Roshan Lal vs Smt. Kadembari

J.M. Tandon, J.—This is an appeal filed by Roshan Lal appellant against the order of Additional district Judge, Jullundur, dated February 3, 1978, dismissing his petition for annulment of his marriage with the respondent u/s 12 of the Hindu Marriage Act (hereinafter called the Act) and in the alternative for is solution of his marriage by a decree of divorce u/s 13 of the Act.

The parties were admittedly married on May 5, 1975, and the respondent gave birth to a female child on February 24, 1976. On September 20. 1976, the appellant filed the petition for annulment of his marriage with the respondent and in the alternative for dissolution of their marriage by a decree of divorce on the ground that she had been subject to recurrent attacks of epilepsy prior to the marriage and continued to suffer therefrom after marriage.

The respondent in her written statement denied that she suffered from epileptic attacks. The learned trial Judge framed the following issues:--

Whether there was consent of the petitioner to marry the respondent with fraud ?

Whether the respondent is suffering from epilepsy ?

Whether the petitioner is entitled to a decree of divorce on account of the respondent''s suffering from epilepsy ?

Whether the Court at Jullundur has jurisdiction to hear this petition ?

Relief.

Under issue No. 4, the trial Court found that the court at Jullundur had jurisdiction to hear the petition. It was further held under issue No. 2 that the respondent suffered from epilepsy but not since before marriage. It being the case, he was not entitled to a decree of divorce u/s 13 of the Act. The finding under issues Nos. 1 and 3 was also returned against the appellant and his petition was dismissed. It is against this order that the present appeal has been directed.

The learned counsel for the appellant has not pressed the case for divorce u/s 13 of the Act. In other words, the finding of the learned trial Court that the appellant is not entitled to a decree of divorce u/s 13 of the Act on the ground that the respondent is suffering from epilepsy since after the marriage has not been challenged.

The learned trial Court has found that the respondent did not suffer from epilepsy before her marriage. The appellant was, therefore, not entitled to the annulment of his marriage with her u/s 5(ii) (c) road with Section 12(1) (b) of the Act. The learned counsel for the appellant has challenged this finding of the trial Court.

The relevant part of section 5 of the Act, reads :

A marriage may he solemnized between any two Hindus, if the following conditions are fulfilled namely--

(i)-----------------------------------------

(ii) at the time of the marriage, neither party--

(a) * * * *

(b) * * * *

(c) has been subject to recurrent attacks of insanity or epilepsy.

The relevant part of section 12, which deals with voidable marriages, reads :--

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :--

(a) * * * *

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5 or

It is clear that if it is proved that the respondent had suffered from recurrent attacks of epilepsy before her marriage with the appellant, the latter will be entitled to annul the marriage u/s 12(1) (b) of the Act.

The appellant is employed in Punjab Agricultural University, Ludhiana, P.W. 1 Dr. Mrs. S.K. Gupta, Medical Officer, Punjab Agricultural University, Ludhiana, has stated that the appellant brought his wife for treatment to her for the first time on July 19, 1975. On the information supplied by the patient, she entered it in the record to be a case of pregnancy with fits of epilepsy. It was two months'' pregnancy on July 19, 1975. The history of the patient was given by the appellant. Then on her inquiry, the respondent told her that previously also she used to get fits occasionally. She had started getting fits when she was in 10th Class. P.W. 3 Dr. C.G. Keswani of Willingdon Hospital, New Delhi, stated that he was working in the Neurology Wing of that hospital since 1969. The respondent came to the hospital for neurological treatment E.E.G. (Electroencephalography) was done on July 3, 1975, which showed clear cut evidence of sub cortical organic lesion. He obtained the history of the respondent before doing E.E.G., according to which she had been suffering from this desease since 1970 suggesting grand mal type, loss of consciousness for 2 to 3 minutes. The last fit was on June 27, 1975. This desease started when the respondent was 15 years old. Exhibit A/2 is the photostat copy of the history report. In his cross examination Dr. Keswani stated that he did not know the respondent personally. The husband or father''s name was not mentioned either in the E.E.G. report Exhibit A/1 or in the original history form, copy of which is Exhibit A/2. P.W. Roshan Lal appellant supported his own case.

