Ranjini and Arumughan v. K. Vasudevan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938** **Mat.Appeal.No. 25 of 2006 ( ) ------------------------------** **AGAINST THE ORDER IN OP 133/2004 of FAMILY COURT, MANJERI DATED 1807-2005** **APPELLANTS/RESPONDENTS:** **-----------------------** **1. RANJINI, D/O. ARUMUGHAN, THANDANPURAKKAL HOUSE, NIRAMARUTHOOR P.O. MALAPPURAM DISTRICT.** **2. ARUMUGHAN, THANDANPURAKKAL HOUSE, MANGAD, P.O. NIRAMAUTHOOR, NIRAMARUTHOOR AMSOM DESOM, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.T.KRISHNAN UNNI (SR.)** **RESPONDENT(S)/PEITIONER::** **-------------------------** **K. VASUDEVAN, S/O. KORAMBATT KUNHUTTY, KORAMBATT HOUSE,, P.O. K. PURAM, THANALOOR AMSOM DESOM,, TIRUR TALUK, MALAPPURAM DISTRICT.** **R1 BY ADV. SRI.A.KRISHNAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 0603-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & K.RAMAKRISHNAN, JJ.** =========================== Mat.Appeal No. 25 of 2006 ================== Dated this, the 6[th] day of March, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ Appellants are the respondents in OP NO.133/2004 of the Family Court, Manjeri. OP was filed by the respondent herein seeking for declaring the marriage between the first appellant and the respondent as null and void under Section 12(1)(b) read with Section 5(ii) of the Hindu Marriage Act. The contention urged by the respondent was that immediately after marriage, it was noticed that the first appellant was behaving in an indifferent manner. She was showing symptoms of mental disorder. After some time, she started physical assault on the respondent and other members of the family and started using weapons as well. The marriage was on 10/7/2003. She was taken to Dr.Kunhikoyamu on 26/9/2003, who said that she could be treated only if the prior records are available. Respondent thereafter took Mat.Appeal No.25/06 -:2:- the first appellant to her house on 28/9/2003. When the matter was informed to her father, he had taken an indifferent attitude in the matter. In the petition, it is averred that she was having mental disorder even prior to the marriage and the said fact had been concealed and his consent for marriage had been obtained by fraud and misrepresentation. Appellants filed objection disputing the aforesaid facts. 2. Evidence was adduced by the respondent by examining PWs 1 to 3 and he relied upon Ext.A1 dated 26/9/2003, a prescription as well as Ext.C1, the report of the Medical Officer. The first appellant was examined as RW1. The Family Court on a proper consideration of the facts and circumstances involved in the matter observed that though the illness of the first appellant cannot be of so grievous in nature, taking into consideration the fact that the consent of the respondent was obtained by misrepresentation and the fact of her disease was not made known at the time of marriage, the marriage is liable to be declared void under Section 12(1)(c) of the Hindu Marriage Act. 3. Learned counsel for the appellants while impugning Mat.Appeal No.25/06 -:3:- the aforesaid judgment submits that a situation as envisaged under Section 12(1)(b) read with Section 5(ii)(b) has not arisen in the case. He also relied upon the judgment of the Apex Court in _**R. Lakshmi Narayan v. Santhi**_ [(2001) 4 SCC 688] to substantiate the above contention. It is submitted that the only medical evidence is based on Ext.C1 report which inter alia indicates that her Intelligence Quotient is 84 which is less than the normal. Further, the report only indicates that she has adjustment disorder and she might have a neurological problem. It is therefore contended that she does not suffer from any mental disease as alleged by the respondent. It is submitted that the first appellant studied upto 10[th] standard and that she did not complete the course. She was capable of giving valid consent to the marriage and she was not having any unsoundness of mind and there is no evidence to prove the said fact. Even the report of the Doctor, Ext.C1 does not indicate that she was suffering from mental disease warranting declaration of the marriage as void in terms of Sections 12(1)(b) or 12(1)(c). 4. On the other hand, learned counsel appearing for the Mat.Appeal No.25/06 -:4:- respondent supports the view taken by the Family Court. It is contended that immediately after the marriage, it was noticed that the first appellant was suffering from some sort of mental illness, which prompted the respondent to take her to a Doctor who informed that that she was suffering from mental disorder. When the matter was brought to the notice of her father, he had taken a view that it is for the respondent to take care of such issues. It is submitted that the medical condition report obtained through Court by itself proves the fact of a mental disease. Even otherwise, it is argued that the fact that the first appellant was having a mental disorder was not brought to the notice of the respondent before the marriage and therefore at any