• Can I get divorce on the ground of epileptic wife

I was married in 2013. My wife had epilepsy, depression, anxiety problems that they succeed to hide from me before marriage.  I came to know this after marriage.  We talked with them and they said now we can not do anything.  You have to accept her.  I was ready to accept her but some time she can not even able to work day to day  routine.  We decided to put her at father home for some time so that she can relax.  They don't like this.  They filled 498A, Crps 125, domestic violence 2005, restitution of marriage  according to section 9.  
Case are running since 3 years.  Now can I file divorce petition?
Asked 9 months ago in Family Law from Bhavnagar, Gujarat
Religion: Hindu
1) you can file doe divorce on any of the grounds recognised by HMA 

2) merely because your wife is suffering from epilepsy, depression, anxiety problems  is no grounds for divorce . 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
Calcutta High Court
Piyali Halder vs Rathin Kumar Halder on 17 June, 2005
Equivalent citations: 2005 (4) CHN 690
Author: B Bhattacharya
Bench: B Bhattacharya, S K Gupta
JUDGMENT

Bhaskar Bhattacharya, J.

1. This appeal has been preferred by a wife under Section 19 of the Family Court Act being dissatisfied with the judgment and decree dated 12th April, 1999 passed by the learned Judge, Family Court in Matrimonial Suit No. 149 of 1997 granting a decree for judicial separation in favour of the husband.

2. The husband filed the aforesaid proceedings in the Court of the learned District Judge for annulment of the marriage of the parties on the ground that his consent in such marriage was obtained by suppressing the fact that the wife was suffering from epilepsy.

3. The present appellant filed written statement denying the allegations made in the plaint and ultimately the suit was transferred to the Family Court. After such transfer, the husband came up with an application for amendment thereby praying for an alternative remedy of decree for dissolution of marriage by divorce on the ground, of desertion and cruelty and such amendment was allowed.

4. At the time of hearing of the aforesaid suit three witnesses were examined on behalf of the respondent while an equal number of witnesses also appeared on behalf of the present appellant. Various documents in support of the plea that the wife was suffering from epilepsy were marked as exhibits.

5. The learned Trial Judge came to the conclusion that the present appellant was suffering from epilepsy before her marriage in 1988. The learned Court, however, found that by filing an application for amendment thereby incorporating the prayer of divorce on the ground of desertion and cruelty and further by giving suggestion to the wife in cross-examination whether she was agreeable to accompany him to his house, the husband had waived the ground of alleged fraud. The learned Trial Judge further held that there was no material to hold that there was any act of fraud on the part of wife or she was involved in any connivance.

6. On the question of desertion, the learned Trial Judge specifically arrived at the conclusion that the suit having been filed on 9th February, 1993 and the wife having stayed separately from 29th August, 1992, the alleged desertion was for a period of less than two years and it did not attract Section 13(1)(b) of Hindu Marriage Act.

7. He further found that the wife refused to go back to her husband's house and to lead conjugal life without any reasonable excuse and according to the learned Trial Judge, such act amounted to cruelty. The learned Trial Judge further held that suppression of material fact before the marriage that the appellant was suffering from epilepsy also amounted to cruelty notwithstanding the fact that the wife was not found to be guilty of fraud for such suppression.

8. Accordingly, the learned Trial Judge concluded that the present appellant treated the respondent with cruelty and taking into consideration the facts and circumstances of the case decided to grant a decree for judicial separation in favour of husband.

9. Being dissatisfied, the wife has preferred the present appeal.

10. The husband has on the other hand filed a separate cross-objection contending that the wife having been found to be guilty of cruelty, there was no reason to grant a decree of judicial separation and as such, the husband was entitled to get a decree for divorce for such cruel treatment; It was further contended that the learned Trial Judge ought to have declared the marriage as a nullity on the ground that the fact of the epilepsy of the wife was suppressed at the time of marriage and as such, the concealment was sufficient for annulling the marriage as one of the conditions of valid marriage was absent on the part of the wife.

11. After hearing the learned Counsel for the parties and after going through the materials on, record we find that the learned Trial Judge has specifically arrived at the conclusion that the husband is not entitled to get a decree for divorce on the ground of desertion as the required time for desertion was not completed at the time of institution of suit. The learned Trial Judge; however, held that although there was no desertion for the required period yet it has been established that desertion for that short period was without any just cause and according to the learned Judge, such refusal amounted to cruelty. The learned Trial Judge although in one portion of the judgment came to the conclusion that there was no fraud on the part of wife in the matter of procuring consent, nevertheless held that suppression of the disease of epilepsy amounted to cruelty and thus, granted decree for judicial separation on the ground of cruelty.

