Marriage under Hindu law is not voidable based on misrepresentation of health unless consent was not given freely; real consent is paramount.

1. This is a second appeal against the Judgment and decree passed by the learned District Judge, Poona, in Civil Appeal No.646 of 1967 on his file from the decree in Marriage Petition No.18 of 1963 of the Court of the Civil Judge (Senior Division), Poona. It arises this way.

2. The appellant - petitioner was married to the respondent at Poona on 30th March 1962 according to Hindu religious rites. The petitioner alleged that during the negotiations as well as at the time of the solemnization of the marriage the respondent and her parents not only concealed the fact that she was suffering from epilepsy since childhood but also misrepresented to him and his father that she was quite healthy. Within a fortnight after the marriage which was consummated in the first week of April 1962, the respondent started getting epileptic fits. These fits recurred in the months of April, May and June at an interval of about a fortnight. The petitioner further alleged that in the first week of July 1962, he, for the first time, realised that the respondent was suffering from epilepsy which was an incurable disease and. therefore, he took her to the place of her elder sister Mrs. Deshpande in Poona and left her there on 6th July 1962. He also alleged that since after the discovery of this fraud on 2nd July 1962 till he took her to the house of her elder sister Mrs. Deshpande on 6th July 1962, he did not live with her as her husband. From 6th July 1962 the respondent never returned to his house. Alternatively, the petitioner alleged that within a short time after the marriage was consummated, the respondent started behaving in a queer way and also used to insult the petitioner and other members of his family. He, therefore, contended that having regard to the nature of the disease and the strange and unbecoming behaviour of the respondent, he reasonably apprehended that it would be harmful and injurious for him to live with her. He, therefore, prayed for a decree of nullity of the marriage on the ground of fraud, and in the alternative, a decree for judicial separation on the ground of cruelty.

3. The respondent contested the petitioner's claim vehemently. She denied the allegation of fraud and alleged that the fact that the respondent was suffering from epilepsy was brought to the notice of the petitioner's father and the petitioner during the negotiations. She denied that any fraud was practised on the petitioner and contended that he married her with free consent. She also alleged that soon after the marriage, the mother of her mother - in - law discovered a small white spot on her waist while giving her bath, whereupon the members of the family suspected that she was suffering from leucoderma, when in fact it was scar left of an insect - bite. The rest of the contentions in the written - statement are not material for our purpose.

4. On these pleadings, the learned trial Judge framed the necessary issues and on consideration of the evidence adduced by the parties, came to the conclusion that the petitioner had failed to prove that his consent was obtained by fraud or that the respondent was suffering from an incurable disease, and that, therefore, the petitioner was not entitled to a decree of nullity. As regards the alternative plea of the petitioner, the learned trial Judge found that the petitioner had failed to prove the alleged cruelty and, therefore, dismissed his claim on that ground also. The petitioner t