Stanis Laus Pratap vs Mrs A Subhashini
2023 Latest Caselaw 1649 Kant

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                                     M.F.A.No.5183 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1st DAY OF MARCH, 2023

                        PRESENT
        THE HON'BLE MR JUSTICE ALOK ARADHE
                           AND
  THE HON'BLE MR JUSTICE VIJAYKUMAR A PATIL
 MISCELLANEOUS FIRST APPEAL NO.5183 OF 2016 (FC)

BETWEEN:

STANIS LAUS PRATAP
S/O LATE C E NADAN,
AGED ABOUT 39 YEARS,
ELECTRICIAN,
R/AT 4TH CROSS,
GUNDAPPA SHED,
SIVAMOGGA-577201.
                                             ...APPELLANT

(BY SRI G.LAKSHMEESH RAO, ADVOCATE)

AND:

MRS. A SUBHASHINI
D/O LATE ARTHUR JOHN,
AGED ABOUT 43 YEARS,
R/AT LINGAYATH BEEDI,
ARTHUR,
BHADRAVATHI,
SHIVAMOGGA DISTRICT
                                           ...RESPONDENT

(RESPONDENT - SERVED)

       THIS M.F.A IS FILED UNDER SECTION 19(1) OF FAMILY
COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED
16.06.2016 PASSED ON M.C.NO.102/2014 ON THE FILE OF
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                                                  M.F.A.No.5183 of 2016




THE    PRINCIPAL    JUDGE,       FAMILY        COURT,      SHIVAMOGGA,
DISMISSING THE PETITION FILED U/S 18 OF DIVORCE ACT.


       THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
22.02.2023,     COMING       ON      FOR        PRONOUNCEMENT        OF
JUDGMENT, THIS DAY, VIJAYKUMAR A PATIL J., DELIVERED
THE FOLLOWING:


                            JUDGMENT

This appeal under Section 19(1) of the Family Courts

Act, 1984 has been filed by the appellant/husband against

the judgment and decree dated 16.06.2016 in

M.C.No.102/2014 passed by the Family Court,

Shivamogga, by which the petition filed under Section 18

of the Indian Divorce Act, 1869, seeking declaration of

petitioner's marriage with the respondent, as null and

void, has been dismissed.

2. Facts leading to filing of this appeal briefly stated are

that the appellant and the respondent are Indian

Christians and their marriage was solemnized on

01.05.2014 at CSI Vanes Memorial Church, Bhadravathi,

and the CSI Vanes Memorial Church Bhadravathi has

issued marriage certificate. The appellant has averred

M.F.A.No.5183 of 2016

that the marriage proposal of the respondent was brought

by the wife's mother, brother representing that the

respondent's age is 36 years at the time of marriage.

Based on such representation the appellant and his family

members have consented for the marriage in good faith

and accordingly the marriage was solemnized.

3. It was averred that nuptial ceremony was on

01.05.2014, however, the respondent's parents started

telling that due to physical strain to the respondent in the

marriage ceremony, requested the appellant to postpone

the same, and as per their request the ceremony was

postponed. Thereafter the respondent wife was brought to

appellant's house at Shivamogga and started residing

there. It was further averred that even after some days

when the appellant requested for nuptial ceremony, the

respondent informed that she is not keeping well and in

the meanwhile, she suddenly fell ill and was unable to

walk. When this fact was brought to the notice of mother

of respondent, she and her son rushed to Shivamogga and

they took the respondent to Bhadravathi informing that

M.F.A.No.5183 of 2016

they will provide treatment for her and would send her

back. It was further averred that respondent wife came

back after two weeks and on the very next day i.e., on

22.5.2014, again she fell ill. Appellant and his family

members were shocked and enquired regarding medical

history and illness of the respondent wife but the same

was not disclosed. The appellant further averred that he

took the respondent to Doctor on 23.04.2014 and Doctor

advised her to undergo some tests and when the tests

were conducted, it was revealed to the shock of appellant

that respondent was suffering from Fatty infiltration of

liver, Left renal Hydronephrosis, Microcytic Hypochromic

Anemia and her blood report was also abnormal. It was

further averred that when the appellant questioned the

respondent and her family members, it was finally

revealed that she is suffering from incurable disease since

long time, the said fact was concealed by the respondent

and her family members at the time of marriage proposal.

It is averred that, she has also disclosed that her age is 41

years, which is again a shock to the appellant as it was

M.F.A.No.5183 of 2016

represented to him that her age is 36 years at the time of

marriage proposal. It was further averred that the

respondent wife is 4 years elder than the appellant and it

is clear that consent of the appellant for marriage was

obtained by fraud, misrepresentation and also there is

concealment of material facts, hence the marriage remains

unconsummated. It is further averred that when things

were revealed, the parents of the respondent took away

the respondent wife to their house. The act of the

respondent and her family members amounts to fraud,

misrepresentation, concealment of material facts, by which

they have obtained consent of the appellant to marry the

respondent. Hence sought to declare the marriage of the

appellant with the respondent solemnized on 01.05.2014

as null and void.

4. The respondent wife entered appearance before the

Family Court by filing the statement of objections and

opposed the petition by denying the averments made

therein and sought for dismissal of the petition.

M.F.A.No.5183 of 2016

5. The Family Court recorded the evidence of the

parties. The appellant examined himself as PW.1 and one

more witness as PW.2 and got marked documents Exs.P1

to P12. The respondent examined herself as RW.1 and got

marked document as Ex.R1. The Family Court by

judgment and decree dated 16.06.2016 inter alia held that

petitioner failed to prove the grounds to declare his

marriage with the respondent as null and void.

