Bombay High Court
Sau. Pooja W/O. Shrikant Kale vs Shrikant Rameshwarrao Kale on 2 February, 2024
Author: M.W. Chandwani
Bench: Vinay Joshi, M.W. Chandwani
2024:BHC-NAG:1601-DB
928.fca.4.23.jud.odt 1/22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FAMILY COURT APPEAL NO.4 OF 2023
Appellant : Sau. Pooja w/o Shrikant Kale,
Aged about 24 Yrs., Occ. Nil,
R/o. C/o. Shri Purushottam Bhaurao Dhalwar,
Nandsmith Colony, Ajmire Layout, Morshi,
Tq. Morshi, Dist. Amravati.
- Versus -
Respondent : Shrikant Rameshwarrao Kale,
Aged about 30 Yrs., Occ. Instructor
ITT Barshitakli,
R/o In front of Tarenekar Hall, Rautwadi, Akola,
Tq. & Distt. Akola.
FAMILY COURT APPEAL NO.11 OF 2023
Appellant : Sau. Pooja w/o Shrikant Kale,
Aged about 24 Yrs., Occ. Nil,
R/o. C/o. Shri Purushottam Bhaurao Dhalwar,
Shrivastav Chowk, Old City, Akola,
Tq. and Dist. Akola.
- Versus -
Respondent : Shrikant Rameshwarrao Kale,
Aged about 30 Yrs., Occ. Instructor
ITT Barshitakli,
R/o In front of Tarenekar Hall, Rautwadi, Akola,
Tq. & Distt. Akola.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. A.S. Mardikar, Senior Advocate assisted by
Mr. V.R. Deshpande, Advocate for the Appellant.
Mr. A.R. Deshpande, Advocate for the Respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : VINAY JOSHI AND M.W. CHANDWANI, JJ.
RESERVED ON : 19th DECEMBER, 2023.
PRONOUNCED ON : 2nd FEBRUARY, 2024.
928.fca.4.23.jud.odt 2/22
C O M M O N J U D G M E N T :
(Per M.W. Chandwani, J.)
This order and judgment will dispose of these two appeals, which
challenge the impugned common judgment and decree, dated 27/12/2022,
passed by the Family Court, Akola. By the said impugned order and
judgment, the petitions filed by the appellant-wife as well as by the
respondent-husband have been disposed of.
02] The marriage between the appellant and respondent was
solemnized on 18/05/2017 at Akola. For clarity, hereinafter the appellant is
referred to as 'the wife' and the respondent is referred to as 'the husband'.
Just after three months of the marriage, the couple started residing separately
from each-other. Since then, the wife is residing with her parents. The wife
filed proceedings under Section 9 of Hindu Marriage Act, 1955 (hereinafter
referred to as "Act of 1955") for restitution of conjugal rights, whereas the
husband filed a petition under Section 12(1)(c) of Act of 1955 for annulment
of marriage and in the alternate under Section 13(1)(ia) of the Act of 1955 for
decree of divorce on the ground of cruelty.
Pleading of the wife in her Petition for Restitution of Conjugal Rights :-
03] The wife has come up with a case that after the marriage, she
went to the house of her husband to lead a happy marital life. In the
matrimonial house, the husband started harassing the wife mentally and
physically on the one count or another. She tolerated the cruel treatment of
the husband with an expectation that things will change in future and she will
lead a happy marital life, but in vain. On 16/08/2017, the husband agreed to
get the wife admitted to the course of M.Sc. in Chemistry and pay the fees and
requisite charges, but suddenly, refused to pay admission fees without any
excuse and dropped the wife off to her parents' house on 17/08/2017. Since
then, the wife is staying at her parental house. In spite of various requests, the
husband did not fetch her. A meeting took place between the relatives of both
the parties. The husband made false allegations against the father of the wife.
The husband did not come to fetch her. The wife is willing to cohabit with the
husband. Hence, the wife prayed for decree of restitution of conjugal rights.
Pleadings of the husband in reply to the pleadings of the wife as well as
pleadings in his petition for divorce on the ground of nullity :-
04] The husband filed written statement to the petition of the wife.
The husband also filed petition for annulment of marriage in alternative for
divorce on the ground of cruelty. The pleadings in the petition and written
statement contain more or less the same facts. The husband came with a case
that the parents of the wife informed the husband that the wife is physically
and mentally fit for solemnization of marriage and that she has no ailment.
