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2013 DIGILAW 747 (PNJ)

Dushyant Bhatia v. Babita

2013-05-30

RAJIVE BHALLA, REKHA MITTAL

body2013
JUDGMENT RAJIVE BHALLA, J. The appellant filed a petition under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for a decree to declare marriage of the parties null and void on the allegations that the respondent and her father had fraudulently disclosed her age as 33 years being born on 16.11.1972 at Hisar at 10.45 A.M. whereas she was actually born on 16.11.1969. The respondent's father had supplied copy of a PAN card bearing No. ALFRB6341M showing the respondent's date of birth as 16.11.1972. The parties performed marriage on 20.2.2007 at Kurukshetra. The respondent stayed in her matrimonial home at Faridabad till 24.2.2007 and thereafter joined the appellant at Mumbai as he was working there. The behavior of the respondent was not good. She refused to cook food, have marital relationship with the appellant, extended threats to implicate him in a case of cruelty, dowry etc. On 8.1.2009, the respondent gave a copy of her passport to the appellant for change of her address from Hisar to Mumbai and the appellant was shocked to read that her date of birth was mentioned as 16.11.1969 instead of the date of birth disclosed to him before marriage. The respondent had disclosed a wrong date of birth as she was older to him by more than three years, thereby committing a fraud upon the appellant. The appellant had got the horoscope of the parties examined as per date of birth of the respondent, as 16.11.1972 and was misled into giving his consent to marriage. If the date of birth of the respondent had been disclosed as 16.11.1969, the horoscopes would not have matched and the appellant would not have agreed to marry with the respondent. The respondent wife filed a written reply denying the allegations of the petition. She has averred that the entire documents were supplied to the appellant regarding bio data, date of birth etc. which were thoroughly considered by him and only thereafter, he performed marriage with her. She has controverted the allegations in respect of her misconduct and raised a plea that she was subjected to torture, maltreatment, harassment, humiliation and even beatings during her stay with the appellant at Mumbai. The controversy between the parties led to framing of the following issues by the learned trial Court:- 1. She has controverted the allegations in respect of her misconduct and raised a plea that she was subjected to torture, maltreatment, harassment, humiliation and even beatings during her stay with the appellant at Mumbai. The controversy between the parties led to framing of the following issues by the learned trial Court:- 1. Whether the petitioner is entitled to annulment of marriage on the grounds mentioned in the petition if so, to what effect? OPP 2. Whether the present petition is within limitation? OPP 3. Relief. After the parties closed their evidence and on hearing counsel for the parties, the trial Court recorded a finding that the appellant was aware that the respondent’s date of birth was 16.11.1969, at least in January, 2008, when parties opened a joint account in Indian Bank at Mumbai vide Account Opening Form, Ex. R-18 but as the appellant continued to cohabit with the respondent for a period of more than one year after detection of the alleged fraud, he is estopped from claiming relief under Section 12 of the Act. Feeling dissatisfied with the verdict of the learned trial Court, the present appeal has been preferred by the appellant-husband. Counsel for the appellant submits that it is admitted that parties submitted an application dated 30.1.2008 for opening an account in Indian Bank, Mumbai. The appellant inserted the passport particulars of the respondent-wife at page two of the Account Opening Form at the dictation of the respondent-wife without personally seeing the passport. It is further argued that as the appellant-husband was in a hurry to go back to his office, he left the incomplete application with his wife for submission and thereafter, the respondent-wife appended a photo copy of her passport with the application form and deposited the application with the bank. It is argued with vehemence that as the appellant-husband did not see the passport of the respondent on 30.1.2008, there was no occasion for him to know the correct date of birth of the respondent, recorded in the passport. To substantiate his contention, counsel has submitted that had the appellant known the correct date of birth of the respondent at the time of filling in account opening form, there was no reason for him to mention her date of birth as 16.11.1972 in column of date of birth on page one of the application. To substantiate his contention, counsel has submitted that had the appellant known the correct date of birth of the respondent at the time of filling in account opening form, there was no reason for him to mention her date of birth as 16.11.1972 in column of date of birth on page one of the application. He has further submitted that the appellant came to know, for the first time, of her correct date of birth i.e. 16.11.1969 in January, 2009 when the respondent gave her passport to the appellant for change of address from Hisar to Mumbai. It is argued that the learned trial Court has misdirected itself in recording an incorrect finding that as the appellant-husband came to know about the