Sunday, 17 July 2016

What is concept of fraud in matrimonial law?

The word 'fraud' has not been defined in the Act. It has, however, been defined in Section 17 of the Indian Contract Act thus--
'fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
(1) The suggestion, as a fact, of that which J is not true, by one who does not believe it to be true;
(2) The active concealment of a fact by one having knowledge or belief of the fact;
(3) A promise made without any intention of performing it;
(4) Any other act fitted to deceive;
(5) Any such act or omission as the law specially declares to be fraudulent.
Explanation:-- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.
This definition would not be applicable to a marriage under the Hindu Law, because it is undisputed that a Hindu marriage is a sacrament and not a contract. As observed by B.K. Mukherji J. in a Full Bench decision of the Calcutta High Court in Kshitish Chandra v. Emperor MANU/WB/0001/1937 : AIR 1937 Cal 214--
It is well settled that a Hindu marriage is a sacrament and not a contract, and the presence of a consenting mind is not indispensable. If the marriage rites are duly performed and there is no impediment to the marriage in the shape of identity of gotra or prohibited degrees of relationship, the doctrine of factum valet applies and makes the marriage indissoluble in the absence of proof of any force or fraud Brindabun Chandra v. Chundra Kurmokar ILR 12 Cal 140. The reason for the exception seems to be that where the girl is abducted by force or fraud and married, there is neither any gift by the lawful guardian nor the performance of any religious ceremony in the proper sense and there is, consequently, an absence of the essential ingredients necessary to constitute a valid marriage.
The word 'fraud' as a ground for the annulment of the marriage under the Hindu Law is limited only to those cases where the consent of the Petitioner at the solemnization of the marriage was obtained by some sort of deception. For example, take a case where A was given to understand that he was being married to B and, in fact, he was married to C. Again, where the marriage of the Petitioner was solemnized when he or she, as the case may be, was under the influence of liquor. In case of a marriage under the Hindu Law, 'fraud' is not used in a general way and on every misrepresentation or concealment, the marriage cannot be dissolved. If the term 'fraud' is to be interpreted according to the definition given in the Indian Contract Act, then it would become impossible to maintain the sanctity of the marriage. All sorts of misrepresentations will be alleged by the Petitioners in older to break the marriage tie. This obviously, could not be the intention of the Legislature. 
Equivalent Citation : AIR 1964 P and H 359
IN THE HIGH COURT OF PUNJAB AND HARYANA
F.A.F.O. No. 5-M of 1961
Decided On: 20.05.1963
 Harbhajan Singh
Vs.
Smt. Brij Balab Kaur
Hon'ble Judges/Coram:
P.C. Pandit, J.


1. This is an appeal against the order of the learned District Judge, Jullundur dismissing the petition of Harbhajan Singh, Appellant, under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for the annulment of his marriage with Smt. Brij Balab Kaur, Respondent.
2. According to the allegations of the Petitioner, the parties were married on 12-7-1955 at jullundur. The negotiations for this marriage took place between the Petitioner; and his father, Lekh Raj, on the one hand, and the Respondent's father. Nau Nihal Singh, on the other, in the month of February, 1955, at Jullundur. Nau Nihal Singh assured the Petitioner that the Respondent was a virgin and her character was unblemished. She was educated and was 20 years of age. Upon this, the Petitioner gave his consent for the marriage. The Respondent used to live with her father at Meerut. Nau Nihal Singh offered to perform all the ceremonies in connection with the marriage at Jullundur and stated that thereby the Petitioner would not be required to go to Meerut. As a result of this undertaking, the Petitioner had no opportunity to visit Meerut and ascertain the antecedents of the Respondent. Soon after the marriage was celebrated, the Petitioner came to know from a near relation that a child was born to the Respondent before her marriage with him. On that very day, that is, 24-7-1955, the Petitioner enquired from the Respondent about this matter and she admitted this fact before. Shri Guru Granth Sahib and gave a writing to the effect that a child was born to her as a result of an illicit connection with another person. The-consent of the Petitioner to marry the Respondent was, thus, obtained by making "wilful misrepresentation and fraudulent statement as to the fact of virginity and good character of the Respondent." This fraud was discovered by the Petitioner on 24-7-1955 and the present application, which was-filed on 24-7-1956, was within limitation. Since the discovery of this fraud, there had been no marital intercourse between the parties and they ceased to live as husband, and wife from that very date. The Respondent left the house of the Petitioner at Jullundur on 5-8-1955 and went to the-house of her father at Meerut and was residing there with her parents since then. A son and a daughter were born to the Respondent at the house of her father at Meerut in the' first week of April, 1956.
