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IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Debangsu Basak

And

The Hon’ble Justice Aryak Dutt

FAT No. 119 of 2026

With

CAN 1 of 2026

With

CRA (SB) 55 of 2026

With

CRAN 1 of 2026

Subham Roy Choudhury

Vs.

Sreejoyee Chakraborty

For the Appellants : Mr. Ajoy Roy Chowdhury, Adv.

Ms. Moumita Das, Adv.

For the Respondents : Mr. Sabyasachi Mukherjee, Adv.

Ms. Saheli Mukherjee, Adv.

Mr. Ranabeer Halder, Adv.

Ms. Debjani Chakraborty, Adv.

Hearing Concluded On : 14.09.2026

Judgment Delivered On : 22.09.2026

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Aryak Dutt, J.:

1. This appeal is directed against the judgment and

decree dated 24

th December, 2025, passed by the learned

Additional District Judge, 1

st Court, Alipore, in Matrimonial being

Suit No. 42 of 2016 [R-1343 of 2016], by which the appellant’s

suit for a decree of nullity under Section 25(iii) of the Special

Marriage Act, 1954, was dismissed on contest, without any order

as to costs.

2. The parties were married on 22

nd February, 2016. The

marriage was solemnised socially according to hindu rites and

customs and was registered on the same day under the Special

Marriage Act, 1954. The appellant sought annulment on the

ground that his consent to the marriage had been obtained by

fraud, in that the respondent and her family had concealed her

chronic medical condition, namely Idiopathic Thrombocytopenic

Purpura (“ITP”) post-splenectomy, from which she is said to have

been suffering since 2007.

3. The case of the appellant, was that he was employed in

the United States of America and returned to India on 14

th

February, 2016, eight days before the date fixed for the marriage;

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that the negotiations were conducted by the respective parents of

both the parties. The respondent had been suffering from a

chronic relapsing condition of ITP post-splenectomy since 2007.

It was alleged that this was deliberately suppressed by the

respondent and her family during the negotiations. The appellant

learnt about it for the first time on 7

th March, 2016, on a visit to

hospital. Allegedly his consent for the marriage had thereby been

vitiated. He relied upon certain WhatsApp messages for alleged

admissions of concealment, and upon certain medical

prescriptions and treatment papers said to establish the gravity

of the condition.

4. The respondent denied concealment altogether. Her

case was that the marriage was negotiated upon full disclosure.

Matters of education and health were discussed between the two

families. Her father, conscious of the importance of transparency

therefore has gathered her entire medical file, including the post-

splenectomy prescriptions and blood reports and despatched it to

the appellant’s father through DTDC courier on 29

th January,

2016, well before the appellant returned from the United States.

Receipt of such medical report was not denied by the appellant.

She never regarded her condition as marriage -defeating. Her

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condition after splenectomy had been stable and manageable for

years and did not interfere with her work, travel or daily life. The

allegations of concealment were an afterthought, manufactured

after the marriage ran into difficulty within the first week owing

to demands for money and ornaments.

5. The respondent further pleaded that the appellant had

withheld the single most important witness in the case, namely

his own father, who alone could have confirmed or denied receipt

of the medical file.

6. Five issues were framed, relating to maintainability,

cause of action, consummation of the marriage, the entitlement

of the appellant to a decree of nullity, and other reliefs.

7. On the substantive issue the learned Judge found that

no concealment had been proved and no fraudulent intent had

been shown. The learned Judge drew an adverse inference under

Section 114, Illustration (g) of the Indian Evidence Act, 1872,

from the non-examination of the appellant’s father and held the

WhatsApp messages were inadmissible for want of a certificate

under Section 65B of that Act. Learned Judge further held that

the appellant, having examined no doctor and proved no medical

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document, had failed to establish that the respondent’s condition

was grave or marriage-defeating. The suit was accordingly

dismissed.

8. Each side examined one witness and one witness only

at the trial. The appellant examined himself. The respondent

examined herself as D.W.1, her evidence-in-chief being tendered

on affidavit under Order XVIII Rule 4 of the Code of Civil

Procedure, 1908, and she was cross -examined on 4

th March,

2025 and was further cross-examined on 24

th June, 2025. She

stated in terms that nobody would adduce evidence in her favour

save herself.

9. In her affidavit-in-chief the respondent deposed that

the marriage was solemnised upon mutual negotiation and

discussion between the two families “on various matters including

education, health condition etc.”. The appellant and his parents

were accordingly “well aware” of her education and health. Her

father handed over her medical file to the appellant’s father and

also sent it by DTDC courier on 29

th January, 2016 under

Consignment No. V27316871, the file containin g all the post-

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splenectomy prescriptions and blood reports up to the date of the

negotiation.

