Jayaradha vs A.N. Mahalingam

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 solemnised between them on 31.1.1992 at G.S. Kalyana Mandapam, 94, IV Street, Abhiramapuram, Madras is

a nullity.

The material averments in the petition filed u/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.

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 was fixed 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 a quite 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, 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.

Before filing the petition, a letter was addressed to the appellant''s father on 4.3.1992, which was received by him on 5.3.1992. 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.

The original petition, though dated 30.3.1992, was filed before the Family Court on 11.5.1992.

The original petition was filed by the respondent was 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 lookafter her interest, and the guardianship of her father was

discharged. Thereafter, the appellant filed a written statement disputing the contentions raised in the petition.

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 lookafter 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 contented 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 out-patient. 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.

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 a normal is also denied. She has also denied the allegation of having said about any person name

Jayaprakash of Anna Nagar. The further allegation of shivering at the time for 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 psychiastist that the appellant is suffering from incurable mental disorder is totally erroneous, misbehavior, 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.

An additional counter-affidavit was also filed by the appellant regarding the maintainability of the petition.

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

file any document.

After assessing the evidence, betrothal 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 attached by the appellant before this Court.

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.

In this case, we have only the interested testimony of the parties. As stated in Dr. N.G. Dastane Vs. Mrs. S. Dastane, , 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 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 friends 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.

It is in evidence that the proposal for the marriage was after the suing 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.

The matter did not end there. The appellant was asked to visit 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 at he

saw the girl on 13.10.1991 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.

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

lookafter 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.

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 R. W. 1 (appellant herein) that the fact of her illness and her recovery thereform 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 latter, 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 doracims 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 enquiries about

the girl. In this case, the respondent says that he least suspected about the appellant''s mental capacity.

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 to a lady of aged 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 marriage 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.

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 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 that are alleged

to have been put to the respondent which are stated to be: ""what made you to many 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 relied

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 that 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.

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

buttermilk 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 as against that, the counter evidence of R.W.1.

After these incidents, it is alleged that the respondent wanted his brother-in-law to explain whey 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, he 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.

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.

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.

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 ground''s. 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 Exs. A-5 to A-10 written by her will impress upon any person

that she has stated many things in a disjoined 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 Exs.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 through-out 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.

Ex.A-5 is not dated. In that letter, the appellant has made enquiries 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 Other 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 wantsher 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 praises 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 that 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

well-explained and reasoned letters the Family Court has described as letters written by a person without proper senses. The lower court should

not have made such a comment without understanding those letters.

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.

The lower court 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 Exs.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.

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.

We must make note of the fact that this is an arranged marriage. The 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 date, 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.

The respondent relies on Exs.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.

We have gone through the entire evidence of R. W. 1. We feel that it is convincing and trust worthy. 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 respondent gave his

consent. We believe the said evidence.

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. Vijayakumarand 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 Exs. 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. Exs.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.

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.

The learned Counsel for the respondent relied on certain decisions to support his case. He has relied on the decision reported in Smt. Alka

Sharma Vs. Abhinesh Chandra Sharma, . 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 Section 5 of the Hindu Marriage Act

was violated. The learned Judge of that High Court was considering the scope of Section 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 Section 5(ii)(b) has been violated. According to him, he has not

given his free consent because of suppression of facts.

At paragraph 45 of the said decision, Smt. Alka Sharma Vs. Abhinesh Chandra Sharma, , the learned Judge has stated thus:

...In proceedings for nullity of marriage mental fitness has to be judged on the date of marriages and absence thereof 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 difficult 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.

The learned Counsel for the respondent relied on the decision reported in Pronab Kumar Ghosh v. Krishna Ghosh AIR 1975 Cat. 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 now are of the view that no ground has been made out for annulling the marriage.

In V. Bala Krishna Vs. V. Lalitha, , 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, u/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 u/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.

In Smt. Kiran Bala Asthana and Another Vs. 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 Section 12(1)(c) read with Section 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. I 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 u/s 12(1)(a) of the Hindu Marriage Act, notwithstanding its sacramental character.

In Asha Srivastava v. R.K. Srivastava AIR 1981 Delhi 253, 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 u/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 provision''s contained in Section l2(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 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 Section 12(1) (c) would be attracted.

[Italics 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 informed to the respondent.

In Rajinder Singh Vs. Pomila, , 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 ease. 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.

[Italics supplied]

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.

Fraveen Kumari Vs. Man Mohan Kumar, , 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.

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.

In the results the CM. 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 u/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.