Citation Codes

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Case Number

C.M.A No. 941 of 1993.

Attorney(S)

V.R Venkalaraman, Senior Advocate for Messrs. S. Baskaran for Appellant.
Mr. A. Raghunathan, for Respondent.

Judges

Srinivasan
S.S Subramani, JJ.

Acts

S. 5(ii)(b) of the Hindu Marriage Act. That Section
S. 12(1)(c) of the Hindu Marriage Act
S. 12(1)(a) of the Hindu Marriage Act,
S. 12 of the Hindu Marriage Act
S. 5 of the Hindu Marriage Act

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Smart Summary

Concise Analytical Summary of the Judgment (S.S. Subramani, J.)

Factual and Procedural Background

The respondent filed an Original Petition (M.C.O.P No. 482 of 1992) under S.12(1)(c) of the Hindu Marriage Act seeking a declaration that the marriage solemnised on 31.1.1992 between the parties was a nullity on the ground that the appellant's prior mental illness was concealed and the respondent's consent was thereby vitiated. The respondent alleged that prior to the marriage the appellant displayed odd behaviour and that her father had concealed that she had been treated for mental illness since 1984; medical records were later produced on 16.2.1992 and a psychiatrist's opinion was obtained that her disorder was incurable.

The appellant contested the petition, denying suppression and asserting that she is mentally normal, a B.A. (Economics) graduate, and that she had disclosed her treatment and recovery in a private conversation with the respondent on 14.10.1991. The Family Court found that consent was not valid because the respondent had not been informed about the appellant's mental illness and declared the marriage a nullity. The appellant (wife) appealed to the High Court.

During the trial the respondent gave evidence as P.W.1 and relied on documents Exs. A-1 to A-12; the appellant testified as R.W.1 and did not file documentary evidence. At the appellate stage, the parties agreed to have the appellant examined by three independent doctors, whose reports (Ex. C-1 to C-3) were placed on record and uniformly concluded that the appellant had no current ailment and was fit for marital life.

Legal Issues Presented

Whether there was suppression of a material fact (namely the appellant's prior illness) by the appellant or her father prior to the marriage;
Whether the respondent's consent to the marriage was valid, or whether it was obtained by fraud/misrepresentation as contemplated by S.12(1)(c) of the Hindu Marriage Act.

Arguments of the Parties

Respondent's Arguments (as set out in the petition)

The respondent alleged that before and during the marriage the appellant exhibited behaviour indicating mental illness (delayed replies, shivering at time of tying 'Thali', odd conduct at reception and dinner, disjointed letters).
The respondent alleged that the appellant's father concealed that the appellant had been treated for mental illness since 1984 and only disclosed records after the marriage; the respondent relied on a psychiatrist's opinion that the disorder was incurable.
The respondent maintained that his consent was obtained by fraud as to a material fact concerning the appellant, thereby nullifying the marriage under S.12(1)(c).

Appellant's Arguments (as set out in the counter and evidence)

The appellant denied suppression and the factual allegations of odd behaviour. She states she is mentally sound, a university graduate, and able to manage herself.
She asserted that she disclosed her medical history and treatment (including treatment at JIPMER, Pondicherry) in a private conversation with the respondent on 14.10.1991 and that the respondent appreciated the disclosure and gave his consent thereafter.
The appellant challenged the psychiatrist's opinion relied upon by the respondent as obtained without proper notice and from a person who had not examined her; she contested the Family Court's assessment of her letters and demeanour and denied the occurrences alleged at the reception/dinner.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dr N.G. Dastane v. Mrs S. Dastane, AIR 1975 S.C. 1534	Standard of proof in civil cases: issues resolved on balance/preponderance of probabilities (not proof beyond reasonable doubt).	The Court applied the balance of probabilities test in assessing competing testimonies and decided the suppression and consent issues on preponderance of probabilities.
Alka Sharma v. Abhinesh Chandra Sharma, AIR 1991 M.P. 205	Discussed S.5 (capacity) and S.5(ii)(b) — mental fitness at time of marriage; principles of when mental fitness may render marriage voidable.	The Court noted the decision deals with S.5(ii)(b) and found it not relevant to the present case because the respondent did not allege a breach of S.5(ii)(b) but alleged suppression of facts under S.12(1)(c).
Pronab Kumar Ghosh v. Krishna Ghosh, AIR 1975 Calcutta 109	Standard/onus of proof in lunacy cases — petitioner challenging marriage on lunacy must adduce material from which lunacy can be reasonably inferred; court's conscience must be satisfied.	The Court observed that this authority, though pre-1976 amendment, supports the appellant because the petitioner/respondent failed to discharge the onus of proving permanent unsoundness or lunacy.
V. Balakrishna v. Lalitha, AIR 1984 A.P. 225	Considered suppression of a material fact where bride had epilepsy; interpretation of "at the time of marriage" under S.5.	The Court held the principle (epilepsy as ground under S.5(ii)(c)) had no application to present facts.
Kiran Bala Asthana v. Bhaire Prasad Srivastava, AIR 1982 Allahabad 242	Importance of free consent and that suppression/misrepresentation regarding material facts can amount to fraud under S.12(1) read with S.5(ii).	The Court cited the principle that absence of free consent owing to deception may annul a marriage, but found that on present evidence no ground for annulment was made out.
Smt. Asha Srivastava v. R.K. Srivastava, A.I.R. 1981 Delhi 253	Deception as to material fact relating to respondent is a ground for annulment under S.12(1); concealment of incurable schizophrenia would attract S.12(1)(c).	The Court noted that that authority would help the respondent if the facts were similar, but on the present evidence the appellant was shown to be of sound mental health and to have disclosed history, so the authority favors the appellant's factual position.
Rajender Singh v. Smt. Pomilla, A.I.R. 1987 Delhi 285	What constitutes misrepresentation or concealment of a material fact depends on facts; a material fact is one which would influence consent to marry; misrepresentation may occur before marriage.	The Court used the principle to evaluate whether the appellant's alleged prior ailment was a material fact and whether disclosure (or concealment) would have influenced the respondent; found disclosure likely influenced the respondent to consent.
Smt. Praveen Kumari v. Madamohan Kumar, A.I.R. 1984 Delhi 139	Concealment of epilepsy prior to marriage can amount to obtaining consent by concealment of disease.	The Court found that the facts of that case (concealment of epilepsy) were not comparable and had no application here.

