Priya Vs. Dhanaraj Kumar - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE24H DAY OF JANUARY20144TH MAGHA, 1935 Mat.Appeal.No. 709 of 2008 (B) ------------------------------- AGAINST THE ORDER

/JUDGMENT

IN OP1782006 of FAMILY COURT,KOZHIKODE DATED1507-2008 APPELLANT/RESPONDENT: ------------------------------------ PRIYA, D/O. LATE VASUDEVAN, KONNADI HOUSE, NARIKKUNI VIA, PARANNUR P.O. KOZHIKODE BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S)/PETITIONER: -------------------------------------------------- DHANARAJ KUMAR, S/O. LATE PERAVANKUTTY, PALOLI HOUSE, ERAVANNUR P.O., NARIKKUNI KOZHIKODE. BY ADV. SRI.A.ANTONY BY ADV. SMT.LEELAMMA ANTONY THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON2401-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & P.D.RAJAN, JJ.

======================== Mat. Appeal No. 709 of 2008 ======================= Dated this the 24th day of January, 2014

JUDGMENT

Antony Dominic, J.

This appeal arises from the order of the Family Court, Kozhikode in OP No.178/06. The appellant and the respondent were husband and wife. Their marriage was solemnized on 26/12/2005 in accordance with the customary rites. According to the respondent, on the night of 26/12/2005 itself, appellant behaved indifferently indicating that she had mental illness. Thereupon, the matter was intimated to her parental home and her mother and brother came to the matrimonial home and gave her a couple of tablets, when she regained normalcy.

2. Thereafter, she was taken to her parental home and on 27/12/2005, she was admitted in Viveka Hospital, Kozhikode where she was treated by PW2. The treatment continued till 11/1/2006 and Ext.X1 is the prescription issued from the hospital. During her hospitalisation, respondent visited her in the hospital when he came to know that the appellant was suffering from schizophrenia right from 2003. It was on that basis that he filed Mat.Appeal No.709/08 :

2. : OP No.178/06 before the Family Court, Kozhikode seeking a declaration that her marriage with the appellant is a nullity under Section 12(1)(c) of the Hindu Marriage Act.

3. In the OP, the respondent had also impleaded the appellant's mother as her guardian and next friend. The appellant entered appearance before the Family Court and filed her objections denying the allegations against her. She also alleged that on the night of marriage itself, she was cruelly treated at the matrimonial home and she asserted her capacity to lead a normal marital life. She also contended that she is a graduate with TTC, as against the respondent who has not even successfully completed his Pre-degree.

4. Before the Family Court, respondent was examined as PW1 and PW3 is the friend of the respondent. PW2 is the doctor from Viveka Hospital, who treated the appellant during the period from 27/12/2005 to 11/1/2006. In his examination, PW2 deposed about the hospitalisation and treatment and Ext.X1 was proved. According to him, she is suffering from schizophrenia and she has difficulty to lead a marital life in the normal course. He also confirmed that the appellant was under treatment from 2003 to Mat.Appeal No.709/08 :

3. :

2004. and that her treatment can be kept under control and cannot be cured permanently. He also deposed that he had directed the appellant to continue treatment. Though he was cross examined, nothing could be brought out to discredit the evidence tendered by this witness.

5. The appellant, despite the fact that she was represented in the proceedings by her mother, being her guardian and next friend, mounted the box to tender evidence by herself. However, in the evidence, she admitted that she was treated by PW2. Subsequently, she was found to be in utter confusion suffering from some sort of mental illness and her evidence has to be stopped midway with the consent of the learned counsel appearing for the parties. The guardian did not mount the box or tender any evidence.

6. Facts being so, it is obvious that it was the case of the respondent that despite the fact that from 2003, the appellant was suffering from schizophrenia, it was suppressing that ailment of the appellant that his consent for the marriage was obtained and therefore consent was obtained fraudulently entitling him for a decree of nullity. No evidence whatsoever has been adduced on Mat.Appeal No.709/08 :

4. : the side of the appellant to contradict this assertion of the respondent. If that be so, the conclusion of the Family Court that it was suppressing the fact of schizophrenia suffered by the appellant that the respondent's consent was obtained, is well founded.

7. Learned counsel for the appellant contended that when the appellant was described as a mentally ill person, it was without complying with the provisions of Order XXXII CPC that the proceedings in question were initiated and prosecuted. We do not find any substance in this contention. Reading of the cause title to the OP which is shown in the order under appeal itself would show that being a mentally ill person, respondent had impleaded her mother as guardian and next friend. Therefore, that requirement is satisfied.

8. As far as the examination of the guardian in Court is concerned, guardian being on the party array always had the freedom to mount the box and tender evidence. However, that liberty and opportunity was not availed of. Instead, the appellant chose to tender evidence by herself. In such circumstances, the Mat.Appeal No.709/08 :

5. : appellant cannot successfully urge the contention of the alleged non compliance of the provisions of Order XXXII CPC. For the aforesaid reasons, we do not find any substance in this appeal. Appeal therefore deserves only dismissal and we do so. Sd/- ANTONY DOMINIC, JUDGE Sd/- P.D.RAJAN, JUDGE Rp //True Copy// PA TO JUDGE