JUDGMENT

G.V. Linarasimha Rao, J.

1. The husband, whose petition filed under Section 12(1)(c) of the Hindu Marriage Act (hereinafter referred to as "the Act") for declaration that his marriage with the respondent is vitiated by fraud and misrepresentation and consequentially for annulling the marriage by granting a decree of nullity was dismissed by the learned I Additional Subordinate Judge, Kakinada, has preferred this appeal.

2. Admittedly, the marriage between the appellant herein and the respondent took place on 18-12-1988 as per the Hindu rites and caste custom, the respondent-wife joined the appellant on 8-2-1989, and both of them lived together as husband and wife at Kakinada till 10-6-1989. The contention of the appellant is that when his father accompanied by Maddimsetti Satyanarayana, Chintalapudi Nagaraju, Kasireddi Suryanarayana and his wife, Suryalakshmi, went to the house of the bride in November, 1988, the bride's party misrepresented to the bridegroom's party that the respondent underwent tonsils operation when the tonsils became septic and the lineal scar found on the throat of the bride is the result of minor surgery. It is alleged by the husband that believing that representation, he agreed for the marriage and later on having found Ex. A. 1, medical file, he came to know that the respondent suffered from cancer of thyroid. He urged that he consulted his family doctor and learnt that the wife was suffering from cancer in advanced stage and that the chances of recovery were absolutely nill. On the ground of fraud played upon him, he sought the relief of annulling the marriage.

3. The respondent-wife denied the allegation of fraud and misrepresentation and pleaded in the counter that on Villa Subba Rao of Ramachandrapuram approached her parents on behalf of the appellant's father, that even though her parents informed the said Villa Subba Rao that the respondent was infected with cancer of thyroid and underwent operation and requested for time for fixing the alliance, the said Subba Rao came once again with Maddisetti Satyanarayana and stated the bridegroom's party has agreed for the alliance and insisted that the marriage should be performed urgently. The reason given for expediting the marriage proposal is that the maternal uncle's daughter of the appellant was' refused to be given to him in marriage and, therefore, the bridegroom's family was particular that the marriage of the appellant should be performed before the marriage of the maternal uncle's daughter. The respondent denied the allegation that the appellant had no conjugal relationship with her due to her suffering from pain and sue pleaded that the appellant wanted to discard her on some pretext or the other, so that he can marry again. The learned I Additional Subordinate Judge, on appreciation of the oral and documentary evidence adduced before him, came to the conclusion that the evidence on record clearly goes to show that the appellant's father was informed about the thyroid gland operation undergone by the respondent prior to the betrothal ceremondy; that even otherwise the appellant must have been aware of the operation undergone by the respondent by 14-4-89, since he admittedly followed the respondent to Madras for her medical check up and that both the appellant and the respondent lived together till 10-6-1989. Basing on those findings, the learned Subordinate Judge held that the appellant is not entitled for annulment of the marriage in view of Section 12(2)(a)(ii) of the Act. Consequently he dismissed the petition. Aggrieved by the said decision, the husband has preferred the above appeal.

4. The learned Counsel for the appellant submits that the fact of respondent's ailment and the fact that she has undergone surgery were suppressed from the appellant and his family at the time of negotiations; that on the other hand, it was represented that she has undergone a minor operation of tonsils due to sensis, which has resulted in a scar on the throat; that the allegation that the husband was aware of the ailment but yet has given his consent for the marriage is quite improbable and that as soon as he came to know about her ailment on 10-6-1989, he took the respondent to Ramachand Rapuram where her parents have confessed to the suppression of the respondent's ailment. The learned Counsel for the appellant submitted that the very approach of the learned Subordinate Judge is erroneous and that his decision is liable to be set aside.

5. The learned Counsel for the respondent, on the other hand, argued that me burden lies on the appellant to prove that there was any concealment of respondent's illness at the time of negotiations; that even if there is concealment, it should be with reference to the diseases mentioned in Section 13 of the Act; that the appellant accompanied the respondent to Madras on 14-4-1989 when she had gone therefor medical check up; that admittedly P.W. 1, R.W. 1 and R.W. 5 went to the doctor; that the appellant himself admitted in the cross-examination that he talked to Dr. Rama Das that the contention of the appellant that he was unaware of the respondent's illness till 10-6-1989 is unbelievable; that the conduct of the appellant in living with the respondent till 10-6-1989 even after coming to know about the respondent's illness amounts to condonation, and that the learned Subordinate Judge is, therefore, perfectly justified in coming to the conclusion that the respondent cannot claim the relief of annulling the marriage under Section 12(2)(a)(ii) of the Act.

6. In support of his contention that the ailment must relate to the disease referred to in Section 13 of the Act, the learned Counsel for the respondent placed reliance upon a decision of the Calcutta High Court in Anaih Nath v. Lajjabati Devi, AIR 1956 Calcutta 778; wherein a learned Single Judge came to the conclusion that the concealment of the fact that the bride was suffering from tuberculosis is not a sufficient ground for avoiding the marriage. The basis of the conclusion arrived at by the learned single Judge is that the various provisions in Section 13 of the Act clearly suggest that the concealment of a disease other than those mentioned in the said section cannot be the foundation for avoiding the marriage. Section 13 of the Act dealing with the relief of divorce refers to some ailments, the existence of which affords a party to seek dissolution of the marriage by a decree of divorce. But Section 12(1)(c) of the Act entitles a party to the relief when the consent was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. The said provision does not refer to any particular ailments, we do not, therefore approve the view taken by the learned Judge of Calcutta High Court that the concealment of any disease, which is not mentioned in Section 13(1) of the Act does not afford a cause of action for the husband to prove the allegation of fraud in obtaining his consent before the marriage.