Court's Reasoning and Analysis

The Court conducted a step-by-step assessment grounded on the balance of probabilities (as per Dr. N.G. Dastane). The central analytical steps and findings were:

Assessment of evidence sources: All testimony in the case was "interested testimony" (parties themselves). The Court emphasised the civil standard of proof (preponderance of probabilities) and proceeded to weigh competing versions.
Examination of pre-marriage interactions: The Court carefully scrutinised events of 13.10.1991 and 14.10.1991. It found that the respondent admitted seeing the appellant on both dates in deposition though the Original Petition omitted mention of the 14.10.1991 private meeting. The Court viewed the omission as significant and adverse to the respondent's claim of surprise or immediate suspicion about mental capacity.
Credibility and suppression: The Court noted the respondent's failure to explain why he did not disclose the 14.10.1991 meeting in his petition and found that suppression of that meeting undermined his credibility and suggested he had not come to court with "clean hands."
Evaluation of specific alleged incidents (betrothal, 'Lagna Pathrikai', thali-tying, reception, dinner): The Court found that the respondent's petition and deposition contained inconsistencies and lacked detail on key events (e.g., alleged request about how to wear saree, shivering at thali, pinching at reception, gulping buttermilk). Where the appellant denied these occurrences, the Court concluded that the respondent's evidence was vague and against probabilities.
Documentary proof and medical evidence: The Family Court had relied heavily on Exs. A-1 (photocopy of case-sheet) and A-2 (certificate by Dr. Mathrubootham diagnosing Chronic Schizophrenia). The High Court observed that those documents were not properly proved (the doctor was not examined and the preparers of the case-sheet were not called). The Court therefore treated reliance on Exs. A-1/A-2 as inappropriate.
Subsequent conduct and production of medical records: The appellant's father handed over the case-sheet on 16.2.1992 — the Court considered this inconsistent with an intent to conceal and said that production of records supported the position that nothing was being hidden; it also placed weight on R.W.1's testimony that she had privately disclosed illness and recovery on 14.10.1991.
Assessment of letters and demeanour findings by Family Court: The Family Court had negatively interpreted the appellant's letters (Exs. A-5 to A-10) and its in-person demeanour observations. The High Court examined the letters and found them to be coherent expressions of distress, literary references and affection, not evidence of lack of mental capacity. The High Court considered the Family Court's demeanour commentary improper because it was not supported by a contemporaneous record of demeanour.
Independent medical examination at appellate stage: By agreement, the appellant was examined by a panel of three independent doctors (Ex. C-1 to C-3). All three uniformly opined that she had no current ailment and was fit for marital life. The High Court took these reports into account to infer that at the time of negotiations for marriage she would not have been ailing as alleged.
Application of precedents and legal principles: The Court reviewed earlier authorities concerning concealment, free consent and mental capacity. Applying those principles to the evidence, the Court concluded that the petitioner/respondent had not discharged the burden to show suppression of a material fact that vitiated consent.
Conclusion of fact-finding: On the balance of probabilities the Court found the appellant's evidence (R.W.1) convincing and trustworthy that she had disclosed her past illness and recovery; the respondent's omissions and reliance on inadequately proved documents undermined his case.

Holding and Implications

Holding: The C.M.A. is allowed; the order of the Family Court declaring the marriage a nullity is set aside. The Original Petition filed by the respondent under S.12 of the Hindu Marriage Act is dismissed. The Court declared that the parties are man and wife and directed each party to bear their respective costs.

Implications:

Direct effect: The Family Court's declaration of nullity is reversed and the marriage stands as valid; the respondent's petition under S.12(1)(c) fails.
Evidence and proof implications: The decision emphasises that civil disputes about mental capacity and suppression must be resolved on a preponderance of probabilities, requires proper proof of medical records and expert evidence, and treats unexplained omissions in pleading as adverse to credibility.
Precedential scope: The Court did not announce a new legal rule; rather it applied established principles (as discussed in the cited authorities) to the facts before it. The judgment's immediate consequence is the dismissal of the Original Petition and validation of the marriage; it does not purport to expand legal doctrine beyond applying existing authorities to the facts of the case.

