JUDGMENT
S.S. Subramani, J.
1. This appeal by the respondent is against the order passed in O.P. No. 425 of 1991, on the file of the Principal Family Court, Madras.
2. The petition was filed under Section 12(1)(c) of the Hindu Marriage Act, for adeclaration that the marriage between the parties that took place on 10.3.1991 at Madras is null and void.
3. The parties in this appeal are referred to as in the Original Petition.
4. The material facts of the case are as follows: The marriage between the petitioner and the respondent took place on 10.3.1991 at Madras. Prior to the marriage, on 30.11.1990, the petitioner’s parents visited the bride’s house to see the girl. It is alleged that the respondent’s father cleverly and cunningly stage-managed every minute of their presence in such a way that the actual seeing of the girl was restricted to less than a minute. It is further alleged that the respondent’s father never allowed the petitioner or his parents to think and react, and, under such conditions, he and his family felt that the negotiations for marriage could go on favourably. In fact, according to the petitioner, the respondent’s father voluntarily cut off the electricity supply on the same date., i.e., on 30.11.1990 with some evil motive. It is also further alleged that the petitioner’s relatives were also permitted to see the girl for a few seconds, that too, at the time of power cut. Thus, the petitioner’s approval for the marriage was that of a dutiful son to the parents. It is said that because the relatives of the respondent were nice people, innocent and uriexposed, he never expected that a fraud will be committed in getting the consent. Even though he saw the girl on 30.11.1990, after negotiations the betrothal took place on 12.12.1990. It is alleged that the respondent is having incurable eye defects, and this fact was suppressed at the time of betrothal. It is said that it was the duty of the respondent’s father to have made specific mention of the real conditions of his daughter and sought for acceptance of the girl. After marriage, the petitioner understood the real conditions of his wife. According to him, the respondent could act only under specific instructions given by her father. She had no self-decision, no self-action and no dynamism, and she was not a girl of normal type. Even she could not wear her saree rightly. So, to diagnose her ailment, she was taken to an eye specialist where it was found that the respondent was suffering from high power of eye defects, i.e., minus 15 and minus 16. The doctor was of the opinion that the defects in the eyes was almost to a blind stage, and that it was a serious affair. According to the petitioner the said defect in the eyes is a material fact and that it has not been disclosed at or before the marriage. It is further stated that the wife told him later on that she was instructed by her father and her family members that she should manage this by hiding the facts somehow or other. It is also stated that certain acts of the wife compelled him to take her to a psychiatrist, where it was found that she could not do a normal duty as a wife and it was also suggested that she is unable to form the marital obligations. It is stated that even after the marriage, in spite of repeated requests, the wife did not reveal anything about her eye disease and also about the wearing of contact lense. Letters were written to her father, but they were not replied. The only explanation offered by the father-in-law was that wearing contact lense was a fashion nowadays and that it is not a material defect. He, therefore, says that there was no proper consent obtained from him for the marriage, and consequently prays for a declaration that the marriage is null and void.
5. The respondent (appellant herein) filed a detailed counter. It is stated therein that there is no suppression of fact. The petitioner as well as his parents saw her during broad day light i. e., between 9.00 a.m. and 10.00 a.m. on 30.11.1990. The electricity supply was also perfect and there was no power-cut. The allegation against her father regarding power-cut is denied. According to her, her husband saw her in close proximity and then only gave consent for the marriage. Even at the time when the petitioner saw her, she was wearing the contact lense, and any person can understand the wearing of such lens even with a naked eye. It is also stated by her that the fact that she was wearing a contact lense was informed by her father to the petitioners father as well as to the petitioner and it was only thereafter, consent was obtained. It is also stated that wearing the contact lens, she has completed her education and graduated herself. She has also completed her M.A. Degree, and she has no incurable eye defect as alleged by the petitioner, and at any rate, the said defect is a curable one, which is not a material fact which affects his or her marital life. It is stated that after she was taken to his house, she was ill-treated cruelly and there was demand for dowry. It was only when the demand could not be act, the present petition was filed with an ulterior motive. It is stated that against her consent, she was taken to a psychiatrist where she was held to be a normal human being having no physical or mental disability. When the Psychiatriast refused to give an opinion in favour of the petitioner, she was attempted to be influenced by another doctor to get a false report. There also, the petitioner was not successful. He has further stated that she was wearing the contact lens during the betrothal function in which all the relations of both the petitioner and herself participated. Everyone know that she was wearing a glass, for, she was wearing it from the age of 16. She was also wearing the same while she was staying at the petitioner’s house. It is further stated that while the respondent was taken to her husband’s house her in-laws ill-treated her in a heartless manner and they tried to remove a mole in her throat without her consent and thereby caused a deep wound in her heck. They compelled her to drink hot coffee and also cut off her locks of hair. When her mother visited her husband’s house, she was ill-treated, and the in-laws of the respondent put forth demands to bring dowry and more jewels. They also demanded heavy cash and a car. The respondent has stated that her husband is now in possession of a diamond ring studded with three stones supplied by her father. She was taken to her house on 24.4.1991. Immediately before that, she was compelled to make a statement by her father-in-law that the eye defect was not informed before the marriage. She was compelled to make such a statement for purchasing peace. She denies all the other allegations in the petition and wanted the petition to be dismissed with costs.
