1. This is a husband's appeal under Section 28 of the Hindu Marriage Act, 1955, against a decree passed by the Fifth Additional District Judge, Jabalpur, on 18th December, 1973, dismissing his petition for annulment of marriage under Section 12(1)(c) and, in the alternative, for judicial separation under Section 10(1)(d) of the Act
2. The parties were married at Raipur on 6th December 1972. After marriage the wife came to Jabalpur on 7th December, 1972, where the husband resides, At the time of marriage the husband was aged 24 years and the wife 21 years. Both of them are graduates and come from respectable Guiarati families. The parties had marital intercourse from 8th to 10th December, 1972. The husband, it seems, noticed some ulcer near the private parts of the wife. He got her examined by Dr. (Miss) Swami (P.W. 1) who advised blood test. The husband then took the wife to Dr. Raja Indurkhya (P.W. 2) for pathalogical examination of the blood. The blood test was positive for syphilis. On further examination Dr. Swami diagnosed that the wife was suffering from syphilis and prescribed treatment. On 17th January, 1973 the husband applied under Section 12(1)(c) of the Act for annulment of marriage. The wife was again examined at the instance of the husband by Dr. (Mrs.) Urmila Jamdar (P.W. 3) on 21st January, 1973, who found that the ulcer was in the process of healing. She also confirmed the diagnosis of syphilis. In the meantime, the parents of the wife were informed. They came to Jabalpur and the wife left with them for Raipur on 23rd January, 1973.
3. In his petition the husband alleged that the wife at the time of marriage was suffering from syphilis for more than three years and that this fact was deliberately concealed by the wife and her father and the husband's consent to the marriage was obtained by fraud within the meaning of Section 12(1)(c) of the Act. It was also alleged that as the wife was suffering from venereal disease in a communicable form for a period of more than three years, the husband was entitled to dissolution of marriage under Section 13(1)(v). The case under Section 13(1)(v) of the Act was later given up. At the fag end of the trial, the husband amended the petition for incorporating a relief for judicial separation under Section 10(1)(d) of the Act. Thus, finally the husband's petition remainedprimarily a petition for annulment of marriage by a decree of nullity under Section 12(1)(c) and, in the alternative, for obtaining judicial separation under Section 10(1)(d).
4. The wife in her written statement denied that she was suffering or that she had ever suffered from syphilis. The wife pleaded that she had actually no sexual intercourse before the marriage. It was also pleaded that the husband and his relations had a quarrel with the wife's parents at the time of marriage and that it was with great reluctance that the husband and his parents took the wife to Jabalpur. It was further pleaded that the wife was ill-treated in the husband's place and that later on some interested persons secretly made false and defamatory allegations against her character which prejudiced the husband.
5. The learned Additional District Judge, after a careful analysis of the evidence produced by the parties, came to the conclusion that the wife was suffering from venereal disease (syphilis) contracted prior to the marriage and that the consent of the husband was obtained by concealing this fact. She has, however, held that this did not amount to fraud within Section 12(1)(c) of the Act and could not be a ground for avoiding the marriage. It was also held that the husband failed to prove that the venereal disease was of a communicable form or that the wife had been suffering from the disease for not less than three years immediately preceding the presentation of the petition. On these findings the husband's nrayers for annulment of marriage and for judicial separation were disallowed and the petition was dismissed.