7. But when an allegation of fraud or misrepresentation is made, undoubtedly the burden is on the party who alleges the fraud or misrepresentation to prove that fact satisfactorily. In this case, the specific averment in the petition is that at the time of negotiations, the marriage was finalised by Maddimsetti Satyanarayana, Chintalapudi Nagaraju, Kasireddi Suryanarayana and his wife Suryalakshmi, who accompanied the appellant's father to the house of the respondent. None of them including the appellant's father was examined." P.W. 1, the appellant, and P.W. 2, his brother, admittedly were not present at the time of the marriage negotiations and as such they are not competent to depose as to what had transpired between the appellant's father and the persons who accompanied him on the one hand and the respondent's parents on the other. P.W. 2 only claims to have been present at the time of betrothal ceremony. The respondent, in her counter, pleaded that one Villa Subba Rao of Ramachandrapuram approached her parents on behalf of the appellant's father and made the proposal for the marriage. The said Subba Rao, who is examined as R.W.4, stated that he is related to the appellant, the relationship being the appellant's father's mother and his mother are sister's daughters. The only suggestion made in the cross-examination is that he is in the habit of giving evidence by taking money. As we observed already, the name of Villa Subba Rao as the mediator, who was present at the time of negotiations, was specifically mentioned in the counter, but in the rejoinder it is not pleaded that he is a person, who is accustomed to give evidence by taking money. The evidence of R.W.4 is that on being asked by the appellant's people to inquire about the sear mark on the neck of the respondent, he made inquiries and that the parents of the respondent informed him that the respondent underwent thyroid operation. It is only after that, the respondent was brought before them and the appellant's father and grand-father questioned the respondent about the operation. He further deposed that ten days before the betrothal ceremony (the respondent's father expressed for postponment of the marriage on the ground that the respondent was feeling weak on account of the operation. But it is brought out in evidence that it is the appellant's father who insisted on the marriage being performed early on the ground that the appellant was denied hand of his maternal uncle's daughter in marriage, and therefore to keep up the family prestige of the appellant's father, the appellant's marriage should be performed before the marriage of his uncle's daughter. It is admitted that the marriage of the appellant was performed on 18-12-1988 on the same day, on which his maternal uncle's daughter's marriage was performed. We, therefore, rely upon the evidence of R.W. 4 in preference to that of P.Ws. 1 and 2, who were admittedly not present at the time of the negotiations, and hold that the fact of the respondent undergoing thyroid operation was informed to the bridegroom's party at the time of the marriage negotiations.

8. Even assuming for the sake of argument that the fact of the respondent undergoing thyroid operation due to cancer was concealed from the appellant, it is unbelievable that he would not have seen Ex. A.1, medical report, on 14-4-1989, if not earlier, when he admittedly accompanied the respondent and R.W.5 to Dr. Ramadas. The appellant, who was examined as P.W. 1, admitted in the cross-examination that on 14-4-1989, he accompanied the respondent and that he met Dr. Ramadas. Having gone all the way to Madras along with the respondent and being physically present at the time of the tests conducted on 14-4-1989, it is unbelievable that P.W. 1 would not have consulted Dr. Ramadas about the nature of the ailment of the respondent. The theory set up by the appellant that he has seen Ex. A.1, medical file, only in June, 1989, Ex-facie unbelievable because when the respondent was taken to Madras for the purpose of medical check up, the medical file must have been taken along with him The conduct of the appellant in residing with the respondent even after 14-4-1989, clearly amounts to condonation of the alleged fraud, if any. Inasmuch as the appellant with his full consent lived with the respondent as husband even after the alleged fraud has been discovered, Section 12(2)(a)(ii) of the Act operates as a bar for granting relief of annulling the marriage.

9. The conduct of the respondent is evident from the fact that during his evidence when he was questioned as to whether if the respondent is examined by the doctor and the doctor says that she is not suffering from any cancer disease, he is willing to live with the respondent, he emphatically stated that he is not willing to live with her. The respondent, who was examined as R.W.1, stated even in her chief-examination during the trial of O.P. in the lower Court, that she was prepared for examination by any doctor. That statement is not challenged in the cross-examination.

10. In order to effect reconciliation between the parties, we directed both the parties to appear on 23-8-1993 and we have interviewed both the appellant and the respondent in the presence of their Counsel. The appellant, while emphatically expressing his unwillingness to live with the respondent, dated that during the period of four months he lived with his wife, she was continuously having bleeding and therefore, he could not enjoy marital life. This is new ground invented by him, which is not mentioned either in the petition or during the evidence. On the other hand, he deposed as P.W.1 that immediately after the marriage, the marriage was consumated. According to the family custom, he visited the bride's house and the respondent was brought to his house on 8-2-1989. The allegation in the petition is only to the effect that the respondent was complaining of pain in her head, throat and abdomen. He did not either plead or speak in his evidence that because of her bleeding, he was prevented from leading marital life with the respondent. If the respondent was really suffering from any malignancy, it is quite improbable that she should have survived for such a long time. Ex. A.1 shows that there was appearance of carcinema of thyroid as long back as on 14-3-1988. More than 5 years have elapsed, and if really there was any malignancy, she would not have survived for such a long time. Ex.A. 1, medical report, further shows that on 14-4-1989, tests were conducted on the liver, gall-bladder, uterus and both ovaries of the respondent, and all the above organs were certified to be normal by Dr. N. Ramdas. Relying on Ex. A. 1, we feel that the respondent by inventing the theory of bleeding, which rendered him unable to lead marital life, he is somehow bent upon getting rid of the respondent with an ulterior motive.

11. On a careful consideration of the oral and documentary evidence, we hold that the reasoning and the conclusion arrived at by the learned Subordinate Judge is perfectly correct and do not call for any interference. The C.M.A. is accordingly dismissed. No costs.