MANU/BH/0058/1968

Equivalent Citation: AIR1968Pat190

IN THE HIGH COURT OF PATNA

A.F.O.O. No. 365 of 1963
Decided On: 18.02.1967
Appellants:Babui Panmato Kuer
Vs.
Respondent:Ram Agya Singh
Hon'ble Judges/Coram:
G.N. Prasad , J.
Counsels:
For Appellant/Petitioner/Plaintiff: Krishna Prakash Sinha and S.K. Verma, Advs.
JUDGMENT
G.N. Prasad, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter to
be referred to as 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, which is in the following terms:--
"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:--
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(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;"
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 overheard her father tellina 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 could not see the bridegroom. The bridegroom, viz., the
respondent, left on the very next morning of the marriage without the petitioner's
roksadi having been performed.

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 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 prosecution against 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 strealthily escaped to her
father's place, but the 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 not contest the petition at the
time of hearing. The petitioner accordingly pledged her oath in support of her
allegations, which remained uncontroverted 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 overheard 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 settling 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;
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(4) 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

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 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 nor 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 of facts 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 Contract 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 iust 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
be free 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 that the purpose of this talk was to convey the
relevant information to the petitioner through her mother so that the petitioner might
be in a position to 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 relatives, 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 be in a position to withdraw her
consent even at that stage. However, the evidence discloses 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

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 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. Sm. Lajjabati Devi, MANU/WB/0212/1959 : AIR 1959 Cal 778. 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 of
Section 12(1) of the Act. To accede to the Calcutta view would amount to in 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 Section 12 leaves 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 a close examination of the
various clauses of Section 12(1) of the Act. Therefore, with great respect, I am
unable to follow that decision.
1 1 . In my view, the case of the petitioner falls quite clearly within the ambit of
Clause (c) of Section 12(1) of the Act.
12. 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.
13. The petition succeeds and this appeal is allowed. But, since the respondent has
not contested the appeal, there will be no order as to costs.

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