The nature of the defect,
which has been confirmed by the orthopedic surgeon, prevents
the respondent from performing normal duties i.e. sitting, getting
up or walking etc. Considering the nature of the disability of the
respondent, it cannot be said that there was active concealment
for the simple reason that if what was pleaded is true, it could
not be concealed by the respondent. The reason is that when the
ceremonies of the marriage were performed, sitting down,
getting up and walking have been performed by the parties, in
that eventuality, the defect should have been absolutely patent
and disclosed by the daily locomotor action of the respondent. In
these circumstances, I do not find that precedent laid down in
Pankaj Mahajan’ case is attracted to the facts of the present case. I
do not find any merit in this appeal which is accordingly
dismissed.IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
FAO No. 231 of 2011
Date of Decision 17th December, 20121
AIR 2013 HP 77
Sh. Vinod Jaswal,
Versus
Smt. Anuradha wife of Shri Vinod Jaswal,
Appeal under Section 28 of the Hindu Marriage Act.
The appellant, who is the husband, is aggrieved by
the judgment of the learned Additional District Judge, Una
dismissing his petition under Section 12 (1) (c) of the Hindu
Marriage Act. The judgment reproduced paras 4 to 15 of the
petition. The ground urged for annulment of marriage was that
the respondent was suffering from lack of movement from hip
joints; as a result she could not sit on her legs, cannot work while
sitting cannot stand up from the sitting position and cannot
perform day to day work. She is not physically fit. This fact was
discovered at the time of consummation of marriage which had
taken place after great difficulty. The respondent was taken to
the doctor as also to the Civil Hospital, Una for consultation and
for treatment from an orthopedic surgeon who opined that this is
a defect which she suffers from birth and it is incurable. This is in
short the pleadings of the petitioner who seeks annulment of the
marriage on the ground that his consent was obtained by fraud.
Section 12 (1) (c) of the Hindu Marriage Act, 1955 provides:-
“(c) that the consent of the petitioner, or where the
consent of the guardian in marriage of the petitioner (was
required under Section 5, as it stood immediately before
the commencement of the Child Marriage Restraint
(Amendment) Act, 1978), the consent of such guardian was
obtained by force (or by fraud as to the nature of the
ceremony or as to any material fact or circumstance
concerning the respondent); or”
So far as the physical condition of the respondent is concerned it
is not disputed. What is urged before me is that the learned trial
Court was not correct in holding that once the marriage has been
consummated, the petitioner had condoned the defect and
accepted the marriage. The learned trial Court had placed
reliance on the judgment of the Punjab and Haryana High Court
in Smt. Mohinder Kaur v. Bikar Singh, AIR 1979 Punjab & Haryana 248.
2.
Learned counsel appearing for the appellant places
reliance on the judgment of the Supreme Court in Pankaj Mahajan
vs. Dimple alias Kajal (2011)12 SCC 1 to urge that even when there
has been consummation of the marriage, the ground for
annulment of marriage would still be available with the
petitioner. In Pankaj Mahajan’s case the Supreme Court while
dealing with the case holds that the marriage was solemnized on
2.10.2000 at Amritsar and after the marriage, the parties
cohabitated and resided together as husband and wife at
Amritsar in the house of parents of the appellant. One child was
born, who is in the custody of the wife. The Supreme Court on
facts holds that after the marriage, the appellant-husband found
that the respondent was acting in a very abnormal manner as
she used to abruptly get very aggressive, hostile and suspicious
in nature. In a fit of anger, she used to threaten that she would
put an end to her life by committing suicide and involve the
appellant and his family members in criminal cases unless she
was provided a separate residence. On one occasion, she
attempted to commit suicide by jumping from the terrace but
was saved because of timely intervention of the appellant.
Adverting to the evidence on record as also the provision of law,
which included that of one Dr. Virendra Mohan (PW3) who was
psychiatrist, the Court concluded that the husband had brought
on record enough material to show that the wife was suffering
from schizophrenia which fact stood proved by the testimony of
Dr. Paramjit Singh (PW1), Dr. Ravinder Mohan
Sharma (PW2),
Dr. Virender Mohan (PW3) and Dr. Gurpreet Inder Singh Miglani
(PW7). The Court then proceeds that no doubt, it was pointed out
that after the marriage, the husband and wife were blessed with
a female child, but that would not make any difference to the
case of the appellant. The Court (in Pankaj Mahajan’s case) then
holds:-
“35.
