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2014 DIGILAW 87 (AP)

Jalagam Kantha Rao v. Jalagam Uma Maheswari

2014-01-23

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2014
JUDGMENT L. NARASIMHA REDDY, J. :- The unsuccessful petitioner in H.M.O.P.No.90 of 1998 on the file of the Principal Senior Civil Judge, Nellore, filed this appeal under Section 28 of the Hindu Marriage Act, 1955 (for short the Act). 2. The marriage between the appellant and the respondent took place on 17.01.1991. The respondent is none other than the daughter of the maternal uncle of the appellant. They were blessed with a female child, on 19.10.1992. The appellant filed O.P.No.90 of 1998, against the respondent, for divorce, on three grounds. The first is that the respondent was suffering from the disease of epilepsy; the second is that she caused him cruelty and the third is that she deserted him, without any basis. He alleged that though the respondent is his close relation, her parents have suppressed the fact that she is suffering from epilepsy. He pleaded that due to recurrent attacks of epilepsy, his life is becoming miserable and there is no possibility of any improvement. As regards cruelty, it was alleged that the respondent used to threaten him to commit suicide, and at one point of time, she has consumed Baygon Spray. It was also alleged that the respondent never used to co-operate with him, and at every stage, she used to harass him, on one pretext or the other. So far as the allegation as to desertion is concerned, the appellant pleaded that the respondent left the matrimonial home in 1994, and thereafter, she did not come back, in spite of repeated efforts. 3. The respondent filed a counter, opposing the O.P. She pleaded that the factum of her suffering from epilepsy was very much known to the appellant and his parents and it is at the insistence of the appellant that her marriage was performed with him. She pleaded that the disease, which was existing during her childhood, was almost completely cured by the time of her marriage, but on account of the harassment caused to her by the appellant, it resurfaced occasionally. She has also denied the allegation as to cruelty, including the one of the alleged taking of Baygon Spray. On the allegation of desertion, the respondent stated that it is the appellant, who abruptly left for Visakhapatnam, without any intimation and remained there for three years, and left with no alternative, she had to live with her parents, together with the child. 4. On the allegation of desertion, the respondent stated that it is the appellant, who abruptly left for Visakhapatnam, without any intimation and remained there for three years, and left with no alternative, she had to live with her parents, together with the child. 4. The trial Court dismissed the O.P. through order, dated 05.11.2002, holding that none of the grounds pleaded by the appellant were proved. Hence, this appeal. 5. Sri K.Ananda Rao, learned counsel for the appellant, submits that though Section 5 of the Act was amended deleting epilepsy as a factor for invalidating marriage, it is permissible for the appellant to plead it, since the O.P. was filed before that amendment. He submits that the appellant is entitled for a decree, because there is no denial of the fact that the respondent is suffering from epilepsy. He contends that the ground of cruelty is also proved through oral and documentary evidence, and the threat of committing suicide on the part of the respondent does become relevant in this regard. Learned counsel further submits that in spite of the efforts made by his client, the respondent did not turn up, and thereby, the plea of desertion is also proved. 6. Sri M.Venkata Narayana, learned counsel for the respondent, on the other hand, submits that the appellant and his family were aware that the respondent was suffering from epilepsy during her childhood and knowing fully well about the medical background of the respondent, the appellant married her. He further submits that taking into account, the fact that epilepsy cannot be treated as an impediment for matrimonial life, Parliament caused amendment to Section 5 of the Act and that ground is not at all available to the appellant, at this stage. As regards grounds of cruelty and desertion, learned counsel submits that the evidence on record would establish that it is the appellant who is guilty of those two grounds and not the respondent. 7. Since the appellant prayed for divorce by pleading three grounds, the trial Court framed the following issues, touching each of them: i) Whether the respondent suffered epilepsy and if it is an incurable disease? ii) Whether the respondent subjected the petitioner to cruelty for his conduct in relation to the respondent and her relations? iii) Whether the desertion by the respondent of the petitioner is true and wilful? ii) Whether the respondent subjected the petitioner to cruelty for his conduct in relation to the respondent and her relations? iii) Whether the desertion by the respondent of the petitioner is true and wilful? iv) Whether the petitioner subjected the respondent to cruelty? v) Whether the marriage of the petitioner and respondent is liable to be dissolved?†8. On behalf of the appellant, PWs.1 to 3 were examined and Exs.A.1 to A.13 were filed. On behalf of the respondent, RWs.1 to 4 were examined and Exs.B.1 & B.2 were filed. The In-patient Register of a hospital and entries therein were marked as Exs.X.1 to X.4. The trial Court dismissed the O.P. 9. The point that arises for consideration before this Court is as to, Whether the appellant is entitled for the decree of divorce? 10. We, however, propose to discuss each of the grounds pleaded by the appellant. 11. The first ground pleaded by the appellant, for grant of divorce is that the respondent was suffering from epilepsy. This plea is based upon Section 5 of the Act. The provision stipulates the conditions that are required to be fulfilled by the parties to the marriage. While some conditions are stated in the affirmative, others are mentioned in negative terms. Clause (ii)(c) thereof, is to the effect that at the time of marriage, neither party shall have been subjected to recurrent attacks of insanity or epilepsy. The word epilepsy was deleted by the Parliament, through Act 39 of 1999. Since the O.P. was filed before that date, let us proceed on the assumption that it is open to the appellant to canvass that ground. 