Matrimonial Appeal No.1030 of 2009 (Roy Jacob v. Sony Jacob)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 8TH DAY OF JANUARY 2014/18TH POUSHA, 1935** ## **Mat.Appeal.No. 1030 of 2009** **-------------------------------AGAINST THE JUDGMENT IN OP NO.1089/2008 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR DATED 14-10-2009** **....** ## **APPELLANT(S)/PETITIONER:** **--------------------------------------------** **ROY JACOB, AGED 35 YEARS, S/O.JACOB, KADALIYIL HOUSE, MOONILAVU.P.O., THAZHAKKAVAYAL KARA, MOONILAVU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.** **RESPONDENT(S)/RESPONDENT:** **--------------------------------------------------** **SONY JACOB, AGED 32 YEARS, D/O.CHACKO ULAHANNAN, KALATHOOR HOUSE, VAZHOOR EAST.P.O, CHENGAL KARA, VAZHOOR VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.LIJI.J.VADAKEDOM** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **M.A.NO.1030/2009** ## **APPENDIX** ## **APPELLANT'S ANNEXURE:** ## **ANNEX.1: COPY OF THE JUDGMENT DTD. 22/10/2007 MADE BY THE EPARCHIAL TRIBUNAL, PALA VIDE JUDGMENT DTD.22/10/2007.** ## **RESPONDENT'S ANNEXURE:** **ANNEX.1: THE COMPUTER GENERATED COPY OF THE CALL DETAILS OF MY MOBILE NUMBER 8547559135 FROM 01/04/2012 TO 21/03/2013 RECEIVED BY ME ON MAKING APPLICATION TO THE BSNL.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ANTONY DOMINIC & K. RAMAKRISHNAN, JJ. -----------------------------------------------------------------Matrimonial Appeal No.1030 of 2009 ----------------------------------------------------------------------Dated this the 8[th] day of January, 2014 ## J U D G M E N T ## Antony Dominic, J This appeal is filed, challenging the judgment of the Family Court, Kottayam, dismissing O.P.Divorce No.1089/2008. The said O.P. was filed by the appellant herein, seeking a declaration that his marriage with the respondent was null and void. 2. Briefly stated the facts are that, the marriage between the appellant and the respondent, an arranged marriage, was solemnized on 29.06.2002. In the marital relationship a child was born on 24.05.2003. It is stated that, the couple separated on 22.08.2006. It is thereafter, the O.P. in question was filed by the appellant, seeking the declaration of nullity, on the ground that the respondent Matrimonial Appeal No.1030 of 2009 2 was a lunatic at the time of marriage and that his consent for marriage was obtained by fraud. The factual basis for raising this contention was that, according to him, the respondent who was suffering from a mental ailment was under treatment at Kusumagiri Mental Health Centre, Ernakulam, even prior to the marriage and this was suppressed from him. He contended that, if this fact was disclosed, he would not have consented for this marriage. 3. The respondent appeared before the Family court and contended that, she was under treatment for anxiety, that it was disclosed to the appellant and that the appellant contracted the marriage fully knowing these facts. She contended that, she was not suffering from any disability for contracting a valid marriage and according to her, there is no reason to declare that the marriage was null and void. 4. Before the Family Court, on behalf of the 3 Matrimonial Appeal No.1030 of 2009 appellant, Pws 1 to 4 were examined and on behalf of the respondent, RWs 1 to 3 were examined. Exts.A1 to A4 and X1 were also marked. The Family Court by the impugned judgment dismissed the O.P., and this judgment is under challenge in this appeal. 5. We heard the learned counsel for the appellant and learned counsel appearing for the respondent. 6. The contention urged before us was that, on evidence, it was proved that, the consent of the appellant for the marriage was obtained by fraud, in as much as, the mental ailment suffered by the respondent was suppressed from him. This contention was contradicted by the learned counsel for the respondent and both sides referred to the oral evidence of the parties, as also the documentary evidence produced by them. 7. In the light of the submissions made by the 4 Matrimonial Appeal No.1030 of 2009 parties, the issues that arise for our reconsideration are whether, from the evidence, it could be inferred that any material or fundamental fact was suppressed and whether the non-disclosure of the ailment, amounted to suppression justifying a declaration of nullity of marriage in exercise of the powers under the provisions of Section 19 of the Divorce Act. Among the two issues, we shall consider the latter one first. 