6. In the impugned order, the Family Court has held that the wearing of contact lens was not disclosed at or before the marriage, and that was a suppression of material fact, and hence, the consent for the marriage was obtained by deception. Taking that view, it declared the marriage as null and void, an it is against the said decision, the respondent has come to this Court with this appeal.
7. Before the Family Court, the petitioner examined himself as P.W. 1, and the appellant herein examined herself as R.W. 1. Exs. P-1 to P-11 were marked on the side of the petitioner, and Exs. R-1 to R-3 were marked on the side of the respondent, Exs. C-1 and C-2 are court exhibits.
8. The first question that has to be decided in this case is, whether there was any suppression of material fact concerning the appellant. The further question is, whether the wearing of a contact lens is a material fact which affects the marital relationship so as to annul the marriage;
9. We have only the oral evidence of both the parties. As stated earlier, P.W. 1 is the petitioner. It is stated by him that on 30.11.1990, his parents, first went to the appellant’s house and saw the girl. That was during the morning time. According to the petitioner, on the night of 30.11.1990, they told him that they have seen the girl, and if he wished to see the girl, he can go and see her. They did not say anything about the girl at that time. They only said that the family background of the appellant is good and also gave the details of the educational qualifications of the members of the family. According to the petitioner, his parents only said that it is an educated family. The petitioner is a typewriter mechanic and is conducting a shop. The father is also helping him. On the suggestion made by his parents, on 5.12.1990, he along with his father went to Kancheepuram and saw the girl between 9.00 a.m. and 10.00 a.m. For about 10 seconds he was in the appellant’s house and he did not talk anything to the appellant. After returning to his house, he informed his parents that he is not very much satisfied about the girl and left the decision to his parents. On the night of 5.12.1990. The respondent’s father (i.e., the girl’s father) gave a ring to the petitioner’s father that the betrothal has to take place before 15.12.1990, since there is no other auspicious day in that month, and suggested that the betrothal may be celebrated on 12.12.1990: On 7.12.1990 two sisters of the petitioner and their husband went to the respondent’s house and saw the girl. They also did not say anything about the girl. On 12.12.1990, the betrothal also took place in which he also participated. At that time, the respondent could not receive the plate, and the golden belt which she was wearing also fell down. In spite of the same, the respondent did not know about it, and it was her younger sister who corrected the same. Immediately thereafter, the petitioner requested his parents, on return to his house, that the marriage may be stopped since he is not satisfied about the girl. He was sure because of the incident that there was some defect in the girl. He wanted the marriage to be stopped because of that. Even thereafter, the parents of the petitioner told him that everything will become all right after the marriage, and they did not take any steps to stop the marriage. After betrothal, the respondent’s father used to visit their house every now and then and he assisted him in his work as a typewriter mechanic and also secured him one or two orders. On 10.3.1991 the marriage took place and in the evening they went to the respondent’s house. At that time, he enquired about the peculiar behaviour of his wife. She did not say anything. They did not have any bodily contact on that day. He continued to stay in the respondent’s house for three or four days, and even then he did not consummate the marriage on 14.3.1991, he took his wife to his house. From his house, he took her to a cinema. Even in their house there was no consummation of marriage. After witnessing the film, they returned in a bus. The respondent’s eyes were reddish. When enquired, she said that it was Madras Eye. The said statement was believed by him. Thereafter, he visited her house thrice. Since from the very beginning he was not satisfied about the girl, till the respondent was taken to her house, there was no consummation of marriage. According to him, if food is served by the respondent, the vegetables and all other preparations will be served not in the right but in some other place in the plate. She will not see the video or other films, and she will go to bed. In short, the behaviour of the respondent was not that of a normal girl. On 14.4.1991 the petitioner took the respondent to his family doctor, namely, Dr. Vinayagam, on his advice, the respondent was taken to Dr. Swaminathan, Eye Specialist. At that time, it was known that she was wearing a contact lens, having a power of minus 15 and minus 16. The doctor said that she has to wear the lens always. In spite of the same, he was not satisfied with the behaviour of the respondent. Hence he took her again to a Psychiatrist, Dr. Saradha Menon. On her advice, he visited her thrice, and at that time, Dr. Saradha Menon wanted to talk to the respondent’s parents and since that was not possible, she did not give any report. The above conduct of the respondent as well as her parents according to the petitioner has affected his marital life. He would not have married the respondent if the real state of affairs had been informed to him prior to the marriage. He states that on 24.4.1991, when the respondent left the marital house, she has taken all her ornaments with an intention not to come back. He also denies the allegation that he demanded dowry, either in cash or in kind. According to him, these allegations have been made to tarnish his image.
