Family Court Appeal No.73 of 2015,Family Court Appeal No.74 of 2015

16th February, 2016.

Petitioner Counsel: Mr. A.J. GILDA
Respondent Counsel: Mr. R.R. SHRIVASTAVA

Cases Cited:
P.V. Gopalkrishnan Vs. Kanaksha Gopalkrishnan (Mrs.), 1982 (1) Bom.C.R. 454 [Para 10]
Anurag Anand Vs. Sunita Anand, AIR 1997 Delhi 94 [Para 10]
Balbir Kaur Vs. Maghar Singh, AIR 1984 (P&H) 417 [Para 10]
Gain Chand and Brothers and another Vs. Rattan Lal @ Rattan Singh, 2013(1) ALL MR 952 (S.C.)=(2013) 2 SCC 606 [Para 10]
Ramesh Kumar and another Vs. Furu Ram and another, 2011 ALL SCR 2215=AIR 2011 SCW 5763 [Para 16]
S. Mahender Vs. Smt. Shalini, AIR 2014 AP 43 [Para 16]
Shri Shridhar Jairam Bhat Vs. Miss Seeta Subray Bhat, AIR 2013 Karnataka 97 [Para 16]
Ragunath Gopal Daftardar Vs. Sau. Vijaya Raghunath Daftardar, AIR 1972 Bom 132 [Para 16]
R. lakshmi Narayan Vs. Santhi, AIR 2001 SC 2110 [Para 16]
Perminder Charan Singh Vs. Harjit Kaur, 2003(3) ALL MR 762 (S.C.)=AIR 2003 SC 2310 [Para 16]
Balwinder Kaur Vs. Hardeep Singh, AIR 1998 SC 764 [Para 16]
Smt. Lila Gupta Vs. Laxmi Narain and others, (1978) 2 SCC 258 [Para 16]
Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, AIR 1965 SC 364 [Para 17]
Smt. Uttara Praveen Thool Vs. Praveen Bhanudas Thool, 2014(3) ALL MR 721=2014 (3) LJSoft 31 [Para 17]

JUDGMENT

B. P. Dharmadhikari, J. :- Both these appeals under Section 19 of the Family Courts Act, are filed by the husband - Mayank. Petition No. A386/13, filed by him under Section 12[1][c] of the Hindu Marriage Act, 1955 for annulment of marriage between him and respondent by a decree of nullity, has been dismissed by the Family Court. Similarly, Petition No. A 289/12 filed by the respondent - wife under Section 9 of the Hindu Marriage Act for restitution of conjugal rights has been allowed with a direction to resume cohabitation and in default to pay monthly maintenance of Rs. 20,000/-. The Family Court has decided both these matters by a common judgment dated 23.07.2015. Family Court Appeal No. 73 of 2015 challenges the dismissal of annulment proceedings filed by him. FCA 74 of 2015 assails the grant of restitution in proceedings filed by Respondent wife. The Hindu Marriage Act, 1955 is hereinafter referred to as "the Act".

2. This Court has on 23.09.2015, issued notice observing that the appeal would be finally heard at the stage of admission. Accordingly we proceeded to hear the parties by issuing Rule and making it returnable forthwith.

3. Shri Gilda, learned counsel appearing on behalf of the appellant - husband has pointed out that an incurable skin disease of respondent - wife was learnt after marriage and thereafter the proceedings have been filed. He at the threshhold points out the difference made in scheme & provisions of Section 12[1][c] of Act by 1977 Amendment. He has taken us through the petition filed by the husband to explain how the fact of playing fraud by suppressing the material facts has been pleaded. He submits that the respondent wife has filed written statement, but, it contains only evasive denials. He has relied upon the provisions of Order VIII Rules 3, 4, and 5 of the Code of Civil Procedure to submit that in this situation the story pleaded by the appellant/husband ought to have been treated as admitted. He has also relied upon Section 58 of the Evidence Act.