Signed off by: RR/VCS (as recorded in the judgment)

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Jayaradha v. A.N Mahalingam

JUDGMENT

S.S Subramani, J.

This appeal is by the wife against the order of the Family Court in M.C.O.P No. 482 of 1992 filed by the respondent, for declaration that the marriage solemnisad between them on 31.1.1992 at G.S Kalyana Mandapam, 94, IV Street, Abhiramapuram, Madras is a nullity.

2. The material averments in the petition filed under S. 12(1)(c) of the Hindu Marriage Act are as follows:— The respondent married the appellant on 31.1.1992 according to Hindu rites. Before marriage, the respondent saw the appellant on 13.10.1991 at Raja Annamalaipuram, in a house which belonged to a relative of the appellant. It is averred in the petition that on that day, when some questions were put to the appellant by the respondent, she was not answering promptly. Since there was delayed reaction on the part of the appellant, the appellant's father prompted her in replying the queries. It is alleged in the petition that the petitioner assented to the proposal least suspecting that there was anything wrong in the appellant's mental capacity.

3. On 24.11.1991, when the betrothal ceremony was performed, a saree was presented to the appellant. It is alleged in the petition that when the saree was presented, the appellant asked her sister-in-law how it was to be worn. The lady thought that the appellant was very innocent and was joking. The appellant was actually helped to wear the saree by her sister-in-law. It was thereafter the marriage came to be celebrated on 31.1-1992, at Madras. It is stated that in the community to which the petitioner and the respondent belong, there is a function known as ‘Lagna Pathrikai’ on the previous evening of the marriage. During that function, the appellant's behaviour was very odd. At that time, the appellant was introduced to a friend of the respondent and at that time the appellant asked the respondent as to why he has not written any letter to her as one Jayaprakash from Anna Nagar had written quite a few letters. The respondent, however, kept cool. It is further averred that at the time of tying the ‘Thali’ on 31.1.1992, the appellant began to shiver, and at that time her father and sister were catching hold of her tightly. When questioned about the same, the appellant's father informed him that it was due to anxiety only. After the ‘Muhurtham’, the appellant and the respondent went to the respondent's brother's house. En route, the appellant asked the respondent why he married her, what gain he was going to get by marrying her, and who would remove the bangles from her hands. The respondent could not reply. It is stated that he only hoped that the appellant would be a normal person. At the time of Reception in the evening, the expectations and hope of the respondent were belied. The appellant did not want to participate in the function, but the respondent insisted that she should participate. During that time, she was pinching the respondent. During dinner time, the behaviour of the appellant became worse. She gulped several tumblers of buttermilk, swallowed pickles and salt in large quantities. She never cared for others, and she also laughed continuously without any reason whatsoever. The last act on the part of the appellant could not be tolerated at all, and immediately the appellant's father was questioned about the abnormal behaviour of the appellant. When the appellant's father was confronted, he admitted that from 1984 the appellant was suffering from mental illness, and she was being administered medicines, and he hoped that she could lead a normal life after the marriage. At that time, the respondent and his other relatives informed the appellant's father that the further course of action will be taken only after the records regarding the treatment were made available. On the next day of the marriage, the appellant's father assured the respondent's sister and her husband Dr. Viswanatha Rao that the entire records will be produced before them within a reasonable time. As assured, the appellant's father handed over the medical history of the appellant on 16.2.1992, containing the nature of the ailment and the treatment given to her from 1984. The respondent took the papers to a psychiatrist. According to the opinion obtained from the psychiatrist, the appellant is suffering from an incurable mental disorder, and there is clear evidence of it from the discussion of the appellant's disease at various points of time and the medicines administered to control the same. According to the opinion of the doctor the mental disorder was such that it could not at all be cured. For the above reasons, the respondent alleges that a big fraud has been committed by the appellant's father and his relatives. It is stated that if only they had informed about the ailment of the appellant prior to the marriage, the consent would not have been given. The consent obtained from the respondent is, therefore, not valid in law. According to the respondent, his consent was obtained by fraud as to the material fact or circumstance concerning the respondent which nullifies the marriage. The respondent sought the relief of such a declaration before the Family Court.

4. Before filing the petition, a letter was addressed to the appellant's father on 4.3.1992, which was received by him on 53.1992 The petitioner says that there was no reply. The cause of action for the petition is stated to have arisen at Madras on 13.10.1991 when the petitioner gave his consent to marry the respondent, and on 31.1.1992 when the marriage between the petitioner and the respondent was solemnised.

5. The Original Petition, though dated 30.3.1992, was filed before the Family Court on 11.5.1992

6. The Original Petition was filed by the respondent against the appellant, treating her as an insane person and she was sought to be represented by her father K. Venkataraman. Notice of the Original Petition was served both on the appellant and her father, and, on the application filed by the appellant, the Family Court declared that the appellant is competent to look after her interest, and the guardianship of her father was discharged. Thereafter, the appellant filed a written statement disputing the contentions raised in the petition.

