Bombay High Court
Nilesh @ Pravin Hiroji @ Hiralal Supekar vs Amruta Nilesh Supekar @ Amruta Sanjay ... on 22 September, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:25674-DB
1 Judgment in FCA 92-23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO.92 OF 2023
Nilesh @ Pravin s/o Hiroji @ Supekar,
Age ; 31 years, Occu.: Unemployed,
Resident of : Galli No.4, Kailas Nagar,
Sambhajinagar, Aurangabad .... APPELLANT
(Original Applicant)
VERSUS
Amruta w/o Nilesh Supekar @ Amruta d/o
Sanjay Sonwane,
Age : 27 years, Occu.: Unemployed,
Through Next Friend :
Sanjay Digambar Sonawane,
Laxmi Colony, Laxmi Niwas, Behind
Chalisgaon Bus Stand, Chalisgaon,
District : Jalgaon .... RESPONDENT
(Original Respondent)
....
Mr. Amit A. Yadkikar a/w Mr. Akshay Kulkarni, Advocate for the
Appellant
Mr. Jitendra V. Patil, Advocate for the Respondent
....
CORAM : NITIN B. SURYAWANSHI AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 18/08/2025
PRONOUNCED ON : 22/09/2025
JUDGMENT :
(Per : Sandipkumar C. More, J.)
1. Being aggrieved and dissatisfied with the judgment and order
dated 17/08/2023 passed by the learned family court Judge,
2 Judgment in FCA 92-23
Aurangabad in Petition No. A-528 of 2018, the appellant - husband
i.e. original petitioner, has filed this appeal. The learned family
court judge, Aurangabad under the impugned judgment, has
dismissed the aforesaid petition of the appellant - husband, which
was filed by him for getting decree of divorce under Section 13(1)(i-
a) and (iii) of the Hindu Marriage Act.
2. Background facts leading to this appeal are as under :
The marriage of the appellant - husband and respondent-wife
was solemnized on 28/04/2018 at Chalisgaon, District Jalgaon.
When the respondent - wife started cohabiting with the appellant -
husband, he realized that respondent - wife was having some
health issues. He observed that respondent - wife used to sleep for
longer period. She was also found urinating in bed and frequently
falling unconscious. She was not completing work given to her and
found unresponsive to the talks of the appellant - husband. The
appellant - husband when tried to ask her father about such
abnormal behaviour, he received unsatisfactory answers.
Thereafter, the appellant - husband with consent of father of
the respondent - wife, got her examined through one doctor at
Jalgaon and then came to know that respondent wife is suffering
from disease known as cerebral-palsy. Even the said doctor had
3 Judgment in FCA 92-23
suggested that it was not proper on the part of father of respondent
- wife to perform her marriage since her brain was not properly
developed. The doctor also told the appellant - husband that the
disease of respondent - wife is incurable. The appellant - husband
also sought second opinion from another doctor at Aurangabad in
respect of disease of the respondent - wife, but the doctor at
Aurangabad also found the same and even advised that it was
dangerous for the appellant - husband and his family members to
stay with the respondent - wife. Thus, the appellant - husband felt
cheated as the family members of respondent-wife did not disclose
him before the marriage that the respondent-wife suffers from such
mental disorder. According to the appellant-husband the
respondent-wife is also unable to perform marital obligations
because of her disease. The respondent-wife has left house of the
appellant-husband on her own and started residing in the house of
her parents in the year 2018 itself. The appellant-husband was
constrained to send her a legal notice on 20/10/2018 for seeking
divorce by mutual consent. However, the respondent-wife replied
the said notice on 27/10/2018. Being dissatisfied with the reply,
the appellant-husband filed the aforesaid divorce petition, stating
that he was deceived due to the non-disclosure of the respondent-
wife's mental illness by her family members prior to the marriage .
4 Judgment in FCA 92-23
On the contrary, the respondent-wife, through her written
statement Exhibit-15, contested the divorce petition and denied the
adverse allegations made against her. According to the respondent-
wife, one of her hands is weak by birth, but she does not suffer
from any mental illness. She asserted that she received her
education in regular schools and college and that her medical
records does not indicate any mental illness. She further claimed
that the appellant-husband is, in fact, a distant relative, and it was
his mother who brought the marriage proposal despite knowing the
fact of weakness of her one hand. She further claimed that their
marriage was solemnized after prior meetings of both sides and in
the presence of 1500 people at Chalisgaon. According to her, she is
mentally fit for marriage and also performs marital obligations.
