Madras High Court
M.Hariramakrishnan vs Sudha on 18 September, 2024
C.M.S.A.(MD) No.3 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.S.A.(MD) No.3 of 2023
M.Hariramakrishnan
S/o.Manian ... Appellant
Vs.
Sudha
D/o.Muthaiah ... Respondent
Prayer:- Civil Miscellaneous Second Appeal filed under Section 28 of the
Hindu Marriage Act, 1955 to set aside the fair and decretal order passed
in H.M.C.M.A.No.32 of 2022 on the file of the III Additional District
Court, Tirunelveli, dated 02.02.2023, confirming the fair and decretal
order passed in H.M.O.P.No.3 of 2019 dated 12.04.2022 on the file of the
Sub-Court, Tirunelveli granting dissolution of marriage and to grant
decree of nullity of marriage.
For Appellant : Mr.H.Arumugam
For Respondent : Mr.VRG.Mohan
[Legal Aid Counsel]
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Page No. 1 of 9
C.M.S.A.(MD) No.3 of 2023
JUDGMENT
The appellant, aggrieved by the concurrent finding of the trial court
and the lower appellate court in rejecting his prayer for declaration of the
marriage between him and the respondent as null and void under Section
12 of the Hindu Marriage Act, 1955, has preferred this second appeal.
2. The facts leading to the filing of this second appeal are as
follows:
(a) The appellant married the respondent on 07.05.2017.
The marriage was solemnized under the Hindu
Marriage Act, 1955.
(b) In October 2017, the appellant came to know through a
pamphlet that the respondent had earlier relationships
with several men and had, in fact, aborted a child in a
hospital at Mumbai, mentioning one Mr.Vishal Shah as
her husband. On further verification, he came to know
that the contents of the pamphlet were true.
(c) Hence, he filed a petition praying for the nullity of
marriage and, in the alternative, for the grant of a
decree of divorce on the ground of cruelty.
(d) The respondent filed a counter denying the averments
in the petition and stating that the contents of the
pamphlet were not true and that the allegations made by
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the appellant were false, and, therefore, the appellant
was neither entitled to a decree of nullity nor a decree
of divorce.
(e) The trial court found that the appellant made out a case
under Sections 12 and 13 of the Hindu Marriage Act,
1955, and however granted a decree of divorce instead
of a decree of nullity as prayed for by the appellant.
(f) The appellant challenged the said finding before the
lower appellate court, stating that since the trial court
had found that the case fell under Section 12(1)(c) of
the Hindu Marriage Act, 1955, the trial court ought not
to have denied the prayer for a decree of nullity.
(g) The lower appellate court found that the appellant had
not established that the respondent had a spouse living
at the time of the marriage, and therefore, the
conditions under Section 5 of the Act were not fulfilled
to declare the marriage as null and void. However, the
lower appellate court held that the appellant had proved
cruelty and therefore was entitled to divorce on the said
ground.
3. The learned counsel for the appellant submitted that the trial
court, having found that the appellant had established a case for nullity of
marriage, erred in granting a decree of divorce when the main prayer was
for a decree of nullity and that the lower appellate court had erroneously
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held that the case under Section 12(1)(c) of the Hindu Marriage Act, 1955
was not made out by the appellant, in the absence of any challenge by the
respondent to the finding of the trial court. The learned counsel for the
appellant, on facts, submitted that the respondent had admitted that the
mobile number in the abortion form maintained in the hospital at Mumbai
belonged to her, which proves that she underwent abortion; that she had
suppressed the said fact from the appellant and therefore, it would amount
to fraud as to the material fact concerning the respondent; and that hence,
the appellant is entitled to a decree of nullity.
