इसे हिंदी में पढ़ने के लिए यहाँ क्लिक करें
Case Summary
| Citation | Babui Panmato Kuer v Ram Agya Singh, 1968 |
| Keywords | section 28 of the Hindu Marriage Act, 1955 clause (c) of sub-section (1) of section 12 of the Hindu Marriage Act. |
| Facts | Just before the plaintiff’s(also the appellant) marriage had been solemnized she had overheard her father telling her mother that he had fixed up a husband for the petitioner who was in an affluent financial condition and was between 25 and 30 years of age. Having heard these particulars, the petitioner raised no objection to the proposed marriage; and it might be said that she impliedly consented to the marriage through silence. At the time of solemnization of the marriage, she was, as is customary in a Hindu family, particularly in a rural area, under a heavy veil, in consequence of which she should not see the bridegroom. The bridegroom, viz., the respondent, left on the very next morning of the marriage without petitioner’s roksadi having been performed.Later t she discovered that besides being a man of very ordinary means the respondent was aged even more than her father, that is to say over 60 years.Later the petitioner filed the present petition for dissolution of marriage with the respondent on the ground of fraud in the matter of procurement of her consent whereby her marriage was solemnized? |
| Issues | Whether this amounts fraud under section 12(1)(c) of HMA? |
| Contentions | the petition was rejected by by the learned Judge on two grounds: (1)that there was no misrepresentation to the petitioner herself inasmuch as the particulars of the bridegroom were not conveyed to the petitioner directly and had been merely over-heard by the petitioner while her father was mentioning them to her mother; and (2) that fraudulent misrepresentation within the meaning of section 12(1)(c) must be made at the time of the solemnization of the marriage and not earlier, that is to say, at the time of negotiations of the marriage. |
| Law Points | “Fraud” has been defined in section 17 of the Contract Act. According to that definition, “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: Section 12(1)(c), H.M.A.-One of the grounds for avoiding a marriage is the fact that the consent of the petitioner (or his or her guardian) to the marriage was obtained by force or fraud |
| Judgment | the case of the petitioner falls quite clearly within the ambit of clause (c) of section 12(1) of the Act. I, therefore, decree of divorce is granted |
| Ratio Decidendi & Case Authority | Here, the petitioner was sui juris; and, therefore, her consent to the marriage should have been obtained directly, but that was not done; and it was obviously with a view to procuring her consent to the marriage that the particulars of the bridegroom were conveyed to her mother, who, in the circumstances, was acting as her agent in the matter. The suggestions made to the petitioner’s mother were in respect of certain facts, which the petitioner’s father could not possibly have believed to be true. The petitioner’s father must have seen the respondent and he must have known that he was nowhere between 25 and 30 years of age at that time. Therefore, the petitioner’s father had made suggestions to the petitioner’s agent, viz. her mother, of certain facts which the petitioner’s father himself could not possibly have believed to be true. Even upon the footing that her father intended to procure her consent indirectly employing her mother for the purpose, he had a duty towards her of making true disclosure offacts particularly with regard to the age of the proposed bridegroom. By giving out that the bridegroom was only 25 to 30 years of age, while, in fact, he was in the region of 60 years, the petitioner’s father had resorted to the active concealment of a fact which was within his knowledge or belief. If the petitioner’s father had conveyed true facts to her mother and yet the petitioner, who overheard the talks, did not protest, then the position could have been materially different. But, here the relevant facts were suppressed from her knowledge, although it was the duty of her father to convey the true position to her. This view receives ample support from illustration (b) to Section 17 of the Central Act. Illustration (a) embodies a situation where there is no duty to disclose any defect in the matter which is the subject of bargain between the parties. In the Illustration, mention is made of a horse, which is sold by A to B by auction. Regarding the same matter, it is provided by Illustration (b) that where the purchaser is a daughter who has just come of age, it is incumbent upon the seller, viz., A, on account of his relation with the purchaser, viz., B, to disclose to B if the horse is unsound. Consequently, in the instant case it was the duty of the petitioner’s father to disclose to the petitioner that the respondent was a man of nearly 60 years so that she might befree to give or withhold her consent to the proposed marriage. Therefore, the elements of fraud were undoubtedly present in this case. |
Full Case Details
G.N. PRASAD, J. – This is an appeal under section 28 of the Hindu Marriage Act, 1955 (the Act). The appellant is the plaintiff whose petition for dissolution of her marriage with the respondent has been dismissed by the learned Additional District Judge of Saran.