4. Inviting attention to the story as pleaded by the respondent - wife in her petition for restitution of conjugal rights, he submits that the respondent wife has attempted to demonstrate that the skin disease was informed to the appellant and his family. According to him, the burden to point out this communication was upon wife and she has not examined anybody who were party to the discussion dated 12.05.2011. The respondent pleads that scar on her chest was shown to mother of the appellant on 26.05.2011, and on 09.06.2011 to appellant's mother and appellant. Respondents mother has avoided to enter witness box. Shri Gilda, learned counsel points out that the appellant husband examined himself, his father, a relative and two Doctors. Respondent wife remained satisfied with examining herself and two Internet Companies. He therefore, states that the learned Family Court erred in holding that the appellant husband was aware of the scar or skin disease.

5. He has taken up through the cross examination of wife to urge that even during cross she has not given any definite answers and her evidence is inconsistent with the written statement. She pointed out that she learnt about scar in July 2011, while little later she stated that she was not aware of any other skin infection. He submits that Dr. Syed Iliyas was not available till 24.01.2012, and his evidence shows that he examined the respondent for the first time on 19.07.2011 and thereafter started treating her. Wife pointed out operation by Dr. Syed on 01.10.2011, but, documents produced by Dr. Syed or then his evidence does not show any operation. That Doctor did not have any records to support his submission. He has taken us through the documents at Exh. Nos. 34/7, 34/4, 34/5, 34/9 and 34/6 to urge that these documents do not support the story of operation on 01.10.2011.

6. Dr. Syed examined respondent at Nagpur on 24.01.2012 and then a meeting of relative was scheduled on 24.01.2012 for second opinion. In this background, he has taken us through various observations of the Family Court in the impugned judgment to urge that all these data has not been dealt with and its impact is ignored.

7. Dr. Shailesh Nisal at Nagpur, examined the respondent and his second opinion confirmed skin disease (Keloid). However, Dr. Nisal advised to continue the treatment with Dr. Syed only. Both these doctors have admitted before the Family Court that it is incurable, and its side effects have also been spoken about by them.

8. Our attention has been drawn to story of respondent that various photographs of respondent were sent through email to the appellant by mother of respondent and those photographs show the scar. He submits that the respondent wife has only proved sending of emails, however, its receipt or service upon the appellant has not been established. He further submits that the alleged email contains only photographs and there is no letter or other material. He invites attention to the photograph of respondent given to appellant before marriage for the purpose of settling it, with contention that it does not show any scar.

9. A meeting was held on 17.03.2012, which was attended by the respondents father, one J.K. Sethi and one Rajput and after that meeting, a police complaint was filed by the husband pointing out fraud and cheating. He submits that this story and material on record does not find consideration in the judgment of the Family Court.

10. He has placed reliance upon a judgment reported at 1982 (1) Bom.C.R. 454 (P.V. Gopalkrishnan .vrs. Kanaksha Gopalkrishnan (Mrs.) particularly paragraph nos. 19 and 20 to point out what constitutes fraud. AIR 1997 Delhi 94 (Anurag Anand .vrs. Sunita Anand), (paragraph no.22 to 25) has also been relied upon to show what is concealment. Judgment reported at AIR 1984 (P&H) 417 (Balbir Kaur .vrs. Maghar Singh) (paragraph nos. 6 and 7) have also been relied upon. On the point of evasive denial, support is taken from a judgment of Hon'ble Supreme Court reported at (2013) 2 SCC 606 : [2013(1) ALL MR 952 (S.C.)] (Gain Chand and Brothers and another .vrs. Rattan Lal @ Rattan Singh).

11. Shri Gilda, learned Counsel invites attention to provisions of Sections 101 to 104 of the Evidence Act to submit that the wife did not examine her mother and hence, burden has not been discharged. In list of witnesses, mother was shown as witness no.3, and still she was dropped. He contends that 'Roka Ceremony' was held on 09.06.2011 and thereafter, birthday of wife was performed on 06.08.2011. Some photographs taken during birthday ceremony have been produced to show that those photographs reveal scar. He submits that the appellant is not aware when those photographs were clicked and in any case, scar was not pointed out to him or copy of that photograph was not provided to him.

