IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 Mat.Appeal.No. 61 of 2007() --------------------------- OPHMA.264/2005 of FAMILY COURT,KOLLAM .................... APPELLANTS:RESPONDENTS -------------------------------------------- 1. MUKTHA, D/O.INDIRA, RESIDING AT KOKELETH VEEDU, MARUTHURKULANGARA THEKKUM MURI, ALUMKADAVU P.O., KARUNGAPPALLY. 2. INDIRA, W/O.NARAYANAN, RESIDING AT KKOKELETH VEEDU, MARUTHURKULANGARA THEKKUM MURI, ALUMKADAVU P.O, KARUNAGAPPALLY. BY ADV. MUKTHA.K.N.(PARTY IN PERSON) RESPONDENT(S): PETITIONER: -------------------------- T. PRASANNAN, S/O. ANANDAN, KRISHNALAYAM, MARUTHOORKULANGARA SOUTH, THEKKUM MURI, ALUMKADAVU P.O., KARUNAGAPPALLY TALUK. ADV. SRI.S.RAJEEV FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24/02/2011, ALONG WITH MA NO. 62 OF 2007 THE COURT ON 08/03/2011 PASSED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.A.Nos. 61 & 62 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of March, 2011 JUDGMENT Joseph Francis, J. Mat.A.No.61 of 2007 is filed by respondents 1 and 2 in O.P.(HMA) No.264 of 2005 and Mat.A. No. 62 of 2007 is filed by the petitioner in O.P. (HMA) No. 272 of 2005 on the file of the Family Court, Kollam. The respondent in Mat.A.No.61 of 2007 is the petitioner/husband in O.P.(HMA) No.264 of 2005 and the respondent/husband in Mat.A.No.62 of 2007is the respondent in O.P. (HMA) No. 272 of 2005. 2. O.P.264 of 2005 is a petition filed by the petitioner/ husband as against the first respondent and her mother for a decree of nullity of marriage under Section 12(1)(c) of the Hindu Marriage Act on the allegation that there was misrepresentation on the respondents' side with respect to the age of the first Mat.A.Nos. 61 & 62 of 2007 2 respondent and O.P. 272 of 2005 is a petition filed by the petitioner/wife as against the respondent/husband for nullity of marriage under Section 12(1)(c) of the Hindu Marriage Act on the allegation that the respondent is incapable of performing sexual intercourse he being a eunuch and having physical infirmities. 3. The case of the petitioner/husband in O.P.(HMA) No.264 of 2005 is briefly as follows. The petitioner and the first respondent belong to Hindu Dheevara Community and their marriage was solemnised in accordance with their religious custom on 14.7.2004 at Valiyakulangara temple. That was the second marriage of the petitioner and the first respondent. The second respondent is the mother of the first respondent. After the marriage the first respondent was brought to the house of the petitioner. The case of the petitioner is that thereafter he realised that the first respondent was ten years elder than him. The petitioner contends that the correct age of the first respondent was not disclosed to him and thereby respondents 1 and 2 Mat.A.Nos. 61 & 62 of 2007 3 committed fraud on the petitioner. In these circumstances the petitioner/husband approached the Family Court for declaring the marriage between the petitioner and the first respondent as null and void under Section 12(1)(c) of the Hindu Marriage Act. 4. The respondents filed counter denying the various contentions raised by the petitioner. The respondents contend that the allegations put forward by the petitioner that the horoscope of the first respondent wife was fabricated and the age of the first respondent was suppressed is incorrect. Though the age of the first respondent was disclosed to the petitioner, he had no objection since it was the second marriage for both the petitioner and the first respondent. 5. O.P.No. 272 of 2005 is a petition filed by the wife against the husband under Section 12(1)(c) of the Hindu Marriage Act for a decree of nullity of marriage on the ground that the respondent/husband was impotent at the time of the marriage and continued to be so till the filing of the petition. In the Original Petition the respondent/husband Mat.A.Nos. 61 & 62 of 2007 4 did not file any counter. But the Family Court treated the contentions of the petitioner in O.P.No. 264 of 2005 as the counter of the respondent/husband. 6. In the Family Court, both the above Original Petitions were tried jointly and evidence was recorded in O.P. (HMA) No. 264 of 2005. The petitioner/husband was examined as PW1 and Exts.A1 to A8 were marked on his side. On the side of the wife, she was examined as CPW1. Ext.C1 report was also marked. The learned Family Court, on considering the evidence, granted a decree of nullity of marriage in O.P (HMA) 264 of 2005 on the ground that the wife suppressed her exact age and that her age was represented to be 36 years, though she was actually aged 43, at the time of the marriage and that consent for marriage was obtained from the petitioner/husband practicing fraud. O.P. (HMA) No. 272 of 2005 filed by the wife was dismissed on the ground that the respondent was not impotent at the time of the marriage. Against the order in O.P. (HMA) No. 264 of 2005 respondents 1 and 2 filed Mat. A. No. 61 of 2007 and against the Mat.A.Nos. 61 & 62 of 2007 5 order dismissing O.P.(HMA) No.272 of 2005 the petitioner/wife filed Mat.A. No. 62 of 2007. 7. Heard the first appellant in Mat.A.No. 61 of 2007, who is the appellant in Mat.A.No.62 of 2007 and the learned counsel for the respondent/husband. 8. At the time of argument, the appellant wife raised the following contentions in Mat.A.No. 62 of 2007. The court below ought not to have tried the petitions filed by the wife and the husband jointly since the grounds sought for annulment of marriage are totally different. Even though no counter statement nor separate objection was filed by the respondent, the court below erred in dismissing the said petition. She also contended that the court below has not framed proper issues nor has adverted to the contentions put forth by her. The court below erred in not referring the respondent to a duly constituted Medical Board for an examination, especially when the facts of the case reveal that the earlier wife of the respondent had also initiated proceedings for dissolution of the marriage on the same ground of Mat.A.Nos. 61 & 62 of 2007 6 impotency. She further contended that the findings in Ext.C1 Medical Certificate is incorrect. The identity of the respondent in the medical certificate is also suspicious. In fact the appellant had given objection to set aside the report. The same was also not considered. 