2. The petition was founded on the ground of fraud within the meaning of clause (c) of sub-section (1) of section 12 of the Act.
3. The petitioner was admittedly a little above 18 years of age at the time of the impugned marriage, which took place in May, 1959. Therefore, in order to succeed in the present proceeding the petitioner had to prove that her marriage with the respondent had been solemnized by procuring her consent to the marriage by fraud.
4. The case of the petitioner as made out in the petition and also supported by her ex parte evidence in court is as follows. Just before her marriage had been solemnized she had over- heard her father telling her mother that he had fixed up a husband for the petitioner who was in an affluent financial condition and was between 25 and 30 years of age. Having heard these particulars, the petitioner raised no objection to the proposed marriage; and it might be said that she impliedly consented to the marriage through silence. At the time of solemnization of the marriage, she was, as is customary in a Hindu family, particularly in a rural area, under a heavy veil, in consequence of which she should not see the bridegroom. The bridegroom, viz., the respondent, left on the very next morning of the marriage without petitioner’s roksadi having been performed.
Some time in the early part of 1960, the respondent filed a criminal case against her father under section 498, Indian Penal Code. Thereupon, her father, who had earlier declined to send the petitioner to the respondent’s house, agreed to her going there and the prosecutionagainst him was withdrawn. On the 15th April, 1960 the father took her to the respondent’s house where for the first time in the night she discovered that besides being a man of very ordinary means the respondent was aged even more than her father, that is to say over 60 years She wept and wept, took no food for two days and insisted upon being sent back to her father’s house, whereupon the respondent beat her. However she later stealthily escaped to her father’s place, but father chided her; and so she left his place as well and took shelter at her uncle’s place.
Thereupon, the defendant started another case under section 498, Indian Penal Code, against her parents and uncle. However, the respondent succeeded in taking her to his house, where she was confined in a room. The petitioner again succeeded in escaping from the respondent’s house: and this time she took shelter in her nanihal. Ultimately, in March 1961, the petitioner filed the present petition for dissolution of marriage with the respondent on the ground of fraud in the matter of procurement of her consent whereby her marriage was solemnized. According to the petitioner, she had no cohabitation with the respondent at all.
5. The respondent appeared in the proceeding and filed written statement denying the allegations contained in the petition, but he did contest the petition at the time of hearing. The petitioner accordingly pleaded her oath in support of her allegations, which remained uncontroversial and which have been substantially accepted by the learned Judge to be correct.
6. The learned Judge has, however, rejected the petition substantially on two grounds: (1) that there was no misrepresentation to the petitioner herself inasmuch as the particulars of the bridegroom were not conveyed to the petitioner directly and had been merely over-heard by the petitioner while her father was mentioning them to her mother; and (2) that fraudulent misrepresentation within the meaning of section 12(1)(c) must be made at the time of the solemnization of the marriage and not earlier, that is to say, at the time of negotiations of the marriage.
7. In my opinion, the learned Judge has gone wrong on both these points. “Fraud” has been defined in section 17 of the Contract Act. According to that definition,
“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) Any other act fitted to deceive.”
Here, the petitioner was sui juris; and, therefore, her consent to the marriage should have been obtained directly, but that was not done; and it was obviously with a view to procuring her consent to the marriage that the particulars of the bridegroom were conveyed to her mother, who, in the circumstances, was acting as her agent in the matter. The suggestions made to the petitioner’s mother were in respect of certain facts, which the petitioner’s father could not possibly have believed to be true. The petitioner’s father must have seen the respondent and he must have known that he was nowhere between 25 and 30 years of age at that time. Therefore, the petitioner’s father had made suggestions to the petitioner’s agent, viz. her mother, of certain facts which the petitioner’s father himself could not possibly have believed to be true.