12. He submits that respondent wife is working in Center Point School at Nagpur since the year 2000 and is earning salary of Rs. 15000/- per month. Her parents are not dependent upon her and hence, this income and her property ought to have been looked into while working out maintenance amount. Grant of maintenance of Rs. 20000/- PM is, unsustainable. He submits that interim maintenance of Rs. 10,000/- was given to her. He has taken us through balancesheet of business of appellant at Exh.91 to show that there is no sufficient income to support such grant. He therefore, prays for allowing both the appeals.

13. Shri Shrivastava, learned counsel appearing on behalf of the respondent - wife on the other hand submits that the respondent was aware of some skin infection, and that has been pleaded in her petition under Section 9 of the Hindu Marriage Act. The exact nature of disease as 'Keloid' has surfaced lateron. The first meeting between the parties before marriage was held on 12.05.2011; thereafter on 26.05.2011 and Roka ceremony was held on 09.06.2011. In the first meeting, intimation about scar was given and on 26.05.2011, the scar was shown to mother. It was shown to her and also to the appellant on 9.6.2011. The marriage was settled thereafter and Rokha ceremony was held on 09.06.2011. He further states that photographs Exh.68 to 74 taken on 06.08.2011 on the eve of birthday of respondent wife also depict scar, and he placed strong reliance upon Exh.73 to urge that there was no concealment of any nature by the respondent. He further argues that on 01.11.2011 in all 31 photographs were sent on email address of husband and on email of sister of husband. The email I.Ds., are correct and hence, it cannot be expected that these photographs are not received by appellant husband or his sister. He adds that sister of husband has not entered the witness box. Email Photograph sat Exh.67/23 and 67/28 clearly show the scar.

14. In this background, he draws attention to the pleadings of husband in his petition for annulment of marriage to show how the story of husband is varying in written statement filed while opposing wife's petition under Section 9. The appellant husband has stated that he got knowledge of Keloid on 22.01.2012. He points out that the wife has pointed out physical relationship between the parties in her written statement and though the appellant husband has denied it, fact that he cohabited with the respondent at her parents house at Nagpur between 23.1.2012 to 26.01.2012 is not in dispute. He relies upon evidence of Dr. Syed and Dr. Nisal to urge that it is not a disease and the scar has remained as it is and to certain extent, has subsided between the date of marriage and date 12.09.2014 when the appellant husband was cross examined.

15. By inviting attention to various photographs, he has stated that the entire family of appellant stayed happily after marriage and there was no tension or any ill feeling in the mind of anybody. He submits that those photographs have been taken on about 6 different occasions, and hence the entire story of appellant about the disease, its suppression or fraud, is by way of an afterthought.

16. To explain the concept of fraud as envisaged in Section 12[1] [c], he has taken us through judgments reported at AIR 2011 SCW 5763 : [2011 ALL SCR 2215] (Ramesh Kumar and another .vrs. Furu Ram and another) (paragraph no13) and AIR 2014 AP 43 (S. Mahender .vrs. Smt. Shalini). Other judgments relied upon by him to substantiate the contentions are AIR 2013 Karnataka 97 (Shri Shridhar Jairam Bhat .vrs. Miss Seeta Subray Bhat) (paragraph nos. 14 to 17), AIR 1972 Bom 132 (Ragunath Gopal Daftardar .vrs. Sau. Vijaya Raghunath Daftardar) (paragraph no. 18), AIR 2001 SC 2110 (R. lakshmi Narayan .vrs. Santhi), AIR 2003 SC 2310 : [2003(3) ALL MR 762 (S.C.)] (Perminder Charan Singh .vrs. Harjit Kaur), AIR 1998 SC 764 (Balwinder Kaur .vrs. Hardeep Singh) and (1978) 2 SCC 258 (Smt. Lila Gupta .vrs. Laxmi Narain and others). On the question of maintenance, he submits that the biodata of husband furnished for the purpose of marriage revealed his annual income to be Rs. 10 lakhs, and other material on record like photograph of Restaurant of husband, its location, number of persons working in it, Factory of father are pressed into service by him to urge that the respondent wife is entitled to live in the same standard.

