Judgment of Brijinder Bir Singh vs Vinod alias Parminder

JUDGMENT

1. This first appeal is directed against the judgment and decree dated August 23, 1991 passed by the matrimonial Court dismissing the petition of the husband-appellant for annulment of his marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955 (for hort ‘the Act’).

2. Parties were married on March 1, 1987 at New Delhi and before marriage they were both divorcees. A matrimonial advertisement appeared in the daily ‘Hindustan Times’ on July 20, 1986 which reads as under :–

“Punjabi match for 25 years old, beautiful Graduate Brahmin girl, legally divorced soon after marriage. Caste no bar. Box 24609-C.A.”

The respondent-wife admits that this advertisement was issued by her father though the case of the appellant is that it was issued by the respondent herself. This controversy need not hold us as it is not very material for deciding the present appeal. In response to the advertisement father of the appellant wrote a letter to the father of the respondent on the receipt of which the latter sent a reply on August 20, 1986 Exhibit P1 thanking the former for his letter and confirmed that the particulars of his son suited them. Father of the respondent also mentioned the particulars of his daughter (respondent herein) as under :–

“Name Km. Vinod Sharma Date of Birth 14-11-1960 Qualification Graduate Height 5′ 3”

Colour Fair Personality Good looking, impressive, well-versed in household affairs.”

It is common case of the parties that thereafter their parents and they met each other and the parties were formally engaged on 1-11-1986. The marriage of the parties was fixed for January 1, 1987 but on the request of the father of the respondent the same was postponed and the marriage finally took place on March 1, 1987. The case of the appellant is that his marriage with the respondent was never consummated and after avoiding him for the first few days of the marriage, she went back to her parental house to look after her father who was suffering from cancer. It is not in dispute that the father of the respondent died within a month and an half from the date when the parties were married. It is further alleged by the petitioner that the respondent did not come back to the matrimonial home for quite some time and she last resided with him for a few days at Hajipur in the District of Hoshiarpur. The petitioner has also alleged that a fraud was practised on him inasmuch as his consent to the marriage was obtained by misrepresentation. It is stated that in the matrimonial advertisement which brought the parties together it was specifically mentioned that the respondent was a graduate and legally divorced soon after her first marriage when in fact she was not and nor was she a graduate. It is also alleged that the petitioner was given to understand that the respondent was a virgin and it was for this reason that she was described as ‘Km. Vinod Sharma’ in the letter dated August 20, 1986 (Exhibit P1) allegedly written by the father of the respondent to the father of the petitioner. The petitioner further averred that it was some time in the middle of June, 1988 that he discovered that his consent far marriage had been obtained fraudulently when he learnt about the decree of divorce obtained by the respondent on January 2, 1987.

3. On these allegations and some others which are not necessary to be mentioned for the purposes of disposing of the present appeal, the petitioner moved the matrimonial Court under Section 12(1)(c) of the Act for the annulment of his marriage.

4. The respondent controverted the allegations made by the appellant. Her case in the written statement was that the appellant had voluntarily and with his free will married the respondent on March 1, 1987 knowing that she had obtained a decree of divorce from her previous husband on 2-1-1987 and that no fraud was committed as alleged. The other allegations levelled by the appellant have also been denied and it is stated that after her marriage the appellant and his family members used to mal-treat her on the ground that she had brought less dowry although her parents had given her sufficient dowry keeping in view their social and financial status. It is admitted by her that she filed an application for maintenance under Section 125 of the Code of Criminal Procedure in the Court of a Magistrate at Saharanpur and stated that despite an order from that Court the appellant had not paid a single penny to her till date.

5. From the pleadings of the parties, the following two issues were framed:–

1. Whether the consent of the petitioner for the marriage was obtained by practising fraud by concealing the material facts concerning the respondent? OPP
2. Relief.

6. After considering the evidence oral as well as documentary led by the parties the trial Court answered issue No. 1 against the appellant and in favour of the respondent and consequently, dismissed the petition. Hence, the present appeal.

7. After hearing counsel for the parties and having gone through their pleadings and the evidence on the record, the following facts stand established.

1. That the respondent or her father had issued the aforementioned matrimonial advertisement which appeared in the Hindustan Times on July 20, 1986 and that the parties did not know each other prior to this.
2. That the respondent is not a graduate as she did not appear in the B.A. Final examination.
3. That the parties after coming into contact with each other through the afore-
4. mentioned advertisement were formally -engaged on 1-11-1986.
5. That the respondent filed a divorce petition against her previous husband (Shri Surinder Awasthy) on 11-11-1986 and ex parte decree for divorce was obtained by her on 2-1-1987. This is clear from Exhibits P8 and P9.
6. That the marriage was initially fixed for January 1, 1987 but the same was postponed on the request of the father of the respondent and the parties were married on 1-3-1987.

8. On a consideration of the contentions advanced on behalf of the parties, the question that arises for determination is whether on the basis of the aforesaid admitted facts it could be said that the consent of the petitioner was obtained by misrepresentation or fraud as to any material fact or circumstance concerning the respondent. Under Section 12 of the Act any marriage solemnized whether before or after the commencement of the Act shall be voidable and may be annulled by a decree of nullity if it can be shown that the consent of the petitioner was obtained by misrepresentation or fraud as to any material fact or circumstance concerning the respondent. When the advertisement was issued it was clearly represented by the respondent and her father that she was a legally divorced woman which divorce took place soon after her previous marriage. Admittedly, on the date of advertisement she had not been divorced and she was the legally wedded wife of her previous husband Shri Surinder Awasthy. Not only this, it is common case of the parties that they did not know each other prior to the issuance of the advertisement in response to which they met. After having some negotiations in the matter, they were engaged on 1-11-1986. On this date the petitioner husband definitely gave his consent for marrying the respondent. This consent was based on the representation that she was a legally divorced woman and that she was a graduate. Both these representations were false as to the material facts concerning the respondent. Had the appellant known at the time of his engagement that the respondent was not a legally divorced woman he would not have given his consent. Similarly the respondent did not possess the educational qualification mentioned in the advertisement and a husband who is looking for a graduate as his wife would not have consented for the marriage if the misrepresentation had not been made. In the result, it must be held that the consent of the appellant was obtained by fraud on 1-11-1986 when the formal engagement ceremony was held.

9. There is no manner of doubt that under S. 12(1)(c) of the Act if the consent of the appellant was obtained by fraud as to the nature of the ceremony or as to the nature of the material fact or circumstance concerning the respondent, the marriage can be annulled. It is not necessary that consent is obtained by practising fraud at the time of solemnisation of the marriage. It is enough if it was obtained even at an earlier stage as in the present case. Without going into the other allegations levelled by the parties against each other, I hold that the consent of the appellant was obtained by fraud and misrepresentation as to material facts concerning the respondent and that he is entitled to a decree for annulment under Section 12(1)(c) of the Act.

10. For the reasons mentioned above, the appeal is allowed, the judgment and decree of the trial Court set aside and the marriage of the petitioner with the respondent stands annulled. In the peculiar circumstances of this case, the parties are left to bear their own costs.

11. Appeal allowed.