Back
2017 Supreme(Bom) 1176
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Vasanti A. Naik, Swapna Joshi, JJ.
Pradeep s/o Namdeorao Ambhore - Appellant
Versus
Sau. Pallavi Pradeep Ambhore - Respondent
Family Court Appeal No. 158 of 2014
Decided On : 26-04-2017
For the Appellant : Mr. S.J. Kadu
For the Respondent: Mr. M. Badar
Headnote:Hindu Marriage Act, 1955 - Sections 5 and 12(1)(c)-Annulment of marriage.-Where consent of husband was obtained by force or fraud as to any "material facts" or "circumstance" concerning wife therefore marriage may be annulled by a decree of nullity.
A fact or circumstance which would materially interfere with a happy marital life would be a `material fact` as also a fact which if disclosed would have resulted in the husband or the wife not agreeing or consenting to the marriage would also be a `material fact`. It cannot be said that only such facts and circumstances which would materially interfere with a happy marital life would only be material facts.
A fact, though it may not seriously interfere with the marital life of the party but, would be of such a nature, which if disclosed, would result in either of the party not consenting for the marriage, would also be a `material fact`. In the case in hand, the wife was suffering from sickle cell anemia and the said fact was not disclosed by the wife or her parents to the husband or his family members before the solemnization of the marriage.
It would be necessary for a party to disclose, if that party is aware before the solemnization of the marriage that he/she suffers from sickle cell anemia to the party that comes to the said party with a proposal for marriage. It would be necessary to inform the other side and the said `material fact` cannot be concealed as had the said fact been disclosed, it may result in the other party refusing to consent to marry the party who suffers from the said disease.
The Family Court was justified in holding that the wife suffers from sickle cell anemia. The husband had discharged the initial burden and since the wife did not tender any evidence whatsoever to point out that she was not aware that she suffered from the disease before the solemnization of the marriage, an adverse inference ought to have been drawn against her.
If one party alleges that the other party has the knowledge about some fact and tenders oral evidence stating so, it would necessary for the other party who allegedly has the knowledge about the fact to enter into the witness-box, at least to state that he/she had not known it. As soon as that is said, the onus would again shift on the other party but, in this case, the wife failed to enter into the witness-box just to escape the cross- examination from the side of the from the side of the husband, which may have proved the case of the husband that the wife knew about the disease before the marriage.
In the circumstances of case, the Family Court has not appreciated the evidence in the right perspective while dismissing the petition filed by the husband. The judgment of the Family Court is set aside. The petition filed by the husband for annulment of marriage under Section 12(1)(c) of the Hindu Marriage Act is allowed. The marriage between the parties stands annulled under the provisions of Section 12(1)(c) of the Act.
Hindu Marriage Act, 1955 - Section 13(1)(i-a)-Cruelty.-False allegations in respect of dowry demand levelled against husband, would amount to cruelty.
Though the husband would be entitled to a decree of nullity, Court must add that if at all Court were not to grant a decree of nullity in favour of the husband, Court would have granted a decree in his favour under Section 13(1)(ia) of the Act on the ground of cruelty as the wife has levelled serious allegations that the husband had asked huge amount from her father at the time of the marriage and had also sought a large amount from him for purchasing a luxury bus and since her father had not paid the amount, he had filed a false case that she suffers from sickle cell anemia. The fact that the wife suffers from sickle cell anemia is proved by the husband and it is also held so, by the Family Court. The wife has not proved the serious allegations that she has levelled against the husband in the written statement. She has not entered into the witness-box to prove the allegations about the wrongful demands made by the husband at the time of the marriage or even thereafter. It is well-settled that levelling of false allegations against the husband, specially in respect of demand of dowry and failing to prove the same would tantamount to cruelty. Be that as it may, since Court is granting a decree of nullity in favour of the husband, it would not be necessary to grant a decree of divorce on the ground of cruelty as, as soon as held that the marriage is a nullity, there is no question of dissolving the marriage under Section 13 of the Act.
Vasanti A. Naik, J.
By this Family Court Appeal, the appellant husband has challenged the judgment of the Family Court, Akola, dated 5th July 2011, dismissing the Petition filed by the appellant for a declaration that the marriage between the appellant and the respondent wife is null and void, under the provisions of Section 12(1)(c) of the Hindu Marriage Act. By the said judgment, the alternate prayer of the appellant that a decree of divorce may be granted, under Section 13 (1)(ia) and (v) of the Hindu Marriage Act, was also rejected.
2. Few facts giving rise to the petition are stated thus:
The appellant husband (hereinafter referred to as 'the husband') was married with the respondent wife (hereinafter referred to as 'the wife') at Khamgaon, on 10.06.2009, as per the customs prevailing in the community The husband and the wife belong to the Buddhist community. After the marriage, the wife started residing in the matrimonial home, at Akola. In the petition filed by the husband for a declaration that the marriage is a nullity and/or for a decree of divorce on the ground of cruelty, it is pleaded by the husband that within three months of the marriage, the wife was taken by her mother and sister to Khamgaon, for rest. It is pleaded that there was a telephonic call from the father of the wife to the husband on 11.10.2009 to immediately come to Khamgaon as the wife was hospitalized in the hospital of Dr. Umesh Badhe at Khamgaon. According to the husband, he went to Khamgaon at about 1.30pm, as he was anxious to know about the health of the wife. It is pleaded that the husband became aware that the wife was suffering from a serious problem concerning her health. It is pleaded that the wife was then referred to Ashok Hospital at Akola, on 14.10.2009 and after conducting various tests, such as, CT scan, X-ray, blood reports, it was suggested by Dr.Agrawal that the wife should be referred to Ozone Multi Speciality Hospital and Critical Care Centre, in Akola, for treatment. The wife was admitted in the Ozone Hospital in the Intensive Care Unit at about 10.00 pm. It is pleaded that the past history of the wife revealed that she was treated by the Doctors at Khamgaon, mainly, Dr. Umesh Badhe and it was found that the wife was suffering from incurable disease i.e., 'Sickle Cell Anemia'. The husband pleaded that sickle cell anemia is hereditary and it was explained in the petition as to what are the causes and the symptoms of the said disease. After explaining about the disease, it was pleaded that the children of the person suffering from sickle cell anemia, are often smaller than the other children whereas the adults with sickle cell anemia are often slender and smaller in size than the normal adults. It was pleaded that two forms of strokes could occur in people suffering from sickle cell anemia one form could occur when the blood vessel in the brain is blocked and the other form could occur when the blood vessel in the brain bursts. It is pleaded that a person suffering from sickle cell anemia could suffer a stroke. It is pleaded that the wife was suffering from sickle cell anemia and as a result of the same, she had a paralytic attack and was hospitalized for long. It is pleaded that in the Ozone Hospital several tests were performed on the wife and it was confirmed from the reports like MRI, brain test, CT scan, X-ray, blood reports etc. that the wife suffered from sickle cell anemia and paralysis. It is pleaded that when the wife was taking treatment in Ozone hospital, she was suffering from paralysis. It is pleaded that within three months of the marriage, the aforesaid incidents occurred and on making enquiries, it was revealed to the husband that at the time of marriage the wife as well as her paternal relatives knew that the wife was suffering from sickle cell anemia but without disclosing the said fact to the husband, the husband's consent for the marriage, was secured. It is pleaded that the husband became aware on e
