Orissa High Court

Bipasha @ Bipasa Sahoo vs Amitava Basu on 10 November, 2023

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                         MATA No.19 of 2016
                               &
                         MATA No.18 of 2016

Bipasha @ Bipasa Sahoo                        ....                          Appellant
                                                                 (In both the appeals)
                                      -versus-

Amitava Basu                                  ....                        Respondent
                                                                 (In both the appeals)


Learned advocates appeared in the case:

For appellant                 : Mr. Pabitra Kumar Nayak, Advocate
                                Mr. H. B. Dash, Advocate
                                Mr. A.C.R. Das, Advocate


For respondent                : Mr. Goutam Mukherji, Senior Advocate
                                Mr. A. C. Panda, Advocate
                                Mr. S. Sahoo, Advocate
                                Mr. S. D. Ray, Advocate

CORAM:
                 JUSTICE ARINDAM SINHA
                 JUSTICE SIBO SANKAR MISHRA
-----------------------------------------------------------------------------------
         Dates of hearing : 7th and 10th November, 2023.
         Date of judgment : 10th November, 2023
 ---------------------------------------------------------------------------------
ARINDAM SINHA, J.

1. The two appeals have been preferred by respondent-wife

against common judgment dated 28th January, 2016 of the family

// 2 //

Court dealing with two civil proceedings. MATA no.18 of 2016 is

appeal by appellant-wife against decreeing the civil proceeding filed

by respondent-husband, annulling the marriage under section 12(1)(c)

in Hindu Marriage Act, 1955. MATA no.19 of 2016 is the other

appeal preferred by appellant-wife on being aggrieved because her

civil proceeding for restitution of conjugal rights was dismissed.

2. Considering allegation regarding fraud relating to burn injury

on body of appellant-wife, we by our order dated 7th November, 2023

had directed hearing of the appeals 'in camera' as fixed today. The

hearing has been held upon Mr. Nayak, learned advocate appearing

for appellant-wife and Mr. Mukherji, learned senior advocate, for

respondent-husband, having had made their submissions.

3. There was no documentary evidence tendered before the

family Court. Impugned judgment was made based on oral evidence

of party witnesses. We have perused impugned judgment and for the

findings therein, reliance was mainly on the oral evidence of

respondent-husband, appellant-wife and one Snehalata Mohapatra,

who had brought families of the parties together for negotiating the

marriage.

// 3 //

4. First, civil proceeding for annulment of marriage was filed by

the husband. It was marked Civil Proceeding no.82 of 2011.

Appellant-wife, thereafter, filed for restitution of conjugal rights,

which was registered and numbered as C.P. no.216 of 2011. We are

told the proceedings were tried one after the other for there to be two

sets of pleadings and evidence.

5. Section 12(1)(c) provides for a marriage to be voidable as

may be annulled by decree of nullity on the ground, consent of

petitioner was obtained by fraud as to any material fact or

circumstance concerning respondent. In the civil proceeding for

annulment, the husband alleged fraud by active concealment of fact of

respondent bearing scars of burn injury, to her knowledge, with intent

to deceive and induce him to consent to the marriage. The Court

below found in favour of the husband. Accordingly, the civil

proceedings resulted, one in decree for annulment and the other for

restitution, in dismissal.

6. We have perused impugned judgment. We reproduce below

paragraph 8 therefrom.

"8. In the present case the petitioner-husband while deposing as P.W.1 in Civil Proceeding No.82 of 2011 has stated that on 26.3.2011 night which was their

// 4 //

fourth-night surprisingly he noticed mark of burn injury from the belly to the knee of the respondent covering the entire portion which looks ugly and for that he left the room and the marriage could not be consummated. He has also stated in his evidence that on 27.3.2011 he came back to his house and informed the said fact to his father. The respondent-wife in the said case deposed as R.W.1 and in her cross-examination she has admitted that on the fourth-night (Chouthi Rati) the petitioner had seen burn injury on her vaginal area. No where in her evidence R.W.1, the respondent-wife in Civil Proceeding No.82 of 2011 has specifically stated that the fact of the burn injury on her vaginal area was informed to the petitioner. She has simply stated in para-10 of her evidence that prior to the marriage everything was frankly discussed with the parents of the petitioner in presence of the well-wishers and mediator of both the parties at her house. The said evidence of the respondent-wife does not receive any corroboration. Her mother Binu Bala Sahoo deposed in the court as R.W. 2 in Civil Proceeding No.82 of 2011. She has stated in para-3 and 4 of her evidence that during the marriage negotiation she herself and her husband had gone to the house of the petitioner-husband on 18.2.2011 to discuss in details on the marriage and at that time she had disclosed everything about the burn injury on the lower parts of the body of her daughter, the respondent, to the petitioner and his parents and after her such disclosure the petitioner and his parents came to their house to ascertain about the facts and the