rate the Family Court was justified in declaring the marriage as null and void under Section 12(1)(c) of the Hindu Marriage Act. 5. Ext.C1, which is the crux of the matter, reads as under:- ## _“MENTAL CONDITION REPORT_ _Ms.Ranjini 21 yrs, Thandanpurayikkal house, (P.O), Nirameruthoor, Malappuram Dist. was admitted to Ward 29/Psych. I at MCH, Kozhikode as per order Hon.Judge, Family Court, Manjeri (OP No.133/2004)_ Mat.Appeal No.25/06 ## -:5:- _and was observed from 7.1.2005 to 17.1.2005. After detailed evaluation of history, serial Mental status examinations and Psychological testing patient was found to be having Dull normal Intelligence (10-84). Patient was also found to have suffered from Adjustment disorder immediately after marriage, from which she has fully recovered. Identification Marks:_ _1. A black mole just above the tip of the nose towards (Rt) side._ _2. A black mole (Rt) side of little finger palmer aspect near the lower end._ _Sd/17.01.05, Dr.K.Sushil, Kozhikode. Asst.Professor of Psychiatry”_ In Ext.C1, it is stated that the first appellant was observed from 7/1/2005 to 17/1/2005. Psychological testing was conducted on the patient and it was noticed that she was having dull normal intelligence. He also opined that the patient was found to have suffered from adjustment disorder immediately after marriage from which she has fully recovered. In the evidence of PW2, he has stated that adjustment disorder is a mental disorder. He further has stated that since he did not see the patient, he cannot say that she was able to perform her marital obligation Mat.Appeal No.25/06 -:6:- immediately after the marriage. The reason for adjustment disorder could be dull intelligence as well. He also deposed that there are situations when such ladies adjust to husband's house. According to him, it is basically a neurotical problem which could be managed neurotically. He further deposes that he cannot recall for how much period she was at her husband's house and further he stated that no absolute cure is possible for patient's dull intelligence. He further deposed that he cannot rule out the possibility of recurrence of illness if she joins her husband and he does not recall if she had physical relationship with her husband. It is therefore apparent that the evidence of the Doctor substantially indicates that the first appellant had some problem, which according to him was a neurological problem. Even according to him, the dullness which had been projected cannot be cured. There is no doubt about the legal proposition in this regard. In order to declare the marriage null and void under Section 12(1)(b) read with Section 5(ii)(b), the ingredients thereof have to be established by the person pleading the same. 6. Section 12(1)(b) reads as under:- Mat.Appeal No.25/06 -:7:- _“12. Voidable marriages. (1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-_ _(a) xxx_ _(b) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5.”_ ## Section 5(ii)(b) reads as under:- _5. Condition for a Hindu Marriage.- A marriage may be solemnized between any_ _two Hindus, if the following conditions are fulfilled, namely:_ _(i) xxxx_ _(ii) at the time of the marriage, neither party,-_ - _(a) xxxx_ _(b) though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.”_ But it is pertinent to note that this is an instance where the Family Court after considering the evidence has declared the marriage as nullity Section 12(1)(c). Perusal of the petition would show that though the section was not quoted, necessary averments had been made to seek relief under Section 12(1)(c), which reads as Mat.Appeal No.25/06 -:8:- under:- _“12. Voidable Marriages. (1) xxxx_ _(a) xxx_ _(b) xxx_ _(c) that the consent of the petitioner, or where the consent of the guardian in_ _marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.”_ 7. The Family Court therefore found that, on appreciation of the evidence, necessary materials are available to indicate that the marriage can be declared as null and void under Section 12(1) (c). In fact, when RW1 was examined, she has stated that she could not complete her 10[th] standard, she reached upto 10[th] standard but she did not pass in all classes. She admitted that teachers were usually stating that she is of dull intellect. It is therefore apparent that the fact that the respondent was of dull intellect was known to the parents at the time of marriage itself. This fact was not brought to the notice of the respondent. Mat.Appeal No.25/06 -:9:- Respondent had gone ahead and married the first appellant proceeding on the basis that she is a normal lady, which is proved otherwise. Under such circumstances, there is justification on the part of the Family Court to have granted the decree as sought for. 8. We do not find any infirmity in the order of the Family Court warranting interference in the matter. Mat.Appeal is therefore dismissed. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **K.RAMAKRISHNAN, JUDGE** Rp7/3/2017 //True Copy// P.S to Judge