6. The first question that arises in this appeal is whether the finding of the trial Court that the wife was suffering from venereal disease of syphilis at the time of marriage is correct. The wife was first examined by Dr. (Miss) Swami (P.W. 1) on 11th December, 1972. At that time the wife complained of temperature and cold. Dr. Swami made a general examination and prescribed medicines for sore throat. On 12th December the husband and wife again came to Dr. Swami. The husband complained that the wife was having an ulcer on her private parts. On examination of the wife, Dr. Swami found an ulcer on the left labia majora. She first thought that this might be a local ulcer, but she advised for blood examination. She prescribed penicillin injections. The blood examination was done on 12th December by Dr. Raja Indurkhya (P.W. 2), who practices as Radiologist and Pathologist. On examination of the blood, he found that K. T.(Kahn's test) was positive and V. D. R. L. (venereal disease research laboratory test) was highly positive. His report is Ex. P-2. V. D. R. L. test has stood the test of time and is the national serological test for syphilis in this country; (Text Book of Medicine (1973 Edition) edited by Rustom Jal Vakil and published by Association of Physicians of India, p. 119). On 13th December, 1972 the couple again went to Dr. Swami. On local examination she found that there were 15 to 16 papulaes on the perneum mostly on the upper part of the medial side of the left thigh. After giving injections of penicillin for six days, she found that the papulaes showed signs of healing while the original ulcer remaining as it was. Dr. Swami's opinion was that from the local examination, as confirmed by the blood report, she was satisfied that the wife was suffering from syphilis. She advised the couple to consult a V. D. Specialist. The case-sheet written by Dr. Swami is Ex. P-1. The petition was presented by the husband on 17th January, 1973. The wife was then still living with the husband. The wife may have not known that a petition for annulling the marriage was presented by the husband. The husband got the wife examined by Dr. (Mrs.) Urmila Jamdar (P.W. 3) on 2lst January, 1973. Dr. Jamdar runs a maternity home. On examination of the wife she found an ulcer in healing stage on left Labia majora. She also found small several roundish scars on vulva (both sides). The blood report was shown to her. From the physical examination of the patient and blood report, she concluded that the wife was suffering from venereal disease (syphilis). The husband in his evidence stated that the wife was also examined by a doctor in the military hospital. That doctor was not produced. The wife in her cross-examination admitted that Dr. Swami had examined her and had prescribed penicillin injections. She also admitted that she was examined by Dr. Jamdar. She further admitted that her blood test was taken and the injections were started after blood test. The evidence of these doctors has been believed by the trial Court and we do not find any sufficient reason to disbelieve them. The evidence of Dr. Swami is that the ulcer was not less than six months old. The opinion of Dr. Indurkhya is that the disease must have been of long duration, more than four months old. According to Dr. Jamdar, the disease was one and half months to three months old. We have already stated that the presence of the ulcer was first noticed by Dr. Swami on 12th December, 1972. The marriage took place on 6th December. From the evidence of the doctors, which we believe, it is reasonably certain that thewife was suffering from syphilis at the time of the marriage.
7. The wife in her defence examined Dr. M. M. Dubey (C. W. 4), Dr. C. B. Subbarao (C. W. 1) and Dr. (Mrs.) Shukla (C. W. 2). These doctors belong to Raipur. Dr. Dubey examined the blood for V. D. R. L. on 29th January, 1973. His report of examination is Ex. D-4. The result was negative. Dr. Subbarao examined the wife on 8th March, 1973. She did not find any kind of venereal disease of any stage. Dr. (Mrs.) Shukla also examined the wife on 8th March, 1973. She also found no symptoms of any venereal disease. Vaginal smear of the wife was examined by Dr. Ramesh Chatwani (C. W. 3) on 28th April, 1973, This also showed negative result. The wife, as admitted by her, was given penicillin treatment. As a result of this treatment the disease very likely was cured or at least its symptoms disappeared. It is for this reason that the medical examination reports of the wife at Raipur were negative. Dr. (Mrs.) Shukla (C. W. 2) admitted in her cross-examination that there are cases where although the disease is still present, the blood report is negative when the treatment taken by the patient is incomplete. The evidence of the doctors produced by the wife is thus reconcilable with the evidence of the doctors produced by the husband.
8. During arguments it was suggested by the learned counsel appearing for the wife that the husband should have got himself examined to show that the wife did not contract the disease from him. No such suggestion was made at any stage of the trial. However, we find that the husband got his blood examined on 29th January, 1973 by Dr. Raja Indurkhya (P. W. 2) for K. T. and V. D. R. L. tests and both yielded negative results. This report is also marked as Ex. P-2. The incubation period for syphilis is ten to ninety days; (statement of Dr. Mrs. Shukla, C. W. 2). The presence of the symptoms of the disease in the wife was noticed on 12th December, 1972. The marriage was performed on 6th December and the first marital intercourse took place on Sth December. It is, therefore, clear that the wife did not contract the venereal disease from the husband.