After the marriage, it was revealed to the husband that the wife has some
gynecological problem of white discharge since many years. The wife did not
allow the husband to consummate the marriage. The behavior of the wife and
her relative was causing cruelty. The wife is also suffering from Congenial
Ptosis and her left eye always remains open even during sound sleep. The wife
and her parents suppressed these facts and played fraud with the husband.
Accordingly, the husband prayed for rejection of the petition of the wife and
also prayed for decree of annulment of marriage under Section 12(1) (c) of
the Act of 1955 on the ground that the consent of the husband has been
obtained by fraud. Alternatively, the husband also prayed for divorce under
Section 13(1)(ia) of the Act of 1955 on the ground of cruelty.
05] Before the Family Court at Akola, both the petitions were
consolidated and common evidence was recorded. After appreciation of
evidence on record, the Family Court by the impugned judgment and order
dismissed the petition of the wife for restitution of conjugal rights and allowed
the petition of the husband for nullity of marriage under Section 12(1)(c) of
the Act of 1955 on the ground of suppression of disease Ptosis. Feeling
aggrieved with the impugned common judgment and order, the present
appeal came to be preferred by the wife.
Submissions :-
06] Mr. Mardikar, Senior Counsel appearing on behalf of the
appellant-wife submits that the approach of the Family Court is absolutely
incorrect. It is contended that the respondent-husband was well aware about
the fact that the wife is suffering from Ptosis well before the marriage as well
as the fact that she was operated for the same in the year 2016 by Dr.
Maheshwari. The husband could not prove that he was not informed by the
wife or her parents about the disease Ptosis before the marriage. According to
him, the husband was aware of this fact and is now using this fact as a
weapon against the wife by taking recourse of annulment of marriage under
Section 12 of the Act of 1955. The Family Court committed serious error by
granting a decree for annulment of marriage and refusing the decree for
restitution of conjugal rights. The impugned judgment is required to be set
aside
07] Next, the learned Senior Counsel submits that the Ptosis is not a
life threatening or an infectious disease, which would have any bearing on life
of the wife to cohabit and consummate the marriage. The wife has already
been treated with a minor surgery for the said disease and has no implication,
whatsoever, on her physical appearance. Even, Ptosis does not constitute a
ground for divorce under Section 13 of the Act of 1955, therefore, it cannot be
treated as a material fact, and non-disclosure of the said disease would not
amount to suppression of material fact. At the most, it can be a suppression of
an item of information and cannot be equated with the suppression of
material fact. Therefore, the Family Court should not have annulled the
marriage under Section 12(1)(c) of the Act of 1955. The sum and substance
of the argument of the learned Senior Counsel for the appellant is that the
disease Ptosis cannot be a ground for divorce under Section 13(1)(ia) of the
Act of 1955 and non-disclosure of the said disease prior to marriage will not
be a suppression of material fact as contemplated under Section 12(c) of the
Act of 1955.
08] Lastly, the learned Senior Counsel vehemently submits that the
husband even after knowledge, as per his own pleadings, with his full consent
lived with the wife after the alleged fraud had been discovered. Therefore, in
view of sub-section 12(2)(a)(ii) of the Act of 1955, the petition for annulling
the marriage should not have been entertained by the Family Court and,
therefore, the Family Court committed serious error by ignoring this provision
of law.
09] Per contra, Mr. A.R. Deshpande, learned Counsel for the
respondent-husband, supporting the judgment of the Family Court, has
submitted that there is material on record, which clearly establishes that the
husband was not informed neither by the wife nor by her parents regarding
the fact that the wife was suffering from Ptosis disease. In the first week of
August, 2017, the husband came to know that the left eye of the wife was
open, when she was in deep sleep. After confrontation with the wife, he came
to know about the said disease and thereafter he could not consummate the
marriage. After coming to know about the said disease, within few days, the
husband and the wife started residing separately.
10] The learned Counsel further vehemently submits that Ptosis is a
contagious and incurable disease, which is a material fact, and the same
would have affected the consent of the husband for the marriage. Though the
said disease may not seriously interfere with the married life of the husband,
but it is of such a nature, certainly if disclosed, would have resulted in the
husband not agreeing or consenting to the marriage, and therefore it is a
material fact within the meaning of material fact under Section 12(c) of the
Act of 1955. The learned Family Court has rightly appreciated the fact and
granted the decree of annulment of marriage on the ground of suppression of
material fact by the wife. He, therefore, sought rejection of the appeals.