3. This petition was dismissed by the learned-District Judge, Jullundur, on 3-6-1957, even though the proceedings against the Respondent were taken ex parte. But on appeal to this Court, the case was remanded on n-8-1959 for fresh enquiry after making an attempt to serve the Respondent and her father personally and after recording any evidence which the Petitioner might desire to lead. It was also directed that the learned District Judge should examine the question of limitation, in the first instance, with reference to Clauses (c) and (d) of Section 12(1) of the Act. The other questions-had to be decided after the determination of the-question of limitation.
4. On remand, proceedings were again taken ex parte against the Respondent but later on she got the ex parte order set aside and contested this petition. She denied all the allegations made against her. The negotiations of the marriage, according to her, had taken place through Dr. Santokh Singh and through correspondence. The mother of the Petitioner had also gone to Meerut and seen the Respondent and other members of her family before finalising the alliance. There was no question of doubting her character and consequently, there was no occasion for her father to give any assurance regarding her virginity and her unblemished character. She bore excellent; moral character and this was within the knowledge of the Petitioner and his family. They had made complete enquiries about her and her family and were fully satisfied about the same before the betrothal ceremony had taken place. The marriage of was fixed at Jullundur according to the convenience of the Petitioner's family and according to their wishes. She never made any admission orally or in writing before the Petitioner that she had an illicit alliance before her marriage with any person. The marriage between the parties had taken place with full and free consent of both the parties and there was absolutely no fraud or wilful misrepresentation of any kind made to the Petitioner. She and the Petitioner had been living as husband and wife even after 24-7-1955 and the Petitioner had also been visiting her while she was with her parents and her other relations. Her mother-in-law and her husband's brother had also visited the Respondent at Meerut after 24-7-1955- The Petitioner and his relations had been writing letters to her and her relations. The twins were born to her as a result of this wedlock on 9-4-1956 at Meerut. The real facts were that the Petitioner and his father were greedy people and they had all along been trying to extort money from her father, who tried to accommodate them at times, but being a family man it was not possible for him to meet the unreasonable demands made by them. Consequently, in order to harass her and her family, the present petition had been brought. The Petitioner had also started in timid ting her criminally with threats to her and her relation's lives, in case she contested this petition. Besides the pleas On the merits, she raised three preliminary objections, namely, that the petition was not Vied within limitation; that it did not disclose any cause of action to the Petitioner under the Hindu Marriage Act; and that there had been unnecessary and improper delay in filing it.
5. In the replication put in by the Petitioner, it was stated that Dr. Santokh Singh deceased only introduced the parents of the parties and then the negotiations were carried out in the way mentioned in the petition. At the time of negotiations, Bhai Gopal Singh Granthi was also present. It was incorrect that the Petitioner's mother visited Meerut to see the Respondent. As a matter of fact, the girl was shown to her at Jullundur. The marriage was celebrated in Jullundur at the house of late Pritam Singh Larnba, brother of 1 lie-Respondent's father. The admission before Shri Guru Granth Sahib, Exhibit A.I, was made by the Respondent in her own handwriting in Urdu script. After 24-7-1955 the Petitioner never lived with the Respondent. The Petitioner never threatened the Respondent or her relations.
6. On the pleadings of the parties, the following preliminary issues were framed:
1. Is the petition within limitation?
2. Does not the petition disclose any cause of action and what is its effect?
7. The learned District Judge came to the conclusion that the Petitioner had not alleged any fraud at the time of the solemnisation of marriage. All that was stated was that his consent for marriage was obtained by wilful misrepresentation and, fraud at the time of the betrothal in February 1955, when negotiations took place between them, and the Respondent's father in the presence of Gopal Singh Granthi. As such, his petition did not disclose any cause of action. The document, Exhibit A.I, was a forged one and the Petitioner and his relations had made false statements in, Court. The story about the Respondent having admitted in writing on 24-7-1955 by the document A.i, that she was unchaste before her marriage was absolutely false and concocted. The Petitioner had been corresponding with the Respondent even up to 23-2-1956 and he had, admittedly received a telegram from her regarding the birth of twins in April 1956. The Petitioner had been having sexual intercourse with her even after 24-7-1955 at Jullundur, Meerut and Amritsar. The conduct of the Petitioner himself clearly showed; that he had been having happy relations with the-Respondent, but he was restrained by his parents--from meeting her and keeping her in his house. The greed of the Petitioner's parents had stood in the-way of the happy union between this couple and** the Petitioner had fallen a victim to their greed' in making this petition at their instance. Both these issues were decided against the Petitioner and his petition was dismissed. Against this, the-present appeal has been filed.
