ORDER
C.V.N. Sastri, J.
1. This is an appeal filed by the wife questioning the decree of annulment of marriage granted by the lower court under Section 12(1) (c) and (b) of the Hindu Marriage Act on the application filed by the respondent-husband. The respondent filed the application for annulment of marriage on the ground that the appellant was suffering from a disease known as 'Hyper Prolactinemia with Galloctorrhea' in medical parlance with symptoms like continuous lactation of milk from her breasts and irregular menstruation due to which she is incapable of bearing children and that his consent for the marriage was obtained by fraud and wilful suppression of the said facts.
2. The respondent is an Engineer employed in the Thermal Power Station at Paloncha in Khammam District. The case of the respondent as set out in the Original Petition filed by him and as it appears from his evidence as PW1 is as follows :
The marriage of the respondent with the appellant took place on 8-2-1989 at Guntur. It was consummated on 18-2-1989. On the same night the respondent found continuous milkylactation from the breasts of the appellant. When questioned, the appellant pleaded ignorance and said that she was suffering from anaemia and harmonal problems. After the nuptials , the appellant accompanied the respondent to Chandrapur where the respondent was then working. While they lived at Chandrapur, the appellant was got treated for irregular menstruation and anaemia. In July, 1989, the respondent left his job at Chandrapur and joined the Thermal Power Station at Paloncha. The appellant joined him at Paloncha in October, 1989. As she was having irregular menstruation, the respondent took her to Dr. Syamala of Paloncha for treatment. On the advice of Dr. Syamala, she was taken to Guntur in November, 1989 for treatment from specialist doctors. After carrying on some investigations, the doctors at Guntur advised to get her examined for serum prolactin. But she did not undergo that examination and returned to Paloncha as she had no money. In January, 1990, the respondent took her again to Guntur for examination by Dr. Lobo of St. Joseph Hospital. On the advice of Dr. Lobo. serum Prolactin test was got conducted on 21-1-1990 by APPLE Diagnostics (Private) Limited, Guntur. The said test revealed that the appellant had high rate of prolactin i.e. 1900 UU/ML against the normal range of 90 to 600 UU/ML. Ex. Al is the report given by the Apple Diagnostics Private Limited, Guntur, dated 21-1-1990. Based on the said report, Dr. Lobo opined that the appellant was suffering from the disease called 'Hyper Prolactinemia with Galloctonhea' and that there was no possibility of the appellant bearing children as normal menstruation was not possible. Exs.Al to A6 are the case-sheets regarding the treatment given to the appellant in St. Joseph's hospital, Guntur. The respondent suspected that the parents of the appellant were aware of the said disease but they did not disclose the same at the time of marriage. According to the information gathered by the respondent, the appellant used to take some tablets to avoid pregnancy and that she got the above disease pre-mantally. In February, 1990 PW2. The elder sister of the respondent took the appellantto Dr. Vasundhara ot Paloncha for opinion. After going through the earlier records, she also gave the same opinion. The appellant, however, did not disclose anything regarding her pre-marital relations. Thereafter the appellant left for her parent's house at Guntur. In March, 1990, the father of the appellant (RW4) along with on Veeraswamy, who was one of the mediators who settled the marriage, came to Paloncha and took the respondent to Dr. Ragini, Asst. Professor Gynaecology Department, Government Hospital, Guntur, who showed the diagnosis report of Galloctorrhea from the Superintendent Dr. Sarojinamma. When asked by the respondent whether any patient suffering from the said disease was fit for marital relations, Dr. Ragini, however, did not give any reply and she did not also give any certificate. The respondent thereupon demanded production of a fitness certificate from any qualified endocrinologist as a condition for accepting the appellant and also issued a telegram to that effect on 6-4-1990 Ex.B.22 But they failed to produce any such certificate. On the other hand, they made some attempts to force her on him against his will and also to assault him physically. Finally on 18-12-1991, the respondent got issued to the appellant a legal notice, the office copy of which is marked as Ex. A2 in the case, calling upon her to give her consent for annulment of marriage to which the appellant sent a contentious reply dated 21-1-1992 (Ex.A3) with false allegations. Hence the respondent filed the Original Petition on 24-1-1992 for annulment of marriage. To prove his case, the respondent examined himself as PW1 and his elder sister as PW2.
