N THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 1491 of 2001(B)
1. V.C. USHA
... Petitioner
Vs
1. K.P. SREENARAYANAN
... Respondent
For Petitioner :SRI.A.P.CHANDRASEKHARAN (SR.)
For Respondent :SRI.T.KRISHNAN UNNI (SR.)
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :06/03/2009
O R D E R
K. BALAKRISHNAN NAIR &
M.L. JOSEPH FRANCIS, JJ.
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M.F.A.No. 1491 of 2001 B
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Dated this the 6th day of March, 2009
JUDGMENT
Joseph Francis, J.
This appeal is filed by the respondent/wife in O.P.No.37 of 1998 on the file of the Sub Court, Ottapalam. The said Original Petition was filed by the husband under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act') for divorce. For convenience the parties are referred to as they arrayed in the Court below, i.e. appellant as respondent and respondent herein as petitioner.
2. The facts of the case are briefly as follows. The marriage between the petitioner and the respondent was solemnised on 30.5.1993 and on 6.4.1994 the respondent delivered a child. The petitioner filed the above Original Petition, for dissolution of marriage, on 24.3.1998. The main allegations in the petition are that the respondent and her parents M.F.A.No. 1491 of 2001 had mis-represented to the petitioner about the respondent's educational qualifications and age, that the respondent imputed impotency on the petitioner, that the respondent attempted to commit suicide, that she was having unusual intimacy with her brother-in-law, that the life of the petitioner and respondent became miserable and that the marital relationship has broken irretrievably.
3. The respondent/wife filed a counter stating that the petitioner and his family members wanted only a house wife, who was able to look after the petitioner and the petitioner had no intention to send the respondent to B.Ed. course and that the respondent and her parents had given true facts to the petitioner before the marriage and that there was no misrepresentation leading the petitioner to marry the respondent.
4. In the Sub Court, PWs. 1 and 2 and RWs. 1 and 2 were examined and Exts.A1 to A8 series and B1 were marked. The learned Sub Judge, on considering the matter, arrived at a conclusion that there was suppression of material facts regarding educational qualifications of the respondent prior to the marriage and that there was wilful misrepresentation about the age of the respondent prior to the marriage M.F.A.No. 1491 of 2001 and found that the wilful concealment of the actual date of birth and details about the educational qualification of the respondent prior to and after the marriage amount to cruelty as envisaged under Section 13(1)(ia) of the Act and allowed the Original Petition. The marriage between the petitioner and the respondent, solemnised on 30.5.1993, was dissolved. Against that order, the respondent/wife has filed this appeal.
5. Heard the learned counsel for the appellant and the respondent.
6. There is no dispute that the marriage between the petitioner and the respondent was solemnised on 30.5.1993, that they resided together for about three months and after that the petitioner/husband took the respondent/wife to her house and left there on 29.8.1993 and thereafter there was no cohabitation between them.
7. The petitioner was examined as PW1. According to him, his decision was to marry a girl who is having the required educational qualification to secure employment as a teacher in the nearby school. It is stated that before marriage, the petitioner and his family members M.F.A.No. 1491 of 2001 expressed their intention to secure employment to the respondent after marriage and for that purpose they enquired about the educational qualifications of the respondent and at that time the respondent and her family members informed that she had passed the B.A. Degree in Sanskrit and she is having 45% marks in the main subject. It is stated that even before marriage, the petitioner and his family members expressed their intention to secure admission to the respondent for studying B.Ed. degree course at Bangalore and they expressed happiness and agreed to that suggestion.
8. It is stated that, shortly after marriage, that is, during July, 1993, the petitioner, through one of his friends, arranged one seat for the respondent to study B.Ed. degree course at Bangalore and thereafter directed her to bring the certificates from her house. It is stated that the petitioner and the respondent went to her house for bringing the certificates in order to join the B.Ed. degree course at Bangalore. The petitioner would state that after returning from her house, he asked the respondent to hand over the degree certificate and mark list and at that time the respondent informed that she had M.F.A.No. 1491 of 2001 forgotten to take the certificates. She also informed that she will call her brother over phone and direct him to bring the certificates on the next day. According to the petitioner, on the next day also there was no response from the respondent and on further enquiry she informed that she is not having the required percentage of marks. The petitioner has stated that, after coming to know that the respondent is not having the required percentage of marks for securing admission to the B.Ed. degree course, he tried to contact the Principal, Sanskrit Vidhyapeedam, Puranattukara, Thrissur for securing admission to a course equivalent to the M.A. degree course and he made all arrangements for securing admission in that Vidhyalaya. On further enquiry, he could understand that the respondent has not passed the B.A. Degree course. The petitioner would state that after coming to know that the respondent has not completed the B.A. Degree course, there was an attempt by the respondent to commit suicide after consuming some medicine and due to his timely intervention the untoward incident was averted. It is stated that the respondent insulted the petitioner on several occasions.