17. After parties concluded their arguments, time was given to them to point out the impact of Section 12[2][a][ii]. Accordingly on the next date the parties advanced their arguments. Judgments reported at AIR 1965 SC 364 (Mahendra Manilal Nanavati .vrs. Sushila Mahendra Nanavati) (paragraph nos. 27 and 179) and 2014 (3) LJSoft 31 : [2014(3) ALL MR 721] (Smt. Uttara Praveen Thool .vrs. Praveen Bhanudas Thool) (paragraph no. 22), were pointed out to this court. Shri Gilda, learned counsel reiterated that the gravity of disease and fraud became known only on 24.01.2012, when Dr. Syed examined respondent wife at Nagpur.

18. After hearing the respective counsel, we find that the following points arise for consideration :

(I) Whether consent of appellant for marriage was obtained by concealing the scar on the chest of respondent ?

(II) Whether the appellant has withdrawn from respondent wife's society without any reasonable cause ?

(III) Whether the common judgment and decree delivered by the Judge, Family Court No.2, Nagpur on 23.07.2015 calls for any interference ?

19. The petition for annulment under Section 12[1][c] has been filed at Bilaspur on 02.04.2012, and it came to be transferred to Nagpur later on. Just 5 days prior thereto and on 28.03.2012, the respondent wife filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights at Nagpur. Appellant husband filed his written statement opposing restitution on 13.07.2012, while respondent wife filed her written statement opposing prayer for annulment of marriage on 29.07.2012.

20. Provisions of Section 12 of Hindu Marriage Act deals with voidable marriages. Thus, the marriage is not void, but, can be declared void at the option of & on the application by an aggrieved party. Section 12[1][c] envisages such a declaration, if the appellant husband can show that his consent to the marriage was obtained by playing fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent wife. Here the fact that respondent wife has a scar on upper part of her chest is not in dispute. The scar is on lower part below neck, but, and it can remain covered by normal clothes, and hence, is not visible considering the standard clothing pattern of a married woman. Under Subsection [2] the Court is not permitted to entertain such petition if the appellant husband has with full consent lived with respondent as husband and treated her as wife after the fraud has been discovered.

21. Any scar on the body of a women can be a material fact or circumstance which definitely has a bearing or impact on her marriage prospects. If such a fact is known before hand, the groom intending to marry can make a conscious choice. If the fact is suppressed, it can easily be said that a material fact or circumstance concerning wife has been suppressed. However, if scar is known before hand or, after getting knowledge of such fact, the appellant has cohabited with the respondent as her husband and treated her as wife, the Family Court is precluded from entertaining the petition under Section 12[1][c] itself. It is in this background that the we have proceeded to examine the material on record.

22. First in point of time is the petition filed by the respondent wife seeking restitution. None of the parties have sent any legal notice before proceeding to file their respective cases. In her Section 9 petition, after pointing out the relevant events, Rokha ceremony performed on 09.06.2011, subsequent events have been pleaded. It is not necessary at this juncture to look into those events. The marriage has been performed on 09.12.2011. Engagement was performed at Bilaspur on 08.12.2011, and marriage came to be performed on 09.12.2011. She has then pointed out some unwelcome comments made by the relatives on the side of her husband and how they found fault with her in trivial things. She has then pointed out that she was dropped at Nagpur on 23.01.2012 at her parents place by her husband, his mother and sister. She then points out meeting with Dr. Syed on 24.01.2012. She complains of desertion since 23.01.2012. Though in petition there is no express reference to consummation of marriage, its reading gives an impression that parties resided as husband and wife after marriage till 23.01.2012 at Bilaspur.

23. Within 45 days of institution of this petition by wife, the appellant husband has filed his petition for annulment of marriage at Bilaspur on 02.04.2012. His petition is in Hindi and there is nothing on record to hold that it has been filed after getting knowledge of petition filed by the respondent wife at Nagpur. In his petition, the appellant husband points out events upto 09.12.2011 briefly and then in paragraph no.7 mentions that newly weds reached their house at Bilaspur on 10.12.2011. On 11.12.2011 at 11 p.m. they retired to their bedroom and at that time when he observed the portion below neck, he saw a scar red in colour. The respondent wife then disclosed that it was on account of scratching by nails. On 12.12.2011, when respondent came out of bathroom, the husband saw the scar again. It was about 2 to 2.3 inches long and about 1 inch wide of heinous look and strange type. The respondent wife then disclosed that to conceal it, she applies cosmetic cream. At times it could be fully concealed, while at times a small part thereof remained visible. The husband immediately contacted parents of wife on telephone and they disclosed that respondent has a disease by name 'Keloid', for which she was receiving treatment since several months. Husband specifically told them that he was not informed about it and suppression was not proper, however, her father answered that the marriage was performed and had it been disclosed in advance, the marriage could not have been done. Respondent wife informed him that she was taking treatment since March, 2011.

