Decided on October 18,1966



M.U.SHAH - (1.) This is appellant-husbands second appeal against the judgment and decree dated October 31 1964 passed by the learned District Judge Baroda in Regular Civil Appeal No. 226 of 1963 refusing to grant him a decree of nullity of marriage prayed for under sec. 12(1) (a) and (c) of the Hindu Marriage Act 1955 (Act No. XXV of 1955) hereinafter referred to as the Act. By his decree the learned District Judge has confirmed the decree of dismissal of the appellant-husbands petition for annulment of marriage passed by the learned Joint Civil Judge (Senior Division) Baroda in Regular Civil Suit No. 1140 of 1959 on March 30 1963
(2.) The proceedings arose out of a petition for annulment of marriage instituted by the appellant-husband. The petition as originally instituted on September 7 1959 was based on the ground that the appellants consent to the marriage was obtained by fraud. The allegation was that the respondent-wife was suffering from epilepsy of long standing prior to the date of marriage and as a result of this epileptic condition the respondent was unable to fulfill her marital obligations and was unable to perform domestic work like a house-wife. The allegation in the petition further was that the respondent as well as the respondents father has prior to the marriage represented to the appellant that the respondent had fever some time back and therefore she was anemic. The representation by the father of the respondent was allegedly made to the appellants elder brother on an enquiry being made by him in the presence of the appellant as to why the respondent was looking of delicate health. This happened some time prior to the betrothal when the appellant had gone to the house of the respondents father to see the respondent. The respondent herself had allegedly made a similar representation to the appellant some time prior to the marriage. This was the only allegation on which the petition as originally instituted was based. The cause of action is stated to have arisen on January 31 1959 after the petitioner had seen the report of Dr. Bharucha who had examined the respondent earlier at Bombay The relief prayed for in the petition as stated in paragraph 8(1) of the petition was that the marriage was brought about by practising fraud and that consent to the marriage was obtained by practising fraud and therefore the decree of nullity of marriage be granted.
(3.) The respondent had filed her written statement to this petition on December 11 1959 denying the material allegation of fraud. She had contended that during the course of negotiations before the marriage of the parties the respondents father had of his own accord told the appellant that some time the respondent used to get giddiness and that the cause given for the giddiness by the family doctor was anemia and general debility. She had in paragraph 11 of her written statement stated that she used to get fits only at times and that the respondents father had said so to the appellant and his brother before marriage and further that the appellant and his brother had verified the fact before the marriage and it was thereafter that the marriage was solemnized. The respondent had denied that she was suffering from chronic and serious epilepsy of long duration. She had stated that she was fulfilling the marital obligations and was capable of fulfilling the same even now. She had further stated that she was doing all the household work at the house of the appellant and was capable of doing so. She had denied that the consent of the appellant to the marriage was obtained by fraud.;

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