8. At the outset, we should notice the following facts. Admittedly, the respondent was suffering from an ailment, which has been described by RW3, a qualified and experienced Psychiatrist of Carithas Hospital, Kottayam, as 'generalised anxiety disorder'. Ext.X1, the Medical records summoned from Kusumagiri Mental Health Centre, which was proved through PW3, also proved that, the respondent was continuously under treatment for this ailment. However, PW3 had only proved the document and has 5 Matrimonial Appeal No.1030 of 2009 confessed that she did not treat the respondent. On the other hand, RW3 after going through Ex.A2 certificate and X1 treatment records gave his opinion that, 'generalised anxiety disorder' suffered by the respondent was only a minor psychiatric disorder and is not a severe mental illness. It was also deposed that, the illness of the respondent can be cured by medicine. Therefore, the expert evidence available before the Family Court was to the effect that the mental ailment in question is a minor psychiatric disorder, which is a curable one. 9. It is in this background, that we have to examine, whether even if it is assumed that, this ailment was not disclosed to the appellant, whether such nondisclosure could be accepted as the wilful suppression of a fundamental fact, entitling the appellant for a decree declaring his marriage with the respondent null and void. In our view, the answer to this question has to be in the Matrimonial Appeal No.1030 of 2009 6 negative and this view of ours is fully supported by the judgment of this court in **1(2002) DMC 541 (Benny Mathew v. Philomina)** . That was also a case, where the validity of the marriage of a lady suffering from mild mental depression was considered by this court in the light of the provisions contained in Section 19 of the Divorce Act. 10. In Paragraphs 11 and 12 of the judgment, negativing the contention that, the non-disclosure would amount to suppression, this court held thus: “11. The petitioner has contended that he was not informed by the respondent and her relations that she was suffering from mental illness, he would not have consented for the marriage. Therefore, he claims for declaration that the marriage between the petitioner and the respondent is null and void under the proviso to Section 19 of the Indian Divorce Act for obtaining his consent for the marriage by playing deliberate fraud upon him. It has been held that concealment of vasectomy operation from the wife is concealment of a material fact in obtaining consent of the wife for the marriage by playing deliberate fraud. It is also held that non-disclosure of the insanity of self or the father and Matrimonial Appeal No.1030 of 2009 7 brother or one of the parties to the marriage will amount to fraud in obtaining consent for marriage. Nondisclosure of a fact which is fundamental and material to the marriage to the other spouse will amount to playing fraud in obtaining consent for the marriage. But nondisclosure of some fact, which will not affect the marital life of the parties cannot be considered as fraud within the ambit of fraud under the proviso to Section 19 of the Indian Divorce Act. 12. In this case, it is clear from what is stated above that the respondent was suffering from slight mental illness before the marriage. Neither the petitioner nor his relations suspected that the respondent was suffering from any mental illness either at the time of marriage or after marriage. The doctor who treated the respondent has also deposed that he was giving only very small maintenance dose of medicines to the respondent after 1994. He has also deposed that he did not advise the respondent not to marry. Under such circumstances, it cannot be contended that the failure of the respondent and her relations to disclose to the petitioner that she suffered slight mental illness before marriage is fraud coming under the proviso to Section 19 of the Indian Divorce Act. In the decision reported in Abraham v. Usha K. Mammen (supra), this court also held that eventhough the parents of the respondents were aware of the mental and intellectual deficiency of Matrimonial Appeal No.1030 of 2009 8 their daughter, it may well be that they had a hope that her condition will improve after some time especially after marriage and they cannot be held guilty of active concealment and it cannot also be said that they owed a duty to tell the prospective bride-groom that the girl proposed for marriage to him is deficient in mental and intellectual capacity. In this