Dismissed

Ajithkuamr v. Deepa

Kerala HC5 Feb 2018Mat.Appeal/221/2009

Case brief

AI extract

What is this about?

The High Court of Kerala upheld the Family Court's dismissal of a petition for nullity of marriage. The court held that the one-year limitation for filing the petition began when the petitioner was informed of the respondent's mental illness before childbirth in 2000, not in 2005, thereby barring the 2006 claim.

What did the court decide?

Matrimonial appeal dismissed; original petition for nullity of marriage confirmed to be time-barred.

Ajithkuamr Vs Deepa — Matrimonial and Divorce | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU

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MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939 Mat.Appeal.No. 221 of 2009 OP 842/2006 of FAMILY COURT,KOZHIKODE

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APPELLANT/PETITIONER

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AJITHKUAMR, S/O.SUKUMARAN, MUNDOTH THAZHAM HOUSE, CHELAVOOR P.O., KOZHIKODE.

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BY ADVS.SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.K.SANEESH KUMAR

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RESPONDENT/RESPONDENT:

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DEEPA, D/O.DAMODARAN, AMBAYATHINGAL HOUSE, PERUVAYAL AMSOM,DESOM, KOZHIKODE.(MENTALLY ILL AND REPRESENTED BY HER FATHER SRI.DAMAODARAN, S/O.C.K.CHANDU, -DO-.).

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BY ADV. SRI.ARJUN SREEDHAR BY ADV. SRI.JOSEPH GEORGE(MULLAKKARIYIL) BY ADV. SMT.C.G.PREETHA BY ADV. SRI.P.S.SREEDHARAN PILLAI BY ADV. SRI.T.K.SANDEEP

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-022018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.HARILAL & A.M.BABU, JJ.

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Mat.Appeal.221 of 2009

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- - - - Dated : 5^th February, 2018

JUDGMENT

Harilal, J

1.The appellant and the 1^st respondent herein are husband and wife. The appellant filed O.P.842/2006 before the Family Court against the respondent to annul the marriage between them by a decree of nullity under Section 12(1)(c) of the Hindu Marriage Act on the ground that the consent of the appellant for the marriage was obtained by fraud.

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2.Parties are referred to as in the original petition. Brief facts of the case can be summarized as follows : The marriage between the petitioner and the respondent was solemnized as per the hindu customary rites on 22.10.1999. After the marriage, parties lived together in the house of the petitioner. From the very beginning, the respondent's behaviour was abnormal and she

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was careless and irresponsible in all aspects. Initially he thought that the abnormality may be the result of sudden change in residence. But even after an year, the respondent did not conceive. When the parties consulted with a doctor by name Dr Vinaya Chandran, he examined them and told that both the parties are physically normal; but the doctor expressed a doubt that the respondent might be taking strong medicines for some illness. At that point of time, the respondent herself stated that she was taking medicines for headache and fear. Subsequently, she was examined by Dr O.N.Vasudevan, who advised her to stop the said medicines. Thereafter, the respondent showed symptoms of severe mental illness. She was not interested in sexual intercourse. As per the advice of Dr.O.N.Vasudevan, she stopped the medicines and then she became pregnant. But her mental condition had become more worse. She was found frequently laughing without any reason.

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While so, the respondent delivered a child and after 90 days the respondent and the child were taken back to his house. She had shown symptoms of mental illness at that time. When the abnormal behaviour of the petitioner became intolerable, the petitioner realized the fact that the prescriptions obtained by him from the house of the respondent are for the treatment of her mental illness even before the marriage. He contacted Dr.O.N.Vasudevan and enquired about the prescription. It was revealed that she was suffering from mental illness even before the marriage and was under his treatment. Thus, the petitioner came to know the fact that his consent to the marriage had been obtained by suppressing her mental illness. Thus, the parents of the respondent had committed cheating on him. If he had the knowledge about the mental illness of the respondent, certainly he would not have married her. So also, the respondent, at the time of marriage, was also not matured enough to give

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consent. Even after the marriage the respondent has mental illness and was under treatment. He has evidence proving that the respondent is having serious mental illness on 20.12.2005. With the above averments the petitioner prayed for a decree of nullity.

