1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FAMILY COURT APPEAL NO.102 OF 2009 Shri Shrenik Dasharath Chavan Appellant Vs. Mrs. Ashwini Shrenik Chavan Respondent Shri Dashrath B. Chavan, Power of Attorney Holder of the appellant present in Court. None for the respondent. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. June 30, 2009 ORDER (PER B.H.MARLAPALLE,J.): 1. This appeal filed under Section 19 of the Family Courts Act, 1985 impugns the judgment and order dated 13th April 2009 rendered by the Family Court at Pune thereby dismissing Petition No.A-337 of 2007. The said petition was filed by the present appellant seeking divorce under Section 12(1)(c) of the 2 Hindu Marriage Act, 1955. The marriage between the parties took place on 2/6/2005. Originally the petition was based on the letter found by the appellant on 20/4/2006 and written by the respondent wherein she had noted that her marriage was performed without her consent. As per the appellant the said letter was sufficient to hold that the consent of the respondent was obtained by fraud and, therefore, the marriage cannot be said to be legal and was required to be annulled by a decree of nullity. The appellant amended the petition and added one more ground stating that the respondent had suppressed the fact that she was out of employment and thus played a fraud. 2. The respondent appeared and filed her Written Statement at Exhibit 8 before the Family Court and refuted all the allegations levelled against her. She pointed out that the marriage was an arranged marriage and before the engagement ceremony the petitioner and his family members had seen her and also met her. She further stated that she was employed with Lacon System, Parvati, Pune. She admitted the contents of the letter dated 20/4/2006 and despite that she emphatically stated that it was her strong desire to cohabit with the petitioner. 3 3. The following issues were framed by the Family Court and all of them are answered in the negative: (1) Whether petitioner proves that the respondent and her parents while obtaining his consent for marriage with the respondent has played fraud? (2) Whether petitioner is entitled to get decree of nullity? (3) Whether the petitioner is entitled to get marriage expenses from the respondent? 4. The learned Judge noted that one more amendment in the petition was carried out by adding the ground that the orthodental operation of the respondent performed before marriage was not disclosed when the marriage was settled and, therefore, this act was again an instance of misrepresentation and fraud. The petition came to be dismissed. 5. Section 12(c) of the Act reads as under: 4 “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) ... ... ... (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.” 6. So far as the instant case is concerned, the so called letter was written by the wife and it was her case that her consent was not obtained for the marriage. The same was not available to the appellant / petitioner as a ground for seeking a declaration that it was a voidable marriage and may be annulled 5 by a decree of nullity. So far as the case of fraud is concerned, he raised two grounds viz. (a) it was not disclosed to him that the respondent was without a job and (b) that she had undergone an orthodentistry operation before the marriage, so as to improve her facial appearnce. It is to be noted that the fraud contemplated under Section 12(1)(c) is as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent i.e. the wife in the instant case. 7. However, the Family Court examined the allegations of fraud and noted that as far as orthodental operation was concerned there was nothing on record to show that any such operation was performed. The bills produced on record at Exhibits 23 and 24 were about the orthodental charges and consultation fees received by Dinanath Mangeshkar Hospital and Research Centre at Pune. The Family Court also considered the photographs at Exhibits 19 and 20 and noted that she had consulted some doctor on 8/3/2005 and later on 22/3/2005 and some medicines were prescribed. There was nothing about the orthodental operation as alleged. As per the Family Court the 6 respondent had no physical disability and the matrimonial life of the appellant was not adversely affected. In addition, the appellant’s father who had stepped in the witness box had admitted in the cross-examination that he was present when the marriage terms were settled with the parents of the respondent and the relations from both the parties were present and he had approved these terms. The Family Court also noted that the ground of operation to improve the facial look was not taken at the first instance and it was added by way of an after thought. The Family Court was, therefore, justified in holding that the allegation playing fraud on the alleged ground of orthodental operation could not be proved. There is no error committed by the Family Court in the said finding. 8. On the ground of loss of employment, there could not be any ground of fraud. The wife stated before the Family Court that she was employed with M/s. Lacon System, Parvati, Pune and was also undertaking computer related job-work. Whatever amount she was earning, she was handing over the same to her husband and thus she was a helping hand to the family in all respects. This alleged ground of suppressing unemployment of the respondent could not be established by the petitioner before 7 the Family Court. We are satisfied that the petition was filed on the imaginary and frivolous grounds seeking to annul the marriage under Section 12(1)(c) of the Act and the petitioner utterly failed to make out a case of fraud regarding the facial looks or employment of the respondent. 9. Hence the appeal must fail at the threshold and the same is hereby dismissed with no order as to costs. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)