7. In the counter, she has stated that in the Original Petition, there is suppression of material facts. She also says she is a B.A (Economics) graduate of the Madras University; that her mental condition is quite normal, and she is in a position to look after herself. She has further contended that there was no misrepresentation or fraud on any of the dates mentioned in the Original Petition. The material dates that are averred in the Original Petition are, 13.10.1991, 24.11.1991, 30.1.1992 and 31.1.1992 The appellant has contended that there was no misrepresentation on any of these dates, and that the marriage was solemnised after obtaining the full and free consent of the respondent, and that there was no deception or fraud. In paragraph 5 of the counter, it is stated that nothing transpired on 13.10.1991 as alleged in the petition. It is further contended in the counter that on the next day, i.e, on 14.10.1991, on the request of the respondent, the appellant, her father and other relatives visited the respondent's brother-in-law's house, and in that house, there was a private conversation between the appellant and the respondent for more than half an hour. It was the house of the brother-in-law of the respondent Dr. Viswanatha Rao, who is employed as a Bio-Chemist in Vijaya Medicals. On 14.10.1991, both the appellant and the respondent had a free and frank talk and conversation, and, at that time, the respondent was informed about her treatment in JIPMER Hospital at Pondicherry as an in-patient and outpatient. The respondent was very much satisfied about the disclosure, especially because the appellant was cured on that date. It is further averred that the appellant told the respondent about her entire medical history, and the respondent was fully satisfied and appreciated the frank disclosure. It was only thereafter the respondent's consent was obtained for the marriage.

8. The allegation that during the betrothal ceremony, she asked her sister-in-law how to wear the saree, is denied. On the contrary, she states that she had been wearing saree from her 18th year, and what she asked was for a private room to wear the saree. The allegation that during ‘Lagna Pathrikai’ function the appellant's behaviour was abnormal is also denied. She has also denied the allegation of having said about any person by name Jayaprakash of Anna Nagar. The further allegation of shivering at the time of tying ‘Thali’ is also denied. She says that at that time, she was quite normal, happy and cheerful. The further allegation of the respondent that the appellant asked him as to why he married her and what gain he would get by marrying her and who would remove the bangles, was also denied by the appellant. In short, she says that during her travel to the respondent's brother-in-law's house after her marriage with the respondent, her behaviour was quite normal. She has further averred in her counter that the opinion of the psychiatrist that the appellant is suffering from incurable mental disorder is totally erroneous, mischievous, arbitrary, imaginary and defamatory in nature. In fact, the opinion of the psychiatrist was obtained without notice to her, and that too from a person who has not even seen her. She says that she is all along fit for the marriage, both mentally and physically, and that there is no suppression of any fact, and that the consent given by the respondent was valid.

9. No additional counter affidavit was also filed by the appellant regarding the maintainability of the petition.

10. During trial, the respondent examined himself as P.W 1 and marked Exs. A-1 to A-12. The appellant examined herself as R.W 1. She did not file any document.

11. After assessing the evidence, both oral and documentary, the Family Court passed the impugned order, whereby it declared that the marriage between the parties is not valid since the consent obtained from the respondent was not valid, as the respondent was not informed about the mental illness of the appellant before the marriage. The said decision of the Family Court is attacked by the appellant before this Court.

12. The only point that arises for consideration in this case is, whether there was any suppression of material fact concerning the appellant before the marriage and whether the consent given by the respondent is valid.

13. In this case, we have only the interested testimony of the parties. As stated in Dr. Dr N.G Dastane v. Mrs S. Dastane., AIR 1975 S.C 1534 the standard of proof is as in all civil cases. Their Lordships of the Supreme Court held as follows”-

“The belief regarding the existence of a fact or not, may be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second.

Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities.

“It is wrong to import such considerations in trials of a purely civil nature.”

So, on the basis of the preponderance of probabilities, we have to decide whether there was any suppression of fact and whether any valid ground has been made out for declaring the marriage a nullity.

14. It is in evidence that the proposal for the marriage was after issuing advertisement in the paper, and thereafter there was exchange of horoscopes. It is admitted that on 13.10.1991, the respondent along with his sister, brother-in-law and others saw the appellant in her uncle's house. It is not an isolated seeing of the girl by the respondent alone. The family members also accompanied him and they had a close watch about the behaviour of the appellant.

15. The matter did not end there. The appellant was asked to visit their house on the next day, and, she along with her father and other relations went to the respondent's brother-in-law's house. The brother-in-law of the respondent is a doctor. The respondent, in his petition has stated that he saw the girl on 3.10.1991 and put a few questions to the girl (appellant). Nothing is stated in the petition about the appellant's visit on 14.10.1991 to the respondent's brother-in-law's house, and the private conversation between the appellant and the respondent. According to the respondent, the replies given by the appellant to the questions put by him on 13.10.1991 were not spontaneous and that the appellant's father prompted and helped her in answering the questions. It is said that assent to the proposal was given by him least suspecting that there is anything wrong with the appellant's mental capacity on seeing her on 13.10.1991

16. Why the respondent has suppressed the subsequent meeting on 14.10.1991, is not explained. In his deposition, he says that on 13.10.1991, he along with his elder sister and her husband saw the girl, and he did not talk to her on that day. But, subsequently he says that on their request, on 14.10.1991, the appellant, her father and other relations visited them, and they had a free talk for half an hour. He talked to the appellant. Nothing is stated in his deposition why he did not make mention of the subsequent visit on 14.10.1991 If the respondent had any doubt about the mental capacity of the appellant, the same would have been noticed immediately. Asking her to visit his brother-in-law's house the next day and thereafter talking to her for more than half an hour privately, shows that on that date, the appellant was not having any ailment and was in a position to look after herself. The appellant affirms that on 14.10.1991, she had a private talk with the respondent, and at that time she informed the respondent about her treatment at Pondicherry Hospital and also the periods of the treatment also. According to her, she gave the full details of her illness, and that she had become cured. She further affirms in her deposition that her open disclosure was fully appreciated by the respondent, and it was only after that he gave the consent.