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3.The respondent filed written-statement denying the allegations of mental illness alleged against her. She emphatically denied the allegation that she was undergoing treatment of Dr O.N.Vasudevan for her mental illness, before the marriage and she told him the said fact. she had never undergone treatment of Dr O.N.Vasudevan at any point of time. The allegation that the parents of the respondent suppressed the mental illness of the respondent is also utter falsehood. On the other hand, she further contended that on 13.4.2002 at night the petitioner came to the house consuming liquor and assaulted her mercilessly demanding more money from the father

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and on 14.4.2002 her parents took her and the child to their house. The allegation that the petitioner had got some documents regarding her treatment for mental illness from the house of the respondent is also false and baseless. After 14.4.2002 the petitioner never enquired about his family. Nothing has been paid after 14.4.2002 for their maintenance except payment of Rs 450/- and Rs 948/- by money order. Neither the respondent nor her father had committed forgery or any kind of cheating to him. It is also contended that the mala fides of the petitioner is to wriggle out from the marital tie under the guise of fraud alleged against him. The respondent prayed for dismissal of the petition.

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4.On the aforesaid rival contentions both parties adduced evidence. PWs 1 to 4 were examined and Exts A1 to A7 were marked on the side of the petitioner and RW1 was examined and Exts B1 to B4 were marked for the respondent. Exts X1 and X2

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were marked as court exhibits. After considering the aforesaid evidence on record, the family Court dismissed the original petition on the ground that the original petition was filed out of time, in view of the valid bar to file a petition seeking a decree of nullity contemplated under Section 12(1)(c) of the Hindu Marriage Act. This appeal is filed challenging the legality and correctness of the aforesaid finding whereby the family Court dismissed the original petition.

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5.Heard the learned counsel for the appellant and the learned counsel for the respondent.

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6.The sum and substance of the arguments advanced by the learned counsel for the appellant is that the Family Court failed to evaluate the evidence on record in its correct perspective. According to him the evidence adduced by the petitioner would show that he came to know about the mental illness of the respondent even before the

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delivery of the child. But there is no evidence to prove that at that time he came to know about the fraud played by the parents of the respondent. The evidence on record would prove that he came to know about the fraud within one year immediately before the filing of the petition.

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7.Per contra, the learned counsel for the respondent advanced arguments to justify the findings of the family court in the impugned judgment. According to him, the petitioner himself admitted that before the delivery of the child, he came to know about the mental illness by the disclosure of the said fact by respondent to him. Subsequently, it stands clearly admitted by him that he contacted Dr O.N.Vasudevan and enquired about the prescription found out by him and he revealed that she was suffering from mental illness even before the marriage and he advised her not to become pregnant. According to

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the learned counsel for the respondent, the averments in the petition itself show that before the delivery of the child he came to know that his consent for marriage was obtained by playing a fraud to him. In short, the averments in the petition itself are more sufficient to arrive at a finding that before the delivery of the child he came to know that his consent was obtained by suppressing the mental illness of the respondent.

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8.In view of the submissions at the bar the point to be considered in this appeal is, is the Family Court justified in dismissing the original petition on the ground that the original petition was filed out of time, in view of the statutory bar contemplated under Section 12(2)(a)(i) of the Hindu Marriage Act. Going by the impugned judgment, it could be seen that the Family Court categorically found that the consent of the petitioner was obtained by suppressing the fact that the respondent was suffering from mental

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illness, before the marriage and thereby the parents of the respondent had obtained consent of the petitioner by committing fraud to him. Had they disclosed the factum of mental illness to him, he would not have given consent to the marriage. The factum of mental illness stands proved by Exts A1 to A7 and the same is supported by the oral evidence of PWs 1 to 4. Thus, the Family Court unambiguously held that the consent of the petitioner to the marriage was obtained by way of fraud and thereby it would fall under Section 12(1)(c) of the Hindu Marriage Act. In other words, it was found that the petitioner succeeded in proving the fraud committed by the parents of the respondent in obtaining his consent to the marriage.

