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ORISSA HIGH COURT
P.K. Tripathy and L.K. Mishra, JJ.
Rajeshwari Mishra —Appellant
versus
Sidhartha Pandit —Respondent
Civil Appeal No. 32 of 2001
Decided on 5.11.2009
Counsel for the Parties:
For the Appellant:Dr. Prithvi Raj, S. Jena, S. Pattnaik, K.V.S.B.T. Kumar, Advocate.
For the Respondent:S.L. Pattnaik, M/s. Sanatan Nayak and G. Mukherji, Advocate.
IMPORTANT POINT
In view of Section 6, of General Clauses Act, the repeal of a statute; which is not retrospective in operation, does not prima facie affect the pending proceedings, which may be continued as if the repealed enactment were still in force.
Headnote:Hindu Marriage Act, 1955—Section 12 (Read with the Marriage Law Amendment Act, 1999) —Petition for annulment of marriage on ground that at the time of marriage wife was suffering from recurrent attacks of epilepsy—Petition was filed in 1998—Petition decreed by Trial Court —Appeal—Evidence and documents proved that appellants was suffering from recurrent attacks of epilepsy—Effect of the Amendment Act whereby words or epilepsy were omitted from Section 5(ii) (c ) of the Act? —Before the amendment which omitted the ground came into force right of respondent husband got crystallized and could not be subsequently defected at any stage of proceedings including appeal—No ground or reason to interfere. (Paras 8 and 10 to 13)
Result: Appeal dismissed.
L.K. Mishra, J.—The wife-Appellant has challenged the Judgment of the Judge, Family Court dated 21.9.2001 in Civil Proceeding No.85 of 1998 by which he annulled the marriage of the parties under Section 12 of the Hindu Marriage Act,1955.
2. Sidhartha Pandit, the husband (the Respondent herein) filed the petition for annulment of’the marriage on the ground that at the time of marriage the wife was suffering from recurrent attacks of epilepsy. The marriage of the parties took place on 5.2.1998 according to the Hmdu rites and customs. On 13.2.1998 at about 3.00 a.m. the husband woke up and found the wife having an epileptic attack. She had lost her sense and was salivating. One Dr. Bankim Patnaik, who was neighbour of the husband was called and on examination found the wife to be suffering from severe attack of epilepsy. He prescribed medicines and also advised to consult a Neurologist. On the next day morning on enquiry she disclosed that she was subjected to intermittent attack of epilepsy since her childhood and was under treatment. On her request, her family members were called and they came with her earlier prescriptions which revealed that she was under treatment since 10.7.85 in various hospitals. The husband took Rajeswari to Dr. Maya Gantayat and Others, doctors for treatment but the situation did not improve. Therefore, the petition for annulment of the marriage was filed. The wife-Appellant filed her written statement claiming that the husband demanded a sum of Rs.1,00,000 and a Hero Honda Motor Cycle as dowry. He was paid Rs.60,000 only. Demanding the rest dowry of Rs. 40,000 and the Motor Cycle, she alleged, the petitioners denied to keep sexual relationship with her saying that till the demand was fulfilled the marriage would not be consummated. She also alleged cruelty on the part of the husband.
3. The Trial Court framed the following issues:
“(i) Whether the respondent is subjected to recurrent attacks of Epilepsy?
(ii) Whether the consent for marriage was obtained by fraud by concealing the fact that the respondent suffered from Epilepsy? and
(iii) Whether the petitioner ill-treated and assaulted the respondent for non-fulfilment of dowry demand?”
After both parties led evidence, the Trial Court decided the case in favour of the husband holding that the wife was suffering from recurrent attacks of epilepsy and her allegation of demand of dowry was not proved by her. He annulled the marriage and in addition to that directed the husband-petitioner to pay permanent alimony to the tune of Rs.90,000.
4. The respondent-husband was set ex parte since he did not appear to contest the matter after appearing for some time. The appellant appeared in person and filed her written note of argument on the basis of which this case is disposed of after perusal of records.
5. As per lexical definition ‘epilepsy’ is a chronic functional disease of the nervous system, manifested by recurring attacks of sudden insensibility or impairment of consciousness, commonly accompanied by peculiar convulsive seizures. Though initially, ‘recurrent attack of epilepsy’ was a disqualification of marriage and was also made a ground for annulment of marriage, this ground was sought to be deleted by the Legislature. The statement of objects and reasons of the Amendment Act 39 of 1999 reads as follows:
Statement of Objects and Reasons:
“Based on the recommendations of the Law Commission of India as contained in their Fifty-ninth Report on Hindu Marriage Act, 1955 and Section 4 of the Special Marriage Act, 1954 were amended vide the Marriage Laws (Amendment) Act, 1976 so as to remove the doubts about the degree of lunacy. Ever since the aforesaid amendment came into force, the Central Government have been receiving representations from eminent medical experts, jurists and Members of Parliament for omission of references to ‘epilepsy’ contained in the aforesaid Acts of 1955 and 1954 on the ground that medical experts have found that
