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Dilip (engg)     01 April 2014

Divorce on cheating ground

Respected Lawyers,

My wife lived with me only for one year.During this period she use to always complain about pain in back.When asked about it she use to avoid going 

into details and say its just a muscle pain.My inlaws also use to cunningly  avoid this topic.

After one year of marraige she had an urine infection which lasted for just 3 days (symtoms- mild fever).

As a husband I did all sort of investigations until I made a shocking discovery of her  kidney disease .

Her kidneys were impaired and shrunk.

I have around 22  reports with me which clearly states that she has this ailment from past many years or even from her childhood.

When Me and my parents started questioning her and her parents about this ,she left my house immediately.

Although I have all her reports in my hand she and her parents are not accepting the fact that she has this ailment from childhood.

I have taken opinion of 5 specialists ,who say that a short episode of urine infection which has happened only once after marraige cant damage her 

kidneys to this extent.Before marriage she or her parents has not revelead me about her kidney problem.

I have become a victim of a well planned cheating.

I want to file divorce based on all the medical proofs I have.

Can I get a divorce on this ground.



Learning

 15 Replies

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     02 April 2014

Dear Querist

this is not a ground of divorce but you can file an annulment petition before court u/s 12 of Hindu Marriage act if both of you are Hindu for declaration of dissolution of this marriage as annulment.

12. Voidable marriages.

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) 5[ that the marriage has not been consummated owing to the importance of the respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 6[ was required under
1. Ins. by Act 68 of 1976, s. 3.
2. Sub- section (2) omitted by s. 3, ibid.
3. Subs. by s. 4. ibid., for sub- section (1).
4. Ins. by s. 5, ibid.
5. Subs. by s. 6, ibid, for cl. (a).
6. subs. by Act 2 of, 1978, s. 6 and Sch. for certain words (w. e. f. 1- 10- 1978 ).
section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 ], (2 of 1978 ) the consent of such guardian was obtained by force 1[ or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub- section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub- section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife- after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub- section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 2[ the said ground].
1 Like

Nishant (BDE)     02 April 2014

Need Free On-call Legal Advice. Just give a missed call on 08010201301(toll free) or visit https://www.seekadvice.in/get-info.php

T. Kalaiselvan, Advocate (Advocate)     02 April 2014

Annulment of marriage u/s 12 of HMAcan be filed for suppression of facts material to marriage and concealment of her chronic and incurable disease within one year from the date of knowledge about such a thing.  This will be the only relief available to you for the present.

1 Like

Kapil Gupta (Advocate)     03 April 2014

Dear Dilip, you should file for the annulment of marriage as this was solemnised by conceqling the facts from you and the annulment is the only way in which you would have not to give any maintenance or like that.
1 Like

Dilip (engg)     05 April 2014

Thanks a ton for your advices.

From the replies what I understand is I can make my marraige null and void ,by producing the medical reports which I have.

However the duration of marraige is of 2 yrs now.I was not able to figure out about her chronic ailment in first year of marraige.Its only 5-6 months prior I came to know that this is chronic ailment.Will this still be considered under voidable marraige as per hindu marraige laws?

If yes then ,once I file petition,normally what duration does it take in honourable courts proceedings  for its judgement in such cases.

Also if my inlaws and wife after knowing  all facts based on reports(which even they have )still denies the fact about chronic ailment, just make the proceedings lengthy ,will the honorable court order for medical examination of her?

Biswanath Roy (Advocate)     10 April 2014

If the medical report discloses that the diseases are curable even if it is suppressed by your in laws intentionally  at the time of marriage then you wont get divorce. But if you can prove by adducing evidence that the disease of your wife was before marriage and her parents had knowledge but deliberately and will fuly suppressed the material facts at the time of marriage then marriage can be annuled.

1 Like

Dilip (engg)     23 June 2014

Hello Law gurus,

Gynacologist's comments  after seeing my wife's kidney reports were she   will not be able to
carry the  baby till delivery.This will be highly risky for her and baby due to pregnancy stress.
Doctor does not recomment for pregnancy.
Doctor also added that due to physical relationship any s*xually active women is more prone
to urine infection.Due to this its also risky to keep physical relationship with her.
Urologist(kidney specialist),have strictly warned her not to have urine infection even once in future.
Because this may be life threatening for her.
Will this case be considered under ground of impotency .I  am aware of the fact that impotency means marriage
is not consumated from day 1 when it gets solemnized.

But in this case since my wife has been diagnosed with severe chronic kidney ailment immediatley after one year of
marraige and will not be able to fulfill marital responsibilities.
Will this scenario be considered under impotency of wife.

Please advise.

