Condonation of a matrimonial offence has to be a conscious and deliberate act conveying full ratification of the matrimonial status and it is now well-settled that that alone would constitute a bar to the challenge to a marriage otherwise vitiated by fraud. "Condonation to be effective "observed S. S. Sandhawalia, C. J. in Bikkar Singh v. Mohinder Kaur MANU/PH/0146/1981. "has both a factual and a mental element. There is to be both a factum of reinstatement and a clear intention to forego and remit the wrong. Therefore an effective and total condonation can arise only from a conscious and deliberate ratification of the marital status by the aggrieved spouse, which may lead to a strong inference of a total wiping of a matrimonial offence". So considered. there is clearly no warrant to spell out any condonation by the husband of the fraud committed upon him by his wife in concealing her true age from him and thereby inducing him to marry a woman much older than him in age.
AIR1986P&H191, (1986)89PLR12
IN THE HIGH COURT OF PUNJAB AND HARYANA
Decided On: 07.10.1985
Appellants: Som Dutt
Vs.
Respondent: Raj Kumari
Vs.
Respondent: Raj Kumari
Hon'ble Judges/Coram:
S.S. Sodhi, J.
1. A short stay together and long continuing litigation thereafter is what marks the marriage here. It was a marriage conceived in fraud compounded by grave doubts with regard to the wife's mental condition.
2. Challenged in appeal now is the wholly untenable denial of the decree for annulment of marriage as sought by the husband under S. 12 of the Hindu Marriage Act, 1955.
3. It stands established from the evidence on record that the wife was older in age than her husband. The husband--Som Dutt--was under 26 years of age at the time of the marriage which took place on May 3, 1980 as his date of birth was Oct. 13, 1954. The wife--Smt. Raj Kumari--on the other hand, admits to her date of birth being Oct. 19, 1951, that is, three years older than her husband, but it is pertinent to note that her date of birth, as recorded in her Matriculation Certificate was Oct. 19, 1947 which would make her seven years older than her husband. She, no doubt, stated that her age, as given in the Punjab University Gazette, namely, Oct. 19, 1947 was wrong, but there is no material on record to suggest that any effort was made to get this date corrected if indeed there was any error in it.
4. It was an arranged marriage between the parties and it is apparent that there had been no occasion or opportunity for them to see and meet each other except during the negotiations for the marriage. Raj Kumari, on her part did, however, make and effort to show that she and her husband knew each other before their marriage by deposing that they had met 25 to 30 times earlier. This statement is clearly not worthy of belief. No such suggestion was made to the husband when he came into the witness box, nor indeed were any particulars given of the opportunities available to them in this behalf. Not without significance in this context is the fact that the wife's parents lived in Hoshiarpur while her husband was living in Ludhiana. The only connection between them was said to be Kamla Rani, the daughter of the elder brother of the husband's father and her husband Arjan Dev, who was the brother-in-law of Raj Kumari's brother. This connection could no doubt suffice to bring together the respective parents of the parties to initiate talks for a matrimonial alliance but it would certainly not by itself provide Raj Kumari and Som Dutt the requisite occasions and opportunities to meet and so often.
5. Further, Raj Kumari would have the Court believe that during the marriage negotiations, no question was at all asked regarding her age and that of her husband-Som Dutt. It would indeed be straining one's credibility to accept that in such negotiations, the age of the man and the woman sought to be united in matrimony, would not be Enquirer into.
6. Where by an arranged matrimonial alliance, a marriage takes place between an older woman, and a younger man, it must raise a presumption, rebuttable not doubt, of some concealment or misrepresentation regarding the woman's true age, as common experience shows that it is indeed unusual for a young man to knowingly and willingly marry some one elder than him in age. Seen in this light where fraud on this account is alleged, the burden must shift on to the wife to bring on record evidence or Circumstances to dispel the suspicion of any such concealment or misrepresentation. This is burden which Raj Kumari has been unable to discharge. It would be relevant to advert her to the matter relating to the horoscope of Raj Kumari, which according to Som Dutt was given to his parents when talks of their marriage were going on. This he got examined by AW-3 Madan Lal. Comparison or tallying of horoscopes is a well known feature of arranged marriages and this is what lends assurance to the testimony of AW-3 Madan Lal in this behalf, who deposed that the date of birth of Raj Kumari as mentioned in this horoscope was April 29, 1955, which would mean that it showed her to be a year younger than Som Dutt, which was palpably false. In other words, it cannot be accepted that Som Dutt was aware of Raj Kumari being considerably order than him and that knowing this he agreed to marry her. The evidence and Circumstances, on the other hand, go to show that he was the victim of deliberate deception designed to conceal her true age from him with a view to dupe him into marrying her believing her to be younger than him. There can be no manner of doubt that had he known her correct age he would not, as he deposed, have married her.
