Nilkanth Ramchandraji Dhakate ... vs Smt. Manda W/O Nilkanth Dhakate ...
2017 Latest Caselaw 1844 Bom

FCA  211/14                                                   1                              Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.

                     FAMILY COURT APPEAL No. 211/2014

Shri Nilkanth Ramchandraji Dhakate (sic Dekate),
40 years, Occu. Service,
r/o Tandapeth, Nagpur Old Basti,
r/o E-83, RBI Quarters, Bhandup
East, Mumbai. 

Presently residing at K-57 Pryadarshani RBI
Quarters, Telangkhedi Road, Civil Lines,
Nagpur.                                                                                    APPELLANT

                                           .....VERSUS.....

Smt.Manda w/o Nilkanth Dhakate (sic Dekate),
Aged about 26 Years, Occ. .....
R/o Mauda, District Nagpur,
C/o Saoji Bhojnalaya.                                                                  RESPONDENT


                         Shri S.R. Deshpande, counsel for the appellant.
                                    None for the respondent.



                                             CORAM :SMT.VASANTI  A  NAIK AND
                                                         MRS. SWAPNA  JOSHI, JJ.    

DATE : 19 TH APRIL, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this family court appeal, the appellant challenges the

judgment of the Family Court, Nagpur, dated 15.05.2001 dismissing the

petition filed by the appellant for the annulment of the marriage under

Section 12(1)(c) of the Hindu Marriage Act.

2. The appellant-Husband (hereinafter referred to as 'the

husband' for the sake of convenience) and the respondent-Wife

FCA 211/14 2 Judgment

(hereinafter referred to as 'the wife') were married at Panchpaoli, Nagpur

as per the rites and custom prevailing in their community. The husband

claims to be a blind person. The marriage between the husband and wife

was an arranged one. According to the husband, just like him, his

unmarried sister is also blind. It is stated that when they went to the

house of the wife for settling the marriage ties, it was not informed by the

wife or her parents to the husband that the wife suffers from psoriasis. In

a petition filed by the husband for a decree of annulment of the marriage

under Section 12(1)(c) of the Act, the husband claimed that after the

marriage, the husband became aware that the wife was suffering from

psoriasis. The husband pleaded that immediately after the marriage, the

wife complained about uneasiness and she was taken to the family doctor.

It is pleaded that the family doctor had administered medicine to the wife

for 2½ months and they were informed that she was suffering from

allergy. It is stated that the husband, however, became aware after taking

the wife for treatment to Dr.Kirit Manek and Dr.Mahesh Patil that the

wife was suffering from psoriasis. It is pleaded that the husband became

aware that the wife was suffering from the said disease and in view of the

said disease, the wounds in the body of the wife had bad odour. It is

pleaded that some times, blood used to ooze out from the wounds in the

body of the wife as a result of the disease suffered by her. It is pleaded

that despite the treatment by Dr.Mahesh Patil at Mumbai, the wife did not

recover and the husband realized that it was not possible for him to live

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with the wife as the disease was not curable. The husband pleaded that

the wife and her parents were clearly aware before the marriage that the

wife was suffering from psoriasis but, the said material fact was concealed

by the wife from the husband. The husband pleaded that in the

circumstances of the case, specially when the disease of the wife was not

curable and the wife had not disclosed the material fact in respect of the

disease suffered by her, he was entitled to a decree of nullity.

3. The wife filed the written statement and denied the claim of

the husband. The wife denied that she was suffering from psoriasis

before or after the marriage. The wife denied that she was suffering from

psoriasis. The wife pleaded that she was not suffering from psoriasis or

any similar disease. The wife denied that Dr.Mahesh Patil of Mumbai had

opined that the wife was suffering from psoriasis. The wife pleaded that

the husband's parents demanded some costly articles and items from the

parents of the wife and since the demand made by the husband and his

parents was not fulfilled, the husband had filed a false petition claiming a

decree of nullity. The wife sought for the dismissal of the petition.