17. When the respondent has not stated anything about what happened on 14.10.1991 and he has suppressed that fact in his petition, we have only the evidence of P.W 1 (appellant herein) that the fact of her illness and her recovery therefrom was informed to him (respondent herein) and it was a private talk between them takes importance. The matter also did not end there. It was more than a month later, the betrothal ceremony takes place. If the respondent had any doubt about the mental capacity of the appellant as alleged in the petition, there was ample time for him to enquire about it before the betrothal. He says that he became suspicious on 13.10.1991 itself since the appellant was not answering to his questions promptly. It is in evidence that the appellant is a graduate and is interested in music, and she is also a voracious reader. In that view, when a party to the marriage sees the girl and finds that there is delay in her answers to the questions, that will prompt everyone to make enquires about the girl. In this case, the respondent says that he least suspected about the appellant's mental capacity.

18. The respondent also has not stated in his deposition that when a saree was presented to the appellant, she asked his sister-in-law as to how to wear the saree. If any such question was put at that time by a lady of age by more than 30, and who was in the habit of wearing a saree, normally everyone will suspect that she is abnormal. But even after the alleged behaviour, the betrothal ceremony took place without any further question, and it was thereafter the date of marriages was fixed. The subsequent conduct also will show that the statement made by the appellant that she disclosed all her habits and her ailment and also about her treatment on 14.10.1991, must be true and the respondent purposely suppressed the same in his petition.

19. The further statement in the petition is that at the time when the ‘thali’ was tied, the appellant was shivering. We do not find any such statement in his deposition. The respondent in his deposition says that after the marriage, when they were visiting his brother's house, the appellant asked him why he married her, what benefit was there for him by marrying her, and who will remove the bangles from her hand. The appellant flatly denies having put any such questions to the respondent. The person who heard about this conversation is the brother of the respondent, because, it was he who took both the appellant and the respondent to his house at Sai Nagar, Madras. But, in Ex. A.11 letter, only two questions are alleged to have been put to the the respondent which are stated to be: “What made you to marry me? What do you gain by marrying me?”. And it is also written in Ex. A.11 that the respondent thought those were the routine questions put by a newly married bride to their husbands, and so he simply replied her that he was to learn about those things only in due course. According to the respondent, he took those questions in a lighter vein and answered them in that way. At that time also, he did not have any suspicion than her mental capacity is impaired. There is no reference to the third question. But in the petition as well as in his deposition, he twists those questions so as to suggest that on the date of marriage, the appellant Was not keeping good mental health.

20. The instances that are alleged to have taken place at the time of Reception and Dinner are also without any evidence. The allegation is that during Reception, the appellant used to pinch the respondent and was constantly telling him that she wanted to take rest. The same is specifically denied by the appellant both in her counter and also in her evidence. The instance during dinner is also explained by the appellant. She says that it is her habit to take milk during night, and she was not willing to take meals as requested by the respondent. When they went to take food, she saw butter-milk and she took it. The allegation that she was gulping tumblers of buttermilk and was swallowing pickles is also denied. In this connection, we have only the interested testimony of P.W 1, and a against that, the counter-evidence of R.W 1.

21. After these incidents, it is alleged that the respondent wanted his brother-in-law to explain why the appellant is behaving in an abnormal way, and wanted her case-sheet to be brought to him. The entire case-sheet was handed over to the appellant on 16-2-1992. Had the appellant or her father any intention to conceal about the ailment, they need not have handed over the case-sheet to them. It is only because they produced the case-sheet before the respondent, the pleads that the appellant was having mental illness and that the same was suppressed before the marriage. The subsequent conduct also shows that the appellant and her father had nothing to suppress, for, this was disclosed by them even on 14.10.1992

22. The conduct of the respondent immediately thereafter also raises a doubt about his bona fides in filing the Original Petition. He immediately contacts another doctor through his brother-in-law. Dr. Mathrubootham who is employed in the same hospital along with his brother-in-law is engaged and the doctor is bold enough to give a certificate that the appellant is suffering from acute mental disorder. How he gave such a certificate even without seeing the girl and without testing her mental capacity is not explained. Dr. Mathrubootham is also not examined in this case.

23. It is after getting this, certificate on 29.4.1992, the Original Petition is filed a few days later. We have already stated that in the cause of action paragraph, the respondent has only stated that it arose on 13-10-1991, when the petitioner gave his consent to marry the respondent, and on 31.1.1992 when the marriage was solemnised. What happened on 14.10.1991 is not stated in the petition, and that speaks much against the good faith of the respondent. We are of the view that the respondent has not come to court with clean hands. He has suppressed the real facts that had transpired before the marriage. We have only the evidence of R.W 1 to disprove the same.

