V. Raja vs Bhuvaneswari

Manmohan Singh Liberhan, C.J.—This appeal arises out of an order dated 7.5.1997 declining to annul the marriage on the ground of fraud.

The appellant, hereinafter referred to as the petitioner, preferred a petition for declaring the marriage, with the respondent, as void u/s 12 of the

Hindu Marriage Act, inter alia contending that the consent of the petitioner was obtained by fraud, as to a material fact concerning the respondent.

Petitioner averred that he was married on 6.12.1992 and within a week of marriage, i.e., somewhere in December''92/January''93 respondent

complained of pain in stomach during her menstruation period. The pain repeated at this time of her second menstruation period. The respondent

under went various pathological and scanning tests etc. She was examined by a specialist. Medicines were prescribed. The Doctors are said to

have disclosed that the respondent suffered from discharge of proteins. Petitioner took the respondent for treatment on number of times. Some

times she was taken for treatment by her parents, it is averred that respondent''s mother took the second opinion about the illness and it was

discovered that the respondent was suffering from nephritis. Treatment for the same was advised. Petitioner averred about the knowledge of

respondent of the disease two years prior to her marriage and her non-disclosure of it. Though the petitioner was advised not to marry before her

marriage with petitioner, petitioner felt, he was cheated by the respondent and her parents. There is no dispute that the marriage was an arranged

marriage and it subsisted upto November, 1994.

The allegations were refuted. Undergoing medical treatment for pain and swelling at the time of menstruation period was admitted. The petitioner

examined himself as the witness and relied on a medical discharge certificate. The petitioner in his statement stated that the Doctors advised the

respondent not to conceive. The respondent appeared as her own witness and denied the allegations. It was denied that she was suffering from

ailment of kidney prior to the marriage. She claimed she was normal before marriage. It was claimed that even now the petitioner is a normal

person and is capable of leading a normal matrimonial life. Neither any facts and circumstances were kept back form the petitioner, which would

interfere with the ordinary matrimonial life of the petitioner and the respondent nor any facts which amounted to obtaining consent by fraud for

marriage were suppressed. Petition is claimed to be barred by limitation as having been filed after a lapse of more than one year after

consummation of the marriage.

The learned Judge noticed the averments made in para 11:

The parents of the respondents simply told that two years ago the respondent had some sort of problem with her health and that it was sorted

out.

Petitioner''s self-serving statement, the only evidence on record with respect to the factum of obtaining consent by fraud was not relied. It was

observed that the petitioner in his evidence had not stated that the disease of nephritis which the respondent was suffering in any manner interfered

with the normal matrimonial life including the sexual pleasure. It was observed that there is no hindrance or incapacity to lead a normal matrimonial

life. The learned Single Judge after taking into consideration the circumstantial facts, that the respondent was admitted to the hospital only for the

treatment of swelling and pain on the advice of the family doctor of the petitioner, the non-disclosure of the name or the particulars of the doctor

who is alleged to have advised against marriage or non-disclosure of the particulars of the doctor who opined the suffering of the petitioner from

the disease of nephritis, coupled with the discharge certificate Ex. P-5 cannot lead to an inference that the petitioner suppressed any fact with

respect to her health or even had the knowledge about the alleged disease attributed to her much less the knowledge of the parents. Nephritis as

defined by Fishbein''s Medical and Health Encyclopedia Volume 3 is stated :

There are several different types of nephritis, all of which involve inflammation of the kidney. One of the most common types, espedally among

children, is known as acute poststreptococcal glomerulonephritis. This non-infectious disorder affects the tiny blood filters of the kidney (glomeruli),

causing fluid retention (edema). Nephritis is also known as Bright''s disease after Richards Brich who first described these diseases.

Causes : The kidney inflammation is usually a direct consequence of streptococal infection of the throat or the skin. It is thought to be a reaction of

the body''s autoimmune system to the bacteria. The antigen-antibody response interferes with the glomerulis filtering function, causing a marked

decrease in the rate at which fluid is separated from the blood.