9. The records of the court in O.P. No. 295 of 1998 ought to have been called for, for deciding the dispute as the first marriage of the respondent/husband was also dissolved on the same ground of impotency. The court below went wrong in not giving sufficient opportunity to the appellant to adduce necessary evidence by examining the witnesses. 10. In Mat.A.No. 61 of 2007 the appellant made the following submissions. The court below erred in entertaining the plea of fraud put forth by the respondent/husband when he himself has stated in para 2 of the petition before the Family Court that 'inspite of all these infirmities the petitioner (husband) had shown his intention to continue the relationship. The discussion in the judgment regarding the age of Mat.A.Nos. 61 & 62 of 2007 7 the wife, adverting to Ext.A1, proceeds on erroneous and faulty lines. In fact the age of the husband is also not shown correctly in Ext.A1 document. 11. It is relevant to note that Ext.A1 is the marriage certificate produced by the respondent, wherein both the appellant as well as the respondent have signed. The age of the bride shown therein is 36 and that of the bridegroom is 38. In Ext.A2, relevant page of the SSLC book, the date of birth of the respondent is shown as 3.5.1969. On that basis the age of the respondent would be 35 years on the date of marriage and not 38 as shown in Ext.A1. Therefore, if the age shown in the marriage certificate is taken as the criterion, on the basis of which fraud is alleged and which is sought to be proved, then the same principle would apply to the respondent also. On a comparison of the age shown in Exts.A1 and A2 the age of the respondent is also incorrect, it i submitted. 12. The burden of proving the fraud and the alleged misrepresentation regarding the age of the appellant is on the Mat.A.Nos. 61 & 62 of 2007 8 respondent/husband, who had approached the court. The same has not been discharged effectively. Admittedly, the marriage between the appellant and the respondent was a second marriage. In fact the appellant had deposed that consent was obtained only after stating the age of the appellant and that the respondent had no objection since this was his second marriage. The court below went wrong in not giving sufficient opportunity to the appellant/wife to adduce necessary evidence by examining the witnesses. 13. The learned counsel for the respondent/husband supported the common order of the Family Court. 14. On perusing the lower court records it is seen that the husband filed a Writ Petition before this Court as W.P.(C) No. 2438 of 2006 and as per judgment dt.25.1.2006 this Court directed the Family Court, Kollam to dispose of O.P. (HMA) Nos. 264 and 272 of 2005 within six months from the date of production of a copy of the judgment before the Family Court. From that judgment it is seen that the above judgment was rendered by this Court without giving notice Mat.A.Nos. 61 & 62 of 2007 9 to the respondent/wife. The appellant contends that due to the above direction, the Family Court did not give sufficient opportunity to her to adduce sufficient evidence in both the above Original Petitions. 15. As per order in I.A. No. 737 of 2006 in O.P. (HMA) No.272 of 2005 the respondent/husband had undergone potency test and the medical report was marked as Ext.C1. Ext.C1 report is to the effect that the husband does not suffer from any infirmity in his genital organ or potency problems as alleged by the petitioner/wife. The Family Court, mainly based on the finding in Ext.C1 report, came to the conclusion that the husband was not impotent at the time of the marriage. 16. In O.P.(HMA) No. 272 of 2005 the petitioner/wife filed I.A. No. 1437 of 2006 for sending the respondent/husband before the Medical Board for a detailed examination with regard to the potency and abnormality of his sex organs. O.P. (HMA) No. 272 of 2005 was disposed of on merits on 22.9.2006. But I.A. No. 1437 of 2006 was decided only on 14.3.2007 after the disposal of the Original Petition Mat.A.Nos. 61 & 62 of 2007 10 on the ground inter alia that the petitioner/wife did not take any steps to set aside Ext.C1 report. The lower court records in O.P. (HMA) No. 272 of 2005 show that the petitioner/wife filed I.A. No. 1438 of 2006 on 17.7.2006 to set aside Ext.C1 report and the petitioner had filed witness list, including the name of the doctor, who prepared Ext.C1 report. The appellant/wife submitted that in that witness list she had given the names of persons, who were involved in the negotiation to the marriage to show that the husband agreed for the marriage fully knowing the actual age of the wife. The learned counsel for the husband would point out, regarding the contents of Ext.A1 the husband would have also examined witnesses to prove his case. 17. Since the appellant has a complaint that she was not given sufficient opportunity in both the above cases to adduce sufficient evidence, and the husband also would adduce evidence in the case, we are of the view that in the interest of justice sufficient opportunity must be given to both sides to adduce further evidence. Mat.A.Nos. 61 & 62 of 2007 11 18. Accordingly both the above appeals are allowed and the common order in O.P. (HMA) Nos. 264 and 272 of 2005 on the file of the Family Court, Kollam is set aside and both the above Original Petitions are remanded to the Family Court, Kollam for fresh disposal in accordance with law after giving sufficient opportunity to both sides to adduce further evidence. The parties are directed to appear before the Family Court, Kollam on 8.4.2011. Send back the lower court records immediately. (K.M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm