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2016 Supreme(Cal) 146
IN THE HIGH COURT OF CALCUTTA
Nishita Mhatre And Tapash Mookherjee, JJ.
Rita Dey (Saha) – Appellant
Versus
Ashit Kumar Saha – Respondent
F.A. No. 151 of 2013
Delivered on : 04-04-2016
For the Appellant :Mr. Ranjan Kumar Kali, Advocate, Mr. Sukanta Ghosh, Advocate
For the Respondent:Mr. Gopal Chandra Ghosh, Advocate, Mr. Ayan Banerjee, Advocate, Ms. Jayeeta Kunda, Advocate.
The concealment of a material fact, such as a serious medical condition, from a party to a marriage prior to the marriage constitutes fraud and may render the consent of that party to the marriage voidable.
Headnote:
HINDU MARRIAGE ACT, 1955 - SECTION 12(I)(C) - ANNULMENT OF MARRIAGE - FRAUD - CONCEALMENT OF MATERIAL FACTS - CANCER - CONSENT - FREE CONSENT - VALIDITY OF MARRIAGE.
Fact of the Case:
Husband filed a suit for annulment of marriage under Section 12(I)(C) of the Hindu Marriage Act, 1955, alleging that the wife had fraudulently concealed her cancer diagnosis from him prior to their marriage. The wife contested the suit, claiming that she had disclosed her condition to the husband during their courtship and that he had agreed to marry her despite her illness.
Finding of the Court:
The court found that the wife had indeed concealed her cancer diagnosis from the husband prior to their marriage and that this concealment amounted to fraud. The court held that the husband's consent to the marriage was not a free consent and that the marriage was therefore voidable under Section 12(I)(C) of the Hindu Marriage Act, 1955.
Issues: 1. Whether the wife had fraudulently concealed her cancer diagnosis from the husband prior to their marriage? 2. Whether the husband's consent to the marriage was a free consent?
Ratio Decidendi: The court held that the wife's concealment of her cancer diagnosis from the husband prior to their marriage amounted to fraud and that this fraud rendered the husband's consent to the marriage voidable. The court relied on the following principles: 1. A marriage may be annulled under Section 12(I)(C) of the Hindu Marriage Act, 1955, if the consent of either party to the marriage was obtained by fraud. 2. Fraud includes the suppression of a material fact, the existence of which would have prevented the other party from giving consent to the marriage. 3. The materiality of a fact is determined by whether a reasonable person in the position of the party to whom the fact was suppressed would have considered it important in deciding whether to marry the other party.
Final Decision: The court dismissed the wife's appeal and affirmed the judgment and decree of the trial court annulling the marriage.
Tapash Mookherjee, J.
The present appeal is directed against the judgment and order dated 23.12.2011 passed by the learned Additional District Judge, 1st Court, Barasat, North 24 Parganas in Mat. Suit No. 35 of 2009. The Suit was under Section 12 (I) (C) of the Hindu Marriage Act, 1955 praying for annulment of marriage between the parties. The Petitioner in the Suit Sri Ashit Kumar Saha is the husband and the Respondent Smt Rita Dey (Saha) is the wife. The Suit is decreed on contest against the Respondent/wife.
1. The Petitioner/Husband’s cases in the Suit, in short, was as follows:-
2. The Petitioner/Husband and the Respondent/Wife were married on 10.02.2009 according to the Hindu Rites and Customs and all usual rituals had been duly performed and the Respondent/wife went to the Petitioner’s house after completion of all ceremonies. In the night of 17.02.2009 the Respondent/Wife told the Petitioner/Husband that she required to go to her elder sister’s house for a surgical operation to remove a tumour in her left breast and on asking, the Respondent/Wife failed to explain as to why such illness of her’s was not disclosed during the negotiation of their marriage. However, in the following morning the members of the Petitioner/Husband’s family took the Respondent/Wife to a Homoeopath doctor for treatment and after examination of the Respondent/Wife the doctor advised for an Ultra Sonography Test which was done instantly and on the next date the report was shown to the said doctor who after consulting the report advised for a surgical operation immediately for the removal of the tumour and F.N.A.C. Test for further investigation. In such situation the Respondent/Wife disclosed that F. N. A. C. Test had already been done in the month of January, 2009 and the report was lying with her elder sister. The Respondent/Wife’s sister was thereafter contacted over telephone and the said F. N. A. C. Test report was collected from her and thereafter the Respondent/Wife was taken to a Gynecologists on 21.02.2009 who after consulting the examination reports and clinical examination as well, opined that the Respondent/Wife was suffering from high grade infiltrating duct carcinoma. He, therefore, referred the Respondent/Wife to an Oncologist. The Respondent/Wife’s elder sister, who negotiated the marriage, was called for and she was asked as to why she and her family members having knowledge about the illness of the Respondent/Wife suppressed the fact during the negotiation of marriage. The reply of the family members of the Respondent/Wife was that the illness was very simple and curable by a minor surgical operation and after such reply they took away the Respondent/Wife to their house in the night of 22.02.2009 for treatment of the Respondent/Wife at Chenni. Thereafter, in the night of 25.02.2009 the Petitioner/Husband was informed that the family members of the Respondent/Wife decided to admit the Respondent/Wife in Calcutta Medical College and Hospital on the following day. Hence, a sister of the Petitioner/Husband went to the Calcutta Medical College and Hospital on the following day and she was informed that the doctors in the Hospital diagnosed the tumour in the left breast of the Respondent/Wife as ‘duct carcinoma’ which required immediate surgical operation.
3. It is the specific case of the Petitioner/Husband that the family members of the Respondent/Wife had the knowledge that the Respondent/Wife was suffering from breast cancer well before 21.01.2009 when the marriage was finalised and the date of marriage was also fixed. It is also the specific case of the Petitioner/Husband that had the disease of the Respondent/Wife been disclosed during the negotiation of the marriage he would not have married the Respondent. It is, therefore, the gist of the allegation of the Petitioner/Husband that his marriage with the Respondent is vitiated by fraud and misrepresentation and hence the marriage should be annulled by a decree under Secti
