IN THE HIGH COURT OF CHHATTISHGARH AT BILASPUR First Appeal fMl 2^1 /2011/DB Ashish Goyal S/o Jaiprakash Goyal, Aged About 27 Year, Resident Of -Behind Puri Rest House, Mayapur, Ambikapur P.S. & Tahsil - Ambikapur District- Sarguja, (CG) Appellant/ Plaintiff Versus PR Na.-.'—'-...... Prosentad by Shri Datad. ^-(7 Kalpana Goyal W/0 Ashish Goyal, Aged About 24 Year, Resident Of Near Bus Stand Kansabel, District- Jashpur (C.G.) Respondent/Defendant APPEAL UNDER SECTION 28 OF HINDU MARRIAGE ACT 1955 READ WITH SECTION 19 OF FAMILY COURTS ACT 1987 ARISING OUT OF 3UDGEMENT AND DECREE DATED 31/01/2011 PASSED BY THE FAMILY COURT SARJUGA fPRESIDING OFFICER SHRI SAN3AY SHENDRE1 IN CIVIL SUIT N0 04/A/10 ASHISH GOYAL VS KALPANA GOYAL HIGH COURT OF CHHATTISGARH : BILASPUR /yr^,_ ^ F. A. (M) No.21 of2011 Appellant Ashish Goyal Versus Respondent Kalpana Goyal APPEAL UNDER SECTION 28 OFTHE HINDU MARRIAGEACL1955 READ WITH SECTION 19 OF THE FAMILY COURTS AC'L.1987 DB: Hon'ble Shri I. M. Quddusi 8s Hon'ble Shri G. Minhajuddin, JJ Shri Mukesh Sharma, Advocate for the appellant. Shri Ashok Verma, Advocate for the respondent. JUDGMENT (Orall ( passed on this 8th day of December, 2011 / Per I. M. Quddusi, J. The instant appeal has been filed by the plaintiff/husband against the impugned judgment and decree dated 31.01.2011 passedby the Judge, Family Court, Ambikapur in Civil Suit No. 04-A/2010 (Ashish Goyal Vs. Kalpana Goyal), dismissing the suit/petition filed by the husband under Section 12 (l)(b) ofthe Hindu Marriage Act, 1955 for a ,decree of nullity of the marriage. The brief facts of the case are that the marriage of the parties to the suit was splemnized on 2.5.2009 according to Hindu customs at Ambikapur. Accoi-ding to the plaintiff/husband, he was not having the knowledge that the defendant/wife was suffering froni mental disorder, therefore, he asked his father-in-law, who denied about any kind of raental disorder of his daughter then the plaintiff took the ••& '% •s;%s: t,y n/ defendant/wife to a consultant psychiatrics Dr. Prakash Narayan at Raipur. On raedical examination of the defendant/wife it was discovered that her treatment was going on since a long time and she was taking medicines of heayy doze. Earlier to that the parents of the defendant/wife got her medical treatment at Ranchi from the Dr. Borde who had prescribed the heavy doze drugs of 7.5 m.g. Such a medici.ne is normally prescribed by the doctors to the patients who are suffering from mental disorder. The defendant/wife was also examined by the Dr. Borde on 28.8.2009. As the raarriage was solemnized by suppressing the mental condition of the defendant/wife therefore the marriage itself is void and it is a nullity and therefore the plaintiff/ husband filed the suit/ petition for grant of a decree of nullity of the marriage. On the other hand the defendant/wife denied the plaint allegations. 3. We have heard learned counsel appearing for the parties, perused the papers available on record and have gone through the relevant provisions of law. 4. Section 12 (1) (b) ofthe Hindu Marriage Act, 1955 reads as under : 12. Voidable marriages. - (1) Any raarriage 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 :- (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5;or * -rH 5. Section 5 (ii) (a), (b) and (c) r^ads as under: Conditions for a Hindu inarriage. - A raarriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:— (ii) at the time of marriage, neither party — / 7. /y-^ (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 sufferin^ from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity ; Therefore, it is evident from a joint reading of Section 12(l)(b) and Section 5 (ii) that any marriage solemnized between two Hindus shall be voidable and may be annulled by a decree of nullity if at the time of raarriage, neither party is incapable of giying a valid consent to it in consequence of unsoundness of mind, or though he/she is capable of giving a valid consent but has been suffering from such a kind of mental disorder or to such an extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity. For the purpose of instant case sub-clause (c) of clause (ii) of Section 5 of the Act, 1955 is relevant which provides that a marriage between two Hindus can be declared as nullity if he/she has been suffering from inental disorder of such a kind or such an extent for which he/she can be unfit for marriage ( first condition ) and the procreation of children (second condition). Thus the first condition is that he/she is suffering from mental disorder of such a kind or to such an extent for which unfit for marriage-and the second condition is he/she is unfit for procreation of children. Therefore, this sub clause does not only impose, a condition of suffering of mental disorder resulting in unfit for marriage but also imposes a condition of not capable to procreation of children. Thus, unless both these conditions are fulfilled, the petition under Section 12 (1) (b) of the Act, 1955 would not be maintainable. //-, Thakur ^ 8. In the instant case, though the appellant had led evidence of the treating doctor of the respondent but in the absence of any evidence that at the time of marriage the respondent was suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and also unfit for procreation of children, no decree of nullity of the marriage can be granted. Accordingly, we are of the considered opinion that no good ground appears for interference in the impugned judgment and decree passed by the Court below. 9. In view of the foregoing, the appeal fails and is dismissed. No order as to costs^— —^- , -——— Sd/- I.M.Quddusi Judge Sd/- G.Minhajuddin Judge /I -i .5S: —*WjJLT"»-,.y^.;i.-^4^b^: 5£^'