9. The next question of fact which has been argued by the learned Advocate-General, who appeared for the husband, is that the disease with which the wife was suffering is incurable. Dr. Swami (P. W. 1) has stated that syphilis is a curable disease, but if a woman has once suffered from syphilis, she is likely to become sterile and if at all she conceives she may have repeated abortions. She has further stated that if such awoman goes to term, she may have deformed children. It is, however, quite clear from Dr. Swami's statement that syphilis is curable. To the same effect is the statement of Dr. (Mrs.) Jamdar (P. W. 3). She has stated that the disease is curable after treatment. She has also stated that a woman who has suffered from syphilis may become sterile or may have repeated abortions or her issues may be deformed. In the opinion of Dr. Raja Indurakhya (P. W. 2), if treatment is taken seriously and religiously for about a month, the disease can be cured. The evidence of all the three doctors produced by the husband establishes that syphilis in general or at least syphilis with which the wife suffered is curable, but a woman who has once suffered may as A precautionary measure be advised to avoid conception. As stated earlier, the statement of Dr. Raja Indurakhya was definite on the point that a patient could be cured after one month's serious treatment.'
10. Modern therapy with the antibiotic penicillin gives a satisfactory result in the treatment of syphilis undreampt of prior to 1943. The standard treatment is P.A.N. (Procaine Penicillin with aluminum monostearate) 2 ml. or 6 lacs (600,000) units given intramuscular daily for 10 days; [Text Book of Medicine, Rus-tom Jal Vakil (1973), p. 121]. The same treatment is recommended in Price's Text Book of the Practice of Medicine (1956), p. 222. It is also stated therein that 'success from this treatment may be anticipated in 95 per cent or more of the cases'. Although treatment is generally over after 10 days, observation after treatment should continue, for about 2 1/2 years. After 2 1/2 years of observation, cure may be presumed [Price, p. 222]. It is further stated in Price's text book (pp. 224, 225) that for complete safety the syphilitic patient should be advised not to marry, or if already married, not to cohabit until cure may be presumed following 2 1/2 years of observation after treatment. But then it is stated that most clinicians are satisfied with, a lessor standard and permission to marry or resume co-habitation may be given after a year of observation.
11. After considering the evidence of the doctors produced by the husband and the statements in the text-books referred to above, we are satisfied that there is no merit in the argument that the syphilis is an incurable disease. The modern therapy with the antibiotic penicillin has made the disease generally curable. Indeed, the penicillin treatment that the wife received appears to have been successful and, therefore, the doctors who examined her at Raipur did notfind any symptoms of the disease present in her.
12. The learned Advocate-General also contended that the wife was suffering from the venereal disease for a period of more than three years preceding the date of presentation of the petition. In our opinion, there is no material to hold this fact to be proved. We have already referred to the opinion of doctors. The opinion of Dr. (Mrs.) Jamdar (P.W. 3) was that the disease must have been 1 1/2 months to 3 months old. It will thus be seen that according to Dr. Jamdar, the disease was of recent origin. Dr. Swami (P.W. 1) said that the ulcer was not less than six months old. Dr. Raja Indura-khya's opinion was that the disease must have been of more than four months' duration and the maximum limit of the disease could have been upto four to five years. Even believing the statement of Dr. Indurakhya (P.W. 2) it cannot be safely inferred from his statement that the disease in the instant case was three years old at the time of presentation of the petition. The more reasonable view to take on this evidence is that the disease was of recent origin.
13. The learned Advocate-General relied upon a document (Ex. P-4) which is said to have been executed by the wife on 14th January, 1973, when she was living with the husband, in presence of two witnesses, namely, Harbans Singh (P.W. 5) and Parmeshwar Jodhi (P.W. 4). This document contained an admission that the wife has had sexual intercourse with one Karshad Chetwani for a period of five or six years before the marriage and that this resulted in her contracting syphilis. It is also recited in this document that she was treated for syphilis before marriage for three or four years. It is further recited in it that the disease used to recur from time to time even after treatment. It is also admitted in the document that the marriage was arranged after concealing this fact from the husband. A reading of Ex. P-4 would show that it was a complete admission of the husband's case by the wife. It is highly improbable that the wife would execute such a document willingly. The witnesses Parmeshwar Jodhi (P. W. 4) and Harbans Singh (P. W. 5) state that they were invited for lunch and they saw the wife writing and signing this document. It is clear that they were called by the husband to become witnesses. They are friends of the husband and his family members. Their evidence, however, cannot establish that the wife was free agent while writing Ex. P-4. The husband did not refer to this document in the plaint. All that he stated was that on being pressed to disclose, the wife gaveout the facts. The stamp paper on which the document Is written was purchased by the husband on 12th January The document is styled as IKRARNAMA. Its language is such that a person like the wife who is not conversant with legal language could not have written it on her own. The trial Court has not believed the husband that the wife executed Ex. P-4 of her own free will. It was argued before us that the wife merely denied the document and did not state that she wrote or executed it under coercion. But in a matrimonial cause the Court must be satisfied, apart from any plea of the respondent, that the evidence adduced by the petitioner is reliable. We agree with the finding of the trial Court that no reliance can be placed on Ex. P-4.