case as it is clear that the respondent had suffered from mental abrasion before the marriage and it was cured at the time of marriage. It cannot be said that there was any active concealment on the part of the respondent and her parents in nondisclosure of the fact to the petitioner before the marriage amounting to fraud in obtaining his consent for the marriage. Therefore, it is clear that the contention of the petitioner that the respondent and her relations deliberately concealed the fact that the respondent was suffering from mental illness before the marriage and obtained his consent for the marriage by playing deliberate fraud upon him is not sustainable since the evidence on record does not reveal that there was active concealment of any material or fundamental facts regarding the married life between the petitioner and the respondent in this case. Therefore, the petitioner is not entitled to a decree of nullity of his marriage with the respondent under proviso to Section 19 of the Indian Divorce Act.” Matrimonial Appeal No.1030 of 2009 9 In the light of these principles and the reasoning of this court, the aforesaid contention should be answered against the appellant and we do so. 11. On facts we are also not satisfied that the appellant has established his contention that, the ailment of the respondent was suppressed. It is the admitted case of both parties that, the marriage solemnized on 29.06.2002 was an arranged marriage. It is in evidence that even before the fixation of the marriage, the appellant had occasion to interact with the respondent. Both of them had attended pre-marital counselling and at that time also, he had occasion to meet the respondent and talk to her. It is in evidence that, at the time of marriage proposal itself, the respondent had disclosed to the appellant that she had not attended the degree examination due to fear. The appellant also did not have a case that any time during his interaction with the respondent before marriage, he had noticed Matrimonial Appeal No.1030 of 2009 10 ## anything abnormal in her conduct. 12. Evidence before the Family Court also showed that, after marriage, the couple lead a normal life. In fact, the appellant himself says that on the 3[rd] day of the marriage the respondent herself disclosed to him that she was suffering from the ailment and was undergoing treatment for two years. She had also told him that she had entered into the marriage on the basis of the advice of the doctor. It is in evidence that the appellant had thereupon visited the doctor for his opinion and that it was only after the appellant obtained the medical advice that the wife conceived. 13. It is also in evidence that after the birth of the child, the appellant went to England and returned only in August, 2006. When he was abroad, he was constantly in touch with the respondent and according to him, he had sent her an amount of 1,35,000/- apart from a mobile₹ 11 Matrimonial Appeal No.1030 of 2009 phone. Even after coming to India the couple lived together and lead a normal life. 14. It is also in evidence that after separation, the appellant and respondent together admitted the child in a school. He has also stated that he used to interact with the respondent wherever he had gone to the school of the child. Further, the appellant also admitted that he visited the child in the hospital, when the respondent was also present. In fact, according to the respondent the couple had sexual intercourse also on that occasion. 15. Apart from all these undisputed facts, which were available before the Family Court, before this court, the call details of the respondent were produced along with I.A.No.2239/2013 filed by her. This shows that, even now the parties are in close contact and that many of the phone calls made on at odd hours and lasted for considerably long duration. The appellant is a lawyer and these pieces of Matrimonial Appeal No.1030 of 2009 12 evidence make it clear that he could not have behaved in the manner he has done, had there been any suppression of the illness of the respondent. In other words, the conclusion possible is that, the appellant has failed to establish his case that, the fact of ailment of the lady was suppressed and that his consent was obtained by fraud. We, therefore, do not find any illegality in the judgment of the Family Court dismissing the O.P., filed by the appellant/petitioner. Appeal is dismissed. Sd/Antony Dominic, Judge Sd/- - K. Ramakrishnan, Judge - // True Copy // P.A. to Judge ss