3. The appellant resisted the petition contending, inter alia, that she was not suffering from any such disease as alleged by the respondent, that there was no concealment of any facts by her or her parents and no fraud was played by them, that the marriage was settled after protracted negotiations through mediators, that the respondent was paid dowry to the tune of a lakh of rupees besides 20 sovereigns of gold and articles worth Rs.30,000/-, that they led normal marital life at Chandrapur and later at Paloncha tillOctober, 1989, that she also became pregnant through the respondent but the pregnancy was terminated as per their mutual desire through Dr. Syamala of Paloncha (RW3) in November, 1989, that the respondent demanded a further sum of Rs.1,00,000/- from her parents for purchasing a house-site at Hyderabad, but the same was not complied with by her parents. The respondent, therefore, used to beat her and ill-treat her, and finally sent her away to Guntur and later filed this petition with a view to getting more dowry by marrying another girl. It is also her case that she came to know subsequently that the respondent was' previously married to one Mamimala of Guntur who filed a petition for divorce against him in OP.No.191/S2 on the file of the Principal Subordinate Judge, Guntur, that the respondent, in turn, filed OP.No. 186/82 against the said Manimala for restitution of conjugal rights, that the said petition filed by him was dismissed and the petition for divorce filed fay Manimala was decreed on 14-1-1985. According to her, the respondent is a person of sadistic nature with an unstable and peculiar bent of mind and he suffers from mental phobia. The same is borne out by the numerous letters addressed by the respondent to his former wife Manimala and her father which have been marked as exhibits in the said proceedings. The certified copies of those letters as well as the pleadings and the orders passed in the said O.Ps. are marked as Exs. Bl to B18 in this proceeding. In Para 13 of the counter filed by her to the O.P., the appellant, however, admitted that due to the torture, both physical and mental, meted out to her by the respondent, she became sick and faced some strange unknown disease of a little lactation in the year 1990. The same is sought to be exaggerated by the respondent with ulterior motives. To prove her case, the appellant examined herself as RW1 besides one of the mediators who settled her marriage with the respondent as RW2, DR. Syamala, who allegedly treated her at the time of abortion, as RW3 and her (appellant's) father as RW.4. The medical prescriptions issued by RW3 to the appellant on 2-11-1989 and 9-11-1989 were got marked as Exs. B.20 and B21 respectively. To disprove the allegationthat she was suffering from Hyper Prolactinemia with Galloctorrhea, the appellant claimed that she underwent endocrinology test in Gandhi hospital, Secunderabad and filed the test report which was marked as Ex. B.24 in the case. According to Dr. Syamala (RW3), the recordings in Ex.B.24 were normal which means the patient was healthy.
4. The lower Court, basing mainly on Exs.Al and Exs.A4 to A6 and the admission made by the appellant in Para 13 of her counter to the O.P., came to the conclusion that the appellant has been suffering from the disease called Hyper Prolactinemia with Galloctorrhea and that there is no possibility of normal menstruation and also procuring of children by her. The lower Court disbelieved the evidence of Dr. Syamala (RW3) as unreliable. The lower Court finally concluded that the disease Hyper Prolactinemia with Galloctorrhea is not a curable disease due to which there is no possibility of procuring any children which makes the life of the spouses barren and as such the respondent is entitled for decree of annulment of marriage under Section 12(1)(c) and (b) of the Hindu Marriage Act.
