Smt. Kiran Bala Asthana and Anr.VBhaire Prasad Srivastava
Bench: Justice Deoki Nandan
Issue:
- Whether the order passed by the subordinate court to annul the marriage was correct or not?
- Is the respondent's consent to the marriage was obtained by fraud?
Facts:
- The present case is filed by appellant that is an appeal against the decree of the subordinate court dissolving her marriage with the respondent husband by a decree of divorce under the Hindu Marriage Act on the ground that the appellant has been incurably of unsound mind within the meaning of Clause (iii) of Sub-section (1) of Section 13 of the Act.
- The respondent husband also contended that the consent for marriage was taken by fraud as he was not aware of the fact that the appellant was already married once, before their marriage and the fact that the 1st marriage of appellant was annulled on the ground that the appellant was not mentally sound at the time of marriage was also not disclosed.
- The court then ordered for medical examination of appellant in which it was later found out that the appellant was suffering from schizophrenia which is curable but at the time of proceeding she was not of sound mind and the husband contended that his wife is not in the mental capability that I shall be able to live with her.
Argument raised by Appellant:
The appellant contended that it was no part of the duty of the appellant or her parents to have gone out of their way to inform the respondent husband of unsoundness of the appellant. It was for the respondent husband to find out all that he wanted to about the appellant, and, in fact, the respondent knew appellant for quite a time before the marriage and married her readily for her good looks. It was not for the appellant or her parents to tell about earlier marriage had been dissolved or that she had been under treatment for a mental ailment earlier. They also contended that a Hindu marriage is not a contract and the principles of Contract Act cannot be applied thereto. It is a sacrament and a Hindu marriage once solemnised according to the Dharma Shastras cannot be annulled or declared void.
Argument raised by Respondent:
The respondent argued that he cannot live with the appellant as she is of not sound mind and he is unable to deal with her and i.e. the reason why he wants to get a divorce from the appellant.
Judgment:
The court stated that the language of Section 12(1)(c) is specific, that read with Clause (ii) of Section 5, imply that there can be no marriage in law without the free consent of the parties. It may be that the consent of the parties may not be expressly asked for or expressly given and a marriage may not be liable to be annulled merely on the ground that a party to it did not consent, nevertheless if it is shown that the facts and circumstances about one of the parties were such that the other party could not have readily consented to marry the other, and there was an element of deception or misrepresentation in bringing about the marriage at the instance of a party, such as to amount to fraud, a Hindu marriage could surely be annulled under Section 12(1)(c) of the Hindu Marriage Act, notwithstanding its sacramental character.
The court also stated that it is well settled that the respondent can’t live with the appellant because of the mental condition. It is a well settled fact that the appellant is suffering from Schizophrenia and her mental disorder, though intermittent, has been of such a kind and to such an extent that the respondent husband cannot reasonably be expected to live with her. It is not correct to say that the mental disorder must be shown to have existed at or before the marriage. This ground for divorce could be one that bad arisen subsequent to the marriage.
The appeal was dismissed.