 

Biswanath Roy (Advocate)     23 June 2014

Impotence according to legal parlance means a man's inability to achieve an erection and therefore to have s*xual intercourse. Because an impotent husband cannot consummate a marriage, impotence has often been cited as a ground of annulment, which is also termed as impotency. Do you think that the term 'impotency' is applicable in your case? The only allegation applicable in your case is that your wife had been suffering from chronic kidney damage  before marriage which your in laws were quite aware of but they intentionally and willfully suppressed this material facts for the interest of their daughter's marriage.  But  it is difficult to prove such facts before the court because of production of appropriate and lawful evidence as per evidence act. Firstly , you shall have to submit appropriate medical reports issued by the doctor and prescripttions relating to her treatment before her marriage. Secondly,Expert opinion over those papers that the diseases she was suffering was not curable and she is not fit for marital consummation.  Thirdly,' said facts of diseases were within the knowledge of your in laws.

Dilip (engg)     23 June 2014

Hello Biswanath sir,

 

I have around 22 reports (post marraige-after one year of marraige),by referring to it any specialists give 

his opinion that this is not a newly formed ailment.The reports also mentions that the patient has

history of urinary tract infections.

Now to the point made by you regarding reports before marraige:-The answer is no private medical practitioner

(although as per laws they should have )keeps records of patients of previous years.

They say the  records are in their database till the current financial year end.

Kidney damage due to infection is irreversible and  is incurable and is accepted universal truth by all doctors.

The only thing patients have is to take precautions so that their kidneys wont get affected by any reason.

 

Having said that ,s*xual intercourse creates favourable conditions for urine infections.This will lead to 

further damage of kidneys.

So if anyhow this marraige is continued ,then  naturally there will be s*xual intercourse.

Now for my wife ,living together will be risky for her health due to said reason.

From my side I am landed no where.

Then whats the point in continuing marraige.No body has any output from it.

Regarding the third point,why would her parents reveal the facts if they have deliberately married off her.

Sorry ,but its really becoming frustrating for me  as I am suffering without any of my fault here

I hope their parents understand their parenthood and stop using their liability as their asset.

Thinking positive and hoping to see good future for me.

Biswanath Roy (Advocate)     23 June 2014

To prove the marriage a nullity you shall have to prove that your wife was suffering from incurable diseases before marriage and that was willfully suppressed by the father and mother of the bride, this is the position of law.

1 Like

Dilip (engg)     24 June 2014

To prove with medical report evidence that this chronic ailment exists before marraige can be difficult.

But if I am able to prove on the current reports that this is a incurable disease which is diagnosed
after one year of marraige?.Due to this we both cant live together and have s*xual intercourse as it could endanger her life .We cannot  even do family planning (.... forget about getting pregnant and delivery of child from her).
Apart from that, child adoption is also not an option,because it would be injustice for the adopted child
by providing him a ill and unfit mother.
So having said that , what ground can I use to get legally separated or divorce.
I am also ready to pay the monthly alimony if required.

1)Is it divorce on ground of venereal or incurable disease?
2) Is it a void marraige
3) Or Annulment of marraige.

Considering our age factor myself 28 and she is 25 with no kids yet.And  we both have whole life ahead in front of us.

The scenario is not that we both are 60+ yrs old and I am trying to get rid of my wife who is suffering from this serious disease.
There has to be someway out of it so as to discontinue this marraige in honourable courts law.
Because this is really not making any sense to continue it under  these circumstances.
Please advise.


 

Biswanath Roy (Advocate)     24 June 2014

The facts so far disclosed by you 'Divorce on cheating ground' is not possible. But even then some options are still available those are as follows :- 1. You can pray for dissolution of marriage on the ground of incurable disease of your wife and she is not medically fit for consummation. 2. Can pray permission from the court for second marriage giving assurance of maintaining first wife and paying her all medical expenses. (although it will be difficult to obtain such an order but possible by strong logical argument by any weighty Senior Advocate who can convince the court that it is needed for a fair judgement)
1 Like

Dilip (engg)     16 July 2014

Respected lawyers,

Finally I found out some medical evidence before marraige.
I found out that all her tests were carried out 2-3 months just before marraige.However  since they already knew about her chronic ailment they purposefully did not carry out urine/kidney related tests.
I also already have all the reports post marraige which clearly describe her chronic history.
Along with that I have found out these new ones(....side note:- they do not have kidney specific reports as the tests were avoided purposefully to hide the documentation of disease).


Now my question is can I use all these reports as evidence .If yes then under what  section of evidence act.
Please share your valuable inputs.

Dilip (engg)     18 July 2014

 

Since her parents  already knew that nobody is going to accept  in such a condition if they tell the truth.

So to play safe they have done all the tests except those which are related to urine or kidney.Infact they avoided to carry out these.

So even if these things come up they are like"we have done all the tests,where does it shows kidney disease"

Can these  tests which are carried out  just before marraige be usefull for me.


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