5. Sn V.S.R. Anjaneyulu, the learned Counsel for the appellant, assailed the judgment and decree of the lower Court contending that the allegations made in the petition even on their face value do not constitute a valid ground for annulment of the marriage, that none of the conditions mentioned in Section 12(1)(c) and (b) of the Hindu Marriage Act is satisfied and the said provisions are not at all attracted and that, in any case, the petition is not maintainable at all since the same has not been filed within the time specified in sub-section (2) of Section 12. The learned Counsel has further submitted that even on merits of the case the findings of the lower Court are wholly erroneous and unsustainable and the judgment of the lower Court is perverse. In support of his submissions, the learned Counsel for the appellant has placed reliance on the following decisions: Rajaram v. Deepabai, : AIR1974MP52 , Sarlabai v.Komal Singh, : AIR1991MP358 , A, Udayakumari v. A. Prakasa Rao, 1985 (3) APLJ 348,
6. On the other hand, Sri. T. Bali Reddy, the learned Counsel for the respondent tried to sustain the judgment of the lower Court by contending that it is clearly established from the evidence on record that the appellant has been suffering from the disease of Hyper Prolactinemia with Galloctorihea which renders her unfit for normal conjugal life, that it is impossible and abhorrent for the husband to have any sexual happiness with her and that she is also incapable of begetting children. He further contended that the consent of the respondent for the marriage has been obtained by wilful suppression of the above material facts relating to the appellant and as such the marriage is liable to be annulled. As regards the question of limitation and maintainability of the petition Sri. Bali Reddy contended that no such plea was raised in the counter filed in the O.P. by the appellant nor was it argued before the lower Court and as such the same cannot be permitted to be raised for the first time in the appeal. He also submitted that, in any case, the said contention raised by the appellant has no substances since the disease of the appellant was confirmed only in November, 1991, thereafter the respondent got issued a legal notice to the appellant on 18-12-1991 to which the appellant sent a reply on 22-1-1992 and the O.P. was immediately filed on 24-1-1992 well within the period of limitation. In support of his submissions, Sri Bali Reddy placed reliance on the decision in P.V.K, AIR 1992 Bom. 400
7. Before considering the above rival contentions of the parties, it will be useful to refer to the relevant statutory provisions. Section 12 of the Hindu Marriage Act, which deals with voidable marriages, insofar as it is relevant for our purpose reads as follows :
'12. Voidable Marriages : (1) 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) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5 or
(c) that the consent of the petitioner,.....was obtained by force or by fraud as to the nature of the ceremony or as to any material factor circumstance concerning the respondent; or
(d) .......................
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-
(a) on the ground specified in Clause (c) of sub-section (1)shall be entertained if-
i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered,or
ii) the petitioner has with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case maybe, the fraud had been discovered;
(b) .........................
Section 5 lays down the conditions for a marriage to be solemnized between any two Hindus. If a marriage contravenes any one of the conditions specified in Clauses (i) ,(iv) and (v) of this Section, the marriage is null and void (vide Section 11). If on the other hand, the marriage contravenes clause (ii) of this Section, the marriage is voidable (vide Section 12).We are concerned with Clause (ii) only. It reads as follows:-
'5. Conditions for a Hindu Marriage -
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-
i) ..........................
ii) at the time of the marriage, neither party-
a) is incapable of giving a valid consent, to it in consequence of unsoundness of mind, or
b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such and extent as to be unfit for mamage and the procreation of children, or,
c) has been subject to recurrent attacks of insanity or epilepsy,
iii) ........................
iv) ..........................
v) ...........................
8. In the instant case the petition for annulment of marriage is filed under Section 12(1) (b) and (c). Though the respondent has invoked Section 12(1)(b), we are of the view that the said provision has no application to the case at all since it is not the case of the respondent that the appellant is suffering from unsoundness of mind or insanity or epilepsy which are covered by Clause (ii) of Section 5. It is true that sub-clause (b) of Clause (ii) of Section 5 provides that neither party to the marriage should be suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. The unfitness for marriage and procreation of children contemplated by this sub-clause is one arising from mental disorder only but not on account any other disorder. Infertility or sterility as such is not a ground for annulment of mamage under Section 12 or for divorce under Section 13. In A. Udayakumari v. A. Prakasa Rao, (supra) it has been held by a learned Single Judge of this Court that mere incapacity to conceive is not a ground for granting divorce under Section 13 and that even assuming that the wife is not capable of bearing children, it is irrelevant for the purpose of enquiry either under Section 12 or Section 13. We are, therefore, satisfied that reliance on Section 12(1)(b) is misplaced since it has no application to the case at all.
9. It now ramins to be seen whether the consent of the respondent has been obtained by fraud and the marriage is, therefore, liable to be annulled under Section 12(1)(c). It has to be noted that Clause(c) of Section 12(1) was amended by Section 6 of the Marriage Laws (Amendment) Act, 1976 by substituting the words,'or fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent' in place of the words ' or fraud' Prior to the said amendment, some decisions had taken the view that the term 'fraud' in the unamended clause was restricted to deception in relation to the marriage ceremonies or to the identity of the party marrying. In Raghunath Gopal v. Vijaya Raghunath, : AIR1972Bom132 it was held that the word 'fraud' used in Section 12(1)(c). of the Hindu Marriage Act does not speak of fraud in any general way, nor does it mean every misrepresentation or concealment which may be fraudulent. If the consent given by the parties is a real consent to the solemnization of the marriage, the same cannot be avoided on the ground of fraud. The marriage solemnized under the Hindu Marriage Act cannot be avoided by showing that the petitioner was induced to marry the respondent by fraudulent statements relating to her health. It was also held in the same judgment that:
'A person who freely consents to a solemnization of the marriage with the other party in accordance with the customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot raise an objection to the validity of the marriage on the ground of any fraudulent representation or concealment.'
