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IN THE HIGH COURT AT CALCUTTA
Bhaskar Bhattacharya & Prasenjit Mandal, JJ.
Anju Kundu
Vs.
Shyamal Kumar Kundu & Anr.
F.A. No. 191 of 2006
Decided on : 23rd October, 2009
HUSBAND - WIFE - NULLITY OF MARRIAGE - HUSBAND’S SUIT FOR - ON GROUNDS OF SUPPRESSION OF MATERIAL FACT - WIFE DID NOT PERMIT HIM TO TOUCH HER BODY - TUMOUR IN HER LEFT BREAST - EDUCATIONAL QUALIFICATION AND AGE - SUIT WAS CONTESTED BY THE WIFE - TRIAL COURT DECLARED THE MARRIAGE TO BE NULLITY ON THE GROUND OF SUPPRESSION OF MATERIAL FACT - WIFE’S APPEAL - HELD, APPEAL ALLOWED.
Fact of the Case:
The husband filed for annulment of marriage on the grounds of suppression of material facts by the wife. The wife contested the suit. The trial court declared the marriage to be nullity on the ground of suppression of material fact. The wife appealed.
Finding of the Court:
The court found that the husband was an egregious liar and could not be believed. The court also found that the wife had a tumour in her left breast even before her marriage and this fact has been admitted in the letter written by her maternal uncle to her husband. Similarly, it has also been established from the evidence that the wife was not a graduate but she failed in one subject, as a result, got compartmental in B.A. Examination but according to her, this fact was disclosed at the time of negotiation. Regarding the age of the respondent, we however, find that the actual age admitted by her in evidence is about one year more than the one disclosed in the letter written by her father in the postcard in answer to the advertisement of marriage.
Issues: 1. Whether concealment of the fact that there was a tumour in the left breast of the wife at the time of the marriage is fatal enabling the husband to get a declaration of nullity of the marriage in terms of section 12 of the Act? 2. Whether the mere fact, that in the letter written in reply to the advertisement given by the father of the husband, the father of the wife disclosed that the wife was a graduate whereas she failed in B.A. Examination, is by itself sufficient for declaring the marriage to be a nullity on the ground of suppression of material fact concerning the wife and final1y, whether suppression of the fact that the age of the wife at the time of the marriage was about one year more than what was disclosed in her Bio Data is a ground for declaring the marriage as a nullity.
Ratio Decidendi: 1. In order to maintain a suit for annulment of the marriage under section 12(1)(c) of the Act, it must be established by the party applying for annulment that the suit was filed within one year from the date of discovery of the fraud and that after the discovery of the fraud, he or she had not lived with the other spouse as husband or wife, as the case may be. 2. Every girl before marriage, and more so, a well-educated girl like the petitioner in that case, would prefer to marry, a stably employed person to secure her future and marriage with an unemployed person would be the last resort. 3. A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility.
Final Decision: The appeal is, thus, allowed. The judgment and decree passed by the learned Trial Judge are set aside and the suit filed by the husband is dismissed.
Bhaskar Bhattacharya, J.
This first appeal is at the instance of a wife who was a defendant in a suit for declaration that the marriage was a nullity, and in the alternative, for divorce on the ground of cruelty and is directed against the judgment and decree dated 20th March, 2006 passed by the learned Additional District Judge. First Court, Murshidabad in Matrimonial Suit No. 256 of 1996, thereby declaring the marriage to be nullity on the ground of suppression of material fact concerning the wife.
2. Being dissatisfied the wife has come up with the present first appeal.
3. The husband-respondent filed in the Court of District Judge, Nadia a suit being Matrimonial Suit No. 77 of 1994 which was subsequently on basis of an order passed by this Court on an application of the wife under section 24 of the Code of Civil Procedure, transferred to the Court of Additional District Judge. First Court Murshidabad at Berhampore and was renumbered as Matrimonial Suit No.256 of 1996.
4. The case made out by the husband in the application under section 12 of the Hindu Marriage Act and in the alternative for divorce under section 13 thereof, as it stands after the amendment of the application may be summed up thus:
(a) The parties were married according to Hindu rites and ceremonies on 17th Falgoon, 1399 B.S. corresponding to March 1, 1993 at the house of the wife in the District of Murshidabad. On the following morning the wife was taken to the house of the husband at Ranjan Pally, PS Chakdah in the District of Nadia.
(b) On the night of Fulsajja the wife refused to embrace the husband and did not allow him to even touch her body and also declined to share bed with him for which the husband became astonished but left the matter uncared for and did not give any importance.
(c) On the following nights till Astomangala the same thing was repeated and the wife continuously refused to share bed with the husband.
(d) The father of the husband gave an advertisement in the "Ananda Bazar Patrika", a daily newspaper, for the marriage and on the basis of such advertisement the father of the wife responded disclosing that the wife was then 24 years of age and had passed B.A. Examination and further informed that the wife had passed the diploma course of music up to fourth year. The husband also went to see the wife before marriage and all the times the respondent disclosed that her educational qualification was B.A.
(e) Even after two months of the marriage, when the wife did nut allow the husband to touch her or make advances to sexual intercourse the husband became astonished.
(f) On 20th May. 1993, the wife reported to the husband that she had an abnormal pain in her left breast for which the husband took her to Dr. A.K. Ghosh, a gynaecologist, at the Jawaharlal Nehru Medical Hospital at Kalyani who after examining the wife opined that she had every doubt regarding existence of a tumour on the left side of the breast of the wife and suggested a thorough check up with proper examination through the medical expert.
(g) The parties came back to Chakdah on the same day from Kalyani when the wife for the first time disclosed that before her marriage, she had been suffering from pain on several occasions which was also known to her parents and for that reason, she did not want to marry any person; but she was practically forced to marry the respondent due to her father's continuous insistence. She also disclosed that she could not pass the B.A. Examination but it was due to her father that she was compelled to disclose a blatant lie that she had passed B.A. Examination. She also disclosed that her age was near about 30 years at the time of the marriage and she had no diploma in music.
(h) The husband was shocked to hear the aforesaid facts as the father of the wife by suppression of those material facts obtained the consent of marriage from the husband.
(i) On the next morning, the husband reported such fact to the father of the wife who came on 28th May, 199
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