1993 Supreme(MP) 109

R. D. Shukla, J.
Sunitabai v. Devendra Kumar
F. A. No. 86 of 1992 (I); Decided on 2.2.1993*.

Headnote:Hindu Marriage Act, 1955 -- S.13 (1) (iii) -- burden of proof of ailment -lies on petitioner -- epilepsy proved from childhood -- no improvement proved by defence -- decree rightly granted.

        fganw fookg vf/kfu;e] 1955 & /kkjk ¼1½ & chekjh ds lcwr dk Hkkj & vthZnkj ij gS & fejxh ckY;koLFkk ls lkfcr & izfrj{kk }kjk dksbZ lq/kkj lkfcr ugha & fMdzh Bhd ikfjr dh xbZA

        The admitted facts of the case are that the appellant and respondent were married at Bhopal on 19.4.86 according to Hindu rites. Thereafter the appellant went alongwith d`respondent to Agar where he was working. During their stay at Agar the appellant-wife had an attack of epilepsy. She was unconscious for some period with all the symptoms of epilepsy. On enquiry she disclosed that she is suffering from this ailment from her childhood.

        Held : Now so far as the fact of her suffering from recurrent attacks of epilepsy is concerned, the burden of the same lies on the husband (respondent here) before granting a decree for divorce or a decree for annulment of marriage even if the other party has not adduced any evidence the party who seeks the decree is required to prove the fact constituting the ground for divorce or for annulment of marriage. The evidence adduced by the husband (respondent) has to be seen from this angle.

        The respondent appearing as P.W. 1 has stated in pare 2 of his statement that Sunitabai (appellant here) had an attack of epilepsy within one month from marriage. He was not aware of the fact of her aliment earlier. After her recovery from the first attack when she was enquired about the history of the ailment she disclosed that she is suffering from this disease from her childhood (when she was aged about 4 years). He has further stated that Dr. Baheti who was treating her from before the marriage had asked the parents of Sunitabai to disclose this ailment to the person from whom she is being married but the same was not done and this fact was concealed fraudulently. He has also sated that Sunitabai (appellant) Li"Ved alongwith him at Sarni. She had attacks of epilepsy there also. She was shown to Dr. Vivek Gole. She was admitted in the hospital Dr. Gole treated her and referred her to Dr. Nadkani of Indore. Thereafter she was treated by Dr. Nadkarni also.

        Dr. V. V. Nadkarni (PW 3) has stated that Sunitabai was treatea by him for epilepsy in the year 1988. He has further stated that the disease is curable and controllable but in this case it could not be controlled.

        Thus, Devendra Kumard`respondent stands corroborated by the statement of Dr. Nadkarni about the fact of attacks of epilepsy and her treatment for the same.

        PW 4 Rameshchandra Verma has also stated that in April, 1988 he was residing in a house near the house of the father of Devendrakumar (respondent here). They were married the same month and after about 15 days, he heard shricks of a lady and went to the residence of Devendrakumar and saw Sunitabai (appellant here) in an unconscious state. Froth was coming out of her month and her lower and upper extremities were shivering. He has further stated that on a query Sunitabai disclosed that she was having this epileptic attacks from her childhood.

        This witness has further stated that after some time on a day during evening on hearing some loud voice words he went to the house of Devendra kumar, the parents of Sunitabai were present there. Devendrakumar made a complaint to her parents that why this fact of ailment was not disclosed to him and thereafter the father of Sunitabai told them that had this fact been disclosed to him he may not have married. Thereafter Sunitabai was taken by their parents to her paternal house.

        These facts have neither been rebutted by Sunitabai (appellant here) by appearing in the witness-box nor had been contradicted by her father. It appears· Sunitabai and her near relations including the parents have no courage to appear in the witness-box and face cross-examination.

        P. W. 5 Vinodkumar Khandelwal has also stated that appellant Sunitabais father admitted before him that she is suffering from epilepsy. P.W. 6 Gurunath has also corroborated the story of appellants having epileptic attacks. He has further stated about the condition of Sunitabai during attacks (that the froth was coming out of her mouth and there was shivering on the lower and upper extremities).

        PW 2 Dr. Baheti has stated that he has treated appellant for epilepsy since January, 86 and continued the treatment upto 17.4.89. He has made a statement on the basis of the record. He has further proved Ex. P/7 to 12 and Ex. P/21 showing the prescriptions. According to Dr. Baheti appellant Sunitabai is suffering from idiopathic epilepsy and the attacks for the same may come any time while working or walking. He has also stated about the condition-action and reaction of Sunitabai during such attacks. There is nothing to disbelieve Dr. Baheti. Nothing substantial has been brought out during the cross-examination. During cross-examination this witness has further confirmed that she was suffering from this ailment for last about 15 years. This also goes to show that appellant was suffering from this ailment from her child-hood.

        Though from the evidence of Dr. Baheti and Dr. Nadkami it has come that this ailment can be controlled by persistent treatment and the frequency of attacks can also be brought to the minimum but nothing has been brought from the side of the defence (appellant) to show that there has been decrease in frequency or there has been improvement in the ailment. As observed above, since the appellant wife and her close relatives who could depose about her conditions from the child-hood till today, have not appeared in the witness box and therefore, the contention of respondent-husband that she is suffering from recurrent epilepsy cannot be rejected. Appeal dismissed.