The fraud alleged in that case was non-disdosure or concealment of epilepsy from which the respondent was suffering before the marriage and false representation that she was healthy. It was held that it does not amount to 'fraud' as a ground for annulment within the meaning of Section 12(1)(c).. Similarly in Rajaram v. Deepabai (supra) also it was held that the word 'fraud' has a limited meaning in the section and it refers only to (a) deception as to the identity of the other party to the marriage, or (b) deception as to the nature of the ceremonies being performed. It was hdd in that case that the concealment of the fact that the appellant had been once married toanother woman cannot be a ground for annulment of the marriage. But the amendment of the clause in 1976 has dearly brought about a change by including 'fraud as to any material fact or circumstance concerning the respondent' as a ground for annulment. The effect of this amendment has been considered by a learned Single Judge of the Bombay High Court in P. V.K, (supra) wherein it was held as follows:
'It is difficult to define with any certainty what can be said to be matenal fact or circumstance but it may be safely said that the fact or circumstance which is of such a nature as would materially interfere with the marital life and pleasure, including sexual pleasure will be a material fact or circumstance. The only limitation is that the material fact or circumstance must be concerning the respondent, meaning thereby that is must be in respect of the person or character of the respondent. It is immaterial whether such fact or circumstance is curable or remediable. If a party to a marriage is suffering from some abhorrent disease such as leprosy or venereal disease and this is not disclosed it will be definitely concealment and consequently fraud as to material fact and circumstance. Similar would be the case with suppression of the fact of immoral life prior to the marriage. Without going into the detail or defination as to what may or may not constitute matenal fact or circumstance, it can be said that existence of a condition in the respondent which materially interferes with the sexual intercourse or its pleasure or which makes its indulgence in a normal way difficult or is such as is likely to cause dislike or abhorrence in the mind of the other spouse to have sexual intercourse it will be material fact or circumstance even though it may or may not amount to impotency.'
While we are broadly in agreement with the above view, we have some reservations about the observation, 'It is immaterial whether such fact or circumstance is curable or remediable.' We are inclined to think that if such fact orcircumstance is curable or remediable, the concealment of the same may not amount to fraud. 'Fraud' implies an element of deception and a conscious or deliberate misrepresentation of facts. If the party either had no knowledge of the fact or circumstance or if he or she was under the bona fide belief that it was a temporary defect which was curable or remediable, then the question of fraud will not arise. In any, case, the above observations of the Bombay High Court must be understood in the context of the facts of that particular case where it was found that sexual intercourse was not possible without manipulation of the protruding uterus by hand which obviously is likely to cause dislike, abhorrence or disgust to a newly wed husband. It was held that concealment of such a fact will be fraud as to matenal fact or circumstance concerning the respondent as now contemplated by Section 12(1)(c)..
10. In Asha Srivastav v. Srivetstav, AIR 1981 Del. 253 it was held that where there was concealment of the fact that the girl was suffering from schizophrenia and the same was incurable according to the expert opinion of the doctor examining her, Section 12(1)(c). was attracted. In Anandnath v. Lajjabati, : AIR1959Cal778 it was held that concealment of the fact that bride was suffering from tuberculosis is not sufficient to avoid the marriage. According to that decision, the concealment of a disease other than that mentioned in Section 13 is not a ground for avoiding the marriage. The correctness of this decision was, however,doubted by the learned commentator in Mayne's Treatise on Hindu Law and Usage wherein it was observed that the real test should be whether the disease is of such a nature that concealment of the disease would constitute fraud relating to a material fact or circumstance within the meaning of Section 12(1)(c)..
11. The question for consideration is whether, on the facts of the present case, it can be said that the consent of the respondent for the marriage was obtained by fraud as to any material fact or circumstance concerning the respondent within the meaning of Section 12(1)(c)..