24. The fact that on 14-10-1991, both of them met, was admitted by the respondent in his deposition. The lower court has noted the same, but has disbelieved the evidence of R.W 1, on flimsy grounds. It may be noted that in the deposition of R.W 1, her demeanour is not noted by the Family Court. Without making note of it, the lower Court has simply stated: “A reading of his evidence and the various materials placed before this court will impress upon any person that the behaviour of the respondent on the date of the marriage was really peculiar, throwing considerable doubt on her mental capacity or mental order”. The Family Court has also stated in paragraph 11 of the order that:

“…..I observed the demeanour of the respondent. To many questions put to her, she did not give direct answers, but she was saying something else, unconnected with the question. She exhibited in a very large degree her openness or frankness or outspokenness. She was not able to control her behaviour and answer questions in a regular manner. Similarly, the various letters Ex. A5 to A-10 written by her will impress upon any person that she has stated many things in a disjointed manner. A newly married bride with proper senses would not have written these letters in such a tenor. A reading of these letters will impress upon any person that the respondent is suffering from mental disorder.”

The observation by the Family Court was most improper. We have read the deposition. According to us, whenever a question has been put to her, she has given a direct answer, and the answer is also only connected with the question. We have also read the letters Ex. A-5 to A-10. They disclose that she is learned and is a voracious reader. She gives many quotations from many authors in Tamil and curses her fate and also accuses her for the fate of her husband. A newly married girl laments for her fate and also says that she wants to join him, and also says that the respondent alone will be her husband throughout her life. The Family Court has criticised the tenor in which those letters have been written, and arrived at a conclusion that those letters looked as though written by a person without proper senses. The lower court was not correct in understanding those letters in that way. Even in the deposition of P.W 1, he has only stated that from these letters, he understands that the appellant wants to join him. He himself had no case that those letters are written by an invalid person. We also understand those letters only in that way.

25. Ex. A-5 is not dated. In that letter, the appellant has made enquires about the case filed by her husband. She also says that she is going to be admitted in the hospital, and her father is not well, and she is suffering from tension and palpitation. She also enquires about the previous letters sent by her. She also informs him that she is in financial difficulties and concludes the letter by saying that the respondent will be her lifelong friend. In Ex. A-6, she has written that she has no chance to come to his house, and that she wants to forget everything. She is thinking of only Lord Rama and Shiva, and she wants to know who is to blame, and then she accuses herself and concludes that she is spending her time by reading poems of Kannadasan and novels written by Jayakanthan, etc. She wants that noble thoughts should come to her from every side, and she wants to know what sin she has committed. In Ex. A-7, she wants her husband to think as to why they cannot live happily and enjoy life. She says that even if there is a litigation, the lawyers will only think of uniting them. She also prises her husband. She also concludes the same by stating that her life had been affected. She says that she wants to know what is life. She finally says that life is not mere sexual relationship, but something more. In Ex. A-8, she makes enquiries to her husband as to what will be his reaction if the litigation ends in her favour, and whether he will receive her. She also says that but for the case-sheet being entrusted to him, he had no case, and it was impossible for any proof but for the handing over of the case-sheet. She also says that her husband is employed in a medical company and his brother-in-law is a doctor, and both of them must have basic knowledge about the ailments. She says that first impression is the best impression, and face is the index of mind. She concludes the letter by saying: “Let us join together and pray to God who will ultimately decide everything”. In that letter Ex. A-8, she asks her husband why he had consulted an advocate instead of consulting a doctor. She explains the same by saying that when a dispute is about her health, a lawyer cannot decide the matter, but only a doctor. In Ex. A-9, she pleads her husband to give her a chance to live with him and try for a happy life. She says in that letter that she is thinking only about him and that her name has been changed as Mrs. Mahalingam. She says that there is no life without love, and that love must be after marriage, and concludes by saying “Anyhow I love with all my heart”. She wants to take a decision as soon as possible. She writes therein that she feels that she is an orphan and pleads for his help. In Ex. A-10, she wants to know if he is in doubt why cannot that be discussed and settled. She tells her husband that he should not consider only one side of the coin, but both sides should be considered. It is these wellexplained and reasoned letters the Family Court has described has letters written by a person without proper senses. The lower Court should not have made a comment without understanding those letters.

26. The respondent's counsel also argued that the case now put forward by the appellant that the ailment was disclosed to her husband before the marriage is not stated in Ex. A-4 letter. It is dated 18.4.1992 Ex. A-4 is a letter written by the appellant's father to the respondent. It is not addressed by her. If anything is not written by her father, she should not be blamed for the same. She further explains that she has disclosed the matter in a private conversation with the respondent. The respondent has not written any letter to her after marriage. So, she should not be blamed or accused of not having written anything about her ailment being cured, in Ex. A-4. Again, a reading of Ex. A-4. will disclose that the appellant's father is also asserting that no fraud has been committed, and that was why the case-sheet was handed over to the respondent without any fear. It shows that the fact was informed to the respondent earlier, and the present accusation after the marriage is without any basis. Hence, the contention put forward by the learned counsel for the respondent on the basis of Ex. A-4 cannot hold good.

27. The lower court has further stated that as per details given in Ex. A-1, the appellant was suffering from some mental disorder for more than ten years. The lower court has also taken note of Ex. A-2, the certificate issued by Dr. Mathrubootham, who alone has diagnosed her disease as Chronic Schizophrenia. It is not proper to rely on Ex. A-2 when the doctor who issued it is not examined, and it is more so with Ex. A-1 when persons who had prepared it had not been examined. Ex. A-1 is only a photo copy of the case-sheet. These documents have not been properly proved, and the effect and nature of the ailment are also not proved before Court. By mainly relying on Ex. A-1 and A-2, and without any other evidence, the lower Court was not justified in holding that the appellant was suffering from Chronic Schizophrenia.

