Fraudulent concealment of a material fact, such as a mental disorder, at the time of marriage can render the marriage voidable under Section 12(1)(c) of the Hindu Marriage Act, 1955.

K.M. Agarwal, J.

1. This is an appeal by the wife filed under Section 28 of the Hindu Marriage Act, 1955, (in short, the "Act"), against the decree, declaring her marriage with the respondent void under Sections 12(1)(b) and (c) of the Act on the basis of a petition filed by the husband.

2. It is not in dispute that the marriage of the appellant with the respondent was performed at Durg on 19.6.1987 in accordance with the customary rites prevailing amongst Jains. On 4.1.1988 the respondent filed a petition for declaring his marriage with the appellant void on the grounds mentioned in Clauses (b) and (c) of Sub-section (1) of Section, 12. or in the alternative, for divorce under Section 13(1)(iii) of the Act. It was alleged that from before the date of marriage, the appellant was suffering from mental disorder, known as Schizophrenia and that suppressing this fact, the consent of the respondent for the said marriage was obtained. These allegations were denied by the appellant and the petition was resisted, but the Court below was pleased to pass a decree as aforesaid. Being aggrieved, the wife has preferred this appeal.

3. The argument of the learned Counsel for the appellant that sufficient opportunity to produce her evidence was not afforded to the appellant, deserves to be rejected. The appellant's application under Order 18, Rule 17(a), read with Section 151 CPC was rejected on 23.6.1990 by the Court below. While doing so, adequate and detailed reasons were given. Repetition or reproduction of reasons would be of no avail. Suffice it to say that the appellant failed to avail of several opportunities given to her for the purpose of examining her witnesses. She did not file list of her witnesses, or did she pay process fee for summoning her witnesses, though several dates were given for examination of her witnesses. The Court below was, therefore, right in rejecting her application under Order 18, Rule 17(a), read with Section 151 CPC, while permitting her to examine herself as a witness in support of her case.

4. Section 12(1)(b) and (c) of the Act reads as follows :--

"12(1). Any marriage solemnized, whether before or after the commencement of this Act; shall be voidable and may be annulled by a decree of nullity on any of the following grounds namely,--

"(b). that the marriage is in contravention of the condition specified in Clause (ii) of Section 5; or

"(c). that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required........ the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent".

Clause (ii) of Section 5 reads as follows :--

"5. A marriage may be solemnized between any two Hindus if the following conditions are fulfilled, namely :--'

"(ii) at the time of the marriage, neither party --

(a). is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of childdren."

The case of the respondent was not that the appellant was incapable of giving valid consent for the marriage in consequence of unsoundness of her mind. His case was that though capable of giving a valid consent, the wife was suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. Dr. Prakash Banthia (A.W. 3) was the only doctor who had examined the appellant before the date of her marriage, as also after the date of marriage. He was a well known psychiatrist, having his Nursing Home at Nagpur. His evidence would show that as per entries of his O.P.D. register at page 274, Ku. Sunita Pannalal Vora, aged 17 years, resident of Yawatmal, referred by Dr. S.M. Vora Yawatmal was examined and given treatment at his Nursing Home. Photocopy of these