The respondent, in her statement as her own witness, admitted that she was examined by a lady doctor in the Punjab Agricultural University at Ludhiana. She also stated that she went to Willingdon Hospital New Delhi, on July 3, 1975. She was required to give entire history of her illness in that hospital. Her father was with her when she gave the history of her illness. Dr. Keswani of that hospital treated her. Before the start of her treatment, her E.E.G. was taken. R.W. Hari Kishan Chand is the father of the respondent. He stated that the respondent did not suffer from fits at the time of or before her marriage. She started getting, these fits after the marriage when she became pregnant. He, however, admitted in his cross examination that he had taken the respondent to Dr. Keswani and had signed the papers there. He had given the history of the respondent to the doctor.

The evidence led by the parties proves that the respondent suffered from fits of epilepsy soon after her marriage and this fact is not disputed by the learned counsel for the respondent as well. The learned counsel for the appellant has contended that if is also proved that the respondent suffered recurrent fits of epilepsy even before her marriage whereas the learned counsel for the respondent has argued that it is not so proved

Dr. Keswani obtained the history of the illness of the respondent in Willingdon Hospital, New Delhi, on July 3, 1975. It has been so stated by him and is admitted by the respondent as well Dr. Keswani has stated that according to the respondent she started getting fits in 1970 when she was 15 years old and the last fit was on June 27, 1975. R.W. Hari Kishan Chand, father of the respondent, has also admitted that he took the respondent to Dr. Keswani and the history of the patient was Given to him and he also signed the papers in the hospital Exhibit A/2 is a photostat copy of the EEC Requisition form No. 282 of 1975, dated July 3 1925, which was filled in at the instance of the respondent and/or her father At serial No. 1 under the head ''Main Complaints and History'', the entry made Is as tinder :--

H/O Fits since 1970, suggestive of G. Mal type. Loss of consciousness 3 mts. Last tit on 27th June, 1975 At serial No 11, under the head ''Description of fit, the following entries are made :--

(i) Age of onset; 15 Yrs

(ii) Frequency 2-3 times/month.

(iii) Aura ; Headache

(iv) (sic) state Excessive sleep

(v) Medication Tab Epsolin 1 BD. Tab (not Legible) gr� TDS.

(vi) Any recent change.

The requisition form Exhibit A-2 which is proved to have been filed on the basis of the information supplied by the respondent and her father, proves, that the respondent got 2 fits of epilepsy in a month since 1970 when she was 15 years old. She was 20 years old on July 3, 1975, when she visited Willingdon Hospital. Exhibit A. I is the duplicate copy of the E.E.G. report of the respondent which was taken on July 3, 1975. It is recorded therein that the E.E.G. gives definite and clear-cut evidence for the presence of a subcortical organic lesion.

The learned counsel for the respondent has contended that it is not proved that the history recorded in the original of Exhibit A. 2 was given by the respondent or that she was present at the time it was recorded I see no force in this contention, in view of the evidence led and discussed above, it is proved that the entries in the original of Exhibit A 2 were made on the information supplied by the respondent and her father. The original of Exhibit A. 2 is also signed by the father of the respondent. It, therefore, cannot be held that the entries in the original of Exhibit A. 2 were not made on the information supplied by the respondent.

The learned counsel for the respondent has then argued that Exhibit A. 2 cannot be linked with the respondent in as much as her father or husband''s name is not recorded therein. It is rue that the father or husband''s name of the patient is not given in the original of Exhibit A. 2 but that again is not material in view of the fact that complete residential address of the patient is mentioned which is admittedly that of the father of the respondent. The name of the respondent is mentioned in Exhibit A. 2. Her father''s residential address is also given therein. She admitted that she visited the Willingdon Hospital on July 3, 1975, and she gave the history of her ailment to the doctor. Her father has also stated likewise. Dr Keswani has made a statement to that effect as well. It is therefore, difficult to hold that the form Exhibit A. 2 does not relate to the respondent.

In view of discussion above, the appellant has proved that the respondent did suffer from epilepsy since before her marriage and the frequency of her attacks was 2 or 3 in a month. It being the case, the appellant is entitled to get his marriage with the respondent annulled u/s 5(ii)(c), read with section 12(1) (b) of the Act. The learned trial Court erred in not granting such relief to the appellant

In the result, I accept this appeal, set aside the order of the trial Court dismissing the petition of the appellant and further accept his petition and annul his marriage with the respondent by a decree of nullity u/s 3(ii) (c), read with Section 12(1) (b) of the Act. The parties are left to bear their own costs.