28. The only question that should have been the concern of the lower Court is, whether there was any suppression of facts by the appellant or her father at any time before the marriage.

29. We must make note of the fact that this is an arranged marriage. This girl was seen twice. The respondent had ample opportunity to talk to her and he did avail that opportunity. We have the evidence of R.W 1 that she has disclosed her ailment on 14.10.1991, with reference to which there is no pleading by the respondent. The reason for suppressing that data, which is material according to us, is not given by the respondent, and it speaks much about the respondent. Further, it is admitted that on 13.10.1991, 14.10.1991 and 24.11.1991 the respondent has no case that the appellant was suffering from any mental infirmity. He now pleads about the shivering at the time of tying ‘Thali’. But it was not spoken to in his evidence. We have only Ex. A-2, the certificate of the doctor who was bold enough to issue it even without seeing the patient. The doctor has also not been examined.

30. The respondent relies on Ex. A.11 and A. 12 also. They are the letters written by the respondent's brother and his reply thereto. These, according to us, are only for the purpose of creating evidence. We have already noted that even Ex. A-11 goes against what the respondent has spoken. On the basis of the said evidence, we cannot hold that there was any suppression of fact about the appellant's illness.

31. We have gone through the entire evidence of R.W 1. We feel that it is convincing and trustworthy. She says that she has spoken about her ailment before the marriage and the respondent also appreciated the open mind of the appellant, and only thereafter the appellant gave his consent. We believe the said evidence.

32. At the time when the case was about to be concluded, we suggested that the appellant may be examined by a team of doctors. Both the counsel agreed for the said course, and, on the basis of that agreement, we wanted Dr. M. Sarada Menon, Dr. S. Vijayakumar and Dr. R. Ramadoss, to examine the appellant. The names of the doctors were also suggested by both the parties. The three doctors examined the appellant independently and filed Reports before this Court. They have been marked as additional evidence, in this Appeal. Ex. C-1 is the Report given by Dr. M. Sarada Menon. Ex. C-1(a) is the cover enclosing the opinion. Ex. C-2 dated 14-10-1994 is the Report given by Dr. S. Vijayakumar. Ex. C-2(a) is the cover enclosing the opinion. Ex. C-3 is the opinion given by Dr. R. Ramadoss. Ex. C-3 is dated 30-9-1994. Ex. C-3(a) is the cover enclosing the opinion. All the three doctors are uniformly of the opinion that the examination revealed that she has no ailment and that she is in a position to lead a happy marital life. We have taken note of these opinions only for the purpose of stating that when the negotiations for the marriage took place, she would not have been ailing as alleged by the respondent. In the judgment of the lower court, it is stated that the appellant was giving irrelevant answers and that she was not answering directly, and that her letters Ex. A-5 to A-10 also speak about her mental capacity. Nobody has a case that after the marriage, the appellant was suffering from any infirmity. Ex. C-1 to C-3 also support this inference. In fact, we are of the view that the judgment of the lower court is not based on legal evidence.

33. The lower court has found that she did not want to participate in the Reception and was pinching the respondent frequently. When the same is denied by the appellant, the lower court went wrong in assuming that the appellant did so, and the same is without any basis. The evidence of P.W 1, according to us, is very vague and without any details. We cannot believe his evidence, and the evidence adduced by him is against the probabilities.

34. The learned counsel for the respondent relied on certain decisions to support his case. He has relied on the decision reported in (Alka Sharma v. Abhinesh Chandra Sharma) A.I.R 1991 Madhya Pradesh 205. The facts of that case have no relevance. Here we are concerned only with the question whether there was any suppression of material facts. In that case, the question that came up for consideration was, Whether S. 5 of the Hindu Marriage Act was violated. The learned judge of that High Court was considering the scope of S. 5(ii)(b) of the Hindu Marriage Act. That Section deals with the capacity of giving a valid consent. Here, the respondent has no case that S. 5(ii)(b) has been violated. According to him, he has not given his free consent because of suppression of facts.

35. At paragraph 45 of the said decision, (AIR 1991 M.P 205) (supra), the learned judge has stated thus:—

“…….In proceedings for nullity of marriage mental fitness has to be judged on the date of marriage and absence entitles the other party to avoid the marriage but in case of divorce the mental unfitness which may develop later on should be of such a kind or degree which makes living of the parties together difficulty and unhappy. In my opinion, it should be open to a spouse to avoid a marriage on the ground that on the date of marriage the other spouse was mentally unfit… …. …”.

We find that on the date of marriage, the appellant was fit for marriage, and she was in a position to discharge her marital duties properly, and no facts were suppressed about the appellant to the respondent.