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9.But, thereafter, the Family Court considered the question whether the original petition is hit by Section 12(2)(a)(i) or (ii) of the Hindu Marriage Act. According to the petitioner, he has evidence

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that the respondent is having serious mental illness on 20.12.2005, when he contacted the doctor and saw the prescriptions of her medicines. So the petition was filed within one year from the above date. Hence this petition is not barred by the limitation of time contemplated under Section 12(2) (a)(i) or (ii) of the Act. But, in the petition itself, it is seen averred that before the delivery of the child, the respondent herself told the petitioner that she was undergoing treatment for fear and headache and thereafter he contacted Dr Vasudevan and came to know about the alleged mental illness of the respondent.

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In order to prove the petitioner's knowledge about the mental illness of the respondent, before the delivery of the child, the respondent has produced Exts B1 to B4. Ext.B1 was a counter statement dated 18.7.2003 filed by the petitioner in the aforesaid Maintenance Case filed by the

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respondent. The Family Court meticulously examined the averments in the said counter claim and found that in the said counter claim filed in the year 2003, he admitted that he came to know the mental illness of the respondent at the time when the respondent herself disclosed to him that she was undergoing treatment for mental illness and he came to know the factum of illness from the respondent herself before the delivery of the child. Fraud is a fact that can be drawn from the facts and circumstances of the case pleaded. On an analysis of the pleadings we find that there is no specific pleadings to the effect that even though he came to know about the mental illness of the respondent before the delivery of the child, he could not understand the factum of fraud and he came to know the factum of fraud in a subsequent stage on 20.12.2005 only. So there is no reason to disbelieve his own admission in Ext.B1 counter statement that he was aware of the mental illness before the delivery of the child.

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Ext.X1 shows that the child was born on 24.12.2001 and it is not disputed.

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In other words, in the earlier portion of the pleadings itself he admitted that he understood the mental illness of the respondent, during the initial days after the marriage. The contention that he, subsequently in the year 2005, came to know about the fraud, does not tally with the earlier admission to the effect that he came to know about the mental illness of the respondent from Dr O.N.Vasudevan, before the delivery of the child in the year 2000. When the said contention is tested with the mind of an ordinary prudent man, it is highly unbelievable and improbable that even though he came to know about the mental illness of the respondent in the year 2000, he came to know about the fraud in obtaining his consent to the marriage in the year 2005 only. The circumstance under which he came to know about the fraud in a later stage, ie, in the year

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2005, was not proved in evidence. It is true that in paragraph 10 of the petition, it is stated that the cause of action has arisen on 20.12.2005. The expression 'cause of action' has acquired a judicially settled meaning. The cause of action means the whole bundle of every material facts, which are necessary for the plaintiff, to prove his case, if traversed, in support of his right to the judgment. Therefore, merely on the reason that a particular date within the period of limitation is shown as the date on which the cause of action has arisen, the plaintiff cannot get over the period of limitation on the basis of that date, if the material facts show otherwise. In the instant case, the material fact averred in the pleadings and the evidence on record would prove that the petitioner discovered the fraud played in getting his consent to the marriage in the year 2000. it follows that the OP was filed five years after the discovery of fraud in getting his consent to

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the marriage.

In the above analysis, the family court is justified in finding that the original petition was not filed within the time contemplated under Section 12(2)(a)(i) of the Hindu Marriage Act and thereby the original petition is hit by the said proviso. We do not find any reason to interfere with the findings of the family court. The family court is justified in dismissing the original petition.

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The Mat.Appeal is disposed of accordingly.

Sd/-

K.HARILAL Judge

Sd/-

A.M.BABU Judge

Mrcs/14.2

/True copy/

Sd/- P.S.To Judge

Ajithkuamr v. Deepa

Case brief

What is this about?

What did the court decide?

Ajithkuamr v. Deepa

Case brief

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What did the court decide?

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