12. The Act does not disqualify a person suffering from epilepsy to contract a marriage. The disqualification gets attached, only if there is a recurrent attack of that disability or disease. What is recurrent and at what frequency the matrimonial life can be said to have been disrupted is always subjective, and one cannot lay any hard and fast rule, in this behalf. Added to that, there is an element of humanity involved. 13. In case, the spouse of a person is suffering from any disease, the true affection come out and it must result in putting his or her efforts to serve the ailing spouse. The ailment cannot be cited as a ruse to break the sacred bond. 14. Added to that, there is an element of humanity involved. 13. In case, the spouse of a person is suffering from any disease, the true affection come out and it must result in putting his or her efforts to serve the ailing spouse. The ailment cannot be cited as a ruse to break the sacred bond. 14. Another aspect is that if a person has contracted the marriage, with another, knowing fully well that he or she is suffering from the two diseases, viz., insanity or epilepsy, he cannot cite that ground at a later point of time, for annulment of the marriage. Assistance can be drawn from Section 12(2) of the Act. It may be noted that one of the grounds for annulment of the marriage is that the consent of a party has been obtained by pleading fraud or through misrepresentation. The provision, however, directs that if a party, who complained of such acts of omissions continues to live with his spouse thereafter, he is precluded from pleading that ground. Similarly, if a party has contracted marriage with another with full knowledge of the ailments that are mentioned in Section 5(ii)(c) of the Act, or has lived after he gains knowledge thereof, he cannot be permitted to complain of the same and seek divorce. The principles of acquiescence, estoppel and other related concepts come into play. 15. It is the specific case of the respondent that though she had epilepsy during her childhood, it was cured through treatment, by the time of her marriage, and it is on account of the harassment caused to her by the respondent that it has resurfaced. She further stated that her parents were not at all inclined to agree for her marriage with the appellant, and it is the latter, who insisted for the said marriage and accordingly, it was performed. The appellant is not able to contradict both these contentions. Therefore, what emerges from the evidence is that, a) being the close relation of the respondent before the marriage, the appellant was very much aware of her health condition; b) it is he, who proposed the marriage with the respondent being aware of her medical background; and c) the allegation of the respondent that epilepsy resurfaced due to harassment caused to her remained unrebutted. 16. Therefore, this facet pleaded by the appellant cannot be accepted. 17. 16. Therefore, this facet pleaded by the appellant cannot be accepted. 17. Another ground pleaded by the appellant was that the respondent has caused cruelty to him. The most serious act attributed by the appellant to the respondent is that the latter made an attempt to commit suicide by taking Baygon Spray. He did not adduce any evidence in this behalf, though the respondent flatly denied it. Assuming that the respondent has resorted to such act, it is just un-understandable as to how it amounts to cruelty towards him. The evidence discloses that the parents of the respondent were very much concerned and worried about the unfortunate life, which she was forced to lead, and the appellant is squarely responsible for all that. We are not at all impressed by the plea, or evidence, of the appellant, in this behalf. The trial Court has undertaken extensive discussion and arrived at just and proper conclusion. 18. The last ground pleaded by the appellant is that the respondent deserted him. This is a typical case where the person, who is guilty of a particular activity, has accused other of the same. It is not in dispute that the parties herein lived together till 1994. In case the respondent has left the matrimonial home, without any justification, she could have certainly been accused of deserting the appellant. The fact of the matter, however, is that it is the respondent, who left the matrimonial home abruptly for Visakhapatnam, that too, without intimating the respondent and remained there for three years. The respondent desperately made attempts to know the whereabouts of the appellant, but she was not successful therein. It is just un-understandable as to how the appellant can plead the ground of desertion against the respondent under these circumstances. 19. We, therefore, dismiss the appeal. 20. The respondent is living in the house of her parents along with the child, on being deserted by the appellant. It is not known as to whether she has got any independent source of income. The appellant cannot avoid his liability to maintain both of them. 21. Hence, we direct that the appellant shall be under obligation to pay maintenance at the rate of Rs.2,500/- (Two thousand five hundred), per month, each, to the respondent and their daughter, with effect from January, 2014. The appellant cannot avoid his liability to maintain both of them. 21. Hence, we direct that the appellant shall be under obligation to pay maintenance at the rate of Rs.2,500/- (Two thousand five hundred), per month, each, to the respondent and their daughter, with effect from January, 2014. It is also directed that it shall be the obligation of the appellant to perform the marriage of their daughter and any immovable property held by him, shall be under charge for this purpose. 22. There shall be no order as to costs. 23. The miscellaneous petition filed in this appeal shall also stand disposed of. Appeal dismissed.