10. The respondent has produced the carbon copy of the

receipt dated 29

th January, 2016 received by her from her father.

11. In cross-examination the respondent admitted that she

had been under the treatment and supervision of Dr. Soumya

Bhattacharjee since 2007 until 2013, and that she had been

admitted thrice at Apollo Hospital for treatment of her ailments

prior to her marriage. She has also stated that she was told at

the time of the negotiation of the marriage that the appellant was

living in the U.S.A. and she used to converse with him over

WhatsApp.

12. As to the events following the marriage, her evidence

was that she stayed in the matrimonial home for about nine or

ten days whereafter she fell ill under stress and pressure and was

admitted to the hospital at midnight on 3

rd March, 2016 and was

discharged on 9

th March, 2016. No member of the matrimonial

family came to the hospital or bore the cost of her treatment, in

consequence of which she went to her parents’ house upon

discharge. The appellant left for the United States thereafter.

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13. The appellant’s father was not examined. The

respondent’s father, who is said to have despatched the

consignment, has since died.

14. Learned counsel for the appellant submitted that the

learned Judge had misdirected himself on the evidence. It was

urged that the respondent’s own admissions in cross -

examination that she was under continuous treatment from 2007

to 2013 and had thrice been hospitalised before the marriage

established a serious and long-standing condition. The findings

on disclosures therefore rests upon no evidence at all.

15. Principal reliance was placed upon the judgment of a

Division Bench of this Court in the case of Rita Dey (Saha) Vs.

Ashit Kumar Saha, being the F.A. No. 151 of 2013, decided on

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th April, 2016, in which a decree annulling a marriage under

Section 12(1)(c) of the Hindu Marriage Act, 1955, for suppression

of the wife’s carcinoma was affirmed. It was submitted that the

case is on all fours with the present one; that this Court there

refused to accept the contention that the medical document

could not be relied upon because its author had not been

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examined; and that concealment of a grave illness during

marriage negotiations amounts to fraud vitiating consent.

16. Learned counsel for the respondent supported the

decree. It was submitted that the burden of proving fraud lay

upon the appellant throughout and was never discharged; that

the appellant’s own plaint admitted that health was discussed

during the negotiations, an admission which he omitted from his

affidavit-in-chief and which he conceded in cross-examination as

well. His father, the principal negotiator and the person to whom

the file is said to have been sent, was deliberately withheld and

that his electronic evidence was inadmissible. It was submitted

that Rita Dey (Saha) (supra) was decided upon wholly different

facts and upon a differently worded statute.

17. Section 12(1)(c) of the Hindu Marriage Act, 1955 ,

renders a marriage voidable where the consent of the petitioner

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”. Section 25(iii) of the Special Marriage Act, 1954

is differently framed. It provides that a marriage solemnised

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under the Act shall be voidable and may be annulled by a decree

of nullity if —

“(iii) the consent of either party to the

marriage was obtained by coercion or fraud, as

defined in the Indian Contract Act, 1872 (IX of

1872).”

18. The legislature has thus incorporated into the Special

Marriage Act, by reference, the definition of fraud contained in

Section 17 of the Indian Contract Act, 1872. That definition is

materially broader than the language of the Hindu Marriage Act.

So far as is presently relevant, “fraud” means and includes “the

active concealment of a fact by one having knowledge or belief of

the fact”, or “any other act fitted to deceive”, committed by a

party to the contract with intent to deceive another party thereto

and to induce him to enter into the contract.

19. Under the Special Marriage Act a petitioner does not

establish fraud merely by showing that a material fact was not

mentioned. He must establish active concealment, a positive act

of suppression or, alternatively, silence in circumstances giving

rise to a duty to speak.

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20. The party complaining had the means of discovering

the truth with ordinary diligence, the marriage is not voidable

under Section 25(iii) even if the silence would otherwise have

been fraudulent within Section 17.

21. To these statutory requirements must be added two

well-settled principles of law. The burden of proving fraud lies

squarely upon the party who alleges it. A petitioner in a suit for

nullity must succeed upon the strength of his own case and not

upon the weakness of the defence. A decree of nullity is not an

alternative route to divorce. The ground must be strictly

construed and sparingly applied, and fraud, carrying as it does

an imputation of deliberate deceit, requires clear and cogent

proof and cannot be inferred lightly.