10. As against the said deposition of the petitioner, we have got the evidence of the respondent (appellant herein) who examined herself as R.W. 1. She has spoken that even at the time when she was seen first by her husband, she was wearing the contact lens and that she was wearing this from the age of 16. Wearing this lens, she has completed her education. She has passed M.A. She has also passed Hindi Examinations, and she is now undergoing B.Ed, course. According to her, the wearing of the contact lens has never affected either her normal life or her married life. She has also stated that when her in-laws came and saw her initially, the fact that she was wearing, a contact lens was informed by her father, and the petitioner’s father said that he has no objection for the same. Thereafter, when the petitioner saw her, the same thing was informed to him also. On both the days, they saw her during day time, and in particular, during day time and not during power-cut. She also says that some days after the marriage, there was harassment from the petitioner and his parents demanding dowry. They wanted a car and also Rs. 50,000 in cash. But her parents were not in a position to pay the cash or present a car to the petitioner. Because of this, her hair was cut and she was also taken to a Psychiatrist, Dr. SaradhaMenon. Dr. SaradhaMenon, after questioning, her found that there was no defect in her. More than 100 questions were put to her. She visited her on three consecutive days. She also says that the petitioner has seen her wearing the contact lens. The contact lens has to be cleaned every 11 hours, and there is a separate box for keeping the lens safely. She has stated that even without the contact lens, she can move freely and everything is visible, but the only thing is, there will be some difficulty in reading. According to her, even that defect is curable in course of time.
11. The first question to be answered is, whether the fact that the respondent was wearing a contact lens was informed to the petitioner or his parents, and whether they were aware of the same at or before the marriage.
12. This is a case where the parents of the petitioner saw the respondent on 30.11.1990 and thereafter, on 7.12.1990, his two sisters and their husbands also saw her. In between the dates the petitioner has also seen the girl. They have seen the girl during day time. Nobody has any suspicion about the respondent’s behaviour at that time. Prior to the initiation of proceedings, the petitioner wrote a letter to his father-in-law and the same was replied. A specific contention has been taken by the appellant which is also evidenced by the letter written by her father that the wearing of contact lens was informed initially to his father, and they were satisfied about the disclosure. It was only after ascertaining full information, they agreed to proceed with the marriage proposal.
13. The explanation of the petitioner is that he being the elder son and the parents being aged, he only obeyed the instructions of his parents. According to him, his parents, were influenced and hypnotized by his father-in-law, and under such a situation, they agreed to proceed with the marriage. In this case, it is also deposed by P.W. 1 that even though he did not want to proceed with the marriage he left everything to the wishes of his parents. In Ex. P-6 letter, he has stated thus:
…You never allowed them to think and react. You forced your decision on them. Under your magic control, they felt so overwhelmed by your outwardly affection that they failed to apply their mind more thoughtfully and being good and unsuspecting people they consumed you statements without much questioning. Under these conditions they felt that the negotiations for marriage could go on favourably.
Thereafter, he proceeds to say that no time was given to think about the matter and then come to a conclusion. This is what he has stated in the letter Ex. P-6.
There was power cut no light. I have to see the girl under this condition. As usual, you played the card of extreme hospitality. No time was given for analytical thinking and arriving at a fair conclusion. Added to this you had already enticed my parents and as an obedient son, I was to acquit myself with their decisions. To say the “Whole truth, I felt that I should subject myself to the wishes of my parents, who would never do any harm to me. So, in the above context, my approval to the marriage was that of a dutiful son to the parents. Why should I suspect anything and cause avoidable problems to my parents who had nothing but my welfare in their minds. Similar was the case when other relatives were permitted to see your daughter for a few seconds on a later date….
