BENJAMIN DOMING CARDOZA Vs. GLADYS BENJAMIN CARDOZA

JUDGEMENT

(1.) THE learned District Judge, Thane, has referred this matter to the High Court by his order dated 2-2-1993 passed in Marriage Petition No. 2 of 1992.

(2.) PETITIONER in this case is the husband who had filed the aforesaid Marriage Petition No. 2 of 1992 in the Court of the District Judge, Thane, for a declaration that the marriage solemnised between the petitioner-husband and the respondent, his wife on 3-4-1983, is a nullity under section 19 of the Indian Divorce Act, 1869. It was stated in the said petition that the marriage of the petitioner and the respondent was solemnised as per the Christian rites on 3-4-1983. About fifteen days after the marriage, the petitioner-husband left India for the Gulf countries on an employment and somewhere in the month of October 1987 he returned to India. After his return to India from the Gulf countries, petitioner-husband learnt that the respondent had undergone an operation for excision of her fallopian tubes somewhere in December 1976. According to the petitioner, due to the said operation for excision of her fallopian tubes, the respondent had lost fertility and, therefore, she could not conceive a child. It is the case of the petitioner-husband that had this fact been disclosed by the respondent-wife to the petitioner, the petitioner would not have married the respondent. According to the petitioner, it was only because of suppression of the aforesaid fact, the said marriage materialised and, therefore, since his consent to the aforesaid marriage was obtained by suppresio vari, he, the petitioner is entitled to get a decree of nullity of his marriage with the respondent under section 19 of the Indian Divorce Act, 1869.

(3.) IT appears that on the date on which the aforesaid petition was filed before the learned District Judge, Thane, the said petition was maintainable in view of the decision of this High Court in (Dnyaneshwar v. Surekha) A. I. R. 1984 Bombay 310. However, the said legal position underwent a change due to the subsequent decision of this High Court in (Joseph John v. Leila Joseph) 1992 Maharashtra Law Journal 1566. Due to the aforesaid subsequent decision, the petition ought to have been filed in this High Court and, therefore, the trial Court referred the aforesaid petition for disposal by this High Court.