22. The respondent was under no obligation to prove

disclosure. The burden of proving concealment lay upon the

appellant, and it lay upon him throughout. A failure by the

respondent to establish her positive case of disclosure would

leave the appellant exactly where he began, namely under an

obligation to prove, by clear and cogent evidence, that a material

fact was actively concealed from him with intent to deceive.

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23. The appellant’s own pleading admits that health was

among the matters discussed between the two families during the

negotiations. An admission in the pleading of a party is the best

evidence against him and requires no proof. This averment was

conspicuously omitted from the appellant’s affidavit-in-chief, and

that when questioned in cross-examination he conceded that he

had not included it in his evidence. A case of active concealment

cannot rest upon a pleading which itself records that the subject

said to have been concealed was discussed.

24. It is the respondent’s unchallenged evidence he met

her only once before the marriage, on 16

th February, 2016. On

his own case, therefore, whatever was disclosed or withheld was

disclosed to or withheld from his family, and principally his

father. That circumstance makes the next omission decisive.

25. The appellant did not examine his father. His father

was the principal negotiator, he was the person to whom the

medical file is said to have been sent, he was the only person who

could have deposed, one way or the other, as to what was

disclosed during the negotiations and as to whether the

consignment was received by him. Where a party withholds the

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best evidence available to him upon the very fact in issue, the

Court is entitled, under Section 114, Illustration (g) of the

Evidence Act, 1872, to presume that the evidence, if produced,

would have been unfavourable to him.

26. The WhatsApp messages upon which the appellant

relied as containing admission were inadmissible in evidence. The

appellant moreover conceded in cross-examination that he had

taken screenshots, mailed them to himself, saved them under

altered file names and printed them. A history of handling which

would, quite apart from admissibility, have gone to weight.

Moreover, the entire WhatsApp chat between the parties is

required to be considered. If it is so considered, the portions

which the appellant had highlighted at the hearing are emotional

outburst of a newly married women finding her marriage

crumbling due to no fault of her or her family. The same neither

establishes the charge of fraud nor entitles the appellant to any

relief in the suit.

27. Even if it is assumed that the respondent and her

family said nothing at all about her medical history, the case

would remain one of silence, not of active concealment. The

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appellant returned to India eight days before his wedding. He

asked nothing. He made no inquiry of the respondent, none of

her family, and not even from his own father who had conducted

the negotiations. He sought no medical information of any kind.

28. The appellant led no evidence on the medical

conditions of the respondent. He examined no doctor. He proved

no medical document; the prescriptions and treatment papers he

produced were not proved by their authors or by any person

competent to speak to them. He called no expert to depose that

ITP, or ITP post-splenectomy, is a condition which impedes

cohabitation, fertility, or the performance of marital obligations,

or that it renders a marriage unsafe or unworkable.

29. The appellant relied strongly upon the respondent’s

admissions in cross-examination, that she was under treatment

from 2007 until the middle of 2013 and had been admitted to

hospital thrice before the marriage. Those admissions establish

the existence of a medical history. They do not establish that the

condition was material in the sense explained above; still less do

they establish that it was concealed. Indeed, they are entirely

consistent with the existence of precisely the file of prescriptions

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and blood reports which the respondent says was furnished to

the appellant’s family.

30. As to the relapse of the respondent’s medical condition

around March, 2016, is due to the stress and anxiety she

experienced in the matrimonial home. The appellant produced

nothing to rebut her account.

31. In the case of Rita Dey (Saha) Vs. Ashit Kumar

Saha, being the F.A. No. 151 of 2013, decided on 4

th April,

2016, a Division Bench of this Court has dismissed a wife’s

appeal and affirmed a decree passed by the learned Additional

District Judge, 1

st Court, Barasat, annulling her marriage under

Section 12(1)(c) of the Hindu Marriage Act, 1955. The husband’s

case there was that his wife had suppressed, during the

negotiation of the marriage, that she was suffering from

carcinoma of the breast. The Bench held that the wife had known

of her condition, that she had failed to prove disclosure, and that

the suppression amounted to fraud within Section 12(1)(c) of the

Act.

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32. We have given that decision our respectful and anxious

consideration. In our judgment it does not govern the present

case.

33. The diseases in Rita Dey (Saha) (supra) and the

present case are not comparable. In Rita Dey (Saha) (supra) the

condition was “high grade infiltrating duct carcinoma”, a

malignancy requiring immediate surgical intervention, of a

gravity apparent upon the face of an admitted report. The present

case concerns ITP post-splenectomy, upon whose nature, severity

and marital implications not one word of medical evidence was

led.