4. On the aforesaid pleadings of the parties, the Family Court

framed the issues. The husband entered into the witness box and also

examined his sister Chhaya Badwe and his friend Abdul Salam. The wife

examined herself and closed the evidence on her side. Certain documents

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in the nature of medical certificates and prescriptions were also filed by

the husband on record. On an appreciation of the material on record, the

Family Court dismissed the petition filed by the husband after holding

that the husband had utterly failed to prove that the wife was suffering

from psoriasis and that she had not disclosed the said fact to the husband

though she knew that she was suffering from the same. The judgment of

the Family Court dismissing the petition filed by the husband for a decree

of nullity of marriage is challenged by the husband in this family court

appeal.

5. Shri Deshpande, the learned counsel for the husband,

submitted that the Family Court was not justified in holding that the

husband had failed to prove that the wife was suffering from psoriasis. It

is submitted that though the word 'psoriasis' is not mentioned in any of

the medical certificates issued by the Doctors, in one of the certificates of

the skin specialist, it is mentioned that the wife was under his treatment

for 'papular urticaria' from 27.10.2001 to 29.12.2001. It is submitted that

during the pendency of the proceedings before the Family Court, the

husband had filed an application for getting the wife examined from a

skin specialist so as to prove that the wife suffered from psoriasis,

however, the wife refused to get herself examined. It is submitted that

the Family Court was not justified in rejecting the application made by

the husband for getting the wife examined by a skin specialist, so as to

FCA 211/14 5 Judgment

consider whether she suffered from psoriasis. It is submitted that in view

of the refusal on the part of the wife to get herself examined from the

medical expert, an adverse inference needs to be drawn against the wife

and it is necessary to hold that the wife was suffering from psoriasis

before the marriage. It is submitted that from the voluminous documents

produced by the husband on record, it is clear that the wife suffered from

psoriasis and the evidence of the witnesses examined on behalf of the

husband further show that the wife suffered from psoriasis and that she

had failed to disclose the said fact to the husband before the

solemnization of the marriage.

6. None had appeared on behalf of the wife when the matter

was heard yesterday and none appears on behalf of the wife when the

matter is heard today.

7. We have considered the Record & Proceedings and have also

perused the pleadings of the parties and the evidence tendered by them

with the assistance of the learned counsel for the husband. On a perusal

of the Record & Proceedings, it appears that the following points arise for

determination in this family court appeal.

I) Whether the husband is successful in proving that the consent

of the husband for the marriage was secured by fraud by not

disclosing that the wife suffer from psoriasis before the

marriage despite knowledge?

 FCA  211/14                                         6                          Judgment

II)           Whether the husband is entitled to a decree of nullity under

              Section 12(1)(C) of the Hindu Marriage Act?



III)          What order?

8. It would not be necessary to reiterate the pleadings of the

parties as we have narrated the pleadings of the parties in detail in the

earlier part of the judgment. The husband entered into the witness box

and reiterated the facts stated by him in the petition in the evidence on

affidavit. The husband was cross-examined on behalf of the wife. The

husband admitted in his cross-examination that after he was satisfied

about the proposal of the wife, the marriage between him and the wife

was settled. The husband admitted that the wife was having some health

problems on account of her pregnancy. The husband denied the

suggestion that the wife was suffering from any other ailment. The

husband stated in his cross-examination that he became aware of the skin

disease of the wife four to five days after the marriage. The husband

stated that he had taken the wife to Dr.Mahesh Patil at Mumbai. The

husband denied the suggestion that he was not ready to stay with the

wife in the matrimonial home at the instigation of the other family

members. The husband stated that he had filed medical certificates to

show that he was 100% blind.