M.F.A.No. 1491 of 2001
9. The respondent has stated that before and after marriage, her educational qualification was not a matter for discussion and the petitioner and his family members never enquired about the percentage of marks obtained in B.A. degree examination. It is stated that the petitioner studied only upto S.S.L.C. and he required only a house wife, who is capable of managing his household affairs.
10. While examined as RW1, the respondent has given evidence to that effect. She has stated that the petitioner never discussed with her about her educational qualification before or after marriage. RW1 had admitted that she sent Exts.A4 and A5 letters to PW2, who is the petitioner's mother's sister, and Ext.A7 letter to the petitioner. Ext.A4 is a letter dated 13.9.1993, sent by the respondent to PW2. In Ext.A4 letter the respondent has mentioned about a wrong act done by her, which according to her is an unpardonable one. It is also mentioned in Ext.A4 that prior to that letter, she had sent another letter to PW2. In Ext.A5 letter also, the respondent has mentioned about a wrong and unpardonable act done by her. Ext.A7 is the letter dated 27.2.1993, M.F.A.No. 1491 of 2001 sent by the respondent to the petitioner. In Ext.A7 letter, the respondent has stated that her family members are in great difficulties because of the wrong act done by her. In Ext.A7, it is stated that she intended to disclose that particular fact to the petitioner on the first day of marriage itself, but she refrained from doing so for the reason that she had not even disclosed that fact to her parents. In Ext.A5 letter, the respondent has stated that her father's brother and uncle advised her to study and pass the examination. It is also stated in Ext.A5 that a tuition teacher has been arranged to take classes for her at her house. In Ext.A5 it is further stated that she got her certificates rectified from the University.
11. The petitioner has stated that the respondent and her family members furnished incorrect details about her age prior to the marriage. He has stated that the particulars of the horoscope furnished to him prior to marriage does not pertain to her actual horoscope. It is stated that there was a difference in age by about 3 years than the age furnished to him at the time of marriage settlement. On the basis of an M.F.A.No. 1491 of 2001 application filed by the petitioner, that is, I.A. 1760 OF 2000, the respondent was directed to cause production of her S.S.L.C. book. On the basis of that application, the respondent produced her S.S.L.C. book. The date of birth shown in that S.S.L.C. book is 10.5.1966. PW1 has stated that Ext.A1 is the slip given by the Astrologer after verifying his horoscope and the horoscope of the respondent. It is stated that the family members of the respondent furnished the particulars about the horoscope of the respondent and with that details the petitioner went to an astrologer at Kuttippuram, who, after verification, gave Ext.A1 chit to him. Ext.A1 is dated 5.4.1993. The age of the respondent shown in Ext.A1 is 24 years 4 months and 26 days as on 5.4.1993. . If the age of the respondent shown in the S.S.L.C. book is correct, her age on 5.4.1993 will be 26 years 10 months and 26 days.
12. The petitioner has stated that after marriage, the respondent disclosed that she had not furnished her correct age while furnishing the details regarding the horoscope. The petitioner has stated that prior M.F.A.No. 1491 of 2001 to marriage, there was misrepresentation about the age of the respondent and if he was aware of the actual age of the respondent, he would not have consented to marry the respondent. While examined as RW1, the respondent has stated that there was no suppression of material facts regarding her age prior to and after marriage. Regarding the entries in Ext.A1 document, a specific question was put to RW1 and she has stated that she cannot either affirm or deny as to whether the contents of Ext.A1 are true or correct. The answers given by PW1 reveal that Ext.A1 was the slip given by the astrologer after verifying the horoscope details of the petitioner and the respondent. The S.S.L.C. book produced by the respondent reveal that her age as shown in Ext.A1 is incorrect. Therefore, the contention of the petitioner that there was wilful misrepresentation about the age of the respondent prior to marriage is proved to be true.