Accordingly the petition was dismissed. In the aforesaid

factual matrix, the present appeal is filed.

6. Heard learned counsel for the appellant. Respondent

though served has remained unrepresented. Hence placed

exparte.

7. Learned counsel for the appellant submits that

appellant and the respondent are Indian Christians and

their marriage was solemnized on 01.05.2014 at

Bhadravathi. It was further contended that marriage

proposal of the respondent was brought by her mother

and brother representing that respondent's age is 36 years

M.F.A.No.5183 of 2016

at the time of marriage and based on such a

representation the appellant and his family members had

consented for the marriage in good faith. It was

submitted that nuptial ceremony was fixed on 01.05.2014

however, the respondent's parents started telling that due

to physical strain to the respondent requested to postpone

the same, believing their words, the ceremony was

postponed. It was further contended that respondent was

not keeping well and in the meanwhile, she suddenly fell ill

and was unable to walk. This fact was brought to the

notice of respondent's family members, then they took her

to Bhadravathi for providing treatment. It was further

contended that respondent wife came back after two

weeks and on the very next day i.e., on 22.05.2014, she

again fell ill, the appellant and his family members were

shocked and enquired regarding medical history and

illness to respondent, but the same was not disclosed. It

is further submitted that when the appellant took the

respondent to Doctor on 23.04.2014 Doctor advised her

to undergo some tests, the tests revealed that the

M.F.A.No.5183 of 2016

respondent was suffering from Fatty infiltration of liver,

Left renal Hydronephrosis, Microcytic Hypochromic Anemia

and her blood report was also abnormal. It was further

submitted that when the appellant questioned the

respondent and her family members, it was finally

revealed that she is suffering from incurable disease since

long time. It was also revealed that the respondents age

was 41 years at the time of marriage, however, they have

represented that her age is 36 years, when they brought

the proposal of marriage. It is further submitted that the

respondent wife is 4 years elder than the appellant

husband and the consent of the appellant for the marriage

was obtained by fraud, misrepresentation and also there is

concealment of material facts. Therefore the marriage

remained unconsummated.

8. Learned counsel for the appellant places reliance on

the decision of the Gujarat High Court in LILLYKUTTY

MATHEW Vs. C.J. SIMON (2000 LEGAL EAGLE (GU) 310, to

support his contention, however we find that the said

decision has only persuavsive value.

M.F.A.No.5183 of 2016

9. It is contended that the act of the respondent and

her family members amounts to fraud and

misrepresentation as they have obtained the consent for

marriage by concealing he material facts of the age and

health issues of the respondent, and the same can be the

ground to declare the marriage of the appellant and

respondent as null and void which the family court has

failed to look into and hence sought for setting aside the

impugned judgment and decree.

10. We have considered the submission of the learned

counsel for the appellant and have perused the material

on record.

11. The parties does not dispute the relationship

between them. It is also not disputed that after the

marriage, the respondent wife joined the appellant

husband at Shivamogga. The appellant in his petition at

para 5 has clearly pleaded that respondent wife and her

family members have concealed the material fact i.e., age

of the respondent, they have represented the appellant

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M.F.A.No.5183 of 2016

that the age of the respondent is 36 years at the time of

marriage proposal. However, her age was 41 years at the

time of proposal of marriage, which amounts to obtaining

the appellant's consent for marriage with the respondent

by fraud, misrepresentation and by concealing the

material fact. The respondent in her statement of

objection denied the said contention, however, in her

cross-examination she admitted that at the time of

marriage, she was aged 41 years, her brother Vasu's was

aged about 50 years and Veda was aged about 49 years,

however, she has denied that she misrepresented her age

for the reason that if her actual age was disclosed, she

could never get a bride groom.

12. The Family Court considered the pleading, evidence

and gave a finding that appellant has not chosen to

examine any witnesses to show that respondent

misrepresented the material facts to the appellant, prior to

the marriage. The Family Court further held that nothing

prevented the appellant from examining his family

members, who were present at the time of marriage talks.

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M.F.A.No.5183 of 2016

But he has not done so, hence failed to establish that

respondent and her family members have played fraud.

13. On meticulous examination of pleading and evidence

on record, it is very much clear that appellant has laid the

foundation of fraud, misrepresentation and concealment of

fact by the respondent wife in para 5 of the petition. The

appellant examined himself as PW.1 before the Family

Court wherein he reiterates the same contentions. The

respondent wife in cross examination of PW.1, could not

elicit any contrary admissions. The respondent wife (RW1)

in her cross examination has clearly admitted that she was

aged 41 years at the time of marriage proposal, however

she has disclosed her age as 36 years. When there is

clear admission of the respondent wife that she and her

family members have informed the appellant that her age

is 36 years at the time of marriage proposal; however it

was 41 years, we do not find any reason to disbelieve the

admission of RW.1. In our view, the Family Court erred in

appreciating the pleading and evidence on record, which

has resulted in incorrect finding.

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M.F.A.No.5183 of 2016

14. Thus from the evidence on record the appellant has

proved the ground for declaring the marriage between the

parties solemnized on 01.05.2014 as null and void.

15. For the aforementioned reasons the impugned

judgment and decree dated 16.06.2016 passed in

M.C.No.102/2014 on the file of Family Court Shivamogga,

is set aside and it is hereby declared that the appellant's

marriage with the respondent solemnized on 01.05.2014

as null and void. Accordingly the appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT: DMN CT: SV