12. It is not in dispute that both parties are natives of Guntur and their families were known to each other fairly well. The respondent in his evidence as PW1 admitted that the appellant and her family members were already known to him prior to the marriage and that he was also a resident of Guntur and living in the same street where the appellant was living. Their marriage was settled after negotiations through mediators. He also admitted that prior to his marriage with the appellant, he married one Manikwnari and the said Manihtmari obtained divorce from him by filing O.P.No.191/82. Admittedly the respondent became aware of the condition of the appellant on the nuptial night itself i.e., on 18-2-1989. Yet he led a normal marital life with her for more than one year. It is not stated either in the petition or in the evidence of PW1 that the appellant was not fit for marital relations or that he (respondent) felt any abhorrence for such relations with her. The entire case of the respondent is that the appellant was found with lactation of milk from her breasts and she had irregular menstruation for which she was treated and that her condition was diagnosed as Hyper Prolactinemia with Galloctorrhea due to which she is incapable of conceiving and begetting children. On the other hand, it is the case of the appellant that she was not suffering from any such disease but she had only irregular menstruation and anaemia for which she underwent treatment and that they had normal marital life. She even claimed that she became pregnant and that the pregnancy was got terminated through Dr. Syamala of Paloncha (RW3) in November, 1989. The respondent also admitted that the appellant was treated by RW3. But according to him, she was only treated for irregular menstruation and there was no pregnancy or abortion. RW3 stated in her evidence that she treated the appellant in November, 19S9 as she was pregnant, that she appellant came along with her husband (respondent) and both of them wanted the pregnancy to Determinated. Exs,B20 and B21 are the medical prescriptions issued byRW3 to the appellant on 2-11-1989 and 9-11-1989 respectively. RW3 stated that all the medicinesprescribed in Exs.B20 and B21 were for the termination of the pregnancy only. She, however, admitted that they are also for sedation. The lower Court disbelieved the evidence of RW3 as improbable on the grounds that the medical reports Exs.Al and A4to A6 did not make any mention of pregnancy as on the date of the examination, that it is unlikely that the husband, who was already advanced in age being 32 year old at that time, would have opted for abortion and mat RW3 admitted that the medicines prescribed in Exs. B20 and B21 are for sedation also. We are inclined to agree with this view. The very tact that within a month after the treatment by RW3 the appellant was taken to Guntur for examination by Dr. Lobo of St Joseph's hospital, Guntur and she also underwent Prolactin test, rules out the possibility of pregnancy. Even in the history-sheet and other medical reports maintained by St Joseph's hospital which are marked as Exs.A4 to A6 there is no mention about any pregnancy or its termination. We are informed that the self-same medicines which are prescribed by RW3 in Exs.B20 and B21 can also be used in the case of D&C; operation which is performed for curing irregular menstruation. We, therefore, reject the theory of pregnancy and its termination. This, however, does not conclude the matter for it has not been established by the respondent that the disorder or ailment with which the appellant has been suffering is incurable or that the appellant is unfit for conjugal life or that any fraud was committed on him for obtaining his consent for the marriage. Though a general allegation is made in the petition that the marriage was performed by concealing the disease and its causes of pre-marital relations and abuse of oral pills by the appellant, no specific allegation of fraud with particulars is made in the petition. The Prolactin test report Ex.A.l given by Apple Diagnostics (Private) Limited, Guntur, reveals that the appellant had a high rate of prolaetin of 1900 UU/ML as against the normal range of 90 to 600 UU/ML and it is opined that it is a case of 'increased prolactin'. Exs. A4 to A6, the medical reports of St. Joseph's hospital, Guntur, show that the appellant was treated for Galloctorrhea. Therespondent has not examined either Dr. Lobo of St. Joseph's hospital, Guntur, or the other specialist doctors who were allegedly consulted, namely, Dr. Vasundhara of Paloncha, Dr. Ragini, Asst. Professor, Gynaecology Department, Government hospital, Guntur and Dr. Sarojinamma, Superintendent of the said hospital. No material has been placed before us either in the shape of standard medical text-books or other literature on the subject to show that the alleged disorder or ailment of the appellant is incurable or that, because of the said disorder, she is unfit for marital life and she cannot beget children. We find from the judgment of the lower Court that reference was made to the Journal of Obstetrics and Gynaecology of India published by federation of Obstetric and Gynaecological Societies of India of October, 1985, which contained an article on Galloctorrhea. The lower Court has extracted some passages from the said article in its judgment. We do not, however, find anything in the said passages which goes to establish that the said disorder is incurable or the persons suffering from the said disorder are incapable of bearing children. After referring to the symptoms and the results of studies made on various patients, the article concludes that the recent increase to the incidence of Galloctorrhea may be due to mass taking of pill and tranquiliser and that active breast is an unreliable sign of pregnancy. After the conclusion of the hearing of this appeal and after judgment was reserved by us, the respondent filed C.MP.No. 19679 of 1996 praying for the constitution of a Medical Board to examine the appellant and submit a report regarding her condition in respect of cessation of menstruation, impotency, sterility and about the curability or otherwise of the disease. We do not find any valid grounds to entertain this belated application especially when it is the case of the respondent that the appellant has been earlier examined by a number of specialist doctors. But the respondent did not choose to examine any one of them. We, therefore, reject the said application. On the facts of the present case, we are not satisfied that the alleged disorder or ailment of the appellant is of sucha nature that concealment of the same would constitute fraud relating to a material fact or circumstance within the meaning of Section 12(1)(c). of the Act and as such the application for annulment of marriage has to fail.