FCA 211/14 7 Judgment

9. The husband examined his sister Chhaya Badwe. She stated

in her evidence that four or five days after the marriage, the husband told

her that there were some boils and hives on the body of the wife and

when he asked the wife about the same, she had told him that the boils

and hives were caused due to mosquito bites. Chhaya stated in her

evidence that when she asked the wife as to why the wife did not disclose

about her ailment before the marriage, the wife informed her that she had

deliberately not disclosed the same as she thought that marriage would

be cancelled. Chhaya was cross-examined on behalf of the wife. Chhaya

admitted in her cross-examination that she was not in Mumbai when the

husband told her about the wife's ailment. She stated in her cross-

examination that the husband used to talk to her on telephone and she

realized after speaking to the husband and also to the wife separately on

telephone that the wife was suffering from some skin problem before her

marriage. Chhaya stated in her cross-examination that her brother is

totally blind but, he had not married the wife with skin problem as he

was blind. Chhaya admitted in her cross-examination that she had gone

to the parental house of the wife before the marriage was settled. She

admitted that she had approved the wife as a bride for the husband. She

further admitted that till the pregnancy, the wife was living with the

husband at Mumbai and she had gone to Mouda to her parental home for

delivery. Chhaya, however, denied the suggestion that the wife was not

suffering from any ailment as stated by them.

FCA 211/14 8 Judgment

10. The husband examined Abdul Salam as his witness. He stated

in his evidence that he has very close relationship with the husband. He

stated in his evidence that the husband told him that the boils on the

body of the wife had bad odour. He stated that the said fact was

disclosed to him by the husband when they spoke on the telephone and

also some time when he personally met him. He stated that the wife had

told him that she was suffering from the ailment prior to the marriage

but, she had not disclosed the fact to the husband. The witness was cross-

examined on behalf of the wife. He stated in his cross-examination that

he was present at the time of the marriage between the parties. He

admitted that after the marriage, the parties had been to his house. He

denied the suggestion that he had asked the wife to accept a sum of

Rs.25,000/- and break the matrimonial ties with the husband. He denied

the suggestion that the wife was pressurized and her signatures were

sought on blank stamp papers. The witness denied in his cross-

examination that he had instigated the husband against the wife. He

admitted that a girl child was born from the wedlock between the

husband and the wife. He admitted that he had not mentioned in his

affidavit as to what was the name of the disease suffered by the wife.

11. The wife examined herself and reiterated the facts stated by

her in her written statement. The wife stated in her evidence that her

husband was not 100% blind. She stated that she was not and is not

FCA 211/14 9 Judgment

suffering from psoriasis. The wife stated that though she had some

skin problem, it is not psoriasis and it is curable. She stated that the

doctor who had examined her had told her that her skin problem was

curable. She stated in her evidence that the husband and his parents

used to demand some articles from her parents and as she was not able

to fulfill the demands, she was driven out of the matrimonial house after

she was assaulted mercilessly. The wife was cross-examined on behalf of

the husband. She admitted in the cross-examination that the husband

was blind and she and her parents knew about it. She stated that she

was suffering from an allergy which is curable. She stated that she had

an allergy of brinjal and tericot clothes. She stated that during allergy

she had itching and because of itching, sometimes there was some

bleeding. She stated that she used to get fully cured but if there is a

change in the water the skin problem would sometimes revive. She

admitted that she was taken to Dr.Kirit Manek and Dr.Mahesh Patil at

Mumbai. She stated that she was not permitted by the husband to

consume the medicine that were prescribed for her. The wife denied that

any of the doctors in Mumbai had told her or anybody that she was

suffering from psoriasis. She further denied that as her disease is

incurable, she would not have had a healthy conjugal relationship with

the husband. The wife admitted that she was suffering from the allergy

for about three years prior to the marriage. The wife denied that she was

deposing falsely.