7. Faced with this situation, Mr. Des Raj Mahajan, counsel for the wife--Raj Kumari--Sought to take up the plea that the husband--Som Dutt--had condoned the fraud, if any, committed upon him. Continuing to live with his wife even after discovering that she had concealed her correct age from him, it was argued, constituted a bar to the relief sought. The reference here being to the parties being together even after Aug. 3, 1980, the day on which Som Dutt's suspicions regarding his wife's age were first raised.
8. According to the husband--Som Dutt on Aug. 3, 1980, Raj Kumari got an attack of hysteria and garrulity. Dr. P. S. Dhillon, who examined her on that day, did not accept her age to be 24 years, as was mentioned to him. He opined that she could not be less than 33 years of age. This is what led him to investigate and discover that her date of birth was Oct. 19, 1947, as recorded in the Punjab University Gazette for the higher secondary examination held in March 1966. The precise date when he saw this gazette has not come on record, but it would undoubtedly be some date after Aug. 3, 1980, and before Aug. 12, 1980, which was the last time they met. It has come in evidence that husband and wife were together at Ludhiana on Aug. 9, 1980. on which date Som Dutt took his wife to her parents' home in Hoshiarpur. Som Dutt says that he left her at Hoshiarpur on that day and then went to see her again on Aug, 12, 1980, and never saw her thereafter, whereas the version of Raj Kumar was that he lived with her at Hoshiarput from Aug 9 to 12, 1980, and that he used to go to Ludhiana from Hoshiarpur every day during these days and then come back in the evening. What counsel for Raj Kumari sought to contend was that the living together of the parties during this period i.e. Aug 3, 1980 to Aug. 12, 1980, amounted to condonation of the concealment or misrepresentation of the wife's age. This is indeed a contention wholly devoid of merit. Considering the physical and mental state of the wife. as would be apparent from the medical evidence, presently to be discussed, it cannot be accepted that there was any cohabitation between the parties after the wife has suffered her attack on Aug. 3, 1980. Som Dutt admitted that he stayed with his wife and slept in the same room till he took her to Hoshiarpur on Aug. 9, 1980, but stated that he stayed with her only because she was ill. This is wholly in accord with the normal course of human conduct in the situation in which Som Dutt found himself at that time. As regards the parties staying together at Hoshiarpur from Aug. 9, 1980 to Aug, 12, 1980, it is Som Dutt's version which is clearly the more plausible one, namely, that he left her there on Aug. 9, 1980, and then returned to Ludhiana and saw her again only on Aug. 12, 1980. Raj Kumari and her witnesses, on the other hand, wanted the Court to accept that she and her husband lived together in Hoshiarpur for three days from Aug 9, 1980 to Aug 12, 1980, and during this period her husband used to go every morning to Ludhiana to attend to his work there and then return in the evening. There is an inherent implausibility in this story considering the distance between Hoshiarpur and Ludhiana and the time taken by buses to cover it. What is more, if indeed, the relationship between the parties was, as was sought to be implied by the husband living with her in this manner, some explanation was called for to account for Som Dutt suddenly leaving his wife for good on Aug. 12, 1980, never to return. No such explanation is forthcoming.
9. Condonation of a matrimonial offence has to be a conscious and deliberate act conveying full ratification of the matrimonial status and it is now well-settled that that alone would constitute a bar to the challenge to a marriage otherwise vitiated by fraud. "Condonation to be effective "observed S. S. Sandhawalia, C. J. in Bikkar Singh v. Mohinder Kaur MANU/PH/0146/1981. "has both a factual and a mental element. There is to be both a factum of reinstatement and a clear intention to forego and remit the wrong. Therefore an effective and total condonation can arise only from a conscious and deliberate ratification of the marital status by the aggrieved spouse, which may lead to a strong inference of a total wiping of a matrimonial offence". So considered. there is clearly no warrant to spell out any condonation by the husband of the fraud committed upon him by his wife in concealing her true age from him and thereby inducing him to marry a woman much older than him in age.