13. We have gone through the entire evidence adduced by both sides and we are of the view that the learned Sub Judge is perfectly justified in arriving at the conclusion that there was suppression of M.F.A.No. 1491 of 2001 material facts regarding educational qualification of the respondent and that there was wilful misrepresentation about the age of the respondent/ wife. The main question to be considered in this case is, whether the learned Sub Judge is justified in arriving at a conclusion that the wilful concealment of the actual date of birth and the details about the educational qualifications of the respondent prior to and after the marriage amounts to cruelty as envisaged under Section 13(1)(ia) of the Act or not. The learned counsel for the petitioner, relying on the decision reported in Saly Joseph v. Baby Thomas (1999 (1) KLT
74), argued that since the consent of the petitioner for marriage with the respondent was obtained by misrepresentation, regarding age and educational qualifications and thus his consent was obtained by fraud, the marriage between the petitioner and the respondent is null and void. That decision was rendered under the provisions of the Divorce Act, 1869.
14. According to Section 12(1)(c) of the Hindu Marriage Act, the marriage is voidable on the ground that the consent of the petitioner M.F.A.No. 1491 of 2001 for marriage has been obtained by force or fraud as to the nature of the ceremony or as to material facts or circumstances concerning the respondent. But the present Original Petition was not filed under Section 12(1)(c) of the Act, but under Section 13 of the Act. Clause
(a) of sub section (2) of Section 12 of the Act lays down the conditions, which will dis-entitle the petitioner to obtain a decree of nullity on grounds mentioned under clause (c) of sub section (1) of Section 12. A petitioner will not be entitled to relief under clause (c) of sub section (1) of Section 12, if the petition is presented more than one year after the force ceases to operate or the fraud is discovered. Therefore, the petitioner is not entitled to the relief on this ground unless he satisfies the condition that the proceedings were instituted within an year after the force ceases to operate or fraud is discovered. This is a statutory bar created for entertaining petition on this ground. This is a mandatory provision. It is not open to relaxation or condonation.
15. In the present case, the petitioner discovered the fraud regarding age and educational qualifications of the respondent/wife M.F.A.No. 1491 of 2001 before 29.8.1993. But the petitioner filed the Original Petition on 24.3.1998. Therefore, the petitioner is not entitled for a decree for dissolution of the marriage under Section 12.
16. Section 13(1)(ia) of the Act provides that a marriage can be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, treated the petitioner with cruelty. In the decision reported in V. Bhagat v. D. Bhagat (Mrs) ((1994) 1 SCC 337), it was held that cruelty must be of such a nature that the parties cannot be reasonably expected to live together. In the decision reported in Shyam Sunder Kohli v. Sushma Kohli ((2004) 7 SCC 747), it was held that the court must not lightly dissolve a marriage on the ground of irretrievable break down of the marriage. In the present case, it was the petitioner, who left the respondent in her house three months after the marriage and he was not willing to take her back, even when the respondent was ready to go back. Exts.A5 to A7 written by the wife to the petitioner would show that she was crying for mercy and pleading fervently to take her back M.F.A.No. 1491 of 2001 to the matrimonial home. But all her pleas fell on deaf ears. The facts unfolded through those letters would show, the petitioner was very cruel to his wife. Irretrievable break down of marriage is not a ground of divorce by itself. No decree can be granted on the ground of irretrievable break down of marriage, if the party seeking divorce on this ground, if himself or herself, is at fault.
17. The learned counsel for the petitioner submitted that after passing of the decree for divorce, the petitioner had married another woman and therefore if the decree for divorce is set aside the second marriage will become void. That is not a ground sufficient to confirm a decree for divorce. Since the concealment of actual date of birth and details about educational qualifications of the respondent prior to marriage and after the marriage cannot be said to be cruelty, coming under the purview of Section 13(1)(ia) of the Act, the learned Sub Judge was not justified in allowing divorce under that provisions of the Act.
18. Accordingly, this appeal is allowed. The order in O.P. 37 of 1998 on the file of the Sub Court, Ottapalam, allowing divorce M.F.A.No. 1491 of 2001 under Section 13(1)(ia) of the Act is set aside. That Original Petition is dismissed without cost. The parties are directed to suffer their respective cost. The respondent/wife is at liberty to initiate appropriate proceedings against the petitioner for getting maintenance for herself and her child, as no decree of divorce is passed in the Original Petition.
(K. BALAKRISH
