Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 12 September, 2023
+ MAT.APP.(F.C.) 204/2023
JASBEER ..... Appellant
Through: Mr.Vijay Datt Gahtori, Advocate.
Versus
NISHTA DAWAR ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. An Appeal under Section 19 of Family Court Act, 1984 has been
preferred against the judgment dated 27.02.2023 dismissing the petition for
annulment of marriage on the ground of fraud under Section 12(1)(c) of the
Hindu Marriage Act, 1955 (hereinafter referred to as „HMA‟) filed by the
appellant/ husband.
2. The parties got married at Arya Samaj Mandir on 23.11.2019 as per
Hindu customs and rites but their marriage was never consummated. Their
marriage was registered at the office of District Magistrate, Model Town.
The parents of the parties were not aware about their marriage.
3. The appellant/ husband was working as a Beautician and wanted a
wife who was in the same business line. The respondent/ wife represented
herself to be an expert in Beautician line working in a reputed Firm and
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
MAT.APP.(F.C.) 204/2023 Page 1 of 7
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getting handsome salary aside from having income from other sources. She
also claimed that her family had high “qualities” ( sic. ). The respondent also
promised that after the marriage she shall arrange suitable business
accommodation in nearby area of Jahngirpuri. She also stated that her
parents had purchased a house in her name and that they shall run the
business together from the said accommodation after six months of the
completion of some formalities that remained to be completed. Believing
her representations to be true the appellant/ husband was emotionally
blackmailed and gave a proposal for marriage, which was accepted by the
appellant.
4. The appellant claimed that though respondent had assured that she
would be joining the profession of Beautician with the appellant, but she
subsequently absconded. The appellant came to know in August, 2020 that
the respondent did not has the requisite qualification and had fraudulently
represented herself to be in the Beautician line. She had given wrong
particulars of information with an intent to mislead and had obtained his
consent on false information. The consent is claimed to have been induced
under undue influence by taking advantage of wrong information. The
consent to the marriage was claimed to be fraudulent and hence, the
marriage was claimed to be a nullity. The appellant thus, sought annulment
of marriage under Section 12(1)(c) of HMA.
5. The respondent was duly served through summons on 01.04.2022,
despite which she failed to appear and contest the petition and was
proceeded ex-parte vide Order dated 04.11.2022.
6. The appellant examined himself as PW1 in support of his assertions
and tendered his evidence by way of affidavit Ex.PW1/A. The learned
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DigitallySigned By:SAHIL
SHARMA
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Judge, Family Court found that though the appellant had claimed that false
and incorrect information was furnished by the respondent, but he was
unable to lead any cogent evidence either by way of corroborative material
or any document and thus, dismissed the petition.
7. Aggrieved the present Appeal has been preferred.
8. Submissions heard .
9. The appellant herein has himself asserted that he had a love marriage
with the respondent at Arya Samaj Mandir on 23.11.2019 without the
knowledge of their parents. It is also the case of the appellant that the
marriage was not consummated and the respondent absconded thereafter.
10. The appellant has asserted that his consent was obtained under undue
influence by furnishing wrong information by the respondent who claimed
herself to be in the line of Beautician and had assured that they both would
start up the business of Beautician in a property that was owned by the
respondent.
11. Section 12 (1)(c) of the Hindu Marriage Act, 1955 deals with
annulment of marriage on the ground stated therein. It reads as under :
“that the consent of the petitioner, or where the consent
of the guardian in marriage of the petitioner [was
required under 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 [or by fraud as to the
nature of the ceremony or as to any material fact or
circumstance concerning the respondent].”
12. The term “fraud” has not been defined in the Act. Under the Hindu
Marriage Act not every kind of misrepresentation or concealment of fact can
be termed as fraud as envisaged under Section 12 of the Act. Clause „c‟ of
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SHARMA
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Section 12(1) of HMJ thus provides that the marriage may be annulled by a
decree of nullity if:
(i) the consent of the petitioner is obtained by force or by fraud;
(ii) such force or fraud must be to “the nature of the ceremony” or as to
“any material fact or circumstance concerning the respondent”.
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13. Mulla, in Principles of Hindu law, 11 Edition, deals with this
aspect at page 739 and observes that by way of illustration, the concealment
of a fact that the wife had been in a “naikin” by profession and even in the
keeping of more than one person prior to the marriage was not a fraud if
there was consent to the marriage. So long as the person “freely consents”
to solemnization of the marriage in accordance with customary ceremonies,
understanding the nature and having an intention to marry, objection as to
the validity of marriage on the ground of fraudulent representation or
concealment cannot be taken subsequently. The marriage cannot be avoided
by showing that the petitioner was induced to marriage by fraudulent
statements relating to family or fortune, caste or religion or age or character
of the respondent. Where, however, a party is kept under the impression
that what is being performed is only a betrothal or there is a deception as to
the identity of the other person, then it would amount to fraud giving a cause
for annulment of marriage.