FCA 211/14 10 Judgment

12. It appears from the pleadings of the husband and the

evidence tendered by him that it is the case of the husband that the wife

suffered from psoriasis even before the marriage and she had not

disclosed the said material fact to him and the consent of the husband

was secured by concealment of the material fact that the wife suffered

from psoriasis. It is the case of the husband that psoriasis is incurable and

though he tried his level best to ensure that the wife was cured from the

disease, the wife could not be cured. In support of the aforesaid case, the

husband examined himself and also examined Chhaya Badwe and Abdul

Salam. Though the husband has specifically stated in his pleadings and

evidence that the wife suffered from psoriasis, his witnesses did not

specifically state so. They did not state that the wife is suffering from

psoriasis and was suffering from psoriasis even before the marriage and

the said fact was concealed by her while securing the consent for the

marriage from the husband. Apart from the oral evidence of the husband

in respect of the disease 'psoriasis' suffered by the wife and the non-

disclosure thereof, the husband has filed certain documents to

substantiate his case. They are marked as Exhibits 27/1 to 27/7. We

have minutely perused each of the certificates and prescriptions of the

consulting dermatologists that have issued the said certificates. The

certificates are issued by Dr.Mahesh Patil and Dr.Kirit Manek. In none of

the certificates that are issued by the consulting dermatologists, it is

mentioned that the wife is suffering from psoriasis. Only in one

FCA 211/14 11 Judgment

certificate at Exhibit 27/7, issued by Dr.Mahesh Patil, it is stated that wife

was under his treatment for 'papular urticaria' from 27.10.2001 to

29.12.2001. None of the other certificates placed on record speak of any

skin disease that was suffered by the wife for which she was treated. It is

not the case of the husband that 'psoriasis' and 'papular urticaria' is the

same skin disease. We have referred to the word 'psoriasis' and 'papular

urticaria' in the Butterworth's Medical Dictionary. The meaning and

symptoms of papular urticaria and psoriasis are entirely different.

Papular Urticaria are the hives or nettle rash or chronic affection of the

skin due to hypersensitivity to some ingested, injected or contact, allergy.

It appears that papular urticaria are hives or the affection of the skin

resulting in pink or red elevations with itching or burning, as a result of

some hypersensitivity to some ingested, injected, contact or allergy. It is

clear from the medical dictionary meaning of the word 'papular urticaria'

that papular urticaria is caused due to hypersensitivity to some ingested,

injected or contact allergy. The wife had clearly stated in her affidavit

and also in her cross-examination that she was suffering from allergy. In

her cross-examination she had stated, on a query posed from the side of

the husband that she had an allergy of brinjal and tericot clothes and

sometimes she used to get hives on the body as a result of those allergies.

As per the medical dictionary, 'psoriasis' means a chronic inflammatory

disease of the skin, characterized by the appearance, usually on certain

sites of election, i.e. knees, elbows, scalp, of wheatish or silvery laminated

FCA 211/14 12 Judgment

scales, aggregated in greater or less profusion on slightly raised, well-

marginated, reddish patches. It is mentioned that in 'psoriasis'