8. The first question for decision in this appeal is whether the present petition under Section 12 of the Act discloses any cause of action or not. For deciding this point, we shall have to assume-that the facts stated therein by the Appellant, were correct. On the basis of these facts is the-Appellant entitled to get a decree for annulment of the marriage? As already mentioned above, lie has stated in his petition that the negotiations., for his marriage with the Respondent took place-between him and his father, on the one hand, and the father of the Respondent', on the other, in the-month of February 1955 at Jullundur and the Respondent's father assured him that she was a virgin. He was further assured that the character of the-Respondent was unblemished. On this assurance, according to the Appellant, his consent for the-marriage with the Respondent was obtained. Soon alter the marriage was celebrated, the Appellant crime to know from a near relation that a child' was born to the Respondent before her marriage-with the Appellant. On that very day, that is, 24.7.1055, the Appellant enquired from the Respondent before Shri Guru Granth Sahib and she admitted that a child was born to her as a result of illicit connection with another person. She gave this fact in writing to the Appellant. At the time of the marriage, the Appellant was ignorant of this fact and his consent to marry the-Respondent was obtained by making this wilful misrepresentation and fraud. The point arises-whether on these allegations, it can be said that the consent of the Appellant for the marriage was-obtained by fraud as contemplated by Section 12(1)(c) of the Act. Section 12 runs thus--
Section 12(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) that the Respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding; 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 is required under Section 5, the consent of such guardian was obtained by force or fraud; 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 (i) 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 Actwithin one year of such com-mencement 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 the grounds for a decree.
A bare reading of the provisions of this section shows that any marriage whether solemnized before or after the commencement of this Act shall be voidable and may be annulled on any of the four grounds given in this section. The ground relevant for the purposes of this case is given in Sub-clause (c), where it is mentioned that if the consent of the Petitioner had been obtained by force or fraud, then the marriage would be annulled. In the present case, force has not been alleged by the Appellant and, therefore, we are concerned as to whether his consent to the marriage was obtained by fraud. The word 'fraud' has not been defined in the Act. It has, however, been defined in Section 17 of the Indian Contract Act thus--
'fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
(1) The suggestion, as a fact, of that which J is not true, by one who does not believe it to be true;
(2) The active concealment of a fact by one having knowledge or belief of the fact;
(3) A promise made without any intention of performing it;
(4) Any other act fitted to deceive;
(5) Any such act or omission as the law specially declares to be fraudulent.
Explanation:-- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.
This definition would not be applicable to a marriage under the Hindu Law, because it is undisputed that a Hindu marriage is a sacrament and not a contract. As observed by B.K. Mukherji J. in a Full Bench decision of the Calcutta High Court in Kshitish Chandra v. Emperor MANU/WB/0001/1937 : AIR 1937 Cal 214--
It is well settled that a Hindu marriage is a sacrament and not a contract, and the presence of a consenting mind is not indispensable. If the marriage rites are duly performed and there is no impediment to the marriage in the shape of identity of gotra or prohibited degrees of relationship, the doctrine of factum valet applies and makes the marriage indissoluble in the absence of proof of any force or fraud Brindabun Chandra v. Chundra Kurmokar ILR 12 Cal 140. The reason for the exception seems to be that where the girl is abducted by force or fraud and married, there is neither any gift by the lawful guardian nor the performance of any religious ceremony in the proper sense and there is, consequently, an absence of the essential ingredients necessary to constitute a valid marriage.