// 5 //

mother of the petitioner saw the burn injury of her daughter (respondent) in their bed room and gave opinion that they have no problem and the marriage can be solemnized. The said evidence of R.W.2 does not receive any support from the evidence of R.W.1, the respondent wife herself. No where in her evidence, the respondent-wife (R.W.1) has stated that her mother-in- law had seen the mark of burn injury in between her belly to knee in the bed room of her parents house. So, it is nothing but a subsequent development to the case. No where in his evidence R.W.1, the respondent-wife has stated that their fourth-night was celebrated other than 26.3.2011. P.W.1, the petitioner-husband has specifically stated that their fourth-night was celebrated on 26.3.2011. It is not disputed that on 28.3.2011 the respondent-wife was sent with her father to her parents house and since then she is residing there. The respondent-wife while deposing as P.W.1 in Civil Proceeding No.216 of 2011 has stated in para-6 of her evidence that in the mean time she requested her husband to accompany her to her parents house to a courtesy visit but her husband with the plea of his ill- health did not accompany her and she came to know that her husband has shown indifferent attitude towards her and not interested to pass time with her. This evidence of the wife gives an assumption that by seeing the mark of burn injury in question the petitioner-husband remained away from the wife. The husband, who is the respondent in Civil Proceeding No.216(216) of 2011 has examined the mediator of the marriage Smt.

// 6 //

Snehalata Mohapatra as R.W.2. The petitioner-wife in that case has not disputed that the said Smt. Snehalata Mohapatra was the mediator of the marriage. R.W.2, Smt. Snehalata Mohapatra, has stated in her evidence that she was the mediator of the marriage in between Amitava Basu, the petitioner-husband and Bipasa Sahoo, the respondent-wife. She has further stated in her evidence that she had no knowledge about the burn injury on the private parts of the respondent-wife at the time of the negotiation of the marriage as the said fact was not disclosed to her either by herself or by her parents. She has further stated in her evidence that since the said fact of burn injury was not disclosed to her she did not say anything regarding that burn injury to Amitava Basu (petitioner-husband) or his parents. In this case burden lies on the respondent-wife to prove by cogent evidence that the mark of burn injury in question was disclosed to the husband-petitioner, but she has not discharged the said burden of proof. On the other hand the petitioner-husband has categorically stated that the said fact of mark of burn injury on the private part of the respondent-wife was concealed to him and the consent was obtained by playing fraud on him. The mediator of the marriage, R.W.2, in Civil Proceeding No.262(2016) of 2011 has categorically stated that the said fact of mark of burn injury on the private part of the respondent-wife was not disclosed to the petitioner- husband during the negotiation of the marriage. So, from the aforesaid evidence on record it can be safely held that the mark of burn injury from the belly to the

// 7 //

knee of the respondent-wife, which looks ugly is a material fact and the said fact was not disclosed to the petitioner-husband during the marriage negotiation and as such fraud was committed on him and on such fraud he had consented to the marriage in between him and the respondent-wife and as such the marriage in between the petitioner-husband and the respondent-wife solemnized on 11.3.2011 is voidable one and shall be annulled by a decree of nullity as prayed for by the petitioner-husband. Hence, I come to a finding that the consent of the petitioner-husband was obtained for the marriage in between the petitioner-husband and respondent-wife solemnized on 11.3.2011 at Rourkela by fraud as to the material fact of burn injury from the belly to the knee of the respondent-wife and the said marriage is a voidable marriage under section 12(1)(c) of the Hindu Marriage Act, 1955 and the petitioner husband is entitled to get annulled of the said marriage by a decree of nullity. Issue Nos.1, 2 and 4 are answered accordingly."

(emphasis supplied)

7. For purpose of adjudication of the appeals we looked at

evidence adduced in C.P. no.82 of 2011 (for annulment). We

reproduce below paragraphs 3 and 7 from examination-in-chief in

shape of affidavit dated 9th December, 2013, of the husband.

// 8 //

"3. That the said marriage is purely one negotiation marriage prior to the marriage my parents went to the house of the respondent at Rourkela and saw her appearance and sincerely entailed from her parents about the respondent at the relevant time the mother and father of the respondent specifically stated that there is no problem with the respondent, believing their version I along with my parents gave our consent to the said marriage and accordingly it was celebrated by both the parties belongs to hindu and governed by Hindu law.

xxx xxx xxx

7. That on 26.3.11 night i.e. on the date of fourth night surprisingly I noticed the mark of burn injury from the belly to the knee of the leg of the respondent which cover its entire portion and looks ugly for which I left the room and without saying anything to my parents went outside. I have not consummated my marriage with the respondent by keeping any physical relationship with her the moment I have noticed it out of sorrow I left the house on dated 27.3.11 I came to my house and informed every things to my father."