36. The learned counsel for the respondent relied on the decision reported in (Pronab Kumar Ghosh… v. Krishna Ghosh….) AIR 1975 Calcutta 109. In that case, the question that came up for consideration was, what is the standard of proof regarding lunacy, and whether that is a ground for annulling the marriage. That decision was before the Amendment Act of 1976. But, to a certain extent, the said decision helps the case of the appellant. It is stated thus:—

In the absence of any allegation of permanent unsoundness of mind of the spouse in question, the onus is firmly cast on the petitioner who challenges the validity of the marriage on the ground of lunacy of the other spouse and it is his duty to adduce such materials from which a reasonable inference may be drawn as to the lunacy of the party and that the court's conscience must be satisfied before such a decree annulling the marriage be passed. Therefore, the court must consider the materials on record, the circumstances arising therefrom, the reliability of the witness and such other things which may arise for its consideration, before passing such a decree.”

In this case, it has been amply proved that the appellant is free from any ailment and that she could discharge the marital duties. Going by the said decision, we are of the view that no ground has been made out for annulling the marriage.

37. In (V. Balakrishna v. Lalitha), A.I.R 1984 Andhra Pradesh 225 the question that came up for consideration was, whether there was any suppression of material fact. The bride was afflicted by epilepsy. That itself is a ground for annulling the marriage, under S. 5(ii)(c) of the Act. The point for determination in that case was, what is the interpretation to be given ‘at the time of marriage’ as contemplated under S. 5 of the Act. Their Lordships, after discussing the evidence, held that the bride was afflicted with epilepsy at the time of marriage, and the marriage was, therefore, voidable. The said decision has no application to the facts of this case.

38. In A.I.R 1982 Allahabad 242 (Kiran Bala Asthana v. Bhaire Prasad Srivastava), the question that came up for consideration was, whether there was a ‘free consent’. On the facts of that case, the learned judge held that there was suppression of material fact and hence there was no ‘free consent’. In that case, the learned judge held as follows:—

“In view of the specific language of S. 12(1)(c) read with S. 5(ii) and the fact that neither of the parties can be below eighteen years of age at the time of marriage there can be no marriage in law without the free consent of the parties. It may be that the consent of the parties may not be expressly asked for or expressly given and a marriage may not be liable to be annulled merely on the ground that a party to it did not consent, nevertheless if it is shown that the facts and circumstances about one of the parties were such that the other party could not have readily consented to marry the other, and there was an element of deception or misrepresentation in bringing about the marriage at the instance of a party, such as to amount to fraud, a Hindu marriage could surely be annulled under S. 12(1)(a) of the Hindu Marriage Act, notwithstanding its sacramental character.”

39. In A.I.R 1981 Delhi 253 (Smt. Asha Srivastava… v. R.K Srivastava….), the learned judge held that in case there is a deception as to any material fact or circumstances concerning the respondent, the same is a ground for annulling the marriage under S. 12(1) of the Act. The learned judge further held as follows:—

“…..A marriage cannot be annulled on the basis of any and every misrepresentation or concealment. However, if there is a misrepresentation or concealment regarding a material fact concerning the respondent, then the provisions contained in S. 12(1)(c) would definitely be attracted.”

The learned judge further held as follows:—

“Thus, where there was concealment about the ailment of schizophrenia from which the respondent-wife suffered which is a mental illness and the same was incurable according to the expert opinion of the doctor examining the respondent, the same would amount to obtaining the consent of the respondent by fraud as to any material fact concerning the respondent, the provisions contained in S. 12(1)(c) would be attracted.”

(Emphasis Supplied).

If we take into consideration that decision, it will help the case of the appellant. In this case, it is amply proved not only that the appellant is of sound mental health but also that her prior illness was informed to the respondent.

(Emphasis supplied)

40. In (Rajender Singh v. Smt. Pomilla), A.I.R 1987 Delhi 285 their Lordships, on evidence, held that there was concealment of material fact concerning the bride. Their Lordships have held that ‘what is ‘misrepresentation’ or ‘concealment of a material fact’ depends upon the facts of each case. The material fact is that vital and important fact which would induce or influence the mind of a party to give or withhold the consent to marry. The fraud or misrepresentation need not necessarily be at the time of marriage it can be made even before marriage’.

(Emphasis supplied).

41. If we analyse the evidence in this case, the open disclosure about the ailment might have influenced the respondent to marry her. The evidence of R.W 1 in this regard is trustworthy.

42. (Smt. Praveen Kumari v. Madamohan Kumar) A.I.R 1984 Delhi 139 is also a case of epilepsy. It was a case where the wife suffered from epilepsy prior to marriage, which fact was concealed from the husband. Taking into consideration the facts of that case, the learned judge of the Delhi High Court held that consent for the marriage was obtained by concealing the disease. The said decision has no application to the facts of this case.

43. Taking into consideration all the facts and circumstances of this case, we are of the view that the order of the Family Court declaring the marriage between the parties as a nullity is not correct, and we set aside the same accordingly.

44. In the result, the C.M.A is allowed and the order of the Family Court is set aside. We hold that the marriage between the appellant and the respondent was performed after obtaining the free consent of the respondent. The Original Petition filed by the respondent under S. 12 of the Hindu Marriage Act is dismissed. We declare that the respondent and the appellant are man and wife, and there are no grounds to declare the marriage as a nullity. We direct the parties to suffer their respective costs.

RR/VCS

Jayaradha v. A.N Mahalingam

Concise Analytical Summary of the Judgment (S.S. Subramani, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent's Arguments (as set out in the petition)

Appellant's Arguments (as set out in the counter and evidence)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jayaradha v. A.N Mahalingam

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