Asha Qureshi v. Afaq Qureshi, 2002 Case Analysis

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Asha Qureshi v. Afaq Qureshi
AIR 2002 MP 263
V.K. AGARWAL, J. – This appeal is under S. 29 of the Special Marriage Act, 1954 (“Act”),
is directed against the judgment and decree dated 14.10.1996, in Civil Suit No. 59- A/90, by
Fourth Additional District judge, Jabalpur, declaring the marriage between the parties as null
and void, by a decree of nullity.

2. Facts not in dispute are that the parties were married on 23.1.1990 at Jabalpur, in
   accordance with the ‘Act.’ They lived as husband and wife for a period of about one year.
   Subsequently, the relations between the parties became strained and they started living
   separately. The respondent filed a petition under Ss. 34 and 25 of the ‘Act,’ seeking a decree
   of nullity and of declaration of their marriage as null and void. It was averred by the
   respondent/husband that after the marriage between the parties on 23.1.1990, the
   respondent/husband came to know that the appellant/wife was already married to one Motilal
   Vishwakarma. Motilal Vishwakarma had died prior to marriage of the parties. It was further
   averred by the respondent/husband that the fact of her marriage with Motilal Vishwakarma was
   suppressed by the appellant/wife, and that the respondent/husband agreed to marry her
   believing that she was a virgin. It was averred by the respondent/husband that the
   appellant/wife by suppressing from him the aforesaid fact has exercised fraud on him.
3. The appellant/wife denied the allegations as above. It was denied by her that she
   suppressed any material fact or exercised fraud. According to her, at the time of marriage of
   parties the respondent/husband was fully aware that the appellant/wife is a widow.
4. The learned Trial Court framed several issues in the case including as to whether the
   appellant/wife suppressed the fact that she was a widow and married the respondent/husband
   by practicing fraud? Some other issues were also framed which are not relevant for the disposal
   of this appeal.
5. The learned Trial Court held that the appellant/wife suppressed the fact of her earlier
   marriage with Motilal Vishwakarma, and thus the consent of the respondent/ husband for the
   marriage was obtained by fraud.
6. The learned counsel for the appellant/wife assailed the finding as above. It was
   submitted that the appellant and the respondent were known to each other for a long time
   prior to the marriage and the respondent/husband was fully aware that the appellant/wife was
   married earlier and her first husband had died. It was, therefore, submitted that there was no
   suppression of any material fact so as to constitute exercise of fraud by the appellant/wife.
7. The learned counsel for the respondent/husband however, supported the impugned
   judgment. It was submitted by the learned counsel for the respondent/husband that material
   facts, viz. her earlier marriage were never intimated by her to the respondent/husband. It was
   submitted that had the respondent/husband known about the earlier marriage of the appellant,
   he would not have entered into marital ties with her. It was, therefore, submitted that the trial
   Court was justified in holding that consent of the respondent/husband for marriage was
   obtained by the appellant/wife by exercising fraud. It would be useful to reproduce S. 25 of
8. the Act which lays down the conditions in which the marriage solemnized under the ‘Act’ be
9. avoided
10. The respondent/husband appears to have prayed for the decree of nullity of marriage
    under S. 25(iii) of the ‘Act.’ It has, therefore, to be considered as to whether consent of the
    respondent was obtained by fraud as defined in the Indian Contract Act, 1872?
11. Section 17 of the Indian Contract Act defines ‘fraud’ as below:
12. ‘Fraud’ – ‘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 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.”
13. Therefore, the question that arises for consideration is: as to whether the
    appellant/wife suppressed the material fact, i.e., her earlier marriage with MotilalVishwakarma
    and whether the suppression as above would amount to fraud?
14. It may be noticed that the respondent/husband Mohd. Afaq Qureshi (AW/1) stated that
    he married the appellant/wife on 23.1.1990 under the ‘Act.’ They resided together for about 7
    or 8 months. A dispute thereafter arose between them as the appellant/wife had suppressed that
    she was already married with Motilal Vishwakarma. He states that thereafter a document
    captioned as ‘Iqrarnama’ (Ex. P/1) was executed by the appellant/wife. The said document
    bears signature of the appellant/wife as well as of Jugal Kishore – the brother ofthe
    appellant/wife as well as one Mohd. Salim. During cross-examination, the respondent/husband
    Mohd. Afaq Qureshi (AW/1) has admitted that he was known to the appellant/wife for about
    5-6 years prior to the marriage. He further stated that on enquiry from the appellant/wife as to
    why she was not married despite her advanced age she had told the respondent/husband that as
    there was no responsible person in her family, she could not get married earlier. He denied
    suggestion in his cross-examination that he was aware about the earlier marriage of the
    appellant when he married her.
