Important Point – Any scar on body of a woman can be a material fact or circumstance which definitely has a bearing on her marriage prospects.

B.P. Dharmadhikari, J.

Both these appeals under Section 19 of the Family Courts Act, are filed by the husband – Mayank. Petition No. A386/13, filed by him under Section 12[1][c] of the Hindu Marriage Act, 1955 for annulment of marriage between him and respondent by a decree of nullity, has been dismissed by the Family Court. Similarly, Petition No. A 289/12 filed by the respondent – wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been allowed with a direction to resume cohabitation and in default to pay monthly maintenance of Rs. 20,000/. The Family Court has decided both these matters by a common judgment dated 23.07.2015. Family Court Appeal No. 73 of 2015 challenges the dismissal of annulment proceedings filed by him. FCA 74 of 2015 assails the grant of restitution in proceedings filed by Respondent wife. The Hindu Marriage Act, 1955 is hereinafter referred to as “the Act”.

2. This Court has on 23.09.2015, issued notice observing that the appeal would be finally heard at the stage of admission. Accordingly we proceeded to hear the parties by issuing Rule and making it returnable forthwith.

3. Shri Gilda, learned counsel appearing on behalf of the appellant – husband has pointed out that an incurable skin disease of respondent – wife was learnt after marriage and thereafter the proceedings have been filed. He at the threshhold points out the difference made in scheme & provisions of Section 12[1][c] of Act by 1977 Amendment. He has taken us through the petition filed by the husband to explain how the fact of playing fraud by suppressing the material facts has been pleaded. He submits that the respondent wife has filed written statement, but, it contains only evasive denials. He has relied upon the provisions of Order VIII Rules 3, 4, and 5 of the Code of Civil Procedure to submit that in this situation the story pleaded by the appellant/husband ought to have been treated as admitted. He has also relied upon Section 58 of the Evidence Act.

4. Inviting attention to the story as pleaded by the respondent – wife in her petition for restitution of conjugal rights, he submits that the respondent wife has attempted to demonstrate that the skin disease was informed to the appellant and his family. According to him, the burden to point out this communication was upon wife and she has not examined anybody who were party to the discussion dated 12.05.2011. The respondent pleads that scar on her chest was shown to mother of the appellant on 26.05.2011, and on 09.06.2011 to appellant's mother and appellant. Respondents mother has avoided to enter witness box. Shri Gilda, learned counsel points out that the appellant husband examined himself, his father, a relative and two Doctors. Respondent wife remained satisfied with examining herself and two Internet Companies. He therefore, states that the learned Family Court erred in holding that the appellant husband was aware of the scar or skin disease.

5. He has taken up through the cross examination of wife to urge that even during cross she has not given any definite answers and her evidence is inconsistent with the written statement. She pointed out that she learnt about scar in July 2011, while little later she stated that she was not aware of any other skin infection. He submits that Dr. Syed Iliyas was not available till 24.01.2012, and his evidence shows that he examined the respondent for the first time on 19.07.2011 and thereafter started treating her. Wife pointed out operation by Dr. Syed on 01.10.2011, but, documents produced by Dr. Syed or then his evidence does not show any operation. That Doctor did not have any records to support his submission. He has taken us through the documents at Exh. Nos. 34/7, 34/4, 34/5, 34/9 and 34/6 to urge that these documents do not support the story of operation on 01.10.2011.

6. Dr. Syed examined respondent at Nagpur on 24.01.2012 and then a meeting of relative was scheduled on 24.01.2012 for second opini