12. According to Section 13 of the Hindu Marriage Act, act of cruelty can afford a ground of divorce or judicial separation provided such cruelty is committed by one of the spouses after the solemnization of marriage. Therefore, if before marriage, fact of epilepsy was concealed, even if we assume such concealment to be cruelty for the sake of argument, the same having been committed before marriage, cannot enable a party to get a decree for divorce or judicial separation. Similarly, in Section 13, of the Hindu Marriage Act there being specific ground of cruelty apart from desertion for more than two years, the learned Trial Judge, in our view, committed gross error of law in treating desertion for less than, two years as an act of cruelty. When the legislature specifically intended that desertion less than two years would not afford a ground of divorce or judicial separation, the self-same act cannot take the shape of cruelty so as to enable a party to get those very relief. In our view, desertion even without just cause for less than two years cannot at any rate amounts to cruelty within the meaning of Section 13 of the Act and thus the learned Trial Judge acted illegally in granting a decree for judicial separation on the basis of such erroneous finding or cruelty. Moreover, in this case, merely because at the time of hearing, the husband offered to take back wife and the wife said that she would think over the matter after the examination of the son was over such answer of the wife cannot lead to the inference that she deserted the husband. When the husband has filed a suit for annulling the marriage and was proceeding with the suit, no adverse inference can be drawn against the wife for turning down the proposal of the husband to return to the matrimonial home.

13. We, thus, find that the decree for judicial separation granted by the learned Trial Judge was patently illegal as the husband failed to prove cruelty on the part of the wife after solemnization of the marriage.

14. As regards pross-objection filed by the husband we are, of the view that there being no cruelty on the part of wife within the meaning of Section 13 of the Hindu Marriage Act, the husband cannot claim divorce on the ground of cruelty and we find no substance in such a group taken in cross-objection. As regards the other ground taken in the cross-objection that the marriage should be declared to be nullity is equally devoid of any substance. The legislature has during the pendency pf this appeal amended Section 5 of the Hindu Marriage Act by making it clear that epilepsy will not be a disqualification of valid marriage. Such being the position, today we cannot grant a decree for declaration that the marriage was a nullity when during the pendency of the present proceedings epilepsy has been deleted from the mischief of Section 5 of the Act. Although, Mr. Basu appearing on behalf of the husband strenuously contended before us that at the time of institution of the suit epilepsy being a disqualification, his client's right cannot be taken away by subsequent amendment, we are not at all impressed by such submission. The legislature in its wisdom as a public policy having decided to exclude epilepsy from the list of disqualifications of a valid marriage, such amendment will be applicable even to a pending proceeding and as such, this Court now cannot hold that the marriage should be declared to be a nullity on the ground that the wife was suffering from epilepsy at the time of marriage. Therefore, notwithstanding the finding of the learned Trial Judge that the wife was suffering from epilepsy before marriage, the husband is not entitled to get declaration of nullity as the said disqualification has been removed during the pendency of the proceedings. (See Lakshmi Narayan Guin and Ors. v. Niranjan Modak, )

15. We, thus, find no merit in the cross-objection filed by the husband.

16. On consideration of the entire materials on record, we, thus, set aside the decree of judicial separation passed by the learned Family Court. The appeal is, thus allowed. The cross-objection filed by the respondent is, however, dismissed. In the facts and circumstances, there will be, however, no order as to costs.

Sadhan Kumar Gupta, J.

17. I agree.
 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
HI 
Sorry to say . epilepsy once was a grounds for divorce. but it has since year 1986 been removed from the  list of disqualifications of marriage. So it can no longer be grounds for divorce. 
However since there are other cases such as 498/A, DV filed by her, these can be grounds for divorce as the marriage has irretrievably broken down and there is no further chances of reconciliation.
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Hi, you can file a petition for divorce on the above ground but as per law if it is curable then you get the relief under law.

2. It is better you can file a petition for divorce on the ground of cruelty along with the above and one more filing a false case also amount to cruelty so based on that also you can file a petition for divorce.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
Divorce can not be filed based on epileptic as per Hindu marriage Act, you may file a divorce petition based on cruelty if any.

Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
Epilepsy cannot be a ground for divorce nor the depression or anxiety problems.
However the false cases in the form of 498a, DV act etc can be a reason for mental cruelties and this can be a ground for divorce. 
You can file a divorce petition on the grounds of cruelties
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
You are free to file for divorce on the ground of cruelty committed by your wife. The fact that she has filed false cases will have to be proved in the court. The epilepsy of your wife is not a ground for divorce. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
1) has any order been passed for interim maintenance

2) if your wife is not working you have to pay interim maintenance

3) if you are not satisfied with your lawyer you are free to engage another lawyer 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
If you feel your advocate is not doing his duty properly, you may immediately change your lawyer. You can inform before the court that you are intending to change your lawyer or planning to attend as a party in person and since your lawyer is not giving NOC, you may be permitted to engage another advocate waiving the requirement of NOC from previous lawyer .
You have engaged a lawyer to fight for your case, the result is in nobody's hand, hence he has to do perform his duty for what he has been engaged for express his unwillingness instead of spoiling your case and future.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
This question cannot be answered unless the pleadings are perused threadbare and the stage of case is known. So consult a lawyer with a complete facts.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0

Ask a Lawyer

Get legal answers from top-rated lawyers in 1 hour. It's quick, easy, and anonymous!
Ask a Lawyer

Family Lawyers

T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12104 Answers
230 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5189 Answers
54 Consultations
4.9 on 5.0
Nadeem Qureshi
Advocate, New Delhi
3523 Answers
130 Consultations
4.9 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0
Atulay Nehra
Advocate, Noida
434 Answers
15 Consultations
4.7 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
4.9 on 5.0
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
5.0 on 5.0