15. As against the above statement, the appellant Smt. Asha Qureshi (NAW/1) has
    admitted that she was married earlier before she married the respondent. She, however, further
    states that about 8 years back when she befriended the respondent/husband she had told him
    that she was married and that she was a widow from her childhood. It is, however, noticed that
    the statement as above of the appellant/wife is not supported by her pleadings. The
    appellant/wife in her written statement nowhere specifically averred that she had intimated the
    respondent/husband about her marriage. In Para 5 of her written statement, she
16. had vaguely asserted that the present respondent/husband was aware that the appellant was a
17. widow. However, as mentioned above, she did not plead that she herself informed the
18. respondent about her earlier marriage prior to marriage with the respondent/husband. It may
19. also be noticed that the appellant Smt. Asha Qureshi has earlier stated that the respondent came
20. to know from her neighbours that she was a widow and then making an improvement has later
21. stated that she herself informed the respondent about the above fact. As noticed above, the later
22. statement of the appellant is not supported by her pleadings and does not appear to be reliable.
23. The learned counsel for the appellant submitted that the document according to the
    respondent/husband was written after the disclosure to him about the earlier marriage of the
    appellant/wife. However, the fact of earlier marriage and the disclosure thereof was not
    mentioned in the document it was, therefore, submitted that it should be inferred from the above
    that the dispute leading to the execution of Ex. P/1 in fact was not the disclosure or knowledge
    of the respondent/husband about the earlier marriage of the appellant, and that the said
    document was got executed by the respondent/husband from the appellant by exercising force
    or deception on her.
24. The contention as above cannot be accepted. It does not have any bearing on the real
    controversy between the parties. It may be noticed that though the respondent/husband states
    that dispute had arisen between the parties after the marriage, on the disclosure by the
    appellant/wife of the above fact, where after document was executed. It is noticed that in the
    document it was only stated that there was dispute between the parties, but the reason of dispute
    was not mentioned therein. It may be mentioned that the said document does not appear to have
    been drafted by any legal expert and appears to have been executed by the appellant/wife, in
    the presence of her brother and some other witnesses. It only contains an averment that in view
    of the dispute between them the parties wish to obtain divorce.Therefore, mere non-mention of
    the cause of dispute, in the said document would not by itselfbe indicative of the fact that the
    appellant had disclosed to the respondent before their marriage that the appellant was married
    earlier.
25. As noticed earlier, the pleadings in the above regard of the appellant/wife are vague.
    No particulars of date, time and period when the disclosure was allegedly made by her, have
    been mentioned in the written statement. In fact, there is no specific pleading that she herself
    intimated the respondent about her earlier marriage. In view of the above, the statement of
    respondent Mohd. Afaq Qureshi that before their marriage, the appellant never told him about
    her earlier marriage deserves to be accepted in preference to the appellant’s statement that she
    did make such a disclosure. In the foregoing circumstances, the finding of the learned trial
    Court in the above regard is affirmed.
26. It is, therefore, clear from the above that the appellant was married from before and
    was a widow at the time of her marriage with the respondent, was a material fact. It was not
    disclosed by the appellant to her husband the respondent. The suppression of material fact as
    above would amount to exercise of fraud. It may be noticed in the above context that in view
    of sub-section (4) of S. 17 of the Contract Act, to constitute fraud, it is not essential that there
    should be any misrepresentation by express words. It is sufficient if it appears that the party
    deceiving knowingly induced the defendant to enter into a contract by leading him to believe
27. that which the party deceiving knew to be false. It also appearsfrom the facts and circumstances
28. of the case that it was the obligation and duty of the appellant to haveintimated and apprised
29. the respondent about her earlier marriage. She has failed to do so.The respondent/husband
30. has stated that had he known that the appellant was married from before, he would not have
31. entered into wedlock with the appellant. It is, therefore, clear that suppression and active
32. concealment of the fact of her earlier marriage and she being a widow would amount to material
33. misrepresentation.
34. In view of the above, the appellant is entitled to a decree of nullity under S. 25(iii) of
    the ‘Act’ as has been prayed by him. The impugned decree granted as above, by the trial Court
    is, therefore, justified. There is no substance in this appeal. It is accordingly dismissed.