Posted On by &filed under Gujarat High Court, High Court.


Gujarat High Court
Neena Abraham vs Raji Eappen on 12 September, 2000
Author: C Buch
Bench: C Buch


JUDGMENT

C.K. Buch, J.

1. This is a Christian Marriage Petition filed bythe petitioner wife under
sec. 18 & 19 of the IndianDivorce Act for declaring the marriage between
thepetitioner and the respondent held on 13.11.1995 atVadodara as null and
void.

2. The petitioner-wife Neena Abraham has filed thispetition for the aforesaid
relief on the ground that herconsent for marriage was obtained under a fraud
andmisrepresentation by the respondent husband Raji Eappenby concealing
important social, educational and religiousaspect. Before going to the merits of
the petition, Iwould like to mention that the averments made in thepetition are
not substantially challenged or controvertedby the respondent husband by leading
oral as well asdocumentary evidence.

3. On 30.8.2000, when this matter was called out,after hearing learned
advocates appearing for theparties, their suggestions on the issues and
consideringthe rival contentions in the pleadings, this Court (Coram :
P.B.Majmudar, J ), vide order dated 30.8.2000,framed following issues :-

(A) Whether the respondent was lunatic at thetime of marriageand whether
hecontinued tobe so at the time of filingof this petition ?

(B) Whether consent of the petitioner wasobtained by fraud,
misrepresentation andnon-disclosure of material fact at thetime of her marriage
with the respondent?

(C) What order ?

4. It is contended by the petitioner that theparties
are Christians by birth and belonging to Marthomacommunity. Their marriage was solemnised on 13.11.1995at Makarpura Church, Vadodara in accordance with thereligious rites of Christians. Marriage was arranged asboth the spouses were introduced and met through amatrimonial advertisement published in “Times of India”,Ahmedabad Edition. It was stated in the advertisementthat the respondent husband is residing at Jabalpur(M.P.), the petitioner wife responded to theadvertisement and accepted the stated facts as to thestatus, educational qualifications etc.of therespondent husband disclosed before her.However, after marriage, petitioner wife realised that the respondent husband had concealed following important facts fromher:-

(i) That the parents of the
respondenthusband and other family members are notpractising Marthoma, but they belong toanother denomination known as”Pentecostals”.

(ii) Educational qualification was alsosuppressed. The petitioner is
PostGraduate in the faculty of Commerce andrespondent husband was only a
B.Com.

(iii) That the petitioner was told that therespondent husband was working
as StationManager in Jabalpur, but in fact, he wasworking as Assistant Station
Master in aremote village in Jabalpur District.

5. Parties have agreed to lead evidence byaffidavits. The facts averred in
the petition are statedon oath in the affidavit filed by the petitioner
todaywhich is taken on record. Surprisingly, the respondenthusband has not
cross-examined the deponent – petitioner,nor has filed any counter affidavit.
Learned counsel Mr.Thakor appearing for the respondent husband has filed apursis
stating that the respondent husband does not wantto cross-examine the
petitioner. Respondent husband hasnot even cared to ask the petitioner to enter
into thewitness box for cross-examination. Thus, as stated,there is no contrary
evidence on record qua the avermentsmade in the petition as well as affidavit
filed by thepetitioner. Hence, the averments made have
remaineduncontroverted.

6. Learned counsel appearing for the petitioner wifehas fairly submitted that
rest of the allegations made bythe petitioner are not substantiated by any
cogent oralas well as documentary evidence and, therefore, he is notpressing the
decree on the grounds reflected in issueno.(A) framed by this Court. He,
however, submitted thatthis petition can be decreed as prayed for on the
groundsreflected in issue no.(B). In view of this fairsubmission, issue no.(A)
is answered in the negative forwant of evidence on record.

7. As stated earlier, no oral as well as documentaryevidence is adduced by
the respondent husband tocontrovert the averments made by the petitioner.
Theaverments made have remained uncontroverted. Thus, theaverments made by the
petitioner wife regarding fraud,misrepresentation and non-disclosure of true
facts areestablished by the petitioner wife more particularly whenthe respondent
husband has not cared to controvert thesame by filing counter affidavit or
leading anyevidence.It is submitted and proved that ordinarily, noMarthoma would
marry a person belonging to a familypractising Pentecostal. Family members of
the respondenthusband including his brothers are practisingPentecostal. Thus, it
is established that the consent ofthe petitioner wife for marriage was obtained
undermisrepresentation and non-disclosure of true facts.Since, both the families
were unknown to each other andcame in to contact for the first time through
matrimonialadvertisement published in Times of India, respondenthusband must
have easily defrauded the petitioner wife.

8. In response to the query raised by this Court,learned counsel appearing
for the petitioner has citedone decision in the case of Saly Joseph v/s Baby
Thomas,reported in AIR 1999 Kerala P.66 wherein it is held thatthe decree of
annulment of marriage can be granted onproving by the wife that she was very
particular aboutquality of person which was concealed from her andhusband
obtained her consent for marriage by exercisingfraud by concealing educational
qualifications. In thecase before Kerala High Court, the petitioner wife
hadgiven evidence to the effect that if she was made tobelieve that the opponent
husband has passed Pre-degreeexamination and two years Diploma Course in
AirConditioning and is employed as Air Condition Mechanic inthe Government
Service in Beharin. But in fact thehusband was not having diploma in Air
Conditioning and hehad not even passed Pre-degree examination and hisservice at
Beharin was of a salesman. Had she knew aboutthis, she would not have given her
consent for marriage.In my view, ratio of this judgment squarely applies tothe
facts of the present case. But for the fraud andrepresentation as to the family
background, educationalqualifications and job by the respondent husband,
thepetitioner would not have consented for marriage and,therefore, she is
entitled to the decree for annulment ofmarriage on the ground of fraud and
misrepresentation.Normally, a post-graduate lady in commerce facultystaying in a
city like Baroda, would not like to marry aperson having less educational
qualifications and servingin a remote village in Madhya Pradesh. I am told
thatpetitioner wife now is having degree of M.B.A. A ladywho intends to study
further would not opt to go and stayat a remote place where there is no
facilities toprosecute her further studies of M.B.A. which requiresregular
attendance in an Institution. It appears thather consent for marriage must have
been obtained in agiven hope that in the city like Jabalpur she would beable to
prosecute her further studies. There issufficient legal evidence to show that as
she was made tobelieve that respondent husband is staying/residing atJabalpur
and serving as a Station Manager in Railways.Under the circumstances, this is a
fit case where decreeas prayed for by the petitioner should be granted.

9. It is pertinent to note further that noeconomical or financial aspects are
involved in thematter today as the relief qua the same has already beendeleted
on the previous date of hearing as not pressed.I am also satisfied that this is
not a case of collusionbetween the parties.

10. In view of facts and circumstances as statedabove, I answer Issue
No.(A) in the negative and IssueNo.(B) in the affirmative.

11. Accordingly, this petition is allowed. ThisCourt, hereby declares
that the marriage betweenpetitioner wife Neena Abraham, R/o Vadodara AND
RajiEappen, R/o Jabalpur (Madhya Pradesh) solemnised on13.11.1995 at Vadodara
was null and void on the groundthat the consent of the petitioner wife for
marriage wasnot free consent and was obtained under fraud andmisrepresentation.
The decree of annulment of marriageis, therefore, granted and same should be
drawnaccordingly. Considering the facts and circumstances ofthe case, no order
as to costs.


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