In order to argue various aspects of the astonishing array of the doctrine which stands a marriage voidable on the ground that the consent of the deceased was obtained with fraud[1], we need to understand the meaning of fraud, its various essentials and how the concept was introduced in marriage.
Even-though in Hinduism marriage is considered as a sacred bond between husband and wife which stands indissoluble except for certain exceptions[2], we will be explaining the term fraud as explained in the Indian Contract Act 1872[3] which says: — 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 of his agent, or to induce him to enter into the contract:—
- the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
- the active concealment of a fact by one having knowledge or belief of the fact;
- a promise made without any intention of performing it;
- any other act fitted to deceive;
- any such act or omission as the law specially declares to be fraudulent.
In here wicked mind is an essential to constitute crime as fraud which is also an established doctrine of common law[4]. Mere fanciful misstatements made which didn’t affect the reason why parties gave consent to marriage doesn’t constitute a valid ground to nullify the marriage[5]. Even Sir F.H Jeune explains that “But when in English law fraud is spoken of as a ground for avoiding a marriage, this does not include such fraud as induces a consent, but is limited to such fraud as procures the appearance without the reality of consent..,. But when there is consent no fraud inducing that consent”[6].
In order to convict an act or action under the purview of fraud it should be extra-ordinary, peculiar and most flagrant character, entering into very essence of the contract[7]. Hence this can be concluded that this concept has been appended to marriage in order to nullify marriages whose consent weren’t free.
When the question of statements regarding chastity of a person is in question, the becomes a bit debatable as in case Moss vs. Moss[8], not declaring information regarding virginity and pregnancy can’t be termed a type of fraud “which renders the mind of one of the parties not a truly consenting minds”. False statements of women regarding her virginity and chastity can’t be sufficient reason for annulment of marriage[9]. Sir William Scott observed that “A man who means to act upon such representation should verify them by his own enquiries; the law presumes that he uses due caution in a manner in which his happiness for life is so materially involved, and it makes no provision for the relief of a blind credulity, however it may have been produced”[10].
In the context of Indian judiciary, annulment of marriage on the grounds of fraud regarding women sexuality has been fluid. In the case Harbhajan Singh v. Smt. Brjij Balab[11] the question of annulment of marriage arose on the ground of fraud committed by wife regarding her virginity and pregnancy.
The case revolves around the bride’s father who assured the bridegroom and his father that bride is a virgin. Later after marriage it was discovered that the bride already had a child before marriage which the groom discovered from a letter where the bride has accepted her guilt but it turns out that the letter was forged. Moreover they stayed together and consummated even after detection of the fraud which disentitled him to annul the marriage on the above-mentioned grounds.
The courts in the case of Surjit Kumar vs. Smt. Raj Kumari held that it is not necessary on the part of respondent or her family to disclose information regarding her chastity, which makes it crystal that it can’t be treated as fraud[12].
But there always have been discrepancy on the same. Justice SK Kapur was of the opinion that if specific enquiries regarding the chastity or anything of same nature is asked and false information is given by the parents or relatives of the other, then things might get dealt in a different way[13].
Here we can conclude through the judgment of Moss vs. Moss[14] where the importance of fraudulent statement in consent giving is highlighted in other words if the consent to marriage wasn’t influenced by the fraudulent statement then it can’t be used to annul the marriage.
When it comes to concealment of information regarding a fatal disease from the spouse which existed even before marriage and the person concealed it as it might affect the consent to marriage of the other spouse can be termed as fraud a valid ground for marriage annulment provided that after discovery of the diseases they didn’t consummate and got separated immediately[15]. In the case of Birendra Kumar Biswas v. Hemalata[16] divorce was pronounced on the ground that the wife was suffering from incurable syphilis which she had even before marriage which was concealed from the husband. Moreover the marriage wasn’t consummated yet hence the court stated that the annulment was granted notwithstanding a mere remote possibility of a cure.
In same line as this case of Anath Nath v. Lajjabati Devi[17]petition was filed by the husband over the non-disclosure of wife’s tuberculosis before marriage. But the learned judge based on Birendra Kumar[18] case dismissed the plea. The court held that “In order to establish fraud as a valid ground for nullity, the suppression of a disease must co-relate with the kind of disease mentioned in section 13 of the Act”[19]. And the section mentions only leprosy and venereal disease in a communicable form[20]. The reasons for inclusion of these sections are clearly to avoid marital restlessness and create a healthy and hygienic environment for the spouses.
In Babui Panmato v. Ram Agya Singh[21] age of the bridegroom was prevaricated as 25-30 whereas in reality he was 60 years old. The petition was filed u/s 28 of Hindu Marriage act to annul it based on the ground of fraud laid in the Section 12. Here the parents of the bride were talking about the groom and that is when the bride heard that he is financially sound and of age 25-30, hence she consented to the marriage impliedly. After marriage the bride discovered the grooms age and she left her matrimonial house but was later caught and tortured by the groom.
She again managed to slip out and this time she filed petition of divorce which was rejected 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 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”.
The case went for appeal and it was the marriage was annulled as it was the duty of the parents to remove the misconception of the bride. The court cited the case of Anath Nath De v. Sm. Lajjabati Devi[22] where the Calcutta high court gave their opinion on the said concept saying 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”.
[1] Hindu Marriage Act, S. 12(c).
[2] 2 Shyama Charan Sarkar Vidya Bhusha, Vyavastha Chandrika, a Digest of Hindu Law, as Current in All the Provinces of India, Except Bengal Proper, Comprising Vyavasthas or Principles Deduced From Sanskrit Books of Paramount Authority, Viz:- The Mitakshara, Vira- Mitrodaya 480 (Gale, Making of Modern Law 2013).
[3] Indian Contract Act, Sec 17.
[4] Le Lieme v. Gould , 68, L.T.R. 626 (1893), per L
[5] Rayden, Divorce 77 (8th ed. 1964).
[6] Moss v. Moss, [ 1897] L.R. (probate division) 263, at 768-69.
[7] Carris v. Carris , 9 G.E. Green 516, cited by Fessenden, \”Nullity of Marriage,\”13 Harv. L. Rev. 110, at 120 (1899). Cited from v Hussain, S. (1969). HINDU MARRIAGE ACT, 1955: FRAUD AS A GROUND FOR ANNULMENT. Journal of the Indian Law Institute, 11(4), 520-534. Retrieved December 15, 2020, from http://www.jstor.org/stable/43950048
[8] Supra 6.
[9] Reeves v. Reeves , [1813] 2 Phill. 125.
[10] Wakefield v. Mëckay , [1917] 161 E.R. n. (a) 937 at 939. Cited from Supra 7.
[11] A.I.R. 1964 Punj. 359.
[12] A.I.R. 1967 Punj. 172.
[13] Ibid. Cited from Supra 7.
[14] Supra 6.
[15] Rattigan, Law of Divorce 308 (2d. ed. 1938).
[16] I.L.R. (1921) Cal. 283.
[17] A.I. R. 1959 Gal. 778.
[18] Ibid.
[19] Ibid.
[20] HMA Sec 13(iv)(v).
[21] Babui Panmato Kuer vs. Ram Agya Singh (18.02.1967 – PATNAHC) : MANU/BH/0058/1968
[22] Anath Nath De v. Sm. Lajjabati Devi, MANU/WB/0212/1959