24. Appellants petition thereafter discloses that on 27.12.2011, he carried respondent to a dermatologist Dr. David Henry at Bilaspur. Dr. Denry obtained history and then wife told said Doctor that she was taking treatment from Dr. Syed Iliyas, Plastic Surgeon at Nagpur and she also gave photo copy of the prescription of Doctor Iliyas between 01.10.2011 to 31.10.2011. She also disclosed that to suppress the scar every month she was taking 'Kenakort Injection' (40 mg). Dr. Henry, then gave prescription on 29.10.2011, and advised to contact Doctor at Nagpur. Respondent continued to receive treatment as advised by Dr. Henry and on 24.01.2012, husband came to Nagpur and contacted Dr. Syed Iliyas. Dr. Syed informed that respondent was suffering from Keloid and accordingly gave in writing. Husband then returned back to Bilaspur on 26.01.2012.

25. In paragraph no.14, he points out discussion between parents of husband, who came to Bilaspur and his parents as also maternal uncle. He lerant that it was incurable disease which can affect any part of the body if injured and aggravate and assume dangerous proportion. Both the parties decided to have second opinion at Nagpur. On 14.03.2012, husband, his parents and maternal uncle came to Nagpur and Dr. Nisal examined wife in presence of her parents. Dr. Nisal confirmed keloid and stated that it was genetic or without any cure. He also informed that a small injury or a cut or surgery may led to similar scar elsewhere on the body of wife. Then husband and his parents specifically communicated to parents of wife that, when wife was suffering from such incurable disease and it was suppressed. At that time, family of respondent & one J.K. Thapar were present and all of them threatened husband and his parents that if appellant refuses to cohabit with wife, they would take recourse to other matters. They also stated that they would come to Bilaspur on 17.03.2012.

26. On 17.03.2012, father of wife, one K.K. Sethi, Sanjay Kohli and Pradeep Rajput came to Bilaspur and stayed in Ananda Imperial Hotel. A meeting was arranged there. In that meeting, husband, his wife, one Jasbinder Baba, M.L. Choudhary, Rajat Malhotra, B.V. Handa, Vilas Marwah were present. In that meeting also the wife's relative reiterated that due to marriage, husband has to cohabit with wife. This was opposed by his father and then the other side threatened with criminal action within 15 days and implication which follows in criminal matters. It is in this background that he has filed the petition for annulment of marriage complaining that on 09.12.2011, by suppressing material facts his consent for marriage with respondent was obtained.

27. The written statement has been filed by the appellant on 13.07.2012, while opposing prayer for restitution of conjugal rights. In that written statement, story reproduced above finds mention along with denial of other assertions. In paragraph no.20 the appellant husband has stated that skin disease Keloid came to his knowledge and knowledge of his parents on 22.01.2012. Thus, in this written statement or in his petition filed at Bilaspur, which came to be transferred at Nagpur later on, the appellant husband no where states that there was no consummation of marriage between 11.12.2011 to 12.12.2011, or thereafter till 26.01.2012. His petition or then written statement filed by him while opposing wife's request for restitution, no where gives an impression that there was no consummation or then parties did not reside as a couple.

28. In this background perusal of written statement filed by respondent while opposing the husbands petition for annulment of marriage reveals a defence in paragraph no.27A that from second day of marriage, sexual relations were established between the parties and this relation continued till 23.01.2012, when the husband dropped her at her parents place at Nagpur. In affidavit filed by her in lieu of examinationinchief, in paragraph no.20 respondent wife has pointed out that marriage was consummated and she has also submitted that on 23.01.2012 at Nagpur they continued to have physical relations. She has also stated that on 25.01.2012, she sent a message to her husband to bring contraceptives and accordingly he purchased and brought the same and they had physical relations even on 25.01.2012 at the residence of her parents. Cross examination of husband shows that he came to Nagpur on 23.01.2012 and went back to Bilaspur on 26.01.2012. During said period, he lived at parental house of his wife. He has however, denied any physical relations during said period. He has also denied that marriage was duly consummated.

