Concealment of a material fact, such as a party's mental illness, at the time of marriage can constitute a ground for annulment of marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955.

Sunil Gaur, J.

1. Vide impugned judgment of 14th September, 2010, marriage of appellant with respondent has been declared to be nullity, as the material fact of mental illness of appellant-wife was concealed from respondent-husband. The factual background of this case already stands noticed in the opening paragraphs of the impugned judgment and needs no reiteration.

2. Suffice it would be to note that the parties were married on 19th April, 2007 but their marriage could not be consummated on the first night due to abnormal behavior of appellant-wife and within few months it became known that appellant-wife was suffering from mental disorder i.e. bipolar disorder alongwith seizures since the year 1998 and was under constant medication. Apart from his own deposition, respondent- husband had got examined Dr. Rajiv Mehta (PW-4), Physiatrist and Dr. Shalini Aggarwal (PW-3), Senior Consultant at Maharaja Agarsen Hospital, New Delhi. Apart from this, respondent-husband had relied upon deposition of Dr. Vikas Jain (PW-6), Consultant Neuro Psychiatrist in Paschim Vihar to prove the medical reports (Ex. PW-1/1 to PW-1/19) of the appellant-wife. The stand of appellant-wife is that she is under treatment and she is suffering from medical ailment which is not incurable and that she is quite normal. Appellant-wife had categorically denied that she was suffering from depression and had deposed before the trial court in support of her aforesaid stand.

3. After considering the evidence on record, trial court vide impugned judgment had concluded that appellant-wife is not of unsound mind rendering her incapable of giving a valid consent to marriage or due to mental disorder respondent-wife was unfit for marriage and so, it was held that this case does not come within the purview of Section 5(ii) of the Hindu Marriage Act, 1955. However, trial court concluded that although the case of appellant does not fall within the ambit of Section 12(1)(b) of the Hindu Marriage Act, 1955 but it certainly comes within the ambit of Section 12(1)(c) of the Hindu Marriage Act, 1955. Finding returned in the impugned judgment is as under:-

“It is therefore, established that the petitioner’s consent for marriage was obtained by concealing the above material fact about the respondent’s ailment. Section 12(1)(c) of HMA lays down that in case the consent of the petitioner for marriage is obtained by fraud as to any material fact or circumstance concerning the respondent, it may be annulled by decree of nullity. Thus, petitioner had a cause of action for filing a petition for annulment of marriage. Petitioner although pleaded that a fraud had been played upon him by the respondent and her parents, by concealment of the factum of respondent’s mental disorder, but he has not specifically claimed relief under Section 12(1)(c) HMA. In view of the pleadings of the petitioner and the evidence which has come on record, the petitioner is entitled to decree of annulment of marriage on this ground.”

4. At the hearing, the solitary contention raised by learned counsel for appellant is that all the three issues have been decided by the trial court in favour of the appellant but the marriage is annulled by taking a resort to Section 12(1)(c) of the Hindu Marriage Act, 1955 whereas in the petition, the annulment of marriage was sought under Section 12(1)(b) of the Hindu Marriage Act, 1955.

5. To support the impugned judgment, learned counsel for respondent has drawn the attention of this Court to paragraph No. 13.1 of the impugned judgment wherein, it has been held that though the respondent-husband had not claimed relief under Section 12(1)(c) of the Hindu Marriage Act, 1955 but in view of the pleadings of respondent-husband and the evidence on record, he is entitled to decree of annulment of marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955. Reliance has been placed by learned counsel for respondent upon decisions of the Apex Court in Challamane Huchha Gowda v.