We are of the considered view that the said disease is of not such a nature, which fact has been attempted to put to be a suppression of a material

fact for securing the consent of the petitioner, apart from the fact that there is nothing on record to hold mat either the respondent or her parents

knew or had the knowledge of any such assumed and attributed disease to the respondent prior to the marriage. There is no worth-relying

evidence on record referred to in the course of arguments from which it can be inferred that respondent is suffering from nephritis before marriage

or after it.

The word ''fraud'' occurring in Section 12 cannot be read equivalent to fraud as defined by the Indian Contract Act. The inference is obvious

from a reading of Section 11 and Section 12 of the Hindu Marriage Act. It is axiomatic that any act done fraudulently would be void, but under the

special law where marriage in Hindu Law is considered as a sacrament, such a fraud has not been declared to render the marriage void. It is only

Section 12, an enabling provision, which provides that in case of a consent having been obtained by force or with the person on whom the alleged

fraud has been committed could get a declaration that the marriage being voidable is void. Thus giving the words its meaning as commonly

understood in the matrimonial litigation the interpretation as put forth under the Contract Act cannot be imported into the case under the Hindu

Marriage Act. We find support from the judgment reported in Raghunath Gopal Daftardar Vs. Sau, Vijaya Raghunath Daftardar, , as well as in the

judgment reported in Sujatha Vs. C.D. Hariharan, .

After going through the evidence as well as the statement of P.W. 1 with the assistance of the Counsel we find there is not even an iota of

evidence on record from which attributes of a fraud can be inferred even from circumstantial evidence. In the petition no overt act suppressing the

fact about her health has been attributed to the respondent. Be that as it is, the pain, swelling, etc., kidney being adversely affected, irrgularity in

menstruation are diseases of such a nature which can inflict a person at any time. No terminus quo can be fixed since when the petitioner suffered

from the disease attributed to her, though as we have observed earlier that the disease has nothing to do with leading a normal matrimonial life and

bearing a child even if the respondent is alleged to be suffering from the disease attributed to her.

For the reasons recorded above we are of the considered view that finding of fact arrived at by the learned Court below that there was no fraud

committed by the respondent, cannot be set aside especially when no ground much less a substantial ground for taking a different view has been

made out by the Counsel for die appellant.

Concedingly the petitioner and the respondent led a normal matrimonial life from December, 1992 to March, 1993 except going here and there

during menstruation period during which the respondent suffered, from pain etc. No expert witness has been examined with respect to the nature of

the disease, the extent of the disease and the inability to be arachild because of the disease attributed to her. In our considered view no fraud has

been played and no facts have been suppressed in order to secure the consent of the petitioner for marriage.

On petitioner''s own showing he came to know of the alleged disease and at the best on 7.3.1993 while the petition declaring the marriage as

voidable was presented on 28.11.1994 i.e., after 1 year 8 months which is obviously barred by time. For the petition for declaration of marriage

void as a voidable marriage the statute provided a limitation of one year by Section 12. The learned Single Judge has rightly come to the conclusion

that taking the statement of the appellant at his best that he acquired the knowledge on 17.3.1993, in spite of the reasons best known to him having

not stated as to when and to whom he contacted and acquired knowledge with respect to facts attributed to respondent. Thus the starting point for

the purpose of period of limitation would be 17.3.1993. This petition suffers from bar of limitation of one year. For the reasons recorded above we

find no force in the appeal.

We are of the considered view that the marriage has to be seen in the cultural context of the country. The fact of the respondent would and is

leading a normal life gets corroboration from the fact which is not disputed, that the respondent is working as a school teacher till date. The nature

of the disease, in view of the circumstances stated above, cannot be stated suppression of which has resulted in consent of the petitioner. For the

reasons recorded above, we find no force in the appeal. The same is dismissed with no order as to costs. Consequently C.M.P. No. 12261 of

1997 is dismissed.