Husband Entitled To Divorce Over Non-Disclosure That Wife Suffers From Incurable Disease: Bombay High Court

The Bombay High Court, while dissolving a marriage, held that if a spouse suppresses a fact that she suffers from an incurable disease like "cerebral palsy" before marriage, that can be a ground for the other spouse to seek divorce under the Hindu Marriage Act.

A division bench of Justices Nitin Suryawanshi and Sandipkumar More decided the appeal filed by a husband, who challenged the judgment of a Family Court, which, by an order passed on August 17, 2023, dismissed his plea seeking divorce on grounds of cruelty.

The bench noted that the husband alleged that his wife suffered from cerebral palsy and thus often behaved abnormally, not being able to focus on conversations or do her daily work. It further noted that the Family Court had, in its judgment, observed that though the wife was suffering from cerebral palsy, she behaved normally during the engagement ceremony as well as on the day of marriage.

However, it noted that suppression of these facts from the husband, would be a ground for nullifying the marriage. The court held:

"In view of the above discussion, we are of the considered opinion that the family court has definitely erred in dismissing the petition of the appellant-husband by not considering the aspect of suppression of the incurable disease of the respondent-wife  by herself or her family members despite pleadings to that effect on record."

The judges noted from the evidence of the medical expert, who specifically explained that the disease cerebral palsy, from which the wife was suffering since birth, is not curable.

"Though it would not come in the way in enjoining happily marital life including the sexual pleasure, but what is material is the suppression of said disease from the side of the respondent wife at the time of marriage. Had it been disclosed prior to the marriage, then it would have resulted in the husband having second thought whether to go for the marriage. Thus, the suppression of disease 'cerebral palsy' of the wife by her family members prior to the marriage, certainly entitles the appellant-husband for seeking nullity of marriage under Section 12(1)(c) of the Act," the bench held.

Section 12(1)(c) provides for divorce in cases where the consent for marriage is obtained by fraud.

Further, the judges noted that the wife in the instant case cohabited with her husband hardly for 6 to 7 months and thereafter she has been residing with her parents till today. "In view of this, we are of the considered opinion that the Family Court has definitely erred in dismissing the petition of the husband by not considering the aspect of suppression of the incurable disease of the wife by herself or her family members despite pleadings to that effect on record," the judges held.

With these observations, the bench quashed and set aside the Family Court judgment and granted divorce to the husband. It however, did not comment on the point of alimony and other such reliefs available to the wife.

Appearance:

Advocates Amit Yadkikar and Akshay Kulkarni appeared for the Husband. Advocates Jitendra Patil represented the Wife.

Case Title: NHS vs ANS (Family Court Appeal 92 of 2023)

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