FIRST APPEAL No. 190 OF 2004 Against the Judgment and Decree dated 16.07.2004 passed by Sri Birendra Singh, District Judge, Katihar in Matrimonial Case No.50 of 2001. VIDYUT KUMAR VERMA & ANR .………. Opposite Parties-Appellants Versus MANJU KUMARI .………..……… Petitioner-Respondent ******** For the Appellant : Mr. Rabindra Nath Kanth, Advocate For the Respondent : Mr. Abhaya Krishna, Advocate Dated : 24th day of February, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The opposite parties have challenged the impugned Judgment and Decree dated 16.07.2004 passed by learned District Judge, Katihar, Sri Birendra Singh in Matrimonial Case No.50 of 2001 whereby the application filed by the respondent, Manju Kumari under Section 12(1)(C) of the Hindu Marriage Act has been allowed. 2. The wife Manju Kumari who is respondent in this Appeal filed the application under Section 12(1)(C) of the Hindu Marriage Act, 1955 for nullifying the marriage with the appellant No.1, Vidyut Kumar Verma, which was numbered as Matrimonial Case No.50 of 2001. According to this application, the consent of the wife-petitioner for marriage was obtained by the appellants by playing fraud as it was disclosed that Vidyut Kumar Verma Mungeshwar Sahoo, J. 2 is a computer engineer and aged about 25 years. The marriage was solemnized in July, 2000. The wife went to sasural on 09.07.2000 and returned back on 11.07.2000. Thereafter, her husband never came to take her. Subsequently it was learnt that Vidyut Kumar Verma is not a computer engineer rather he has failed thrice in I.S.c,. and has left reading and is aged about 19 years. The wife-petitioner on this ground alleged that her consent was obtained by playing fraud. The petitioner-wife is aged about 32 years and is employed and the marriage was performed because of concealment of the facts of age and qualification of husband. 3. The opposite party-appellant appeared and filed reply to the said application alleging that at the time of marriage, he was aged about 21-22 years and was doing computer diploma classes at Patna and he was still student. This fact was disclosed and the wife, the petitioner and her father knowing all the full facts performed the marriage. After marriage, there was good relationship between them and co-habitation also continued. The dispute started when the husband objected to taking major portion of salary of Manju Kumari by her father. This objection furicated the petitioner and her father as a result of which they filed this application under Section 12(1)(C) of the Hindu Marriage Act. 4. On the basis of the above pleading of the parties, the learned Court below framed following issues : (i) Is the Matrimonial case maintainable in its present form? (ii) Is the case barred by law of Limitation, estoppel? (iii) Has the petitioner got cause of action for this Matrimonial case? (iv) Is the marriage of the petitioner void or illegal because it was performed by committing fraud with the petitioner by the O.P.s? 3 (v) Is the petitioner entitled to a decree of nullity of marriage by declaring the marriage of the petitioner with the O.P. as null and void? (vi) Is the petitioner entitled to any other relief and relieves if so what? 5. It may be mentioned here that although reply to the application, filed by Manju Kumari, was filed by the husband-appellant but no witness has been examined on behalf of the appellants in support of their case. Therefore, the evidence adduced on behalf of the respondent remained uncontroverted. After considering the materials available on record, the learned Court below came to the conclusion that the petitioner has brought ample evidence in support of her case that fraud with respect to the age and qualification of the appellant No.1 was committed on the father of the petitioner-respondent and, therefore, allowed the application and marriage was declared void. 6. The learned counsel for the appellant submitted that the impugned Judgment and decree is unsustainable in the eye of law because after knowing fully the age and qualification, the respondent married the appellant No.1. Nothing was concealed and moreover age was not the consideration at the time of negotiation of marriage because the father of the respondent and the respondent herself admitted in their evidences that at the time of marriage, Manju Kumari was aged about 32 years. Therefore, even if the case of the respondent is believed that the age of appellant No.1 was disclosed as 25 years, there was much difference in age and that cannot be a ground for nullifying the marriage. The learned counsel further submitted that the respondent and her father were knowing that the appellant No.1 was still student at the time of marriage and they persuaded him for marriage alleging that after marriage a medicine shop will be opened for him and he will be got settled. After marriage instead of 4 opening medicine shops, the father of the respondent gave a proposal that the husband should remained at ghar Jamai which he refused as a result of which this case was filed. The learned counsel further submitted that the concealment of qualification is not so vital so as to nullify the marriage and moreover, there was no concealment of qualification. The learned counsel for the appellant further submitted that there is no documentary evidence at all to show that the age of appellant No.1 was 19 years at the time of marriage. Only oral statement has been made on behalf of the respondents which cannot be relied upon. On these grounds, the learned counsel for the appellant submitted that the impugned Judgment and Decree are not sustainable in the eye of law. 7. On the other hand, the learned counsel for the respondent submitted that Ext.1, the invitation card clearly shows that the appellants falsely disclosed the qualification of appellant No.1 as computer engineer. Had there been no such disclosure of qualification to the respondent, she would not have given consent because she was employed as nurse and was getting handsome salary, i.e., Rs.8000/- per month at the time of marriage. Therefore, this concealment of qualification of the husband comes within the purview of Section 12(1)(C) of the Hindu Marriage Act and therefore, the learned Court below has rightly allowed the application. The learned counsel further submitted that the appellants have not adduced any evidence in support of their case that the fact was disclosed prior to marriage. There is no evidence at all on record. Even if the evidence of the respondent regarding age is disbelieved then also the factum of qualification is material and vital part of the fraud committed by the appellants. On these grounds, the learned counsel for the respondent submitted that the First Appeal is liable to be dismissed with