14. In Anath Nath De vs. Smt. Lajjabati Devi , AIR 1959 Cal. 778, the
Calcutta High Court explained that the question of consent of the parties to
the marriage arise at two stages ; firstly at the time when the parties consent
to solemnize the marriage and secondly, at the time when the marriage itself
is solemnized. The Hindu Marriage not being a contract, the consent at the
first stage though obtained by fraud, cannot affect the validity of the
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SHARMA
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marriage. The consent at the time of solemnization of marriage is the
material consent and if it is obtained by fraud, it affects the validity of the
marriage.
15. Similar view was expressed by Punjab & Haryana High Court in the
case of Harbhajan Singh vs. Smt. Briji Balab , AIR 1964 Punjab 339,
wherein it was further observed that in case of a marriage under Hindu law
fraud is not used in a general way and the marriage cannot be dissolved by
on every misrepresentation or concealment. If the term “fraud” was to be
interpreted in accordance with Indian Contract Act, then it would become
impossible to maintain the sanctity of marriage. By way of illustration, it
was stated that if a respondent is a person of Bad Character before the
solemnization of marriage, it cannot be termed as a fraud. The legislature
did not intent that the past conduct of the respondent except what is
mentioned in Section 12 of the HMA, should become a ground for
dissolution of marriage.
16. Similarly, Bombay High Court in Raghunath vs. Vijaya , AIR 1972
Bom. 132 observed that term „fraud‟ used in Section 12(1)(c) of the HMA
does not speak of fraud in any general way, nor does it mean every
concealment or misrepresentation may be considered as fraudulent. If the
consent is given to the solemnization of marriage, the same cannot be
avoided on the ground of fraud.
17. In Sujatha vs. Hariharan , 1995 (II) M.L.J 327 DB of Madras High
Court observed that to constitute a “fraud” under Section 12(1)(c) of the
HMA there must be an abuse of confidential position, some intentional
imposition or some deliberate concealment of material facts which are the
fundamental basis of the marriage contract.
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DigitallySigned By:SAHIL
SHARMA
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18. The meaning of material fact or circumstances concerning the
respondent was examined in the case of Pradeep s/o Namdeorao Ambhore
vs. Pallavi Pradeep Ambhore 2017 (6) Mh.L.J., where the moot question
was whether the concealment of the wife suffering from sickle cell anemia,
amounted to material fact or circumstance. It was observed that while it is
difficult to define with certainty what amounts to a material fact, it is safe to
say that a fact or circumstance which is of such a nature that was likely to
interfere with the marital life of the parties, then it is material fact or
circumstance. Such a material fact or circumstance must be in respect of a
person or the character of the person and it is immaterial whether it is
curable or not. Further, a fact crucial to the extent that if disclosed would
result in either of the parties not consenting to the marriage, would also be
termed as a material fact.
19. In this backdrop we may examine the facts on which the appellant has
claimed that his consent was obtained by misrepresentation and undue
influence thereby entitling his marriage to be declared as nullity. His main
claim is that before the marriage the respondent had represented that she was
in the line of Beautician business and that she could arrange for suitable
premises for setting up their business of Beautician in the property owned by
her father and that they could run their business jointly. The alleged
representation claimed to have been made by the respondent are neither
related to the nature of the marriage ceremony nor was of the nature that
could have interfered with the marital life of the parties.
20. It is significant to observe that as per the appellant himself, they were
known to each other and had a love marriage, any representation by the
respondent about her having sufficient means for setting up of a business,
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SHARMA
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cannot be said to be of the nature as would amount to fraud or concealment
of material fact entitling the appellant to a decree of nullity. The learned
Judge, Family Court has also found that no documentary or corroborative
evidence had been led by the appellant to substantiate his assertions. He
was unable to prove his averments on the basis of which he was seeking a
decree of nullity.
21. We find that neither on facts nor under law the appellant has been
able to show that the alleged representation by the respondent could be
termed as misrepresentation or fraud of the kind defined under Section
12(1)(c) of the HMA. We accordingly, dismiss the Appeal as being without
merit.
22. The pending applications, if any, also stand disposed of.
(SURESH KUMAR KAIT)
JUDGE
(NEENA BANSAL KRISHNA)
JUDGE
SEPTEMBER 12, 2023
va
Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
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