29. Perusal of these pleadings and perusal of evidence of appellant husband and respondent wife shows that appellant husband got knowledge of the scar, even as per his say on 11.12.2011 in the night. It was the first night of the newly weds. He saw the scar completely & in natural form, in the morning on 12.12.2011, when respondent wife came out of bathroom after taking bath. He found the scar of strange type and "f?ku©uk" i.e. heinous or repulsive. He no where states that thereafter he could not have physical relation with his wife on first night or he did not sleep with his wife in same room or there were no physical relations between them after he saw the scar fully. He points out visit to Dr. Henry on 27.12.2011. If he and his family members had any exchange with parents of wife about the illness or scar on the lines alleged on 12.12.2011 itself and they were aggrieved because of fraud played, the relations between the new couple would not have been normal. There could not have been physical relations between them thereafter and the appellant or his parents would not have waited till 27.12.2011, when respondent wife was taken to a dermatologist at Bilaspur.

30. Shri Gilda, learned counsel appearing on behalf of the appellant has urged that because of the Christmas, Dr. David Henry was not available at Bilaspur till 27.12.2011. However, there is no such evidence on record. In any case, it shows that even after alleged knowledge of the scar as Keloid on 12.12.2011, appellant and his parents did not protest & thought it fit to wait till 27.12.2011. Even after 27.12.2011, the couple came to Nagpur for the first time on 23.01.2012. Thus, parents who learnt about the disease as keloid on 12.12.2011 or in any case after contacting Dr. Henry on 27.12.2011 continued to reside with the respondent till 23.01.2012. Though his pleadings about date of knowledge are inconsistent but, that is hardly relevant for the purpose of considering the bar under Section 12[2][a] of the 1955 Act. Had there been a fraud or suppression, the spontaneous reaction of appellant husband and his family members would have been totally different. They would have rushed to Nagpur and contacted parents of respondent and in any case would have not tolerated respondent as wife of appellant. If they wanted to have medical opinion, they would have gone to some other Doctor at Nagpur. The fact that after getting knowledge of keloid and after seeing scar on 12.12.2011, appellant and respondent cohabited till 23.01.2012 at Bilaspur speaks for itself.

31. Had there been any illfeelings between the appellant and respondent because of alleged suppression or fraud, the appellant would have definitely pleaded in his application for annulment that after 11.12.2011, there was no cohabitation between the parties as husband and wife. He has attempted to demonstrate that there was no physical relationship between the parties after 11.12.2011. If the newly weds could not have sex on their first night i.e. the night between 11.12.2011 and 12.12.2011, the appellant would have definitely pleaded it and pointed out that because of scar he could not touch his wife. He could have pleaded same thing after seeing the scar in day light on 12.12.2011. He could have again pointed out same thing after Dr. Henry disclosed the disease on 27.12.2011. Conspicuous absence of such a plea therefore shows that the relationship between the couple was normal & continued without any problem.

32. The above inference is strengthened by the fact that even after coming to Nagpur on 23.01.2012, the appellant has admittedly stayed at the house of his wife upto 26.01.2012. Had he come to Nagpur with any prejudice or an idea to get rid of his wife, he could not have stayed there. His parents would have advised him to stay away not only from wife but also not to reside with his inlaws. This undisputed cohabitation between 23rd to 26th January, 2012 at Nagpur therefore lends credence to the fact that the couple continued to cohabit till 26.01.2012 when the appellant husband left Nagpur for Bilaspur. The impression given by pleadings of respondent wife in her Section 9 petition is also on same lines.

33. Family Court has looked into other material, like photographs taken on different occasions to note the happy face of family members. We have also seen those photographs and it appears that the appellant husband and inlaws of respondent i.e. the parents of appellants resided happily with the respondent. This wipes out story of any bad feelings and militates with the story of any fraud or suppression in marriage. We will be making reference to these aspect little later again.