Points for determination :-
11] Having heard the learned Counsel for the respective parties and
after going through the pleadings, the following points arise for my
consideration -
(a) Whether the respondent-husband proves that the wife and her
parents had concealed the material fact within the meaning of
Section 12(1)(c) of the Act of 1955 and, therefore, he is entitled
for decree of annulment of marriage?
(b) Whether the appellant-wife proves that she has been deserted by
the husband and, therefore, she is entitled for decree of conjugal
rights?
(c) Whether the impugned common judgment and order dated
27/12/2022 of Family Court, Nagpur requires interference with,
at the hands of this Court?
12] It appears from the pleadings; the wife has come up with a case
that the husband has withdrawn from the wife's society. Whereas the husband
has come up with a case of concealment of wife's suffering from congenial
Ptotis decease. We now turn to the evidence, which has been brought on
record by the wife and the husband.
Evidence :-
13] To substantiate her claim and defence as well, the wife has
examined herself and Dr. Rajat Maheshwari and filed notice at Exh. 29; copy
of admission at Exh.39; medical papers regarding her treatment; extract of
WhatsApp communications; and various other documents. In her of
examination-in-chief, the wife has reiterated the contents of her petition. The
wife has been cross-examined at length. She admitted that till the husband
lodged a police complaint, she did not file any complaint before the police; the
notice to husband asking him to fetch her was issued only after the husband
lodged the complaint. She herself left the matrimonial house and went to her
parents. While leaving the matrimonial house, she asked the husband to
forget her by saying "bye forever".
14] Most crucial witness, Dr. Rajat Maheshwari, who treated the wife
for Ptosis, has deposed that the wife was suffering from left upper eyelid
Ptosis. The wife was operated for correction of that deformity, in which left
upper eyelid muscle was removed, whereby the upper eyelid muscles became
shortened forever. Due to this surgery, a patient will be suffering from
Nocturnal Lagophthalmos, in which eyelid remains partially open while
sleeping. This is incurable.
15] The husband has examined himself by filing affidavit of
examination-in-chief reiterating the contents of his petition. He filed various
documents, such as medical papers; forensic reports of mobiles, DVD and CD
containing conversations and various other documents.
Consideration :-
16] Section 12 of the Act of 1955 deals with voidable marriage.
Therefore, it will be profitable to reproduce Section 12 of the Act of 1955,
which reads thus:
"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) that the marriage has not been consummated owing to
the imporence of the respondent; or]
(b) that the marriage is in contravention of the condition
specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of
the guardian in marriage of the petitioner 4 [was required
under section 5 as it stood immediately before the
commencement of the Child Marriage Restraint (Amendment)
Act, 1978 (2 of 1978)], the consent of such guardian was
obtained by force 5 [or by fraud as to the nature of the
ceremony or as to any material fact or circumstances
concerning the respondent]; or
(d) that the respondent was at the time of the marriage
pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1),
no petition for annulling a marriage--
(a) on the ground specified in clause (c) of sub-section (1)
shall be entertained if--
(i) the petition is presented more than one year after the
force had ceased to operate or, as the case may be, the fraud
had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with
the other party to the marriage as husband or wife after the
force had ceased to operate or, as the case may be, the fraud
had been discovered;
(b) on the ground specified in clause (d) of sub-section (1)
shall be entertained unless the court is satisfied--
(i) that the petitioner was at the time of the marriage
ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a
marriage solemnised before the commencement of this Act
within one year of such commencement and in the case of
marriages solemnised after such commencement within one
year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner
has not taken place since the discovery by the petitioner of
the existence of 6 [the said ground]."
17] Thus, from the above said provisions, it is manifested that a
marriage can be declared void at the option and on the application by the
aggrieved party. The husband pressed in service the ground covered under
Section 12(1)(c) of the Act of 1955, which envisages such a declaration that if
the aggrieved party can show that his consent to marriage was obtained by
playing fraud as to the nature of the ceremony or as to any material fact or
circumstances concerning the respondent.
18] Here, the fact is that the wife was suffering from Ptosis. It is not
in dispute that in the said disease the condition is characterized by abnormal
drooping of one or both upper eyelids, due to weakness of eyelid muscles. It
is also not in dispute that the left eyelid muscle of the wife was operated. The
Doctor performed eyelid muscle resection surgery, wherein he removed a part
of eyelid muscle and consequently upper lid of the left eye became shortened
forever. This situation is called Nocturnal Lagophthalmos. It is incurable. In
this condition, the eye remains partially open even during sleep.