34. Judgement of Rita Dey (Saha) (supra) was an

affirmance. The Bench was reviewing a decree of the trial court,

found that its judgment did not suffer from any illegality, and

declined to interfere.

35. The findings which sustain the decree in the present

case are summarised as firstly, the admission in the appellant’s

own pleading and its unexplained omission from his evidence,

secondly, the withholding of his father as witness who was a key,

thirdly, the inadmissibility of the electronic material, fourthly, the

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entire absence of medical or expert evidence, and Lastly, his own

failure to make any inquiry before the marriage, rest upon the

pleadings, upon admissions in cross-examination and upon the

state of the record, and not upon the impression which either

witness made upon the Judge. A decree which is sustainable

upon grounds independent of an inadmissible consideration is

not vitiated by the presence of that consideration.

36. We find that, the alleged fraud is said to have been

discovered around the first week of March, 2016 and the suit was

instituted within the same year. The appellant had full knowledge

of the medical condition of the respondent prior to marriage. In

evidence-in-chief, the respondent had categorically stated that

her medical condition was made known by her family to the

family of the appellant prior to the marriage. Although, the

appellant had cross-examined the respondent on two days, no

question and not even a suggestion was put to her during cross-

examination. The assertion of the respondent both in the written

statement as also in the evidence-in-chief on such score went

uncontested. Simpliciter on such ground alone, appellant cannot

succeed.

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37. The appellant failed to prove, that the respondent was

suffering from a condition which was material in the objective

sense, she or her family actively concealed it, or kept silence in

circumstances importing a duty to speak. They did so with intent

to deceive him and to induce the marriage and his consent was in

fact caused thereby. He admitted in his plaint that health was

discussed. He omitted that admission from his evidence and

could not explain the omission. He withheld his father as witness

who could have resolved the matter. He prove d no medical

document and examined no doctor. His electronic evidence was

inadmissible. And he made no inquiry of any kind before the

marriage.

38. CRA (SB) 55 of 2026 is an appeal under Section 341 of

CrPC, 1973 (Section 380 of BNSS, 2023) filed by the appellant for

setting aside the impugned order dated 24

th December 2025

passed by the Learned 1

st Additional District Judge at Alipore in

perjury petition Misc case no. 519 of 2025 of the appellant under

Section 340 of the Code of Criminal Procedure, 1973, which is

Section 379 of BNSS 2023 read with Section 209 of IPC (246 of

BNS), arising out of given evidence in witness box by the

respondent/wife.

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39. The appellant had invoked the jurisdiction of the court

under Section 340 of the Code of Criminal Procedure all eging

that the respondent/wife had given false evidence before the

court and has thereby committed an act of perjury. The learned

judge rejected such application of the appellant for want of

grounds to invoke this exceptional jurisdiction.

40. Section 340 of CrPC is an exceptional discretionary

power to be invoked only when expedient in the interest of

justice, not routinely whenever false statements are alleged. The

court noted that mere inconsistency, denial of allegation or

finding against a party do not automatically amount to perjury

under Section 191/193 of IPC. The appellant failed to point out

any specific statements on oath given by the respondent which

was found false by a competent court. We observed that Section

340 CrPC cannot be used to exact vengeance or settle personal

grievances in matrimonial disputes as in the present case.

41. The entire foundation on which the appellant made out

its case in the 340 application, is on the alleged suppression of

the respondent’s medical condition at the time of marriage. The

said disputed factual assertion were matters directly in issue in

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the matrimonial proceedings. To attract section 340 of the CrPC

the court must form a prima facie opinion that the statement

complained of is not only false, but made knowingly and with a

deliberate object of misleading the court and that such falsehood

had a direct and substantial impact on the judicial decision

making process, which is not so in the instant case. We have

held that the respondent/wife is not guilty of suppression.

42. Under Such circumstances, we do not intent to

interfere with the order impugned no.3 dated December 24 of

2025, in CRA (SB) 55 of 2026. All connected pending

applications are disposed of.

(a) The appeal being F.A.T. No. 119 of 2026 is

dismissed. All connected applications are

disposed of.

(b) The judgment and decree dated 24

th December,

2025, passed by the learned Additional District

Judge, 1

st Court, Alipore, in Matrimonial Suit No.

42 of 2016 [R-1343 of 2016], dismissing the suit on

contest, is affirmed.

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(c) The appellant shall pay to the respondent the costs

of this appeal, assessed at Rs. 1,00,000/- (one lakh)

within four weeks from the date.

(ARYAK DUTT, J.)

43. I Agree.

(DEBANGSU BASAK, J.)