cost. 5 8. In view of the above submissions of the parties, the points arises for consideration is as to whether the consent of the petitioner for marriage was obtained by fraud, i.e., by concealing the fact that the appellant No.1 had failed thrice in I.Sc. and further disclosing the false facts to the effect that he was computer engineer and whether the impugned Judgment and Decree are sustainable in the eye of law. 9. As stated above in this case, the appellants have not adduced any evidence. However, let us now examine as to whether the respondent has been able to establish the fact alleged by them. 10. The petitioner-respondent had examined 4 witnesses and also produced marriage invitation card which has been marked as Ext.1. P.W.1 is the father of Manju Kumari. He has stated that at the time of marriage negotiation, the father of appellant No.1, i.e., the appellant No.2 disclosed that his son Vidyut Kumar Verma is computer engineer and is aged about 25 years. Subsequently, he learnt that in fact appellant No.1 had failed several times in I.Sc. and is not a computer engineer. In the cross- examination also, he repeated this fact that the appellant No.1 also disclosed him that he has passed B.Sc. and is computer engineer vide paragraph 7. The evidence of this witness has been fully supported by P.W.2. He has further stated that Manju Kumari is B.A. pass and is employed in C.C.L. Hospital, Jarangdih, Bokaro. He enquired from K.B. Jha, College, Katihar and came to know that appellant No.1 had failed in I.Sc. and was aged about only 19 years. P.W.3 is Manju Kumari, the petitioner- respondent. She has fully supported her case and stated that a fraud was committed by misrepresenting that the boy is computer engineer. On enquiry from K.B. Jha College, Katihar, it came to the knowledge that the boy had failed thrice in I.Sc. and he is not a computer engineer. 6 11. The learned counsel for the appellant pointed out some inconsistency and infirmity in the testimony of witness examined on behalf of the respondents. From perusal of the inconsistency pointed out by the learned counsel, it appears to me that those inconsistency do not impeach the credit of the witnesses. The marriage card has been proved which has been marked as Ext.1. From perusal of the said marriage invitation card, it appears that it is clearly mentioned in the said Ext.1 that Vidyut Kumar Verma is computer engineer. This clearly proves the fact that the appellants disclosed that the appellant No.1 was computer engineer. This fact, no doubt, has been denied by the appellants and according to them all the fact were disclosed prior to the marriage. However, this case of the appellant cannot be relied upon for the simple reason that had the fact been disclosed prior to marriage negotiation then in the invitation card, the qualification should not have been mentioned as computer engineer. The learned counsel for the respondent gave much emphasis on the evidence of P.W.4 who has stated that he disclosed that the appellant No.1 had failed in I.Sc and is not a computer engineer. The learned counsel placed paragraph 3 of the evidence of P.W.4. He has stated that on 24.01.2000, the father of Manju Kumari had asked him about qualification of appellant No.1. So far this part of the evidence is concerned, it appears to be a mistake in writing. According to the respondent in January, 2001, on enquiry, it was learnt that appellant No.1 has failed thrice in I.S.c, therefore, it appears that instead of 2001, it has been written as 2000. As stated above, this is a minor discrepancy and on this basis, it cannot be concluded that in January, 2000 itself, the respondent and her father were knowing that the appellant No.1 is not a computer engineer. The argument of the learned counsel cannot be relied upon on another ground also because if they were knowing that 7 appellant No.1 was not computer engineer then in such circumstances, there was no occasion for printing the qualification of appellant No.1 in the marriage invitation card. 12. The learned counsel for the appellant next submitted that age was not a consideration in the marriage. From the pleading and evidences of the parties, it appears that the parties entered to marriage knowing fully the fact that in any case appellant No.1 is younger than the respondent, Manju Kumari. Whether it was either 19 years or 21 years and 25 years. Moreover, the respondent has not brought any reliable evidence to believe that on the date of marriage, appellant No.1 was only aged about 19 years. Therefore, their case regarding age of appellant No.1 is 19 years cannot be relied upon. 13. The learned counsel for the appellant next submitted that the concealment of qualification is not such vital so as to dissolve the marriage. So far this submission is concerned, it appears that the respondent knowing fully that appellant No.1 is younger in age contacted the marriage and even the respondent gave her consent for marriage because it was disclosed that appellant No.1 is computer engineer. Therefore, considering the qualification of appellant No.1, it appears to me that the age was ignored and marriage was performed. 14. From the discussion of the evidence as stated above, there is nothing on record to show that prior to marriage the respondent was knowing that appellant No.1 was not a computer engineer. So far knowledge of her father is concerned also, there is nothing on record. However, knowledge of father is immaterial here. 8 15. In this case, it is admitted fact that the appellant No.1 is not a computer engineer. The only case pleaded is that this fact was disclosed at the time of marriage negotiation and the respondent gave consent knowing all these facts. So far this part of the pleading is concerned, there is no reliable material available on record. No doubt, the learned counsel for the appellant laboured much as discussed above to impress upon me to come to finding that this fact was known to the respondent, Manju Kumari prior to marriage but I find no material and on the hypothesis or speculation, no such finding can be given. 16. In view of my above discussion I find that the respondent has been able to prove the fact that a mis-representation regarding qualification of appellant No.1 was made and a false statement was given that he is computer engineer. The concealment of this fact appears to me to be vital and it influenced / induced the respondent to give consent for her marriage with the appellant No.1 who was much younger than her. The finding of the learned Court below, therefore, cannot be interfered with. 17. In the result, I find no merit in this First Appeal and accordingly, the First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 24th February, 2011 Sanjeev/.A.F.R.