(emphasis supplied)

There was brief cross-examination, on 1st May, 2014. Subsequently,

the husband was recalled for further cross-examination on 8th

September, 2015. Depositions of entire cross-examination are

reproduced below.

// 9 //

"18. It is not a fact that I have deposed all falsehood. It is not a fact that the family members of respondent has not cheated me suppressing the burning condition of the respondent. It is not a fact that I have deserted the respondent without any reasonable cause. It is not a fact that I am not entitled for any relief.

19. It is not a fact that my marriage with the respondent was consummated by co-habitation in the fourth night. All the articles which the respondent had brought to our house at the time of marriage as per custom are still with me and I am ready to return the same. It is not a fact that the Voter's identity card of the respondent is with me. It is not a fact that after eighteen days of our marriage I took the respondent to her father's house and left there. It is not a fact that there is no ground for nullity of our marriage and I have filed this case on false grounds."

(emphasis supplied)

8. Appellant-wife in her examination-in-chief denied the

allegation of discovery and asserted consummation of marriage.

Paragraphs 6 and 7 from her evidence on affidavit dated 9th

November, 2015 are reproduced below.

"6. That with regard to allegations in para-6 where in the Petitioner alleges on the date of Forth-Night on 26/03/2011 night the Petitioner noticed the mark of burn injury from the belly to the knee of the leg of me which cover its entire portion and looks ugly for which the

// 10 //

Petitioner left the room for which the marriage was not consummated and we could not lead a life of husband and wife and after the marriage till the day of filing of this case there is no sexual relationship and for this reason the Petitioner do not want to stay with me, all these allegations are false and baseless. The Petitioner ought to prove this allegation.

7. That our marriage was not a Love marriage but an arranged marriage as the parents of both parties have arranged this marriage and marriage was solemnized according to Hindu Law in presence of family members and well wishers. The marriage was also consummated at the house of the Petitioner, after consummation both of us lead happy conjugal life continuously for a period of nine days. But due to the Petitioner's behavior, I became mentally upset during this physiological trauma. Hence the Para is denied."

(emphasis supplied)

In cross-examination appellant-wife had admitted the discovery on

the fourth night as alleged. She also said that on 28th March, 2011

respondent-husband brought her to her father's house and left her

there. Paragraphs 14 and 15 from her deposition in cross-examination

on 14th December, 2015 are reproduced below.

"14. It is a fact (Eha Satya Ate) that on the fourth day night (Chouthi Rati) the petitioner had seen the burn

// 11 //

injury on my vaginal area. It is not a fact that the petitioner asked me about the said burn injury then and there.

15. It is not a fact that soon after our "Chouthi Rati" the petitioner called my parents to inform about my burn injury on my vaginal area and my parents did not come to the house of the petitioner. On 28.3.2011 the petitioner brought me to my parents house and there he left me. It is a fact (Eha Satya Ate) that after leaving me in my parents house on 28.3.2011 the petitioner had called my parents to his house to discuss on the burn injury in my vaginal area."

(emphasis supplied)

9. We have also been shown evidence adduced in the other civil

proceeding, for restitution. Submission was made on behalf of

respondent-husband, he had deposed therein that upon complaint

made to petitioner's employer he lost his job and there was no cross-

examination. Be that as it may, following does appear from evidence

adduced in the annulment case before the Court below.

i) The marriage was on result of negotiation. Respondent

had consented to get married to appellant. The marriage was

solemnized.

ii) Allegation made by husband regarding discovery of

burn injury mark including on private part of appellant-wife

stood corroborated by appellant herself. In the context,

// 12 //

appellant's counter allegation of prior consummation was

made without particulars as would appear from paragraph 7 of

her evidence-in-chief, reproduced above.

iii) There is no dispute that on discovery, respondent-

husband left company of appellant-wife. The shock of

discovery thus becomes evident.

iv) There is further evidence that separation happened

thereafter, on appellant-wife being taken to her parental home

and left there.

10. We had enquired of the parties to show us from materials on

record how appellant-wife came to have her injury, said to be suffered

by her in her childhood. There is nothing. In absence of this essential

fact we cannot fault the Court below for disbelieving allegation of

prior disclosure. Preponderance of probabilities also support that

injury from waist downwards, leaving scar on body of a young

woman, is likely to remain covered in usual course.