Even upon the footing that her father intended to procure her consent indirectly employing her mother for the purpose, he had a duty towards her of making true disclosure offacts particularly with regard to the age of the proposed bridegroom. By giving out that the bridegroom was only 25 to 30 years of age, while, in fact, he was in the region of 60 years, the petitioner’s father had resorted to the active concealment of a fact which was within his knowledge or belief. If the petitioner’s father had conveyed true facts to her mother and yet the petitioner, who overheard the talks, did not protest, then the position could have been materially different. But, here the relevant facts were suppressed from her knowledge, although it was the duty of her father to convey the true position to her. This view receives ample support from illustration (b) to Section 17 of the Central Act.
Illustration (a) embodies a situation where there is no duty to disclose any defect in the matter which is the subject of bargain between the parties. In the Illustration, mention is made of a horse, which is sold by A to B by auction. Regarding the same matter, it is provided by Illustration (b) that where the purchaser is a daughter who has just come of age, it is incumbent upon the seller, viz., A, on account of his relation with the purchaser, viz., B, to disclose to B if the horse is unsound. Consequently, in the instant case it was the duty of the petitioner’s father to disclose to the petitioner that the respondent was a man of nearly 60 years so that she might befree to give or withhold her consent to the proposed marriage. Therefore, the elements of fraud were undoubtedly present in this case.
8. The learned Judge, is not right in holding that there was no fraudulent misrepresentation to the petitioner since the talks were between her father and her mother. The learned Judge has missed to note the purpose of this talk was to convey relevantinformation to the petitioner through her mother so that the petitioner might be in a positionto give her consent to the proposed marriage. Anybody, who is familiar with the family life of an average Hindu, knows that talks about marriage between a father and a daughter are not carried on directly but are conveyed indirectly through the agency of female relative particularly the mother, if she is available. I am, therefore, of the opinion that there was a fraudulent misrepresentation to the petitioner, intended to procure her consent to the marriage.
9. It is manifest that the impression which was created in the mind of the petitioner by the talks between her father and her mother, continued even at the time of solemnization of the marriage, because upon the evidence it must be held that the petitioner, being under a heavy veil, at the time of the marriage, could have no opportunity to have a look at her husband so as to make her in a position to withdraw her consent even at that stage. However, the evidence disclose that it was not until the 15th April 1960, when the true facts with regard to the age of the respondent came to the petitioner’s knowledge.
10. In support of his view that the fraudulent representation envisaged in section 12(1) of the Act must be made at the time of the solemnization of the marriage and not earlier, viz., at the time of settlement of the marriage, the learned Judge has relied upon the decision of a learned single Judge of the Calcutta High Court in Anath Nath De v. Lajjabati Devi [AIR 1959 Cal]. The view taken in the Calcutta case undoubtedly supports the conclusion of the learned Judge in the present case, but the Calcutta view is really not borne out by the terms ofsection 12(1) of the Act. To accede to the Calcutta view would amount to the adding in clause (c) certain words to indicate that the consent was obtained by force or by fraud “at the time of the marriage” but there can be no justification for adding such words in clause (c). It will be noticed that the expression “at the time of the marriage” is to be found in clause (a) as well as in clause (d) but it is non-existent in clause (c). Therefore, the scheme of sectionleaves no room for doubt that in a case falling under clause (c) it is not necessary to prove that consent was obtained by force or fraud at the time of the marriage. All that the section requires is that the consent should have been obtained by force or fraud before the marriage was solemnized. The Calcutta decision has not proceeded upon the examination of thevarious clauses of section 12(1) of the Act. Therefore, with respect, I am unable to follow that decision.
11. In my view, the case of the petitioner falls quite clearly within the ambit of clause (c) of section 12(1) of the Act. I, therefore, set aside the decision of the court below and annul the petitioner’s marriage with the respondent under clause (c) of section 12(1) of the Act. The petition succeeds and this appeal is allowed.
NOTE: In Som Dutt v. Raj Kumari [AIR 1986 P & H 191], the husband sought annulment of marriage for fraud committed upon him by his wife in concealing her true age from him and thereby inducing him to marry a woman much older than him in age. Date of birth of wife as mentioned in her horoscope compared with that of her husband showed her to be a year younger than her husband. Her matriculation certificate showed her seven years older than her husband. Wife was also suffering from recurrent attacks of hysteria and garruting. Hence, marriage was liable to be annulled due to gross matrimonial fraud committed upon husband with regard to age of his wife as also her mental state.