14. The next point to be considered is whether the wife or her parents knew at the time of marriage that the wife was suffering from syphilis. As regards the parents, there is no evidence whatsoever that they knew that the wife was suffering from any venereal disease. So far as the wife is concerned, it may be assumed that the ulcer was present at the time of marriage. It cannot, however, be ascertained as to when the ulcer first appeared before the marriage. We have already referred to the opinion of the doctors relating to the duration of the disease. Even if it be accepted that the ulcer appeared a few months before the date of the marriage, there is no further reason to assume that the wife came to know that this is a symptom of syphilis. She could have mistaken it for a local ulcer. Indeed, even Dr. (Miss) Swami (P.W. 1) first thought that it was a local ulcer and the diagnosis of syphilis was made only after blood examination. In the circumstances, it cannot be assumed that the wife knew at the time of the marriage that she was suffering from syphilis.
15. We are now in a position to recapitulate our findings on material facts. These findings are that the wife was suffering from syphilis on the date of marriage; that the disease was of a recent origin; that it was curable; that it is not proved that the wife at the time of the marriage knew that she was suffering from syphilis; and that it is also not proved that the disease was present for a period of three years before the date of the presentation of the petition.
16. On the finding that the husband has failed to prove that the wife was suffering from syphilis for a period of three years before the presentation of the petition, the husband's relief for iudicial separation under Section 10(1)(d) must be held to have been rightly rejected.
17. Coming to the question of fraud, Section 12(1)(c) enables the annulment of a marriage if 'the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud'. In the instant case both the parties were major at the time of marriage and, therefore, no question of consent of guardian under Section 5 arises. The question only is whether the consent of the husband was obtained by fraud. The learned Advocate-General contended that fraud here means, fraud as defined in the Indian Contract Act, 1872, and that if the husband's consent to the marriage was obtained by concealing the fact that the wife was suffering from syphilis, it would be said that the consent was obtained by fraud. Even assuming that this is a true construction of Section 12(1)(c), the argument of the learned Advocate-General cannot be accepted, because it has not been proved that the wife or her parents knew that she was suffering from syphilis. The question of inducing the consent of the husband by concealment of a fact can only arise when the fact was known to the wife or her parents. When neither the wife nor her parents knew that she was suffering from syphilis, there can be no question of concealing that fact from the husband or obtaining his consent by practising fraud. The case of fraud, therefore, cannot be said to be made out.
18. We are further of opinion that the construction placed by the learned Advocate-General on Section 12(1)(c) cannot be accepted. The word 'fraud' has not been defined in the Hindu Marriage Act. It would not be permissible for us to incorporate in the Act the definition of fraud contained in Section 17 of the Indian Contract Act, for these Acts are not in pari materia. It is pertinent to note that Section 25(iii) of the Special Marriage Act, 1954, which provides for annulment of marriage on the ground of coercion or fraud, specifically refers to 'coercion or fraud as defined in the Indian Contract Act, 1872'. If the intention was to incorporate the definition of fraud as given in the Contract Act in Section 12(1)(c) of the Hindu Marriage Act, Parliament would have adopted the same method and would have specifically referred in that section to fraud as defined in the Contract Act. This is a strong indication that the word 'fraud' in Section 12(1)(c) was not used in the sense as defined in the Contract Act.