10. Before proceeding further, it must be remarked that not only it is that Raj Kumari committed a fraud upon her husband, but a reading of the evidence on record would show that both she and her witnesses have shown little regard for truth. Mention in this behalf must here be made of the plea put forth by Raj Kumari that she had become pregnant and her husband had procured her abortion by administering some capsules to her. This was deposed to both by Raj Kumari as also her brother Sohan Lal. There is no medical evidence to corroborate her alleged pregnancy and as regards the abortion, it is pertinent to note that admittedly she was never seen by any doctor, nor did she visit any hospital in connection with it. What brings out in bold relief her falsity here is the contradiction between her plea in the written statement that her husband had given her capsules to induce abortion while taking her to Hoshiarpur on Aug. 9, 1980, and her statement in the witness box that she had conceived during the period Aug 9 to 12 when she claimed she and her husband lived together in Hoshiarpur. Even if it be taken that they had so lived together, it would mean that the had so lived together, it would mean that she had conceived on one day and the husband had procured her abortion on the very next day or the day after, a situation too absurd to countenance.
11. Next there is the allegation regarding the demand of dowry by the husband. Here again the hollowness of this charge is shown by the fact that the husband returned the dowry within a week is of his leaving his wife. There is on record the receipt Exhibit RW 5/2 of Aug. 19, 1980 to this effect. What is more, the criminal complaint filed abut a year later i.e. on Aug. 3,1981, against the husband and his parents with regard to dowry ended in their discharge on Aug 17, 1982, and the revision petition filed against this order was also later dismissed on Feb, 21, 1983. It is apparent, therefore, that the charge of demand of dowry was wholly lacking in substance.
12. The other important matter raised here is with regard to the mental condition of Raj Kumari. The husband claimed that her state was such as entitled him to a decree for nullity of marrige on that account.
13. According to the evidence led by the husband--Som Dutt, Raj Kumari suffered an attack of hysteria and garrulity on Aug 3, 1980. Dr. P. S. Dhillon was then sent for. According to PW 2 Dr. Dillon, on examining Raj Kumari on that day he found that she was semi-conscious and was suffering from hysteria. When he saw her again on the next day i.e. Aug 4, 1980, she was talking irrelevantly and was shaking her hand. He consequently advised that she should be seen by psychiatrist.
14. It was the testimony of Som Dutt that Raj Kumari had suffered the attack of hysteria and garrulity at about 4 p.m. Her bother, Sohan Lal, was also there at that time and the attack occurred when he asked her for a glass of water. She started behaving in an abnormal manner by abusing everyone and then tried to go upstairs with a view to jump down but she was prevented from doing so. Her parents were then sent for and they come. Her father left after seeing her but her mother stayed on with her till Aug. 9, 1980, when she went daughter Raj Kumari and Som Dutt.
15. Som Dutt also deposed that on enquiry by Dr. Dhillon, Raj Kumari's brother Sohan Lal had told him that she had suffered similar attacks previously too and that there was to need to worry about them. A similar statement was made by the parents of Raj Kumari when they came to Kudiana on being called after this attack. They in fact sought to assure Som Dutt that Raj Kumari would get well in due course and there was no need to get her checked up by any psychiatrist. Som Dutt stated that he however, took her to Dr. R. L. Narang on Aug 6, 1980. PW 1 Dr. R. L. Narang, Hand of the Department of Psychiatry, Dayanand Medical College, Ludhiana, deposed that he found Raj Kumari suffering from hysteria with depression. The case history of Raj Kumari was recorded as narrated by her and also separately by her husband and his brother. This case history is recorded in the medical record Exhibit A1 Dr. Narang deposed that he examined her on two other occasions too, namely, on Aug 8, and August 9, 1980.
16. The significant aspect of the testimony of Dr. R.L. Narang is that he advised that Raj Kumari be admitted in the hospital for investigation and treatment. The statement of the husband Som Dutt is that the parents of Raj Kumari did not permit this to be done. According to Dr. Narang, as Raj Kumari was not admitted in hospital she could not be completely investigated. Be that as it may it is the common case of the parties that Raj Kumari was taken to Hoshiarpur on Aug 9, 1980.
17. The medical record Exhibit A 1 prepared at the time of Raj Kumari's examination by Dr. R. L. Narang clearly corroborates his testimony regarding her abnormal condition amply warranting proper investigation and treatment, which was, however, not done.