4. The learned counsel for the respondent, per contra, submitted that
though it is the case of the appellant that the respondent had married
Mr.Vishal Shah, Ex.P11 cannot be taken as a document to prove the
marriage; that the lower appellate court was right in holding that the
marriage between the respondent and the said Mr.Vishal Shah was not
proved; and that the Doctor, who had made entries in Ex.P11, was not
examined, and therefore, it cannot be inferred that the person mentioned
in the said document refers to the respondent; and that therefore, no
interference is called for in the judgment of the lower appellate court.
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5. This Court, while admitting this second appeal, framed the
following substantial question of law:
When the trial Court has categorically given a
finding about the suppression of the material fact of
previous marriage of the respondent and termination
of pregnancy two times out of the said marriage,
whether is it justified in not granting the decree of
nullity of marriage invoking Section 5(i), 11 and
12(c) and (d) of the Hindu Marriage Act, 1955?
6. The admitted fact is that the appellant and the respondent got
married on 07.05.2017. The appellant filed a petition praying for a decree
of nullity on the grounds that the respondent had suppressed her
relationship with one Mr.Vishal Shah and the termination of her
pregnancy caused due to that relationship.
7. The appellant had examined himself as P.W.1 and marked a
pamphlet, which is said to have been found in the street where both of
them were living. Based on the said Pamphlet, the appellant had made
some enquiries and found out that the respondent had admitted herself in
the hospital for termination of pregnancy. Ex.P11 is the document
produced on the side of the appellant, which includes the findings of the
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Doctor and the medical records pertaining to the respondent. In the said
document, the respondent had shown the said Mr.Vishal Shah as her
husband. It is the case of the respondent that the said document does not
pertain to her. However, in the said document, it is seen that the phone
numbers of both the said Mr.Vishal Shah and the respondent have been
mentioned. The Aadhar Card of the respondent (Ex.P18) produced on the
side of the appellant contains her phone number, which tallies with the
phone number in Ex.P11. That apart, this Court finds that the signature in
Ex.P11 tallies with the other admitted signatures of the respondent
contained in Exs.P13 and P14. The respondent had also admitted that she
knew the said Mr.Vishal Shah, though she had denied the specific
relationship between them alleged by the appellant. It is also the fact that
the appellant had not established the marriage of the respondent with the
said Mr.Vishal Shah or with any other person. Ex.P11 cannot be a proof
of marriage.
8. Similarly, the appellant has also not established that the
respondent was pregnant at the time of the marriage. Therefore, Section
12(d) of the Act is also not made out. However, from the foregoing facts,
it is seen that the consent of the appellant was obtained by deception as to
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the material fact concerning the respondent. Deceit can be by making a
false statement and also by suppression of facts. The material fact
suppressed is that the respondent had a relationship with the said
Mr.Vishal Shah and had terminated the pregnancy due to the said
relationship. Further, in the said document (Ex.P11), i.e., the case sheet
register, it is noted that the respondent had suffered a miscarriage two
years prior to the termination that occurred in 2015.
9. It is seen that non-examination of the Doctor would not be of any
consequence, as the record produced by the appellant is a public record.
The respondent had not taken any steps to let in any contra-evidence on
this aspect. The fact that the signature and the phone number tallies with
that of the respondent is sufficient to hold that the document is genuine.
The document was produced by the hospital authorities on the summons
issued by the trial court and its genuineness cannot be doubted. Therefore,
this Court is of the view that the appellant is entitled to a decree of nullity
under Section 12(1)(c) of the Hindu Marriage Act, 1955, as the
respondent had played fraud by deceiving the appellant as regards a
material fact concerning her. The substantial question of law is answered
accordingly.
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10. In the result, the impugned order is set aside and a decree of
nullity of marriage is granted to the appellant under Section 12(1)(c) of
the Hindu Marriage Act, 1955, as prayed for. This Civil Miscellaneous
Second Appeal is allowed. No cots.
18.09.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The III Additional District Judge,
Tirunelveli, Tirunelveli District.
2.The Sub-Judge,
Tirunelveli, Tirunelveli District.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras high Court, Madurai.
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SUNDER MOHAN, J.
JEN
18.09.2024
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