19] The wife has come up with the case that the husband was
informed about the disease Ptosis and also the fact that the wife was operated
for the said disease and post operational deformity, prior to the marriage.
According to the wife the medical papers in this regard were handed over to
the husband prior to marriage. However, record shows that evidence has been
brought on record by the husband in the form of conversation between the
husband and father of the wife in a meeting held subsequently up to
17/08/2017. In the said conversation, the father of the wife is seen confessing
about non-disclosure of the disease Ptosis; the fact about operation of the
wife; and post operational deformity. However, the wife has identified the
voice of her father in the conversation recorded in CD during the meeting.
Thus, it is clear that the husband was not informed about the disease Ptosis
and post operational deformity i.e. the left eye of the wife remains open even
during deep sleep.
20] It would now be necessary to consider, whether the concealment
of the fact that a party to the marriage suffers from Ptosis and operational
deformity post-surgery i.e. Nocturnal Lagophthalmos, wherein left eye of the
wife remains open during sleep, would be a material fact within the meaning
of Section 12(1)(c) of the Act of 1955.
21] The decision of the Single Judge of this Court in case of
Raghunath Gopal Daftardar Vs. Vijaya Raghunath Daftardar 1 has been relied
upon by the appellant, wherein it has been held that mere non-disclosure prior
to marriage or concealment of curable epilepsy disease of girl and false
representation that she was healthy does not amount to fraud within the
meaning of the word used in Section 12(1)(c) of the Act of 1955.
22] Dissenting with the view of learned Single Judge, the Division
Bench of this Court in a decision of Vandana J. Kasliwal Vs. Jitendra N.
Kasliwal2 in paragraphs 24 And 25 has held as under:
1 1972 Mh.L.J.110
2 AIR 2007 Bombay 115
"24. Section 12(1)(b) r/w Section 5(ii)(c) of the Act of
1955 was also argued by the learned Counsel for the
appellant, but the learned Counsel for the respondent
has chosen to restrict his case to Section 12(1)(c) of the
Act of 1955, as stated earlier. From the evidence of the
appellant Vandana, we can also say that the present
case falls under Section 5(ii)(c) r/w Section 12(l)(b) of
the Act of 1955, as there were recurring attacks of
insanity and the appellant had taken treatment of Dr.
Barhale prior to and after the marriage and she was also
indoor patient. In this case, the other conditions as laid
down in Section 12(2) of the Act of 1955 are satisfied
sofar as ground under Section 12(1)(c) of the Act of
1955 is concerned. The petition for annulment was filed
on 17-2-2003 and the marriage had taken place on 5-1 -
2003. Thus, the petition was filed within one and half
months' of the marriage. This is not a case where the
respondent has with his full consent lived with the
appellant after the fraud had been discovered.
25. The case of Raghunath Gopal Daftardar v. Sau
Vijaya Raghunath Daftardar, AIR 1972 Bom 132 is
relied upon by the learned Counsel for the appellant. In
that case, it is observed that:
Mere non-disclosure prior to marriage or
concealment of curable epilepsy disease of girl
and false representation that she was healthy
does not amount to fraud within the meaning of
that word used in Section 12(1)(c).
It is also observed that:
Section 17 of the Indian Contract Act, 1872 does
not apply to a case of fraud under Section 12(1)
(c) of the Hindu Marriage Act, 1955.
In our considered opinion, though marriage is
sacrosanct, it requires consent of both spouses or their
guardians, if spouses are not capable of giving consent,
and it must be a free consent and in that sense, we have
to consider whether the consent was given voluntarily.
Here aid of definition of fraud, even from the Indian
Contract Act, 1872 need not be overlooked and we,
therefore, respectfully differ from the view taken by the
single Judge in the case of Raghunath Gopal (supra),
that mere non-disclosure prior to the marriage or
concealment of curable epilepsy disease of girl and false
representation that she was healthy does not amount to
fraud within the meaning of the word used in Section
12(1)(c) of Hindu Marriage Act, 1955. If regard be had
to Section 12(1)(c) of the Act of 1955, it is clear that if
a fact or circumstance is so material as to affect decision
of giving consent to marriage and if there is fraud
regarding the same, may be by express words or even
by concealment, then, marriage could be annulled.