19. Section 19 of the Indian Divorce Act, 1869, authorises the High Court to make decrees of nullity of marriage on the ground that the consent ofeither party was obtained by force or fraud. This section has been generally construed to mean that misrepresentation inducing consent to marry cannot upset a marriage and that for the annulment of the marriage on the ground of fraud the party imposed upon must be deceived to such an extent that there is in reality no consent at all to the marriage; [Alfred Robert Jones v. Mt. Titli, AIR 1933 All 122]. So misrepresentation as to a party's origin, social status and financial circumstances inducing consent to a marriage were held to be ineffectual to invalidate the marriage. But misrepresentation as to religion of a party was held to invalidate a marriage on the ground that the policy of the Divorce Act did not contemplate a valid marriage between a Christian and a person professing a religion which is not monogamous; [Aykut v. Aykut, AIR 1940 Cal 75 and Jude v. Jude, AIR 1949 Cal 563]. Similarly, in English law fraud ,that invalidates a marriage does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent'; [Moss v. Moss, 1897 P 263 at p. 269]. This case gives instances of such fraud. The first instance is of personation, where a person assumed a name to conceal himself from a person to whom he was to be married. The second instance is of taking advantage of a mind not absolutely insane but weak, to induce a person to enter into a contract which he or she did not understand. In Rayden on Divorce, 11th Edition, page 120. (Article 10) it is stated that 'apart from duress or imbecility of mind amounting to insanity and apart from the grounds for avoiding a marriage in the circumstances originally introduced by the Matrimonial Causes Act, 1937, fraudulent misrepresentation, or concealment does not affect the validity of a marriage to which the parties freely consented with a knowledge of the nature of the contract'. The foot-note (c) to Article 10 refers to the judgment in 1897 P 263 (supra) as indicating the nature of fraud as would amount to duress. In 1897 P 263 it was held that concealment by a woman from her husband at the time of marriage of the fact that she was then pregnant by another man did not render the marriage null and void. By the Matrimonial Causes Act, 1937, certain grounds of annulment of marriage were provided by statute. These grounds are continued by the Matrimonial Causes Act, 1965. Under these grounds marriage can be annulled 'where the respondent was at the time of the marriage suffering from venereal disease in a communicable form, or where the respondent was at the time of the marriage pregnant by some person other than the petitioner'; [SeeRayden on Divorce, llth Edition, p. 169, Article 76].
20. It will thus be seen that the word 'fraud' in matrimonial law has a technical meaning. It does not include cases of misrepresentation or active concealment even of material facts including (sic) (inducing?) consent of a party. Fraud, as already stated, in the context; of annulment of marriage means such fraud which procures the appearance without the reality of consent, i.e. where; there is no real consent at all. In our opinion, the word 'fraud' in Section 12(1)(c) of the Hindu Marriage Act must be understood in the same sense. It is interesting to notice that Section 12(1) of this Act although providing in clause (d) that the marriage can be annulled if the respondent was at the time of the marriage pregnant by some person other than the petitioner, a ground introduced in the English Law by Matrimonial Causes Act, 1937, does not provide that the marriage can be annulled simply on the ground that the respondent was at the time of marriage suffering from venereal desease in a communicable form, a ground which was also introduced in the English Law by the Matrimonial Causes Act, 1937. It is further to be noticed that the provision for judicial separation is made under Section 10(1)(d) on proof that the respondent has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner. A similar ground for divorce is included in Section 13(1)(v). The provisions of Section 10(1)(d) and Section 13(1)(v), where venereal disease has been made a ground for judicial separation and divorce, go to suggest that if Parliament intended to make a marriage voidable on the ground that the respondent was suffering from a venereal disease at the time of marriage, it would have specifically said so in Section 12 For all these reasons, we are of opinion that even assuming that the wife knew that she was suffering from venereal disease, which fact she concealed from the husband, this cannot be held to be fraud within the meaning of Section making the marriage voidable and entitling the husband to obtain a decree for annulment of marriage.
