Jayasree Revision v. Ranjit

A.M. Shaffique, J.:— Appeal and RPFC had arisen with reference to matrimonial disputes between the parties to the lis. Mat Appeal No. 25 of 2009 is filed by the appellant/wife challenging an order passed by the Family Court declaring the marriage between the parties as a nullity in the eye of law. RPFC No. 25 of 2009 has been filed against the same order dated 3.11.2008 in M.C. No. 230 of 2007 which claim for maintenance by the revision petitioner/wife had been rejected by the Family Court.

2. First we shall deal with Mat Appeal No. 25 of 2009. The short facts that has arisen in the matter are as under; and the parties are described as shown in the Original Petition unless otherwise stated.

3. The petitioner and the respondent got married on 9.9.2006 as per Hindu Religious rites and ceremonies. They lived together only for six months. The contention raised by the petitioner/husband was that during the initial days of marriage itself she revealed that she was taking medicine early for Poly Cystic Ovarian Disease (PCOD). Later, it was understood that the treatment started at her 17 age. She told the petitioner that both her ovaries are full of cysts. She is not interested to continue her life and she has no interest to continue the matrimonial life as well. She further told him that she was pressurised by her mother and relatives to contract the marriage. The marriage was fixed without her consent and knowledge. Alleging that the aforesaid disease was not brought to the notice of the petitioner before the marriage and there was misrepresentation, the petitioner sought for declaring the marriage as null and void. He also contended that she was not having menstrual periods and during her stay though he had taken maximum efforts to give her proper treatment, she was suffering from mental and physical disorder on account of unfitness to continue the marital life and she was incapable of procreating children.

4. The respondent in her objection denied the allegation. She never told the petitioner that she was suffering from PCOD and that she was continuing treatment. She denied the entire allegation and submitted that she has no illness and she was never treated for PCOD as alleged.

5. This case was heard along with M.C. No. 230 of 2007 filed by the wife claiming maintenance. Common evidence was taken. The petitioner himself examined as PW1 and the Doctor who treated her was examined as PW2. The respondent gave evidence as RW1. Exts A1 to A3 were marked on the side of the petitioner and Exts B1 and B2 on the side of respondent. The Family Court after considering the evidence found that she was suffering from PCOD and the evidence indicates that she was having multiple cysts in the ovaries. Based on the medical evidence adduced in the matter it was found that the marriage was not valid and accordingly declared the marriage as a nullity.

6. Learned counsel for the appellant submitted that there is no evidence to prove that she was suffering from PCOD. None of the contentions had been substantiated by the petitioner and though PW2 was examined to prove that she was suffering from PCOD. There is no material to indicate that she was examined by the said doctor.

7. On the other hand the learned counsel appearing for the petitioner/husband argued that evidence of PW2 by itself proves that she was unable to procreate any children and for that reason itself the marriage is liable to be declared null and void. It is a clear case of suppression of a material fact which ought to have been disclosed before the marriage.

8. The short question to be considered in this appeal is whether the petitioner was suffering from any disease by which she is incapable of procreating children. The medical evidence that had been adduced in the form of oral testimony of PW2 who is a retired Professor from Medical College, Calicut. Ext A1 series are the prescriptions which had been issued by him for treating one Jayasree from 8.3.2005 to 13.2.2007. He deposed that she was treated for Poly cystic Overian Disease (PCOD) that is multiple small cysts in the ovaries. He also testified that the symptoms of the disease are the delay of menstruation period and development of excess polyglands. The patient also suffers from difficulty to conceive. It also causes emotional disturbance to the patients. He however stated that for some patients there is chance for conceiving. If they do not conceive they may suffer from anxiety as well. He also deposed that on the last day of her visit she was advised to come after three months and she did not turn up. During cross-examination it is stated that his diagnosis was supported by the Ultrasound scan.

9. According to the respondent, she was never treated by PW2. The counsel for the appellant argued that PW2 has not identified the patient to whom he had given the prescriptions. But PW1 has a definite case that she was taking medicines, that she told him that she was suffering from PCOD, that she was not having proper menstrual periods and that she was suffering from mental as well as physical disorder. Though RW1 has given evidence stating that she is not suffering from any such issues, no attempt had been made by her to examine herself by a Doctor. When the evidence of PW1 and PW2 are very categoric in respect of the illness of RW1, she herself ought to have subjected herself to be examined by a Medical Board, to avoid any doubt. No such attempt has been made. Therefore, there is an instance where the petitioner's consent to the marriage was obtained by concealing the existence of a disease, which even affects procreation of children. Taking into consideration the over all facts and circumstances of the case, we do not think that the Family Court had committed any error in granting the decree as sought for by the petitioner/husband. No grounds are made out for interference and accordingly, the Mat Appeal deserves to be dismissed.

10. RPFC No. 25 of 2009 is filed against the order in MC No. 230 of 2007 by which the Family Court rejected the claim for maintenance. When the marriage of the couple is declared null and void, the petitioner is not entitled for maintenance. Since we have already confirmed the view taken by the Family Court in O.P. No. 562 of 2007 there is no reason to take a different view in MC No. 230 of 2007. Accordingly RPFC No. 25 of 2009 also deserves to be dismissed.

11. Accordingly, Mat Appeal No. 25 of 2009 and RPFC No. 25 of 2009 are dismissed. No costs.