widespread efflorescences of the eruption may occur. The lesions are dry

but, psoriasis is neither infectious nor contagious. The different types of

'psoriasis' and their nature are then mentioned and stated in the medical

dictionary. Apart from the fact that we find that psoriasis and papular

urticaria are different skin diseases, we do not find anything in the

medical dictionary to show that psoriasis is not curable. In fact, it is

mentioned that psoriasis is neither infectious nor contagious. Be that as it

may, we are not required to consider here, the effect of non-disclosure of

the fact that the wife suffered from psoriasis before the solemnization of

the marriage, as there is no material whatsoever on record to show that

the wife was suffering from 'psoriasis' either before the marriage or after

the marriage. Not a single certificate issued by any of the two doctors

shows that the wife suffered from psoriasis. There is no documentary

material on record, whatsoever to show that the wife suffered from

psoriasis. While holding that the husband has utterly failed to prove that

the wife suffers from 'psoriasis', we are not inclined to accept the

submission made on behalf of the husband that an adverse inference

needs to be drawn against the wife as she refused to get herself examined

from a dermatologist during the pendency of the proceedings. It is well

settled that the burden of proof would lie on a party, who asserts the

existence of a material fact and it would be for that party to prove its

FCA 211/14 13 Judgment

existence. Normally, the burden of proof as to any particular fact lies on

a person who wishes the Court to believe in its existence. The husband

has failed to discharge the initial burden in this case. He has failed to

point out that before or after the marriage, the wife was suffering from

psoriasis. In the circumstances of the case, it cannot be said that the

husband is successful in proving that the wife was suffering from psoriasis

either before or after the solemnization of the marriage. If that is so, the

husband would not be entitled to a decree for nullity of marriage on the

ground that the wife had concealed a material fact that she suffered from

psoriasis before the marriage. Had the husband tendered at least some

documentary material before the Court to prove that the wife was

suffering from psoriasis and if in view of some difficulty or discrepancy in

the documents, it was necessary to examine the wife again during the

pendency of the proceedings to consider whether she really suffered from

the disease, the Court could have considered whether the wife should

have been examined by a dermatologist. In this case, there is no

documentary evidence whatsoever, to prove that the wife suffered from

psoriasis either before the marriage or after the marriage. A party cannot

be expected to call the other party for the medical examination during the

pendency of the proceedings to prove a fact which is expected to be

proved by a party by tendering at least some evidence. In the instant

case, the Family Court rightly held that since none of the certificates

tendered by the husband showed that the wife was suffering from

FCA 211/14 14 Judgment

'psoriasis', the case of the husband that she was suffering from the said

disease which was incurable and that his consent was secured by

concealing a material fact, was liable to be rejected. No adverse inference

could be drawn against the wife as the husband in this case has failed to

discharge even the initial burden of proving that the wife was suffering

from psoriasis. At this stage, we would also like to make it clear that

since the husband has failed to prove that the wife suffers from 'psoriasis,

we have not decided the question where non-disclosure of 'psoriasis'

would be a material fact that would entitle the party for a declaration that

the marriage is a nullity. The reliance placed by the counsel for the

husband on the judgments reported in (2015) 1 SCC 365 (Dipanwita Roy

Versus Ronobroto Roy) and AIR 1970 Madras 103 (Jayaraj Anthony

Versus Mary Seeni Ammal) to substantiate his submission that a party

would be bound to comply with the direction of the Court to get

herself/himself examined from a medical practitioner, if the Court so

directs is not well founded. In the case of Dipanwita Roy (Supra), since

there was an allegation of adulterous relationship against the spouse and

the paternity was required to be established and the Court had directed

the wife to undergo the DNA test, the Hon'ble Supreme Court held that

the wife was bound to comply with the direction and the non-compliance

thereof would result in drawing an adverse inference against her. The

facts before the Hon'ble Supreme Court are distinguishable and the said

judgment cannot come to the rescue of the husband in advancing his

FCA 211/14 15 Judgment

case. In the present case, the Family Court found that it was not proper

to get the wife examined in the circumstances of the case by a

dermatologist during the pendency of the proceedings as it was necessary

for the husband to prove his case on the basis of the certificates issued by

the doctors at Mumbai and also any other certificates had he possessed.

In the judgment of the Madras High Court, the wife therein had refused

to give any reason for not consummating the marriage and was also not

ready to get herself medically examined and in those circumstances, the

Court drew an adverse inference that the wife was impotent. In the said

reported case, the marriage was not consummated and the wife had

refused to give a reason for not consummating the marriage. In those set

of facts, the Court was required to draw an adverse inference against the

wife that she was impotent as had she not been so, she would not have

refused to give any reason for not consummating the marriage for long

and also would not have refused to submit herself for the medical

examination.

13. Since the judgment of the Family Court is just and proper, the

family court appeal fails and is dismissed with no order as to costs.

              JUDGE                                         JUDGE

APTE