11. On behalf of appellant following cases were cited.

i) Anath Nath De Vs. Sm. Lajjabati Devi, reported

in AIR 1959 Calcutta 778. This was a case in a suit decided

// 13 //

by the learned single Judge sitting on the Original Side of the

High Court, Calcutta. Briefly, facts were that the wife was

suffering from tuberculosis, not disclosed to the husband. The

learned single Judge took view there were two stages for

consent. Firstly, at negotiation and secondly, when the

marriage was solemnized. At trial, issue regarding disclosure

of cause of action was answered in favour of the wife, on

finding omission to allege there was no consent at

solemnization of the marriage. The learned judge also took

view that reading provisions in sections 5 and 13 along with

provisions in Divorce Act, 1869, since amended, there is clear

suggestion that concealment of a disease, other than those

mentioned in aforesaid sections, cannot be foundation for

avoiding a marriage. The case is distinguishable on facts.

Regarding consent there was clear averment by the husband in

paragraph 2 of his petition in the annulment case and

reiterated in his evidence affidavit. The evidence is, at the

relevant time mother and father of the wife specifically stated

that there is no problem with respondent. The husband along

with his parents gave consent to the marriage and accordingly

it was celebrated. Hence, consent given at the time of proposal

// 14 //

was basis for solemnization of the marriage. In this case

appellant-wife nowhere pleaded, let alone she nor her party

witnesses allege from the box that there was consent

separately given at the time the marriage was solemnized. As

such, in an appropriate case, view taken by the learned Judge

on two stages of consent in a Hindu marriage might be

examined. Further distinguishing feature is that annulment

was sought for concealment of a fact regarding the wife as

opposed to she concealing her suffering from a pre-existing

disease.

ii) Ruby Roy Vs. Sudarshan Roy, reported in AIR

1988 Calcutta 210. This was a judgment on appeal rendered

by a Division Bench of the Calcutta High Court. In that case

the marriage also was one upon negotiation. Clear case made

out on side of the wife was that defects in her form bearing

burn marks were informed to the husband's father. The

husband in his evidence said that talks, which took place

between his father and the wife's side (at negotiation), were

not known to him. Inter alia, on those facts the Division

Bench set aside the decree for annulment of the marriage. In

this case, facts found by the trial Court are clearly that there

// 15 //

was no disclosure at negotiation. It was nobody's case that

there was disclosure at solemnization of the marriage. The

trial Court found discovery made by the husband post

marriage, on the fourth night (chouthi rati). As such, this

decision too does not help appellant.

iii) S. Mahender Vs. Smt. Shalini, reported in AIR (2014)

AP 43. A Division Bench in the High Court of Judicature at

Hyderabad for the States of Telangana and Andhra Pradesh

decided the appeal in setting aside decree for annulment

passed by the trial Court saying Psoriasis is not a contagious

disease nor does it constitute a ground for divorce under

section 12(1)(c). This view was taken in line with Anath

Nath De (supra) though without referring to the judgment. It

has no application to the case at hand.

iv) Mayank Vs. Neha Malhotra (Kohli), reported in

(2016) 4 MhLJ 340. In this case the husband had appealed to

the Nagpur Bench of the Bombay High Court from the trial

Court's decision to dismiss the petition for annulment and

direct restitution of conjugal rights. Facts were, the wife had a

scar below her neck. To demonstrate this judgment too is

// 16 //

inapplicable on facts, reproduction below of paragraph 29 will

be sufficient.

"29. Perusal of these pleadings and perusal of evidence of appellant husband and respondent wife shows that appellant husband got knowledge of the scar, even as per his say on 11.12.2011 in the night. It was the first night of the newly weds. He saw the scar completely & in natural form, in the morning on 12.12.2011, when respondent wife came out of bathroom after taking bath. He found the scar of strange type and िघनौना i.e. heinous or repulsive. He nowhere states that thereafter he could not have physical relation with his wife on first night or he did not sleep with his wife in same room or there were no physical relations between them after he saw the scar fully. He points out visit to Dr. Henry on 27.12.2011. If he and his family members had any exchange with parents of wife about the illness or scar on the lines alleged on 12.12.2011 itself and they were aggrieved because of fraud played, the relations between the new couple would not have been normal. There could not have been physical relations between them thereafter and the appellant or his parents would not have waited till 27.12.2011, when respondent wife was taken to a dermatologist at Bilaspur."

(emphasis supplied)

12. On behalf of the husband, though a list of citations and copies

of judgments were handed up but none was specifically cited.

// 17 //

13. In view of our analysis of the evidence we agree with findings

on fact made by the family Court. Impugned common judgment is

therefore confirmed.