One of the essential requirements of a valid marriage is the free consent of the parties to the marriage. Absence of free consent, renders the marriage voidable under Section 12(1)(C) of the Act. Fraud is the one which procures the appearance without the reality of consent and thereby becomes and act of deceive. The most important aspect of fraud in matrimonial law is that it is not every misrepresentation or concealment which amounts to fraud. The fraud vitiative of the petitioner’s consent should relate to the nature of ceremony, or any material fact or circumstance concerning the respondent.
In every arranged marriage all sorts of qualities and qualifications are attributed to the girl and the boy e.g. that a boy is highly educated, rich , handsome, does not smoke or drink , etc. In Purabi Banerjee Vs. Basudeb Mukherjee , AIR 1969 Cal. 293, the wife alleged that her husband’s pre-marriage boasting as to his high prospects in life induced her to marry him. Held that this did not amount to fraud.
The requirement of this ground are:
a) consent of the petitioner was obtained by fraud or force,
b) the petition must be presented within one year of the discovery of fraud or cessation of force
c) the petitioner must not have with his consent lived with the respondent as husband or wife, as the case may be, after the discovery of fraud or cessation of force. Single act of sexual intercourse after the discovery of fraud will be fatal to the petition.
Force : Force vitiating consent implies not merely use of actual or physical force but also threats to use force. Coercion and undue influence amount to ‘force’.
The fraud vitiating the consent should relate to the nature of ceremony, or any material fact or circumstance concerning the respondent:
Thus concealment by one of the spouses of his or her status, reputation, qualifications, habits, etc. is not enough to amount to ‘fraud’. Here the parties are under a burden of informing themselves i.e. they should make proper enquiries before the marriage. But if the fraud is such that it affects the marriage fundamentally, it would be a ground of relief.
The phrase “Material fact or circumstance concerning the respondent” has been interpreted by the Bombay High Court in a case AIR 1982 Bob. 400. It was held that any fact or circumstance which is of such a nature as would materially interfere with the material life and pleasure including sexual pleasure will be a material fact or circumstance. The only limitation is that the material fact and circumstance must be concerning the respondent i.e. it must be in respect of the person or character of the respondent. It is immaterial whether such fact or circumstance is curable or remediable.
If a party to marriage is suffering from some abhorrent disease such as leprosy or venereal disease, it will amount to fraud. Similarly suppression of the fact of immoral life prior to the marriage would be fraud.
Concealment of age is a material fact and amounts to fraud. In Som Dutt Vs. Raj Kumar , AIR 1986 P&H 191, the wife was senior to her husband by 7 years, but this fact was concealed. It was held to amount fraud.
I Surjeet Vs. Harichand , AIR 1967 Punj.172, it was observed that an express misrepresentation by a woman as to her chastity does not , by itself , amount to fraud.
In Rajaram Vishwakarma Vs. Deepabai , AIR 1974 M.P. 52 , the court held that concealment of previous marriage does not amount to fraud.
The Hindu Marriage Act, 1955 introduced for the first time provisions for legal dissolution of marriage. The Act creates a relation and status, not defined by contract but by law. However, the legislature was jealous enough to make stringent rules for judicial separation and divorce. The provisions contained in Sections 10, 12 and 13 are not meant to be used as a mere pretext or an instrument for leaving one wife to have another. The word “fraud” in Section 12(1)(C) of the Act has to be read with the above background.
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