She contended that since the appellant - husband does not like
her, he is making false allegations. Thus, she prayed for dismissal
of the petition. The learned family court judge by conducting the
trial, dismissed the petition of the appellant-husband and hence
this appeal.
3. Learned counsel for the appellant-husband submits that
marriage of the parties was performed on 28/04/2018 and the
petition for divorce had been filed on 13/11/2018 i.e. within a
5 Judgment in FCA 92-23
period of one year of the marriage. He further submitted the
learned family court judge ought not to have entertained the
petition considering the bar under Section 14 of the Hindu
Marriage Act. However, he further added that though the appellant
has filed the petition for divorce under Section 3(1)(i-a) and (iii) of
the Hindu Marriage Act, but the allegations made by him against
the respondent-wife indicate that he is also seeking divorce from
the respondent-wife by invoking provisions of section 12 of the Act.
He thus, requested to permit the petitioner to add ground of fraud
for getting divorce as envisaged in Section 12 of the Hindu Marriage
Act. According to him, there is ample evidence on record to show
that the respondent - wife is found suffering from disease known
as cerebral-palsy, wherein there is under development of brain. He
pointed out that the learned family court judge wrongly observed
that the appellant-husband did not produce supportive documents
issued by the concerned doctors as regards of mental illness of the
respondent-wife. He pointed out that during the pendency of
divorce petition, he had in fact filed an application for medical
examination of the respondent-wife at his own cost, but the learned
family court judge wrongly observed that the said medical
examination of the respondent-wife was not at his instance.
6 Judgment in FCA 92-23
4. The learned counsel for the appellant-husband further
contended that even the evidence of Dr. Minakshi is there on record
to show that respondent - wife is suffering from disease cerebral-
palsy, which is incurable. Learned counsel for the appellant-
husband specifically pointed out that the family members of the
respondent-wife had in fact hidden the disease of respondent-wife
and thereby played fraud upon the appellant. He pointed out that
despite order passed by the learned family court judge directing the
parties to file affidavit in respect of assets and liabilities, the
respondent-wife could not file the same and instead of that came
with false reply. He further submitted that despite allegation of
suppression of mental illness of the respondent-wife, the learned
family court judge failed to frame issue on this aspect. According
to him, the learned family court judge wrongly concluded that it
was not the case of mental disorder of the respondent-wife, but
only her body movements were affected, which have no impact on
the marital obligations. He further pointed out that, in fact, there
was non-consummation of the marriage. Thus, he concluded that
even the non-disclosure of the mental disorder of the respondent-
wife, by itself amounts to cruelty. Thus, he prayed for grant of
decree of divorce on the ground of fraud as contemplated in Section
7 Judgment in FCA 92-23
12 of the Hindu Marriage Act. He also relied on the case of Pooja
vs. Shrikant Rameshwarrao Kale, MANU/MH/0805/2024.
5. On the contrary, the learned counsel for the respondent-wife
supported the impugned judgment and contended that the learned
family court judge has rightly appreciated the evidence on record
even though respondent-wife could not lead any evidence.
According to him, the respondent-wife is not suffering from any
mental illness which can prevent her from performing marital
obligations. In the alternative, he submitted that the court can not
grant divorce by invoking provisions of Section 12 of the Hindu
Marriage Act as no such prayer was there in original petition filed
by the appellant - husband. According to him, if the appellant-
husband really wants to rely on Section 12 of the Act, then there
must be amendment to that effect and for that purpose, matter has
to be remanded back. He also relied on the case of Sharda vs.
Dharmpal, MANU/SC/0260/2003.
6. Heard rival submissions. With able assistance of the learned
counsel for the rival parties, we have also gone through the
documents on record alongwith the record and proceedings of the
original petition.
8 Judgment in FCA 92-23
7. It is significant to note that the appellant - husband is
seeking divorce on the ground of cruelty as per Section 13(1)(ia) of
the Hindu Marriage Act and mental disorder / unsoundness of
mind as per Section 13(1)(iii) of the Hindu Marriage Act, 1955
(hereinafter referred to as 'the Act'.) It is his case that the
respondent - wife is found suffering from the disease known as
'cerebral palsy', which is incurable and therefore, the decree of
divorce can be passed under Section 13(1)(iii) of the Act, which
reads as under :
"Section 13(1)(iii) :- has been incurably of unsound
mind, or has been suffering continuously or
intermittently from mental disorder of such a
kind an to such an extent that the petitioner
cannot reasonably be expected to live with the
respondent.