It is well settled that giving repeated threats to
commit suicide amounts to cruelty. When such a thing is
repeated in the form of sign or gesture, no spouse can live
peacefully. In the case on hand, the appellant-husband has
placed adequate materials to show that the respondent-
wife used to give repeated threats to commit suicide and
once even tried to commit suicide by jumping from the
terrace. Cruelty postulates a treatment of a spouse with
such cruelty as to create reasonable apprehension in his
mind that it would be harmful or injurious for him to live
with the other party. The acts of the respondent-wife are of
such quality or magnitude and consequence as to cause
pain, agony and suffering to the appellant-husband which
amounted to cruelty in matrimonial law.
36.
From the pleadings and evidence, the following
instances of cruelty are specifically pleaded and stated.
They are:
i. Giving repeated threats to commit suicide and
even trying to commit suicide on one occasion
by jumping from the terrace.
ii. Pushing the appellant from the staircase
resulting into fracture of his right forearm.
rt
iii. Slapping the appellant and assaulting him.
iv. Misbehaving with the colleagues and relatives of
the
appellant
causing
humiliation
and
embarrassment to him.
v. Not attending to household chores and not
even making food for the appellant, leaving him to
fend for himself.
vi. Not taking care of the baby.
vii. Insulting the parents of the appellant and
misbehaving with them.
viii. Forcing the appellant to live separately from his
parents.
ix. Causing nuisance to the landlord’s family of
the appellant, causing the said landlord to force the
appellant to vacate the premises.
x. Repeated fits of insanity, abnormal behaviour
causing great mental tension to the appellant.
xi. Always quarreling with the appellant and
abusing him.
xii. Always behaving in an abnormal manner
doing weird acts causing great mental cruelty
to the appellant.
and
37.
All these factual details culled out from the
pleadings and evidence of both the parties clearly show
the conduct of the respondent-wife towards the appellant-
husband. With these acceptable facts and details, it cannot
be concluded that the appellant-husband has not made out
a case of cruelty at the hands of the respondent-wife. We
are satisfied that the appellant-husband had placed ample
evidence on record that the respondent-wife is suffering
from “mental disorder” and due to her acts and conduct,
she caused grave mental cruelty to him and it is not
possible for the parties to live with each other, therefore, a
decree of divorce deserves to be granted in favour of the
appellant-husband. In addition to the same, it was also
brought to our notice that because of the abovementioned
reasons, both appellant-husband and the respondent-wife
are living separately for the last more than nine years.
There is no possibility to unite the chain of marital life
between the appellant-husband and the respondent-wife.
In the light of the facts and circumstances as
discussed above, in our view, the impugned order of the
High Court resulted in grave miscarriage of justice to the
appellant husband,more particularly, the High Court failed
to consider the relevant
material aspects from the
pleadings and the evidence, the ultimate conclusion cannot
be sustained. The appellant-husband established and
proved both grounds in terms of Section 13 of the Act. In
the result, the appeal stands allowed. The divorce petition
filed by the appellant-husband stands accepted and a
decree of divorce is hereby passed dissolving the marriage
of the appellant with the respondent from today, i.e.
30.09.2011. The impugned order of the High Court dated
06.08.2009 in Dimple v. Pankaj Mahajan (2010)1 ICC 265
(P&H) is set aside.”
(at pp.16-17)
The submission made by learned counsel appearing
3.
for the appellant is that the law laid down by the Supreme Court
in the above case is squarely covers the case of the petitioner
and the fact that the marriage has been consummated would not
make any difference to the grant of relief.
4.
According to Section 12 (1) (c) supra, the consent of
the petitioner has been obtained by force, which is not the
ground in the present case or by fraud as to the nature of the
ceremony which is also not the ground in this case and any
material fact or circumstance concerning the respondent. It is
the last circumstance urged before me. The nature of the defect,
which has been confirmed by the orthopedic surgeon, prevents
the respondent from performing normal duties i.e. sitting, getting
up or walking etc. Considering the nature of the disability of the
respondent, it cannot be said that there was active concealment
for the simple reason that if what was pleaded is true, it could
not be concealed by the respondent. The reason is that when the
ceremonies of the marriage were performed, sitting down,
getting up and walking have been performed by the parties, in
that eventuality, the defect should have been absolutely patent
and disclosed by the daily locomotor action of the respondent. In
these circumstances, I do not find that precedent laid down in
Pankaj Mahajan’ case is attracted to the facts of the present case. I
do not find any merit in this appeal which is accordingly
dismissed.
December 17th, 2012,
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