However, we hasten to make it clear that it is not every
fact or circumstance which would be covered by the
provision, but it must be substantially something which
goes to the root of the matter, which definitely would
weigh with any prudent person to change his mind. It
must not be easily detectable. The Court would be very
circumspect, cautious and pragmatic in identifying such
fact or circumstance. In this case, the first part of the
written statement itself shows that when query
regarding abnormal behaviour of the appellant was
made during marriage ceremony, it was stated that it
might be because of mental stress due to failure in the
examination and for want of sleep."
23] In another decision of this Court in Pradeep s/o Namdeorao
Ambhore vs. Pallavi Pradeep Ambhore3, this Court while dealing with Section
3 2017(6) Mh.L.J. 627
12(1)(c) of the Act of 1955 after discussing various decisions has held thus:
"12. What can be gathered from the aforesaid decisions
is that a fact or circumstance which would materially
interfere with a happy marital life would be a 'material
fact' as also a fact which if disclosed would have
resulted in the husband or the wife not agreeing or
consenting to the marriage would also be a 'material
fact'. In our view, it cannot be said that only such facts
and circumstances which would materially interfere
with a happy marital life would only be material facts. A
fact, though it may not seriously interfere with the
marital life of the party but, would be of such a nature,
which if disclosed, would result in either of the party
not consenting for the marriage, would also be a
'material fact'. In the cases which we have referred to
hereinabove, a decree of annulment of marriage is
granted where the spouse suffered from epilepsy, the
uterus was not in place, the wife had never got the
menses, the husband had disclosed inflated income or
misrepresented about his job, the wife suffered from
chronic periodontitis, etc. In all the aforesaid cases, it is
held that the wrongful disclosure of a material fact or
the concealment of a material fact like the ones which
are referred in those cases, would result in the
annulment of the marriage under Section 12(1)(c) of
the Act."
24] Thus, a fact, though it may not seriously interfere with the marital
life of the party but, is of such a nature, which if disclosed, would result in
either of the party not consenting for the marriage, would also be a 'material
fact' within the meaning of Section 12(1)(c) of the Act of 1955.
25] In the present case the wife was suffering from Ptosis. The Doctor
performed eyelid muscle resection surgery, wherein the Doctor removed a part
of eyelid muscle, whereby upper lid of left eye became shortened forever. Post
surgery, she suffers from a condition called Nocturnal Lagophthalmos, which is
incurable. In this condition her left eye remains opened even during sleep.
Thus, there is a permanent deformity in eyelid muscle of the wife. We are
conscious of the fact that this would not materially interfere with a happy
marital life including sexual pleasure, but certainly if disclosed would have
resulted in the husband not agreeing or consenting to the marriage. It is of
course another matter if a party becomes the victim of an incurable disease
after the solemnization of the marriage. But, if a girl or a boy, who is of a
marriageable age suffers from an incurable disease before the solemnization of
the marriage and knows about it, it would be necessary for her/him to disclose
the said fact to the party that approaches him/her with a proposal for the
marriage. The wife and her parents were aware before the solemnization of
marriage that the wife suffers from Ptosis and post operational deformity i.e.
Nocturnal Lagophthalmos. It was necessary for them to inform to the husband
before solemnization of the marriage. Had the said fact been disclosed, it may
result in the husband refusing to consent to marry the wife and, therefore, this
would also be a material fact within the meaning of the term "material fact".
26] This takes us to the submission of learned Senior Counsel Mr.
Mardikar that, inspite of getting knowledge of the above said deformity of the
wife, the husband lived with the wife with his full consent, therefore, the
Family Court should not have entertained the petition in view of proviso
contained in Section 12(2) of the Act of 1955. The learned senior counsel took
us to the pleadings of the husband in his petition for annulment of marriage
wherein he has pleaded that he came to know about the disease and the
deformity in the 1st week of August 2017. Thereafter they resided together as
husband and wife till 17 August 2017. Mr Mardikar, then submitted that the
sequence of pleadings goes to show that after alleged revelation of the fraud,
the husband took the wife to Hyderabad for the purpose of consummating the
marriage. The submission is that after getting the knowledge of disease Ptosis,
they resided as husband and wife, therefore non-disclosure of material fact is
condoned by the husband.
27] The decision of Andhra Pradesh High Court in S. Mahender Vs.
Smt Shalini4, has been relied by the learned Counsel for the wife, wherein it
has been held that if the petitioner after the knowledge of fraud resides with
the other party that disentitles him to maintain the petition.