Explanation.- In this clause,-
(a) the expression "mental disorder" means mental
illness, arrested or incomplete development of
mind, psychopathic disorder or any other
disorder or disability of mind and includes
schizophrenia;
(b) the expression "psychopathic disorder" means a
persistent disorder or disability of mind
(whether or not including sub-normality of
intelligence) which results in abnormally
9 Judgment in FCA 92-23
aggressive or seriously irresponsible conduct on
the part of the other party, and whether or not it
requires or is susceptible to medical treatment;
or]"
However, according to him, the family court ought not to have
entertained the petition as it was filed within one year of the
marriage. Admittedly, under Section 14 of the Act there is bar for
entertaining the petition for divorce filed under Section 13 of the
Act, within a period fo one year from the date of marriage.
However, though such bar is there, but court in case of exceptional
hardship can entertain such petition by giving reasons to that
effect. Therefore, he submits that even if it is found that the family
court wrongly entertained the petition without giving reason of
exceptional hardship, the appellant-husband still can seek nullity
of his marriage with the respondent-wife by invoking provisions of
Section 12(1)(c) of the Act. He drew our attention to the allegations
made by him in the petition, wherein he contended that the family
members of the respondent-wife suppressed the fact that she was
suffering from cerebral palsy since her birth and her behaviour was
abnormal. To that effect, he levelled allegations against her claiming
that she frequently urinated in the bed, remained idle and did not
respond to the petitioner and showed an inability to understand
10 Judgment in FCA 92-23
day-to-day matters and follow instructions. Thus, the appellant-
husband claimed that he became aware of the aforesaid facts only
after the marriage which were deliberately suppressed by the
respondent-wife and her family members. Therefore, he urged that
his case be considered under Section 12(1)(c) of the Act as well.
Obviously, the learned counsel for the respondent-wife opposed this
submission. As such, the question before us is whether a decree of
nullity of marriage can be granted in the absence of a specific
prayer to that effect.
8. We would like to reproduce Section 12 (1)(c) of the Act for
quick reference.
"Section 12(1)(c) : That the consent of the petitioner,
or where the consent of the guardian in marriage of
the petitioner [was required under section5, as it
stood immediately before the commencement of the
Child Marriage Restrain (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]."
9. In the case of K. Shanmugha Raja @ Raja vs.
Shanthakumari, reported in 2018 SCC OnLine Mad 9397, the
11 Judgment in FCA 92-23
Madras High Court, taking guidance from the observations of the
Hon'ble Apex Court in Firm Sriniwas Ram Kumar v. Mahabir
Prasad (AIR 1951 SC 177) and Bhagwati Prasad v. Shri
Chandra Maul (AIR 1966 SC 735), considered the case of the
appellant under Section 12(1)(c) of the Act. In that case, the
respondent-wife had suppressed her religion as Christian at the
time of marriage and had married with the appellant by falsely
representing herself as a Hindu. In the case of Firm Sriniwas
Ram Kumar v. Mahabir Prasad (supra) the Hon'ble Apex Court
has observed that even in the absence of any pleading for
alternative claim in the plaint filed for specific performance, a
decree for recovery of money can be granted in order to render
substantial justice. Similar observation is made by the Hon'ble
Apex Court in the case of Bhagwati Prasad vs. Shri Chandra
Maul (supra), wherein it is contended that if a plea is not
specifically made and yet it is covered by a issue by implication and
the parties knew that the said plea was involved in trial, then the
mere fact that the plea was not expressly taken in the pleadings
would not necessarily disentitle a party from relying upon, if it is
satisfactorily proved by evidence.
12 Judgment in FCA 92-23
10. Admittedly, in the instant matter, there was no prayer by the
appellant-husband before the family court for grant of decree for
nullity of marriage. However, if the allegations made by the
appellant-husband against respondent-wife are perused then it is
evident that the appellant-husband has contended that after
marriage he found abnormal behaviour and unusual conduct of
the respondent-wife and when he inquired with her family
members about the same, he could not get satisfactory answers.
