Hiding past Leads to Divorce

Madhya Pradesh High Court
Prakash Singh Thakur vs Smt. Bharti on 12 May, 2000

Bench: V Agrawal
JUDGMENT

V.K. Agrawal, J.

1. This appeal is directed against the judgment and decree dt. 21-3-97, whereby the petition filed by the appellant/petitioner under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘Act’ for short) for annulment of marriage by a decree of nullity was dismissed.

2. The facts not in dispute are that the parties were married on 4-5-94 in the Arya Samaj, Raipur. However, immediately after the marriage the parties separated and are living apart. It is also not in dispute that the respondent/wife was married earlier and was divorced by her first husband.

3. The petitioner/appellant filed the application under Section 12 of the Act, praying for annulment of marriage on the ground of fraud under Section 12(1)(c) of the Act. It was averred that, though the respondent was married and divorced earlier, yet she did not mention about the material fact of her earlier marriage. In view of above suppression of fact and practising fraud on the appellant, the respondent/wife entered into marriage ceremony with him. It was therefore prayed by the appellant/petitioner that their marriage be annulled and a decree of nullity be granted in his favour.

4. The respondent-wife in reply to the above application has averred that the appellant and respondent had known each other from before the marriage. Since, they became intimate they decided to marry. She has also averred that she had intimated the appellant about her past. She therefore prayed that the petition be dismissed.

5. The learned trial Court framed issues as to whether the respondent committed fraud on the appellant in marrying him and whether the marriage between the parties is a nullity?

6. The trial Court by the impugned judgment held that the respondent had apprised the appellant about her previous marriage and divorce and therefore there was no suppression of any material fact and consequently no fraud was practised by the respondent on the appellant. Therefore, the petition of appellant-husband under Section 12 of the Act was dismissed.

7. The learned Counsel for appellant has submitted that, the respondent was previously married and was divorced by her earlier husband. This material fact was suppressed by the respondent from appellant, before the marriage between the parties was solemnized on 4-5-94. On the next day of the marriage appellant came to know about the fact and separated from his wife-the respondent. It has therefore been urged that, in view of the suppression of material fact as above, it should have been held that fraud was practised by the respondent/wife on the appellant. Reliance has been placed on the decision in Rajinder Singh v. Smt. Pomilla, AIR 1987 Delhi 285 and Rama Kanta v. Mohinder Laxmidas Bhandula, AIR 1996 Punj & Har 98.

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8. None has appeared in this appeal for the respondent.

9. In view of the allegations before the trial Court, it would be clear that the case of appellant was that, though the respondent was married earlier and was divorced, but this fact was suppressed from him. The stand of the respondent, however was that she had apprised the appellant with the above fact.

10. The question that deserves consideration is whether the respondent married the appellant by practising fraud on the latter? For deciding the above question it has also to be considered as to whether the allegations of the appellant would amount to suppression of material fact, so as to be covered under Section 12(1)(c) of the Act, as amounting to fraud?

11. Section 12(1)(c) of the Act reads :

“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 :

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, 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. Therefore, before a decree of nullity could be granted under Section 12(1)(c) of the Act, it must be proved that consent of the petitioner or consent of his guardian in the case of minor was obtained by force or fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.

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13. In Rajinder Singh (supra) the Delhi High Court has held that, pre-marital status of the party is material fact and the marriage is liable to be annulled on non-disclosure of such facts. Similarly , in the case of Rama Kanta (supra), the Punjab and Haryana Court has observed that if the wife was married twice earlier and has given birth to a son of the first wedlock and such facts were not disclosed to the husband before the marriage, it was held that fraud was practised by him so as to give a valid cause for annulment of marriage.

14. It may be noted that the above Clause 12(1)(c) of the Act was amended in the year 1976, and the words ‘or is to any material fact or circumstance concerning the respondent’ were added by the Amending Act of 1976. In cases prior to the amendment it was held that a person who freely consented to solemnization of marriage with knowledge of nature of ceremony and intention to marry could not avoid the marriage, by showing that the petitioner was induced to marry the respondent by fraudulent statements relating to family, fortune, caste, religion, character, or age of the respondent. Reference in the above connection may be made to Division Bench judgment of this Court in Rajaram Vishwakarma v. Deepabai, AIR 1974 MP 52. However, after the amendment now the operation of the said clause stands greatly extended and it includes within its ambit any material fact or circumstance concerning the respondent,

15. The fact as to whether the respondent was earlier married and was a divorcee would amount to such material fact and circumstance of the respondent and therefore concealment of such a fact, would provide a ground to the petitioner to seek annulment of hts or her marriage with the respondent.

16. Therefore, in the instant case, it has to be considered whether the plaintiff/appellant has duly established that the respondent had suppressed from him the fact of her earlier marriage and divorce from her previous husband?

17. It may be noticed in the above context that the appellant/petitioner Prakash Singh Thakur (A. W. 1) has stated that the respondent had told him that she was a spinster and after the marriage he came to know that respondent was divorcee. In cross-examination in para 5 of his deposition, he has stated that on the next day of marriage, he had come to know from the neighbours and friends that the respondent was divorcee. However, he has failed to name any of his neighbours and friends, who had informed him about the fact. He has also not examined any of such persons to substantiate his statement as above.

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18. As against this, the respondent Bharti Sonker (N. A. W. 1) and B. R. Sonker (N. A. W. 2) have categorically deposed that the appellant was apprised about the earlier marriage and divorce of the respondent. There is no reason to disbelieve their statement as above.

19. Moreover, it may be noted that the parties were known to each other from much prior to their marriage. In the circumstances, it is inconceivable that the appellant would not have come to know about the earlier marriage or divorce of the respondent and would have come to know of the said fact on the next day, immediately after their marriage on 4-5-94. As noticed earlier, the statement of appellant is not only unsubstantiated, but appears to be unnatural and un-trustworthy.

20. It may further be noticed in the above context that the appellant replied to the notice of respondent as per Ex. P-8 dt. 23-5-94. In the said reply the appellant has not alleged that the respondent did not inform him about her earlier marriage or divorce. In fact in the said reply (Ex. P-8) the appellant had taken a stand that the marriage between the parties was not legal. Obviously, therefore the stand of the appellant that the respondent did not inform him about her earlier marriage and divorce cannot be accepted. The learned trial Court has after detailed appreciation of evidence led in the case has recorded a finding to the above effect, which appears to be fully justified.

21. Accordingly, the application of appellant under Section 12(1)(c) of the Act for a decree of nullity and for annulment of his marriage with the respondent was rightly dismissed. No interference in the impunged judgment and decree is called for.

22. This appeal has no merit and is accordingly dismissed.

2 thoughts on “Hiding past Leads to Divorce

  1. If divorcee has not disclosed the fact that she is divorcee while registering her second marriage 7registers the marriage as she is spinter.will this not nullify the marriage
    please reply
    Nawathe

  2. YES;
    Second marriage is NULL and VOID and also she can be charged for cheating and fraud

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