919 of 2010. Admittedly marriage was an arranged one. The case of the husband, who is a qualified Doctor, was that the wife was suffering from congenital hypothyroidism and that it was suppressing the same from him, his consent was obtained. According to him, the consent thus obtained is vitiated by fraud and entitled him for a decree declaring the marriage as a nullity. The case of the husband, who is a qualified Doctor, was that the wife was suffering from congenital hypothyroidism and that it was suppressing the same from him, his consent was obtained. According to him, the consent thus obtained is vitiated by fraud and entitled him for a decree declaring the marriage as a nullity. The fact that wife was suffering from an ailment, which according to the husband is congenital hypothyroidism, while according to the wife, it is hypothyroidism and not congenital hypothyroidism, is admitted. It is also the admitted case of the wife herself that she was suffering from the said ailment from her childhood (from the age of 8) and that she was under treatment in various hospitals including Amritha Hospital, Kochi. Her case was that the husband is a Doctor and that prior to the marriage, the details of her ailment were fully disclosed to the husband's mother and according to them, it was only a deficiency and not a disease. The wife contended that it was with full knowledge of the ailment, consent was given by the husband. Therefore, wife contends that there was no suppression as alleged by the husband, and on that basis, she sought dismissal of O.P.No.1561 of 2009. 6. Having considered the rival submissions and the evidence adduced by both sides, we are inclined to agree with the contention raised by the husband that his consent was obtained suppressing the ailment of the wife. First of all, even according to the evidence adduced by the respondents, the details of the ailments were disclosed to the mother of the husband. There is nothing to indicate that the ailment was disclosed to the husband or that he was aware of the ailment of the wife any time before his consent for the marriage was obtained. If that be so, it is obvious that his consent for the marriage was obtained without disclosing the fact that wife was suffering from an ailment. Even otherwise, the evidence adduced by the wife does not in any manner prove that husband was made known her ailment. This itself entitled the husband for a decree under Section 18 of the Divorce Act. 7. The medical evidence adduced on behalf of the husband shows that the disease in question is an incurable one and could be controlled only by continued medication. This itself entitled the husband for a decree under Section 18 of the Divorce Act. 7. The medical evidence adduced on behalf of the husband shows that the disease in question is an incurable one and could be controlled only by continued medication. The consequences of the ailment also are available in Ext.A2, the medical records obtained from the Amritha Institute of Medical Sciences. Therefore, as found by Family Court, it is too improbable to think that a qualified Doctor like the husband would have agreed to contract this marriage if he had known anything about the ailment of the wife. Therefore, having regard to the totality of the materials available and the circumstances made out, we uphold the finding of the Family Court that consent of the husband was obtained suppressing the ailment of the wife and that the husband was entitled to a decree declaring the marriage to be a nullity. Once we uphold the judgment of the Family Court in O.P.No.1561 of 2009, as a necessary consequence, O.P.No.919 of 2010 subsequently filed by the wife seeking divorce, has to be dismissed. 8. Now what remains is the claim of the wife for return of Rs.15,00,000/-paid as partimoney and wedding ring. This issue has been considered by Family Court in paragraphs 19 and 20 of its judgment. In so far as the payment of Rs.15,00,000/- is concerned, oral evidence of Rws.1,2 and 4 adduced on behalf of the wife and Ext.B1 to B6 documents, along with Rs.4 lakhs borrowed from RW4, show that the amount was mobilised by the wife's father immediately prior to the engagement. It is on that basis, he has stated that the payment was made in the afternoon of 25.5.2009. In the forenoon itself, the betrothal was also held. In the light of these documents which were available before the Family Court, and having regard to the custom prevailing in the society to which both belongs, which also was taken note of by the Family Court, we see no reason to disbelieve the case of the wife. 9. However, learned counsel for the appellant contended that the documents relied on by Family Court could not have been even admitted in view of the provisions of Section 65 of Indian Evidence Act. 9. However, learned counsel for the appellant contended that the documents relied on by Family Court could not have been even admitted in view of the provisions of Section 65 of Indian Evidence Act. He also relied on the Apex Court judgment in Siddiqui H (dead) by Lrs V. A.Ramalingam (2011 KHC 4217) and Sree V. Srinivas (2012(4) KLT supple 38). However, we are unable to agree with the learned counsel for the reason that in our view the technicalities of the Evidence Act cannot be imported to a proceedings before the Family Courts because Section 14 of the Act authorises a Family Court to receive as evidence any report, statement, document, information or matter that may, in its opinion, assist it to deal effectually with the dispute irrespective of whether it is relevant or admissible under the Indian Evidence Act, 1872. Section 14 of the Act, being relevant, is extracted below for reference. "Application of Indian Evidence Act, 1872:- A family court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, Therefore the admissibility of the document now canvassed before us cannot be accepted and we reject the said contention. 10. Now what remains is the claim of the wife for return of a gold ring of one sovereign. This claim of the wife also has been found in her favour, taking note of the custom in the community of exchanging rings and also the supporting oral evidence. Having analysed the claim in the light of the evidence, we do not find any material to upset the finding of the Family Court. 11. From the judgment we notice that Family Court has awarded interest at the rate of 12%. Having regard to the provisions of Section 34 of CPC, we see no reason as to why Family Court should have awarded 12% interest. Therefore, the interest awarded by Family Court will stand reduced to 8%. In the result, Mat appeal No.29 and 85 of 2013 will stand dismissed and Mat Appeal No. 651 of 2012 will stand disposed of as above.