21. The view that we have taken of Section 12(1)(c) of the Hindu Marriage Act is supported by the current trend of authorities. In Harbhajan Singh v. Smt. Brij Balab, AIR 1964 Punj 359 it was held that a petition alleging past immoral conduct of respondent and fraudulent misrepresentation about her character at the time of obtaining consent of the petitioner did not disclose any cause of action for annulment of marriage under Section 12(1)(c). A Division Bench of the Calcutta High Court in Rani Bala Debnath v. R. K. Debnath 73 Cal WIN 751 held that fraud referred to in Section 12(1)(c) is such fraud which procures the appearance without the reality of consent and thereby becomes an act fitted to deceive. It was further held in that case that concealed unchastity of the wife before marriage is not fraud which invalidates consent under Section 12(1)(c). Similarly, in Raghunath v. Vijaya, AIR 1972 Bom 132 the Bombay High Court held that mere nondisclosure prior to marriage or concealment of curable epilepsy of girl and false representation that she was healthy did not amount to fraud within Section 12(1)(c). In Rajaram v. Deepabai, 1973 MPLJ 626 = (AIR 1974 Madh Pra 52) a Division Bench of this Court also held that fraud within the meaning of Section 12(1)(c) is not each and every representation or concealment which may be fraudulent. It was further laid down that the test was whether there was real consent to the solemnization of the marriage with the other party.
22. The learned Advocate-General relied upon the case of Birendra Kumar v. Hemlata Biswas, AIR 1921 Cal 459. In this case dealing with Section 19 of the Divorce Act and relying upon certain American authorities, a Division Bench of the Calcutta High Court held that concealment of a loathsome and incurable form of syphilis is recognised as fraud sufficient to warrant divorce or annulment, specially where the existence of the disease is discovered by the other party before the marriage is consummated and the parties immediately separate. The basis of the decision, as explained by the learned Judge is: 'It is the permanent or probably permanent character of the malady, rendering sexual intercourse impracticable throughout the continuance of the marriage that furnishes the reason for the annulment'. The Division Bench, after explaining the legal principles that were relevant, remanded the case. The judgment after remand is also reported; Birendra Kumar Biswas v. Hemlata Biswas, AIR 1921 Cal 464. It will appear from the judgment delivered after remand that the marriage was annulled not on the ground of fraud but on the ground of impotency. The learned Judge, who decided the case after remand, held that having regard to the state of the wife's health, the husband could not consummate the marriage without the very gravest risk to his health and to that of any offspring, who mightbe born of the connection. The disease in that case had not yielded to treatment and even if curable could not be taken as cured until after the lapse of several years. This case is thus distinguishable on facts. We have already said that now syphilis has been brought under control and is curable. This is the opinion of the doctors examined by the husband. The finding in the Calcutta case was that the disease with which the wife in that case suffered was incurable. In the instant case the disease is found to be curable. Even otherwise, the Calcutta case was decided essentially on the ground of impotency, i.e. practical impossibility of consummation of marriage. In the instant case as the disease is curable, that question does not arise. Moreover, the marriage here has admittedly been consummated. The Calcutta case, therefore, cannot help the husband.
23. Professor Derrett in his book 'A Critique of Modern Hindu Law (1970) pp. 320, 321, has advocated that if there is misrepresentation as to chastity of the wife or as to the fortune and financial prospects of the husband, it should be held that the misrepresentation goes to the root of the marriage vitiating consent. The learned author recommends that the Indian Courts should make a departure in this respect from the English law. It is interesting to notice that Prof. Derrett in his Introduction to Modern Hindu Law (1963 Edition) had said that 'fraudulent misrepresentation or concealment does not affect the validity of a marriage to which the parties freely consented with the knowledge of its nature and with the clear and distinct intention of entering into the marriage in question'. We feel that the opinion expressed by Prof. Derrett in his Introduction to the Modern Hindu Law represents the law correctly and the change in this aspect advocated by him in A Critique of Modern Hindu Law cannot be accepted. Fraud in the context of matrimonial law in India has been construed in the same sense in which it was understood in England. If Parliament wanted to make a departure in the concept of fraud, so far as Hindu marriages are concerned, it would have said so specifically. We have already stated that the Special Marriage Act, which was passed only seven months before the Hindu Marriage Act, while dealing with fraud as a ground for annulment of marriage, specifically referred to fraud as defined in the Contract Act. There is no such reference made in the Hindu Marriage Act. That shows that the Parliament intended to use the word 'fraud' in Section 12(1)(c) in the sense in which it had normally been understood in India under the matrimonial law.
24. For the reasons given above, the appeal fails and is dismissed. We shall, however, make no order as to costs.