34. The provisions of Section 12[2][a], stipulate that a petition for annulment of voidable marriage cannot be entertained in such circumstances. There is nothing on record to show that the appellant cohabited with the respondent as her husband without his full consent after the alleged fraud had been discovered. The burden to show that because of discovery of fraud there was no physical relationship or then the relationship was discontinued, was upon the appellant husband. He has neither pleaded necessary facts nor ruled it out by bringing on record any evidence to that effect. On the contrary, his conduct and conduct of his family members reveal otherwise. In view of this, we are satisfied that the petition filed by the appellant for annulment of marriage could not have been entertained by the Family Court.

35. The question whether the respondent or her family members played any fraud or then the appellant has withdrawn from society of the respondent without any reasonable cause, now needs to be looked into. It appears that the respondent wife specifically states in her petition under Section 9 that after prima facie satisfaction about the possible match, her parents along with other relatives approached respondent at Bilaspur on 12.05.2011 for face to face discussion. All details were then discussed and the husband and his relatives were satisfied with the same. They were then invited to Nagpur. Meeting at Nagpur was held on 26.05.2011. The family background and other details were then exchanged. Mother of wife clearly informed mother of appellant/husband that respondent suffered from some infection below neck i.e., on upper portion of chest for which treatment was going on. The said part of body was shown to mother in law. After this only, the match was approved. Proposal was finalized on 09.06.2011. It is not in dispute that the ceremony called as 'rokha ceremony' was performed on that day. It is urged that on that day, again mother of wife clearly told the respondent husband and his mother about the minor scar and it was specifically shown to husband and his mother. Burden to prove all these facts was upon the respondent wife. However, her mother though named as a witness has not been examined.

36. Respondent has pointed out that during period between 01.07.2011 to 05.08.2011, she and her husband had long discussions in night and nothing was hidden from each other. On 06.08.2011 her birthday was celebrated at Nagpur and respondent came for it. He was along with his wife for the entire day. The treatment of wife was going on through Dr. Syed and in lst week of July, 2011 her parents were informed that she suffered from Keloid. Doctor advised a surgery which was to be proceeded by some injections. That injection was administered in last week of July, 2011. This procedure was followed with a gap of 15 to 20 days and she underwent surgery for removal of keloid on 01.10.2011. This development was informed not only to the husband during his visit to Nagpur on 06.08.2011, but, also to his parents. After 06.08.2011 husband and his parents used to call her for knowing details about the treatment and improvement. She was operated on 01.10.2011, and husband and his parents were informed about the same. They called at about 2 p.m. to gather details about the operation, treatment and her health. All these facts are denied by the husband. However, perusal of photographs taken on 06.08.2011, particularly photograph at Exh.73 shows that appellant and respondent are sitting side by side, respondent wife is wearing a Tshirt and just above neckline of that Tshirt, a scar is clearly visible. Wife has relied upon this photograph and other photographs to urge that the appellant husband had seen the scar and was aware of it. Appellant husband has admitted the photograph, but, claimed that he was not aware as to when and how it was clicked. Respondent wife has not adduced any evidence about any phone calls made by her inlaws or by respondent on the occasion of operation. As rightly pointed out by Shri Gilda, learned counsel, evidence of Dr. Syed does not show any operation performed on respondent on 01.10.2011.

37. Other material looked into by the Family Court and accepted by it apart from photograph at Exh.73, is in the shape of Exh.31 photographs sent by email by the respondent wife to the appellant. Sending of those photographs by emails has been established by respondent wife by examining Robin Fernandis, Senior Executive with Yahoo India Private Ltd., and one Chandrakant Kisan Bhor, serving as Nodal Officer in Reliance Communications, Pune. The appellant husband has claimed that this material on record shows that the email has been sent, but, it does not show that it is received by the addressee. Robin Fernandis in his cross examination stated that he was not in a position to speak about delivery of emails to the addressee. He accepted that he had not brought any record to show that emails were delivered to the addressee. Though the appellant husband has denied receipt of email, fact that emails have been forwarded on correct address and also to his sister is not in dispute. Husband has not pointed out anything about the email sent to his sister and his sister has not entered the witness box. Some photographs forwarded by email like Exh. Nos. 67/23, 27/28 show that scar. The evidence on record therefore leads to the conclusion that appellant and his family members were aware of the scar since prior to the marriage of appellant with respondent. As we agree with the appreciation of evidence by the learned Family Court, it is not necessary for us to embark upon that exercise, afresh.

