Delhi High Court
Mamta Rani vs Sudhir Sharma on 28 November, 2014
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 28, 2014
+ MAT.APP. 121/2010
MAMTA RANI ..... Appellant
Through: Mr. G.C.Shukla, Advocate
versus
SUDHIR SHARMA ..... Respondent
Through: Mr. A.K.Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Vide impugned judgment of 14th September, 2010, marriage of
appellant with respondent has been declared to be nullity, as the material
fact of mental illness of appellant-wife was concealed from respondent-
husband. The factual background of this case already stands noticed in
the opening paragraphs of the impugned judgment and needs no
reiteration.
Suffice it would be to note that the parties were married on 19 th
April, 2007 but their marriage could not be consummated on the first
night due to abnormal behavior of appellant-wife and within few months
it became known that appellant-wife was suffering from mental disorder
i.e. bipolar disorder alongwith seizures since the year 1998 and was
under constant medication. Apart from his own deposition, respondent-
MAT. APP.No.121/2010 Page 1
husband had got examined Dr. Rajiv Mehta (PW-4), Physiatrist and Dr.
Shalini Aggarwal (PW-3), Senior Consultant at Maharaja Agarsen
Hospital, New Delhi. Apart from this, respondent-husband had relied
upon deposition of Dr. Vikas Jain (PW-6), Consultant Neuro Psychiatrist
in Paschim Vihar to prove the medical reports (Ex. PW-1/1 to PW-1/19)
of the appellant-wife. The stand of appellant-wife is that she is under
treatment and she is suffering from medical ailment which is not
incurable and that she is quite normal. Appellant-wife had categorically
denied that she was suffering from depression and had deposed before the
trial court in support of her aforesaid stand.
After considering the evidence on record, trial court vide impugned
judgment had concluded that appellant-wife is not of unsound mind
rendering her incapable of giving a valid consent to marriage or due to
mental disorder respondent-wife was unfit for marriage and so, it was
held that this case does not come within the purview of Section 5(ii) of
the Hindu Marriage Act, 1955. However, trial court concluded that
although the case of appellant does not fall within the ambit of Section
12(1)(b) of the Hindu Marriage Act, 1955 but it certainly comes within
the ambit of Section 12(1)(c) of the Hindu Marriage Act, 1955. Finding
returned in the impugned judgment is as under:-
"It is therefore, established that the petitioner's
consent for marriage was obtained by concealing the
above material fact about the respondent's ailment.
Section 12(1)(c) of HMA lays down that in case the
consent of the petitioner for marriage is obtained by
fraud as to any material fact or circumstance
MAT. APP.No.121/2010 Page 2
concerning the respondent, it may be annulled by
decree of nullity. Thus, petitioner had a cause of
action for filing a petition for annulment of marriage.
Petitioner although pleaded that a fraud had been
played upon him by the respondent and her parents, by
concealment of the factum of respondent's mental
disorder, but he has not specifically claimed relief
under Section 12(1)(c) HMA. In view of the pleadings
of the petitioner and the evidence which has come on
record, the petitioner is entitled to decree of annulment
of marriage on this ground."
At the hearing, the solitary contention raised by learned counsel for
appellant is that all the three issues have been decided by the trial court in
favour of the appellant but the marriage is annulled by taking a resort to
Section 12(1)(c) of the Hindu Marriage Act, 1955 whereas in the petition,
the annulment of marriage was sought under Section 12(1)(b) of the
Hindu Marriage Act, 1955.
To support the impugned judgment, learned counsel for respondent
has drawn the attention of this Court to paragraph No.13.1 of the
impugned judgment wherein, it has been held that though the respondent-
husband had not claimed relief under Section 12(1)(c) of the Hindu
Marriage Act, 1955 but in view of the pleadings of respondent-husband
and the evidence on record, he is entitled to decree of annulment of
marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955.
Reliance has been placed by learned counsel for respondent upon
decisions of the Apex Court in Challamane Huchha Gowda v.
M.R.Tirumala & Anr. (2004) 1 SCC 453 and Regional Medical Research
Centre, Tribals v. Gokaran & Ors (2004) 13 SCC 125 to submit that
MAT. APP.No.121/2010 Page 3
mere non-mention of particular section of an Act would not defeat a right
conferred thereunder.
Upon hearing both the sides and on perusal of impugned judgment,
judgments cited and the evidence on record, I find that trial court has
rightly noted in the impugned judgment that the case of respondent-
husband does not come within the ambit of Section 12(1)(b) of the Hindu
Marriage Act, 1955 but comes within the purview of Section 12(1)(c) of
the Hindu Marriage Act, 1955. Neither there is any evidence on record
nor has trial court found in the impugned judgment that mental illness of
appellant-wife is incurable. It is settled legal position that a mere non-
mention of a provision of law would not defeat the right thereunder. It
proved from the evidence on record that instant case comes within the
ambit of Section 12(1)(c) of the Hindu Marriage Act, 1955.
It is pertinent to note that respondent-husband in the petition for
divorce has clearly averred that mental sickness of appellant-wife was
concealed from him at the time of marriage and in the Written Statement
filed by the appellant-wife, there is no specific denial of this allegation.
Apart from this, respondent-husband in his evidence has deposed in no
uncertain terms that the insanity of appellant-wife was concealed at the
time of marriage and this part of deposition has not been assailed in the
cross-examination of respondent-husband. Concealment of appellant-
wife's mental disorder is a ground provided under Section 12(1)(c) of the
Hindu Marriage Act, 1955 for annulment of marriage. There are
unchallenged averments and evidence on record which brings the case of
respondent-husband within the ambit of Section 12(1)(c) of the Hindu
Marriage Act, 1955.
MAT. APP.No.121/2010 Page 4
In view of aforesaid, finding no infirmity or illegality in the
impugned judgment, this appeal is dismissed while leaving the parties to
bear their own costs.
(SUNIL GAUR)
JUDGE
NOVEMBER 28, 2014
vn
MAT. APP.No.121/2010 Page 5