The word 'fraud' as a ground for the annulment of the marriage under the Hindu Law is limited only to those cases where the consent of the Petitioner at the solemnization of the marriage was obtained by some sort of deception. For example, take a case where A was given to understand that he was being married to B and, in fact, he was married to C. Again, where the marriage of the Petitioner was solemnized when he or she, as the case may be, was under the influence of liquor. In case of a marriage under the Hindu Law, 'fraud' is not used in a general way and on every misrepresentation or concealment, the marriage cannot be dissolved. If the term 'fraud' is to be interpreted according to the definition given in the Indian Contract Act, then it would become impossible to maintain the sanctity of the marriage. All sorts of misrepresentations will be alleged by the Petitioners in older to break the marriage tie. This obviously, could not be the intention of the Legislature. The fact that the Respondent was of bad character before the solemnization of the marriage cannot be a ground for the annulment of the marriage, because there is a specific Clause (d) of this very section dealing with this matter. Under that, if the Respondent was pregnant by some person other than the Petitioner at the time of the marriage then this can afford a ground for the annulment of the same. It means that the Legislature did not intend that the past conduct of the Respondent, except what is mentioned in Clause (d), should become a ground for the dissolution of the marriage. In Bai Appibai v. Khimji Cooverji MANU/MH/0183/1934 : AIR 1936 Bom 138, it has been held--
Fraudulent misrepresentation or concealment does not affect the validity of a marriage to which the parties freely consented with knowledge of its nature and with the clear and distinct intention of entering into the marriage, unless any of the spouses is induced to go through a form of marriage with the other by threats or duress or in a state of intoxication or in an erroneous belief as to the nature of the ceremony and without: real consent to the marriage. A marriage might, also be invalid if the girl was abducted by force or fraud and married against her wish or that of her guardian. The test of validity is whether there was a real consent to the marriage.
9. A case under the Hindu Marriage Act, 1955, came up before a Single Bench of the Calcutta High Court in Anath Nath De v. Smt. Laj-jabati Devi MANU/WB/0212/1959 : AIR 1959 Cal 778, where it was observed thus--
Under the Hindu Law, the question of consent of the parties to the marriage arises at two stages, firstly, at the time when the parties content to solemnize the marriage and, secondly, at the time when the marriage itself is solemnized.
The marriage, according to Hindu Law, not being a contract, the consent at the first stage though obtained by fraud cannot affect the validity of the marriage. The consent at the time of the solemnization is the material consent. It is well settled that the consent at the time of solemnization of marriage, though a marriage is a sacrament according to the Hindus, if obtained by fraud, affects the validity of the marriage.
Section 12(1)(c) also implies that at least one of the grounds must be existing at the time of the marriage. This is made clear by express words in Clauses (a), (b) read with Section 5(ii) and (d). This is also impliedly indicated in Sub-clause (c) of the said clause. This construction is also in consonance with the accepted principles of Hindu Law as to marriage prevalent prior to the enactment of the Hindu Marriage Act.
Therefore, in order to find out whether a marriage is invalid on the ground of fraud, it is necessary to find out whether there was consent of the Petitioner at the time of the solemnization of the marriage.
Where, therefore, in a petition under Section 12, the husband avers that there was fraudulent misrepresentation at the time when 'the Petitioner gave his consent to the proposal for marriage', and there is no allegation that there was fraud at the time of the solemnization of marriage, the petition cities not disclose any cause of action against the wife.
10. Even in cases under the Indian Divorce Act, 1869, it has been held by a Division Bench of the Allahabad High Court in Mt. Titli v. Alfred Robert Jones MANU/UP/0107/1933 : AIR 1934 All 273, that a marriage is not like a mere civil contract, which may be voidable at the option of one party on grounds mentioned in the Indian Contract Act.
11. In England also, it was held--
It would seem indeed to be the general law of all countries, as it certainly is of England, that unless there be some positive provision of Statute Law requiring certain things to be done in a specified manner, no marriage shall be held void merely upon proof that it had been contracted upon false representations and that but for such contrivances consent would never have been obtained. Unless the party imposed upon has been deceived as to the person and thus has given no consent of ill, there is no degree of deception which can avail to set aside a contract of marriage knowingly made (vide Swift v. Kelly (1835) 12 ER 648. It may be mentioned that this English Authority was followed in a case under the Indian Divorce Act in Consterdine v. Smaine 47 Ind Cas 544 : (AIR 1918 Low Bur 83).
12. In the present case, according to the Appellant himself, he gave his consent at the time of the solemnization' of the marriage. The allegations made by him to avoid the marriage do not come within the meaning of the word 'fraud' as used in Section 12(1)(c) of the Act. In my opinion, therefore, it was rightly held by the learned District Judge that the petition does not disclose any cause of action.
13. In this view of the matter, no other question arises for decision.
14. The result is that the appeal fails and is dismissed with costs.

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