4 2014 SCC OnLine AP 12
28] Reliance is also placed on the decision of this Court in case of
Mayank s/o Indramohan Malhotra Vs. Neha Malhotra (Kohli)5, wherein this
Court in paragraph 34 of the decision has held as under :
"34. The provisions of section 12(2)(a), stipulate that a
petition for annulment of voidable marriage cannot be
entertained in such circumstances. There is nothing on
record to show that the appellant cohabited with the
respondent as her husband without his full consent after the
alleged fraud had been discovered. The burden to show that
because of discovery of fraud there was no physical
relationship or then the relationship was discontinued, was
upon the appellant husband. He has neither pleaded
necessary facts nor ruled it out by bringing on record any
evidence to that effect. On the contrary, his conduct and
conduct of his family members reveal otherwise. In view of
this, we are satisfied that the petition filed by the appellant
for annulment of marriage could not have been entertained
by the Family Court."
29] Section 12(1)(c) of the Act of 1955 provides ground for decree
for annulment of the marriage in cases, where consent has been obtained by
force or by suppressing material fact. However, Section 12(2)(ii) of the Act of
1955 is a rider on Section 12(1)(c) of the Act of 1955. If after the force is
removed or fraud is discovered, the petitioner continues to live with the other
party with his full consent as husband and wife, the petition for annulment of
the marriage cannot be entertained.
5 2016 (4) Mh.L.J. 340
30] The husband has come up with a case that he came to know
about the disease in first week of the August 2017 and also pleaded that in
June 2017 he had been to Hyderabad with the wife. Therefore, from the
sequence of the paragraphs in the petition, it cannot be said that they went to
Hyderabad after the husband got knowledge of the disease. Rather, the cross
examination of the wife also shows that they had been to Hyderabad before
August 2017. It is matter of record that the husband came to know about the
disease in first week of August 2017, whereas the wife resided at the house of
the husband till 16/08/2017.
31] The expression used in Section 12(2)(ii) of the Act of 1955 that
the petitioner has with his full consent, lived with the other party to marriage
as husband emphasizes living as husband with full consent for whatever
period it may be, provided the alleged fraud is condoned. If the husband or
the wife, as the case may be, overlooks the alleged fraud and condones it, with
the result of reconciliation, whatever may be the period, the petitioner can be
said to have lived with full consent with the other party to the marriage as
husband or wife, as the case may be. In other words, the condition laid down
in Section 12(2)(a)(ii) of the Act of 1955 does not depend upon the lapse of
any time after the discovery of the alleged fraud. In fact, if the fraud is
condoned and there is a reconciliation, such a reconciliation may be called
with full consent.
32] The case in hand does not show any reconciliation, rather, the
husband has come up with case of the non-consummation of marriage. Mere
staying at the husband's house for more than a week after the husband got
knowledge of the disease, does not amount to condonation of the non-
disclosure of material fact. Therefore, bar under Section 12(2)(ii) of the Act of
1955 will not be applicable to the case in hand.
33] Turning to the petition of the wife for restitution of conjugal
rights, considering the admission of the wife in her cross examination that she
left the house of the husband on her own, is contrary to her pleadings that she
was dropped off by the husband to her parental house. Further considering the
fact that the while leaving the wife had communicated a message saying
goodbye forever, the Family Court has rightly refused to pass a decree of
restitution of the conjugal rights. Even otherwise, when the husband has come
up with a defence of case of suppression of material fact, which he duly
proved, it cannot be said that the husband has withdrawn himself from the
Society of the wife without reasonable cause.
34] In view of above we do not find any error or illegally in the
impugned common orders and judgment of the Family Court. The learned
Family Court rightly appreciated the evidence in their proper perspective. The
order of learned Family Court does not suffer from any infirmity, and
therefore, does not require interference from this Court. The appeals are sans
merits and, accordingly, we dismiss the appeals.
(M.W. CHANDWANI, J.) (VINAY JOSHI, J.)
At this stage, the learned Counsel for the appellant submits that
the appellant will take this order before the Apex Court, therefore, the interim
order be continued for a period of four weeks, to which the learned Counsel
for the respondent objects.
By order dated 24/03/2023, we had directed the respondent-
husband to maintain status quo regarding his marital status, if he is not
married. The said order was continued from time to time till today. If the
husband marries another girl, the position will become irreversible.
Therefore, the interim order to continue for a further period of four weeks to
enable the wife to approach before the Supreme Court.
(M.W. CHANDWANI, J.) (VINAY JOSHI, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 09/02/2024 16:07:22