18. There is a complete denial of any mental aliment both by Raj Kumari as also her brother RW 5 Sohan Lal Bagga or that she had suffered any attack of hysteria on Aug. 3, 1980, or even that she was ever examined by either Dr. P. S. Dhillon or Dr. R. L. Narang Reliance, on the other hand, was sought to be placed upon the testimony of RW 4 Dr. Rajpal singh of the mental Hospital, Amritsar, to show that Raj Kumari Was perfectly normal and suffered from no mental disorder.
19. Here again falsity of the testimony of Raj Kumari and her brother Sohan Lal Bagga stands writ large by the unimpeachable testimony of both Dr. P.S. Dhillon and Dr. R. L. Narang. The fact that Dr. P. S. Dhillon was called to examine Raj Kumari after her attack on Aug 3, 1980. is also corroborated by the testimony of Om Parkash AW 4. There is clearly no warrant for doubting the testimony of either Dr. Dhillon or Dr. Narang. Neither of these witnesses have been shown to be in any manner interested in the husband or to have any other motive to come forth to falsely depose against Raj Kumari. The only matter suggested with regard to Dr. Dhillon was that his father had a clinic in Charrura Baazar, Ludhiana and this was also the Bazar where some Dutt's father had a shop. Having a clinic and a shop in the same Bazar can by no stretch of imagination betaken to constitute such interest or motive as could induce Dr. P. S. Dhillon to depose falsely. As regards Dr. R. L. Narang, no suggestion even of any interest in the husband was forthcoming. A reading of the testimony of both these doctors, discloses no flaw or exaggeration to create any doubt therein. Indeed, they both deposed in a clear and straightforward manner. Dr. Narang's testimony finds material record Exhibit A/1, while the certificate Exhibit A/7 and the prescription Exhibit A/8 provide such corroboration to the testimony of Dr. P. S. Dhillon.
20. As regards the testimony of RW 4 Dr. Rajpal Singh, a reading thereof would show that it is of no avail. He no doubt deposed that Raj Kumari suffered from no mental ailments but only marital maladjustment from her in laws side, but value of it, if any, stands denuded by his reply to the court question where he stated "My opinion regarding the patients mental condition was given only on the basis of information given by the patient and her relations and in case they had said that she was happily married I would have given opinion that there was no marital maladjustment."
21. It is also pertinent to note that Dr. Rajpal Singh Admitted that he did not take down any family history of Raj Kumari nor did he physically examine her. He performed no clinical tests either in giving his opinion regarding her mental condition. He merely talked to her to find out about her mental ailments.
22. The other aspect of Dr. Rajpal Singh's testimony which deserves comment, is the manner in which entries regarding Raj Kumari figure in his outdoor register. There her name is recorded twice. Once amongst the old patients and the other where names of new patients are recorded. Different diagnosis were recorded against each entry. The suspicions raised thereby could not be explained.
23. The manner in which Dr. Rajpal Singh, has deposed in this case, cannot but reflect adversely upon his professional competence and it indeed raises doubt regarding the veracity of his testimony too so unbecoming for a doctor of his standing and experience.
24. What emerges from the evidence on record therefore, its that Raj Kumari was indeed suffering from some mental ailment and that she suffered an attack of hysteria and garrulity on Aug 3, 1980 and her behavior on that account thereafter became abnormal. she had had similar attacks earlier too. Hysteria is not always a curable disease. According to Dr. P. L. Narang, it can be of an incurable type too. What it was in the case of Raj Kumari as also the nature and extent of her mental ailment could not, however, be discovered as contrary to the advice of the doctor, her parents did not permit her to be admitted in the hospital for proper investigation and treatment. This conduct of the parents cannot, but raise an adverse inference regarding the mental condition of Raj Kumari. Relevant in this context is what was noted in her medical record exhibit A/1; namely that she was found to be anxious and irritable and had suicidal feelings and there was also disturbance of her memory and intelligence. These being the circumstances, the assumption that her mental condition was such as would warrant annulment of marriage on that account, would indeed be an irresistible conclusion.
25. Considered in their totality, the circumstances of the case as spelt out by the evidence on record, provide no escape from the conclusion that this has indeed been an unfortunate marriage for the husband who has been the victim of a gross matrimonial fraud committed upon him both with regard to the age of his wife Raj Kumar as also her mental state the mental condition of Raj Kumari must be taken to be of the type and standard to justify annulment of the marriage. Thus, both on the ground of fraud as also mental disorder of the wife, Som Dutt is clearly entitled to and is accordingly hereby granted a decree for annulment of marriage, as prayed. this appeal is thus accepted with costs. counsel fee Rs. 500/-.
26. Appeal allowed.
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