The above statements in the notice imply that the parents who were affectionate towards him will never act against his interest, and the right to take a decision was given to the parents. Even in respect of the other relations, according to the petitioner, similar was the case. It follows, therefore, that the parents as well as the other relations of the petitioner were informed all the material facts concerning the respondent and only thereafter a green signal was given for proceeding with the marriage proposal. In this connection, it may also be noted that the marriage proposal was long before November, 1990 and the betrothal took place only in December, 1990. The fact that the respondent was wearing a contact lens even at the time of the betrothal was also known to the petitioner and other relations. According to the petitioner, his parents were influenced and hypnotized by his father-in-law, and under such a situation they agreed to proceed with the marriage. The said statement needs no further clarification or explanation. Thereafter, he says that his wife was hiding the above fact until they came to know about the same, when she was taken to the doctor. Finally, he says that he is more concerned about her mental condition than her eye sight. It is stated thus:
More than her eye sight I repeat the cause for the aggravation of my mental agony is her mental condition. Knowing fully well that she is not a normal girl, you have completely suppressed this fact. This is a very serious affair and your suppressing this fact is not less than a calculated fraud.
The above statement made by the petitioner shows that he has also not taken the wearing of contact lens as a serious affair, but the contention is that she is mentally retarded. Ex. P-6 was replied on 8.5.1991 by her father. In the said letter, it is stated that he has not suppressed any fact and that wearing the contact lens, the respondent has completed her education, that wearing contact lens is a normal thing and that it will not affect the marital life. He has also stated that the petitioner’s family doctor himself has stated that wearing a contact lens is not a serious matter which will in any way affect the relationship.
14. A rejoinder letter was sent by the petitioner on 14.5.1991. Again repeating the various allegations. He wanted to put an end to the relationship. The same was also replied by the respondent’s father as per letter dated 17.5.1991. These are the only documentary evidence, which is in the nature of correspondence. The same is being made use of by the petitioner to prove the case put forth by him. They are only allegations and counter allegations. Then what remains is only appreciation of oral evidence let in by P.W. 1 and R.W. 1. The best evidence in this case would have been that of the petitioner’s father. But he has not been examined in this case. The case put forward by the respondent (wife) and her father is that everything was explained to the petitioner (husband), and it is only after giving consent, the petitioner came to see the respondent. In the letter dated 29.4.1991, written by the respondent’s father to the petitioner, he has also stated how the petitioner’s father has appreciated the respondent while she was in his house. Even though the said letter was replied by the petitioner, the statement made by the respondent’ s father is not rebutted or denied in any of the correspondence. A reading of that letter will show that the respondent (wife) was discharging the marital duties and was doing all the work in the petitioner’s house.
15. In Ruby Roy v. Sudarshan Roy , a case under Section 12(1 )(c) of the Hindu Marriage Act came for consideration. The facts in that case are also similar. In that case, there were some physical defects in the wife. It was alleged by the husband that the defects were not disclosed to him at or before the marriage. The answer was that the physical defects were informed to his parents who were authorized to give consent for the marriage. The father was not examined. Taking into consideration the said circumstance the learned Judges held that the non-examination of the father is a material circumstance against the husband. The learned Judges observed that the best evidence had been withheld, and they drew an adverse inference against the husband. Paragraphs 5 and 6 of the said judgment read thus:
About seven decades ago, the Privy Council in Murugesam Pillai v. Gnana Sambandha Sannadhi A.I.R. 1917 P.C. 6 at 8, condemnedit as Inversion of sound practice’ for a party desiring to rely on a certain state of facts, to withhold, “by trusting to the abstract doctrine of onus of proof, the lest evidence in his possession which would throw light on any material issue in a proceeding. This view was again reiterated by the privy Council in Rameshwar v. Bajit Lal A.I.R. 1929 PC. 95 and has also been endorsed by the Supreme Court in Hiralal v. Badkulal and then in Gopal Krishnaji v. Mohamed Haji Latif . In the last cited decision, the Supreme Court has ruled that even if the burden of proof does not lie on a party, the court may still draw an adverse presumption against him if he withholds important evidence which could be produced by him and which would throw light on the facts at issue. The Supreme Court has restated, what was stated by the Privy Council in Murugesam Pillai case, A.I.R. 1917 P. C. 6, that it is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.” We are inclined to think that when the material issue in this case is whether the physical defects of the wife were disclosed and the consistent case on behalf of the wife in the pleading as well as at the trial is that those were duly disclosed to the father of the husband, who admittedly was negotiating the settlement from the side and on behalf of his son, and that father has not been examined by the petitioner for no satisfactory reason, then we are entitled to presume against the petitioner that the physical defects were duly disclosed to the father.