38. At this stage we find it proper to refer to the evidence of Dr. Syed and Dr. Nisal. Both these doctors are examined as his witnesses by the appellant husband. Dr. Syed has stated that keloid is treatable. Though he has not spoken of date of operation, he has deposed that he operated her for keloid. He also deposed that documents brought to Court by him were only for the purpose of refreshing his memory from his computer records and he did not record history of patient. He has stated that he first examined wife on 19.07.2011 and thereafter he examined her regularly till the date of his deposition i.e. 14.11.2014. He has also deposed that respondents keloid was well under control, but, it would never disappear. He has specifically deposed that it is not a genetic condition. He has specifically pointed out that keloid is not a disease.

Dr. Nisal, states that he saw the respondent wife on 14.03.2012. He also states that keloid is not a disease and it is a type of scar. He has deposed that when respondent came to him, she was already operated upon by Dr. Syed. According to him kenakort injection is very safe and has very few side effects. Keloid is not harmful to health and only of cosmetic concern. We are here more concerned with knowledge of scar to the appellant and not its treatment or operation. Both these doctors are examined by the appellant as his witnesses only.

39. On record we get photographs of appellant, respondent and family members of appellant taken on 6 different occasions. The occasions are New year celebrations at restaurant of the appellant, Lodhi, birthday of appellants mother etc. Those photographs are from Exh.50 to Exh.66. Attention of appellant has been invited to those photographs in paragraph no.33 of his cross examination. These photographs do not show a happy family and indicate that the appellant or his parents did not have any illwill against the respondent.

40. We have perused evidence of appellant and respondent minutely. In the light of the material on record, we agree with the findings of the Family Court that the appellant has failed to establish any fraud or suppressing played by the respondent wife or her family members upon him.

41. The fact that the respondent wife is earning Rs. 15000/- per month since 2012 is not in dispute. The Family Court has however, looked into the living standards of husband and his family. The appellant had disclosed his income to be Rs. 10 lakhs from Restaurant, while marrying. Effort made by the learned counsel for the appellant to invite attention to the profit and loss account of the said restaurant at Exh.91, therefore, cannot be held to be decisive. At Exh.94, while giving personal details, the husband has declared his annual income as above Rs. 10 lakhs. Fact that his father has got a Factory, family owns a 4000 sq.ft. bungalow, car etc., are not in dispute. It is not the argument of the appellant that the Family Court has refused to consider any material factor having bearing on the determination of the quantum of maintenance. The computation by family court is after considering the entire material & is not perverse. We therefore, are not inclined to intervene in the said determination by the Family Court.

42. The Family Court has considered at length the citations relied upon by the parties. In the present case, in the light of our findings on facts, we do not find it necessary to refer to the same, again.

43. The discussion above leads us to conclude that the petition for annulment of marriage filed by the appellant - husband could not have been entertained by the Family Court. Similarly he has failed to establish that the respondent wife or her family members played any fraud or suppressed any material fact. It is also seen that the appellant and respondent cohabited as husband and wife till 25.01.2012, as such withdrawal from the society of respondent by appellant, is rightly found unjustified by the Family Court. We accordingly answer all the questions mentioned supra and proceed to pass the following order.

ORDER.

1. The appeals are dismissed.

2. Common judgment, delivered on 23.07.2015 in Petition Nos. 386 of 2013 and 289 of 2012 by the learned Judge, Family Court No.2, Nagpur is maintained.

3. There shall be no order as to costs.

44. At this stage, learned Counsel for the appellant Shri A.J. Gilda, seeks continuation of interim stay for a further period of six weeks from today. The request of learned counsel for the appellant Shri A.J. Gilda, is strongly opposed by the learned Counsel for the respondent Shri R.R. Shrivastava. However, in the interest of justice, we continue the interim orders for a period of six weeks from today, and the same shall cease to operate thereafter automatically.

Appeals dismissed.