correct date of birth of the respondent in January, 2008, therefore, the petition filed by him is barred as the parties cohabited together for more than one year after he detected the alleged fraud. Counsel for the respondent, on the other hand, refuted the contention of the counsel for appellant by placing implicit reliance upon the judgment passed by the learned trial Court. It is argued that negotiations for marriage of the parties were initiated in May, 2006. The PAN card, admittedly, was issued to the respondent on 1st September, 2006. The appellant-husband communicated with the respondent-wife through E-Mail (Ex. R-1) prior to 1.9.2006 which shows that the parties had already decided to perform their marriage, therefore, there was no reason for the respondent or her family to supply a copy of PAN card in order to satisfy any enquiry by the appellant in respect of her age or date of birth. It is further argued that the original certificates in respect of educational qualification of the respondent containing her date of birth as 16.11.1969 were given to the appellant at the time of negotiations which are still in his possession, thus, the appellant was well aware about her correct date of birth before giving consent for marriage. It is submitted that even through talks between the parents of the parties, the appellant and his family were informed about the correct age/date of birth of the respondent. It is argued that the application Ex. It is submitted that even through talks between the parents of the parties, the appellant and his family were informed about the correct age/date of birth of the respondent. It is argued that the application Ex. R-18 i.e. Account Opening Form, was filled in by the appellant-husband who incorporated the particulars of her passport and PAN card on the basis of documents in his possession and also appended a photo copy of the passport of the respondent as a proof of identification, therefore, the learned trial Court has rightly held against the husband. Counsel for the respondent has also referred to Annexure P-8 (relied upon by the husband) a copy of DDR got recorded by the appellant on 6.1.2009 against the respondent-wife, wherein he has clearly mentioned that the respondent is four years older to him. This document demolishes his plea that he learnt about the correct age of the respondent on 9.1.2009. We have heard counsel for the parties, perused the impugned judgment and the record. Admittedly, the respondent wife is elder to the appellant by more than three years. The appellant alleges that the true date of birth of the respondent was concealed from him before, during and after the marriage. The parties have levelled allegations and counter allegations against each other in respect of the time when the appellant came to know about the correct date of birth of the respondent. The plea of the respondent-wife is that the appellant knew about her correct date of birth well before he gave his consent for marriage with her. On the contrary, the plea of the appellant husband is that he was never informed about her date of birth as 16.11.1969 and till 8th January, 2009, he did not know about her correct date of birth. The parties entered into wedlock in February, 2007. Admittedly, both the parties or their parents had given advertisements in newspapers inviting offers for matrimony. The appellant has not proved the advertisement given by the respondent's family or any biodata of the respondent submitted in response to the advertisement given by the appellant or his parents. However, it is not denied that the negotiations for their marriage were initiated in May, 2006. In August, 2006, the appellant-husband sent a communication through E-Mail (Ex. R-1) to the respondent. However, it is not denied that the negotiations for their marriage were initiated in May, 2006. In August, 2006, the appellant-husband sent a communication through E-Mail (Ex. R-1) to the respondent. A perusal of this document makes it apparent that the appellant had already made up his mind to perform marriage with the respondent as he has expressed that though he has no fixed working hours of 9-00 a.m. to 5-00 p.m. but may be after marriage he will become more organized and balanced in his personal life too. The dispute, as referred to above, is the date of knowledge of the respondent's date of birth. The document Ex. R-18 in our considered opinion, is a clinching piece of evidence which is also the basis of findings recorded by the learned trial Court. This document came on record during cross examination of the appellant. The Statement of the appellant in respect of this document reads as follows:- "I had opened account at Indian Bank Bombay and I had got the respondent name joined in that my account in bank as either or survivor. I do not remember whether photographs of ours were pasted on the said form or not. It is correct that my account number at Bombay 327327255. I have seen that account opening form on which the photographs of the petitioner and the respondent are pasted and name of the petitioner is Dushyant Bhatia and Babita Kasvan is written on it. I had written the name of Babita Kasvan from the PAN number of the respondent. Volunteered that the respondent had told her name also as such. The said form bears my as well as respondent signature. I have seen page number 3 of the account opening form wherein two identification proof are mentioned as passport and