Moreover, he has also contended that he got the respondent-wife
examined after consulting her parents in respect of the aforesaid
abnormal and unusual conduct from doctor at Jalgaon and then
came to know for the first time about the disease from which the
respondent-wife is suffering is known as 'cerebral palsy'. Thus, it is
his case that at the time of marriage the aforesaid fact was
suppressed from him and a fraud as contemplated in Section 12 (1)
(c) of the Act was played, which entitles him to seek decree of
nullity of marriage. Further, it appears that despite making such
allegations of suppression, the family court did not frame any issue
to that effect. Therefore, considering the observation of the Hon'ble
Apex Court in the case of Firm Shriniwas Ram Kumar and
Bhagwati Prasad (supra) we are of the opinion that the appellant-
husband is entitled for seeking nullity of marriage on the aforesaid
13 Judgment in FCA 92-23
ground in the light of Section 12(1)(c) of the Act. Thus, we are of
the view that the case of the appellant-husband can be to
considered in the ambit of Section 12(1)(c) of the Act.
11. On going through the impugned judgment, it is evident that
family court has dismissed the petition on the ground that there is
no pleading or specific evidence regarding cruelty. On the
allegation in respect of mental disorder of the respondent-wife, the
family court has observed that the petitioner-husband failed to
produce on record medical records in respect of examination of the
respondent-wife through doctors at Jalgaon and Aurangabad. The
family court also relied on the part of cross-examination of the
appellant-husband wherein he admitted that respondent-wife never
behaved violently or dangerously and during the engagement and
marriage ceremony her conduct was found normal and also that
one hand of respondent-wife was weak but no incidents suggesting
mental illness. Further, the family court has also observed that
cerebral palsy relates only to body movements and the respondent-
wife is able to manage ordinary life with support. With these
observations the family court has held that the appellant -
husband could not prove the ground of mental disorder under
which he sought divorce. However, when we have already permitted
14 Judgment in FCA 92-23
the appellant-husband to seek nullity of marriage under Section
12(1)(c) of the Act, the appellant's evidence is also to be considered
from that angle.
12. The overall allegations made by the appellant-husband
against the respondent-wife if perused, then it is evident that the
appellant-husband has contended that due to incurable mental
disorder the respondent-wife could not participate in marital life
and due to concealment of her mental illness by her family
members and her desertion from him since 2018, made him entitle
for claiming decree for nullity of marriage. It is significant to note
that though the respondent-wife vide her written statement at
Exhibit-15, has denied allegations about her mental illness and
stated that she completed regular schooling and college, however,
she came with a case that the appellant-husband's family members
were already aware about her condition at the time of marriage.
According to her since the the appellant-husband was not
interested in her, he made false accusations in respect of her
mental illness. However, she admitted her partial disability i.e.
weakness in one hand since birth. It is important to note that
despite filing her written statement, the respondent-wife has not led
any evidence either by herself or through her father. Thus, it can
15 Judgment in FCA 92-23
be said that she kept herself away from searching cross-
examination in respect of her alleged mental illness. Therefore, we
have to scrutinize the evidence led by the appellant-husband on
record.
13. So far as mental illness of the respondent-wife is concerned,
the family court has observed that the respondent-wife had filed an
application Exhibit-26 for her medical examination and showed her
willingness to undergo medical test. However, on perusal of
Exhibit-26 from the record and proceedings of the original petition,
it is clearly evident that the said application was in fact filed by the
appellant-husband and not by the respondent-wife. Further, the
order dated 02/03/2021 passed on the said application Exhibit-26
by the family court, indicates that initially the respondent-wife had
opposed for the prayer of the said application, but subsequently
agreed to undergo the medical examination. As such, the aforesaid
observation of the family court that respondent-wife by filing
application Exhibit-26 showed willingness to undergo medical test,
is apparently incorrect.
14. It is significant to note that as per the order below Exhibit-26
the appellant-husband got examined the respondent-wife through
16 Judgment in FCA 92-23
members of Medical Board of Government Medical College at
Aurangabad. One of the members of the said Board Dr. Minakshi
Bhattacharya is also examined by he appellant-husband as PW-2
in respect of alleged mental illness of the respondent-wife. Thus,
though the appellant-husband could not file the documents in
respect of medical examination of the respondent-wife by the doctor
at Jalgaon, but the certificate given by the aforesaid Medical Board
after conducting examination of the respondent-wife, is filed on
record at Exhibit-31. It is clearly mentioned in the said certificate
that the respondent-wife is suffering from left paresis (cerebral
palsy), a non-progressive mild intellectual deformity. It is also
opined that she has adoptive functioning and able to take care of
self and others in supportive environment. If said certificate is
read in the light of evidence of PW-2 Dr. Minakshi Bhattcharya i.e.
one of the members of the aforesaid Board, then it is evident that
during the said examination her IQ test was conducted and MRI of
her brain was also obtained. Further, a neuro-physician also
examined her on 08/09/2021. Thereafter, considering the opinion
of the neuro-physician alongwith opinion of psychiatric, the Board
issued a certificate Exhibit-31.