13. There is yet another hurdle in the way of the respondent. As already noticed above, sub-section (2) of Section 12 provides that notwithstanding anything contained in sub-section (1), no petition for annulling a marriage on the ground specified in Clause (c) of sub-section (1) shall be entertained if the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered, or the petitioner, has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered, The learned Counsel for the appellant, relying on the said provision, has contended that the petition for annulment of the marriage is liable to be dismissed as it is not filed within the prescribed period of one year. As this question was not specifically raised before the lower Court, the appellant filed C.M.P.Nos. 14999 and 15000 of 1995 in this appeal seeking leave to file additional counter and to raise additional grounds in the appeal in this behalf. The learned Counsel for the respondent opposed the same by contending that the appellant cannot be permitted to raise such a contention for the first time in the appeal and that, in any case, the said contention has no substance since the disease of the appellant was confirmed only in November, 1991, and the O.P. was filed on 24-1-1992 well within the period of limitation. We do not find any merit in the said submissions of the learned Counsel for the respondent. This being purely a question of law which goes to the root of the matter, we feel that it is just and proper to permit the appellant to raise the same in this appeal. That apart, Section 23 of the Act provides that before a decree is passed in any proceeding under the Act, whether defended or not, the Court must be satisfied that the petitioner has not in any way, taken advantageof his own or her own wrong or disability for the purpose of relief sought for, that there is no connivance between the parties or condonation of the acts of complaint, That there is no unnecessary or improbable delay in initiating the proceedings and that there is no other legal ground why relief should not be granted. It is, therefore, the duty of the Court, whether such a plea is taken or not, to see whether there is any legal bar for granting relief to the applicant. In the present case, the respondent has clearly admitted that he noticed the alleged defect or disorder in the condition of the appellant on the day of consummation itself i.e., on 18-2-1989. Thereafter the respondent took the appellant for examination and treatment by a number of doctors who diagnosed it as Hyper Prolactinemia with Galloctorrhea. The same was confirmed by the serum prolactin test which was got conducted on 21-1-1990. Whatever might be the earlier uncertainty with regard to the nature of her disease, it was confirmed, beyond all doubt, by that date. According to PWs 1 and 2, they got further confirmation of the same from Dr. Vosundhora of Paloncha in February, 1990 and also from Dr. Ragini and Dr. Sarojinamma of the Government Hospital, Guntur, in March, 1990 itself. It is thus proved by his own admissions that the respondent had full knowledge of the alleged disease of the appellant before March, 1990 itself. The application was filed only on 24-1-1992 long after the expiry of the period of limitation of one year prescribed in sub-section (2) of Section 12. The fact that the respondent issued a legal notice to the appellant on 18-12-1991 to which reply was sent by the appellant on 22-1-1992 cannot extend the period of limitation. In Sarlabai v. Komal Singh, (supra) it was held that a petition for annulment of marriage on the ground of concealment of heart disease of the wife filed after eight years of the marriage is clearly barred by time. It was further held in the said judgment that heart disease cannot be a ground for grant of divorce under Section 13, Further the respondent continued to live with the appellant and lead martial life with her even after the discovery of the alleged ailment tillshe finally left for her parents' house sometime in March, 1990. He must be therefore, deemed to have condoned the said defect in her and as such he is disentitled to relief.
14. For all the aforesaid reasons, the appeal is allowed. The order of the lower Court is set aside and the petition for annulment of the marriage filed by the respondent is dismissed. But there will be no order as to costs.