IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 MFA.No. 455 of 1999(B) ---------------------- OP.199/1998 of FAMILY COURT,KOZHIKODE .................... APPELLANT/RESPONDENT: ----------- N.K.REEJA, D/O. BAPPU, NALLOLI KUNNUMMEL HOUSE, UMMALATHOOR AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.G.ARUN RESPONDENT/PETITIONER: ------------- M. RAMESH, S/O. UNNIERI, C.D.A. COLONY, KACHERI AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. SRI.JACOB ABRAHAM FOR R1 SRI.KOCHUMOL KODUVATH FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- M.F.A.NO. 455 OF 1999 ---------------------------------------------------------------- Dated this the 14th day of August, 2008 JUDGMENT Harun-Ul-Rashid, J. The respondent in O.P. No.199 of 1998 on the file of the Family Court, Kozhikode is the appellant. The appeal is directed against the order dated 10.12.1998 by which the marriage between the petitioner and the respondent was declared null and void. The parties herein are referred to as petitioner and respondent as in the Original Petition. 2. The marriage between the petitioner and respondent was solemnised on 7.9.1997. The Original Petition was filed under Section 12 (1)(c) of the Hindu Marriage Act, 1955. It is averred by the petitioner/husband that during the course of medical check up of the respondent/wife at Tata Memorial Hospital, Mumbai, he came to know that his wife is a cancer patient and that malignancy was noticed in her thyroid gland years back. It is also stated that the doctors at Tata Memorial Hospital, Mumbai told him that the respondent had already M.F.A. NO.455/1999 2 undergone an operation, that she had been referred to the Regional Cancer Centre, Thiruvananthapuram for treatment and that it was after consultation at the Regional Cancer Centre, Thiruvananthapuram that she had been referred to the Radiation Medicine Centre attached to the Tata Memorial Hospital, Mumbai for further treatment. It is further averred by the petitioner that the respondent had been to the Radiation Medicine Centre earlier and that she was a cancer patient even prior to the marriage and had been undergoing treatment at various places. The petitioner, therefore, contended that the health condition of the respondent and the nature of her illness was deliberately and wilfully suppressed by the respondent and her relatives for the purpose of fraudulently procuring his consent for the marriage. 3. The respondent/wife denied the allegations in the Original Petition inter alia contending that there was no deliberate or wilful suppression either on her side or on the side of her relatives for fraudulently procuring the consent of the petitioner for marriage. She further contended that there was no fraud or suppression of material facts and circumstances regarding her illness and health conditions, that she underwent thyroidectomy surgery in the year 1994 and that it was later found that the thyroid was malignant. It is further contended by the M.F.A. NO.455/1999 3 respondent that after the surgery she was advised to start radiation treatment and hence she underwent the said treatment. It is also averred that the petitioner and his relatives were well aware of her illness and health conditions and also the fact that she was a patient since 1994. 4. Before the Family Court, the petitioner and respondent were examined as PW.1 and RW.1 respectively. Exts.A1 to A9(e) were marked on the side of the petitioner. The court below discussed the pleadings and evidence on record. The petitioner sought a decree of nullity of marriage on the ground that his consent for the marriage was obtained by practicing fraud. As PW.1, he testified before the court that only when the respondent was taken to Tata Memorial Hospital, Mumbai for consultation did he come to know of her illness and that had he been aware of the illness of the respondent, he would not have given his consent for the marriage. The petitioner has also produced medical records in support of his contention. The respondent as RW.1 admitted that she had undergone thyroidectomy in 1994, that biopsy was taken and she was referred to Regional Cancer Centre, Thiruvananthapuram and subsequently she had gone to Bombay for check up. 5. Going by the pleadings of the parties, it is quite clear that the M.F.A. NO.455/1999 4 respondent/wife had been a patient from 1994 onwards. The Family Court noted that the respondent/wife practically admitted her illness in the counter as well as in the reply notice. It is an admitted fact that the respondent had undergone treatment during the year 1994. Exts.A5 to A9 medical records prove that she was continuously under treatment for cancer and papillary carcinoma of thyroid. The Family Court on an elaborate discussion of the materials on record rightly concluded that on noticing the malignancy after thyroidectomy, the respondent was treated as a cancer patient and that the illness of the respondent, being a material fact, ought to have been informed to the petitioner prior to the marriage. The Family Court, therefore, held that the petitioner's consent for marriage was obtained by suppressing her illness, that the petitioner was not aware of the illness of the respondent/wife prior to the marriage and therefore, the petitioner is entitled to the declaration sought for. 6. The evidence on record discussed in paragraph 14 of the order shows that the petitioner was not aware of the illness of the respondent prior to the marriage and that his consent for the marriage was obtained by suppressing her illness. Non disclosure of the illness of such a serious nature of the respondent/wife to the petitioner/husband will definitely amount to fraud. Hence, the Family Court was right in holding that the M.F.A. NO.455/1999 5 petitioner is entitled to the declaration sought for. No grounds are made out to take a different view from the one taken by the Family Court. The appeal fails and it is accordingly dismissed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ M.F.A. NO.455/1999 6 KURIAN JOSEPH & HAURN-UL-RASHID, JJ. M.F.A. NO. 455/1999 JUDGMENT 14th August, 2008 M.F.A. NO.455/1999 7