The above paragraphs are sufficient to answer this case as well. In that case, the learned Judge further held that when an authority is given to the parents to proceed with the marriage, the principle of agency is also applied. The learned Judges held that any disclosure to the father must be considered as a disclosure made to the son and, therefore, the consent given by the parents was the consent given by the son. Their Lordships further held thus:
…Borrowing the concept from the law of estoppel, we would like to add that once the petitioner, as an obedient son, held out his father as his representative and to have the authority to consent on his behalf and to select the bride and the father selected the bride with the knowledge of physical defects of the bride and the marriage has taken place, the petitioner would not be allowed to turn round and would be estopped from denying that the petitioner had such authority. At any rate, as already indicated, the petitioner at no point of time has disputed that his father had the requisite the authority.
There is no explanation in this case why the petitioner’s father was not examined. Even according to the admission of the petitioner, as an obedient son, he agreed for the marriage and that he could never suspect the parents. On his own admission, he married the respondent on the advice given by his parents, even though he objected and wanted to stop the marriage. In this connection it is also worthwhile to note that he had some suspicion due to the behaviour of the respondent at the time when he saw the girl and also at the time of betrothal. When he wanted to stop the marriage, at the instance of his parents to whom a full disclosure was made, he agreed for the marriage. Further, the evidence of R.W.I also discloses that the wearing of contact lens was disclosed to the petitioner and his parents well in advance and only after getting knowledge of the same, the proposal was proceeded with. There is no ground to disbelieve the evidence of R.W.I. We accept the same. If so, the petitioner has not made out any case for annulling the marriage under Section 12(1)(c) of the Hindu Marriage Act.
16. For the sake of completion, it is better to answer the question whether the alleged suppression is of ‘material fact’ concerning the respondent.
17. “Material fact” has not been defined in the Hindu Marriage Act. Fraud or force is also not defined in the Hindu Marriage Act.
18. Section 12(1)(c) of the Hindu Marriage Act reads thus:
12. (I/Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely
(a) & (b) xxx
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent…
The original section was amended and the present Section was incorporated by virtue of the 59th Report of the Law Commission. It is better to incorporate the Report of the Law Commission. It reads as follows:
We are of the view that having regard to Indian conditions, the law should not be so narrowly confined as has been done in England. No doubt, scope should not be left for all kinds of flimsy excuses for avoiding a marriage on the ground of fraud. But, at the same time, serious injustice is likely to result if fraud affecting vital matters (such as, absence of a particular disease) is totally disregarded. We do not see any reason in justice for forcing the parties to hold on to a marriage when one of them has been cheated by or on behalf of the other on essential matters, even if those matters do not pertain to the ceremony of the identity of the party marrying. It should be noted that as to the actual situation in Moss v. Moss the legislature had to intervene in England. This shows that the test adopted there is not totally satisfactory.
[Italics supplied]
In Smt.Asha Srivastava v. R.K. Srivastava . It was held thus:
After the amendment of Section 12(1)(c) the emphasis cannot be laid only regarding the nature of ceremony or factum of marriage but in case there is a deception as to any material fact or circumstances concerning the respondent the said case would also be covered by sub-clause (c) of Section 12(1). A marriage cannot be annullation the basis of any and every misrepresentation or concealment. However, there is a misrepresentation or concealment regarding a material fact concerning the respondent then the provisions contained in Section 12(1)(c) would definitely be attracted. Thus, where there was concealment about the ailment of schiophrenia from which the respondent wife suffered which is a mental illness and the same was incurable according to the expert opinion of the doctor examining the respondent, the same would amount to obtaining the consent of the respondent by fraud as to any material fact concerning the respondent, the provisions contained in Section l2(l)(c) would be attracted… … …
[Italics supplied]
In that case the wife suffered from mental illness which was incurable according to expert opinion and that fact was not disclosed at the time of marriage. The question was whether it was a material fact concerning the respondent. While discussing that point, the learned Judge of that High Court distinguished the decisions reported in Madhusudan v. Chandrika and also Daftradar, R.G. v. Vijaya Raghunath Gopal A.I.R. 1972 Bom. 132. The distinction was made on the ground that the ailment of the wife was curable and hence there was no concealment of a material fact concerning the respondent, end that the concealment of the ailment cannot be a ground for annulling the marriage. The learned Judge held that only in cases when it is an incurable disease, that will be a material fact which could be a course for annulling the marriage. While distinguishing the above decisions, the learned Judge held thus:
…In the present case the appellant was suffering from a mental illness which was a incurable. It was a ground of divorce under Section 13 of the Act. In Daftradar v. Vijaya Raghunath Gopal’s case referred to above, the respondent was suffering from epilepsy which was curable. Similarly, the decease from which the respondent on suffering in Madhusudan v. Chandrika A.I.R. 1973 M.P. 174 was curable. Not a single case has been cited before me in which even before the amendment of clause (c) of Section 12(1), it has been held that concealment about a very serious ailment which was incurable did not amount to fraud. To the present case the provision contained in Section 12(1)(c) in my view, are fully attracted.