electricity bill pertaining to petitioner and that of myself and passport issued by Chandigarh office and PAN card of the respondent Babita Kasvan. The photocopy of my passport as well as the passport copy of the respondent are annexed with the account opening form which is produced today. Volunteered, the account opening form which was incompletely filled was handed over to the respondent and it was submitted by the respondent in the bank in my absence and I had not seen the copy of the passport of the respondent, if any, annexed with the said form. Volunteered, the account opening form which was incompletely filled was handed over to the respondent and it was submitted by the respondent in the bank in my absence and I had not seen the copy of the passport of the respondent, if any, annexed with the said form. The forwarding letter is Mark A, the account opening form is Mark B containing four pages and my passport copy is Mark C and passport copy of the respondent is Mark D." The respondent in her testimony has controverted the plea of the appellant that the Account Opening Form was not completed by the husband or he handed over incomplete form to her or it was submitted by her in the bank in the absence of the appellant or the copy of her passport was annexed with the form, by her. She has categorically and candidly stated that the particulars of her passport were filled in by the appellant himself on seeing her passport, in his custody and a copy thereof was appended with the application by him as a proof of her identity. As the appellant-husband filled in the application form including particulars of the passport of the respondent, it is difficult to believe that he had not seen the passport and the date of birth of the respondent recorded therein. The appellant, in our considered opinion, is a well informed and smart person working in a Tours and Travels company at Mumbai, thus, having a lot of public dealing. He has cleverly tried to pose that he had no knowledge of the correct date of birth of his wife on 30.1.2008, as recorded in her passport. Except for the bald assertion of the appellant that he left the incomplete application with the respondent-wife, there is no material on record to corroborate his version. His testimony has been satisfactorily rebutted by the respondent-wife. In view of the above, we are in agreement with the finding of the trial Court that the appellant-husband knew all about the respondent's date of birth and certainly came to know the correct date of birth of the respondent wife in January, 2008, even if he did not know about it before marriage. In view of the above, we are in agreement with the finding of the trial Court that the appellant-husband knew all about the respondent's date of birth and certainly came to know the correct date of birth of the respondent wife in January, 2008, even if he did not know about it before marriage. To be fair to counsel for the appellant it would be appropriate to point out that he has raised another plea namely, if the appellant knew the respondent's date of birth as 16.11.1969 at the time of filling in her particulars in the Account Opening Form, he would not have mentioned her date of birth as 16.11.1972 on the first page of the Account Opening Form. On the face of it, the arguments seems attractive but is otherwise, not tenable. The plea that he came to know about correct age of his wife for the first time in January, 2009, is falsified and belied by a report lodged by the appellant with the police on 6.1.2009, Ex. R-10, wherein he has recorded that his wife is four years older to him. This apart, it is highly improbable in the background of serious differences between the parties, who had even approached the police against each other prior to 9.1.2009 for redressal of their grievances, that the respondent-wife would hand over her passport to the appellant for change of address from Hisar to Mumbai, if the date of her birth was the contentious fact between them. We would hasten to add that if the respondent-wife had concealed her correct date of birth from her husband, at the time of settlement of their marriage or even till January, 2009, by which time parties had already started complaining against each other, there could be any reason for her to hand over her passport and give an opportunity to the appellant-husband to know her correct date of birth and raise another issue. Keeping in view the totality of the facts and circumstances discussed hereinabove, there is no merit in the contention of the appellant that he came to know about the correct date of birth of the respondent-wife on 9.1.2009. Section 12(2) of the Act creates a specific bar that a petition for annulling a marriage under sub-section (1) of Section 12 cannot be entertained after one year of the discovery of the fraud. Section 12(2) of the Act creates a specific bar that a petition for annulling a marriage under sub-section (1) of Section 12 cannot be entertained after one year of the discovery of the fraud. As the appellant-husband positively knew her correct date of birth, recorded in her passport at the time of marriage, in January, 2008 and thereafter cohabited with her for a period of more than one year, the petition filed by the appellant is barred under Section 12 of the Act. In view of what has been discussed hereinabove, finding no merit in the appeal, the same is accordingly dismissed, leaving the parties to bear their own costs.