RUBY ROY Vs. SUDARSHAN ROY

JUDGEMENT

(1.) The marriage of the wife-appellant with the husband-respondent has been annulled by the learned Judge on the ground that the consent of the husband was obtained as a result of "non-disclosure of material facts" concerning the wife. Having heard the learned Counsel for the parties and after going through the records ourselves, we are satisfied that we, in our turn, must annul that decree of annulment.

(2.) The husband has filed the petition giving rise to this appeal under S.12(1)(c) of the Hindu marriage Act whereunder a marriage may be annulled by a decree of nullity on the ground that "the consent of the petitioner was obtained by force or fraud as to the nature of the ceremony or to any material fact or circumstance concerning the respondent." In paragraph 3 of the petition, the petitioner has stated that "the petitioner could not know that the respondent is devoid of female organ and incapable of cohabitation" and that "had the petitioner known, he would not have entered into marriage with respondent." At the trial, however, the case made out by the husband appears to be that he found that "her entire body bears burn marks and she does not have the right breast and so far her left breast is concerned only the nipple was evident."

(3.) Now as to the pleadings in a case of fraud, it is well-settled that the person alleging fraud must do so with clarity and precision, must set forth all the particulars in his pleading and that the case can be decided only on the particulars set forth without any deviation or departure. We are afraid that the husband having come forward with a definite case of fraud on the ground of non-disclosure that the wife was "devoid of female organ and incapable of co-habitation", should not have been allowed to give a go by to that case at the trial and to proceed with the case that the Non-disclosure related to the wife having defective or deformed breasts.