In P. v. K. , Section 12(1)(c) of the Hindu Marriage Act again came for interpretation. The learned Judge defined ‘material fact’ or circumstance’ as follows:
…It is difficult to define with any certainty what can be said to be material fact or circumstance but it may be safely said that the fact or circumstances which is of such nature as would materially interfere with the marital life and pleasure including sexual pleasure will only be a material fact or circumstance.
In Rajinder Singh v. Smt.Pomilla , their Lordships held thus:
…What is a misrepresentation or concealment of a material fact depends upon the facts and circumstances of each case. The material fact is that vital and important fact which would induce or influence the mind of a party to give or withhold the consent to marry… … …
To summarise the above case law, to have a cause of action for annulling a marriage under Section 12(1)(c) of the Hindu Marriage Act, to constitute fraud there must be some abuse of confidential position, some intentional imposition or some deliberate concealment of material facts which are the fundamental basis of the marriage contract. (See Laws of Marriage & Divorce by H.K. Saharay, second edition at page 127). The above case law makes it clear that the concealment, even if any, must be of such nature which affects the ordinary marital life of the parties. In this case, it has come out in evidence that the appellant is a post-graduate. She is now undergoing B.Ed., course and has also studied Hindi for three courses. It has also come out in evidence that while she was in her husband’s house, she was doing all manual and household work and the petitioner has even taken her to a cinema. How far the marital life is affected, is not explained by the petitioner. He only says that he did not like the respondent (wife) and hence there is no consummation of marriage. Pending trial, the Family Court has got a report from another doctor where also the eye defect was stated to be minus 15 and minus 17. No attempt was made by the petitioner to give treatment to the wife, and he has not even ascertained whether it can be cured or not. Unless it is incurable, as observed in the earlier case-law, any concealment of the same, will not amount to concealment of a material fact which will give a cause of action for annulling the marriage. According to the appellant and her father, the eye defect is curable if proper treatment is given. Even in the present state, it does not affect her marital life. She says that the marriage was consummated and they had physical contact on many days. If the eye defect is not a material fact which does not effect the marital life, the petitioner cannot have any cause of action for annulling the marriage. In this case, he has not adduced any evidence whether the eye defect is curable or not, and whether the degree of the defect could be reduced, he takes her to the doctor only for the purpose of ascertaining and assessing the defect, and not to get it cured. That also show that his intention is not bonafide. We have stated that even according to his own showing, he did not consider the eye defect is a material fact. According to him, it is alleged mental illness of the respondent that causes him concern and it is for that reason he wanted the anulment of marriage. To say that he has take her to a Psychiatrist, but that is a evidence regarding her alleged mental defect. On the contrary, we have the oral evidence of R.W. 1 herself where she ably speaks before court about her mental condition.
19. In this connection it is worth noting that there is an allegation by the respondent (wife) that the petition is filed only to extract money and other resources from her house. Taking into consideration the facts and circumstances of the case, we feel that there is some truth in what she says.
20. In the judgment of the Family Court, it has not taken into consideration the evidence of R.W. 1. It assumes that what all P.W.I has stated must be true, and on that basis, a verdict is given in his favour. Much importance is given to the statement given by the appellant that she is wearing the contact lens so that she will appear more beautiful. We do not find any reasons to accept the explanation of the Family Court where it says that but for the contact lens, she would have been ugly end with the intention of concealing the ugliness, she is wearing the contact lens. The said explanation of the Family Court cannot be accepted for any reason, and we reject the same. The entire reasoning of the Family Court is against the evidence and also the legal presumptions. We therefore, set aside the order of the Family Court and allow this appeal with costs throughout. Advocate’s fee Rs. 2,500.