17 Judgment in FCA 92-23
15. This witness has also explained what is meant by cerebral
palsy. According to her, cerebral palsy is called paralysis of brain
but in case of the respondent-wife, it was found non-progressive
that means the intensity of same will not increase in future.
Further, as per the opinion of psychiatric the respondent-wife was
having a mild intellectual deformity and she is able to take care of
herself and others only in supportive atmosphere. The evidence of
this witness further suggests that the respondent-wife is suffering
from the disease 'cerebral palsy' since her birth. Most importantly
this witness has stated that the disease 'cerebral palsy' from which
the respondent-wife is suffering is not curable. Though it is
claimed by the respondent-wife in her written statement that the
appellant-husband was knowing the said fact even prior to the
marriage, but it is significant to note that the respondent-wife has
not led any evidence to that effect. On the contrary, the appellant-
husband since beginning is claiming that he got the knowledge of
mental illness of the respondent-wife only after the marriage &
specially when he got examined her through doctor at Jalgaon.
Thus, it is evident that the evidence of PW-2 Dr. Minakshi
Bhattacharya has confirmed the fact of incurable mental illness of
the respondent-wife for the first time after her examination through
Medical Board. There is nothing on record to show that the
18 Judgment in FCA 92-23
appellant-husband was aware of the said mental illness prior to his
marriage with the respondent-wife.
16. The learned counsel for the appellant-husband heavily relied
on the judgment of this court, Bench at Nagpur in the case of
Pooja vs. Shrikant Rameshwarrao Kale (supra), wherein this
court has upheld the decree of nullity passed by the family court
on the ground of concealment of the disease known as 'Ptosis' of
wife by her family members by considering Section 12(1)(c) of the
Act. This court in para 25 of the aforesaid judgment, has made
following observations:
"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
19 Judgment in FCA 92-23
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."
Herein in this case, the family court has observed that
though the respondent-wife was suffering from disease 'cerebral
palsy', but she did not become violent at any stage in the
engagement ceremony as well as on the day of marriage and she
behaved like an ordinary person. Further, it is observed by the
family court that cerebral palsy is not a mental disorder but it
relates only to body movements. We are unable to understand the
aforesaid observation that cerebral palsy is not mental disorder and
relates only to body movements. PW-2 Dr. Minakshi Bhattacharya
20 Judgment in FCA 92-23
has specially explained that disease 'cerebral palsy' from which the
respondent-wife is suffering, is there since her birth and it is not
curable. Though it would not come in the way in enjoining happily
marital life including the sexual pleasure, but what is material is
the suppression of said disease from the side of the respondent-
wife at the time of marriage. Had it been disclosed prior to the
marriage, then it would have resulted in the appellant-husband
having second thought whether to go for the marriage. Thus, the
suppression of disease 'cerebral palsy' of the respondent-wife by
her family members prior to the marriage, certainly entitles the
appellant-husband for seeking nullity of marriage under Section
12(1)(c) of the Act. It is to be noted that respondent-wife cohabited
with appellant hardly for 6 to 7 months and thereafter she is
residing with her parents till today.
17. In view of the above discussion, we are of the considered
opinion that the family court has definitely erred in dismissing the
petition of the appellant-husband by not considering the aspect of
suppression of the incurable disease of the respondent-wife by
herself or her family members despite pleadings to that effect on
record. Therefore, we pass following order.
21 Judgment in FCA 92-23
ORDER
I) The appeal is hereby allowed and the judgment
and decree passed by the Family Court,
Aurangabad in Petition No. A-528 of 2018, is
hereby quashed and set aside.
II) The marriage between the appellant-husband
and the respondent-wife solemnized on
28/04/2018 is hereby declared null and void
from the date of this order. However, having
regard to the main dispute between the parties,
we are not inclined to make any comment as
regards the rights of respondent-wife to claim
permanent alimony as it would be beyond the
scope of this appeal. As such, it is open for
respondent to exercise the aforesaid right of
permanent alimony under appropriate remedy as
permissible under law.
III) The appeal is accordingly disposed of.
(SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.)
VS Maind/-
