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Ali vs Ummu Selma.K.P on 15 November, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE A.M.BABU

THURSDAY, THE 15TH DAY OF NOVEMBER 2018 / 24TH KARTHIKA, 1940

MFA.No. 1080 of 2001

AGAINST THE ORDER IN OP 164/1999 of FAMILY COURT, MANJERI DATED
04-07-2001

APPELLANT/PETITIONER:

ALI
S/O. MOHAMMED, PATTAKKAL, VILAYIL P.O.,
(VIA) KUZHIMANNA, MALAPPURAM DISTRICT.

BY ADV. SRI.K.K.DHEERENDRAKRISHNAN

RESPONDENT/RESPONDENT:

UMMU SELMA.K.P.
D/O. UNNI MUHAMMED K.P., KARAPPANCHERRY HOUSE,
ANAKKOTTUPURAM, THRIKKALANGODU P.O., VIA. MANJERI,
MALAPPURAM DISTRICT.

BY ADV. SRI.K.M.SATHYANATHA MENON

THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 8.11.2018,
THE COURT ON 15.11.2018 DELIVERED THE FOLLOWING:
M.F.A.No.1080/2001
2

JUDGMENT

SHAFFIQUE, J CR

This appeal is filed by the petitioner in O.P.No. 164/1999 challenging the

dismissal of a petition filed by him. Petitioner filed O.S.No.491/1998 before the

Civil Court seeking for a declaration that his marriage with the defendant

solemnized on 2nd February, 1991 as per Muslim religious law is to be declared

as null and void. In the suit he alleged that after the marriage they lived

together for 15 months and thereafter they got separated. The defendant filed

M.C.No.114/1994 and C.C.No. 73/1994 against him before the Chief Judicial

Magistrate Court, Manjeri. The MC was filed for maintenance and

C.C.No.73/1994 was filed alleging matrimonial cruelty. He further contended

that the defendant was married to one Alavi in the year 1989 as per Muslim

law and they lived together as husband and wife. There was no divorce in

accordance with Muslim law and without informing the plaintiff about the

earlier marriage and concealing the same the father and brothers of the

defendant had proposed marriage of the plaintiff with the defendant and

accordingly the Nikah was conducted. He had come to know about the same

when he made enquiries, after the defendant had filed M.C.No.114/1994. He

had gone to the place of the defendant and he got information about the

previous marriage only on 17.10.1998. The above suit was made over to

Family Court and renumbered as O.P.No. 164/1999.

2. The defendant in her objection denied the allegations. She

contended that though Nikah was conducted with Alavi, the marriage was not
M.F.A.No.1080/2001
3

consummated and he did not take her to the matrimonial home. The divorce

was performed as per Muslim law on 10.7.1990 and the matter was informed

to the Jama-Ath mosque committee. Therefore she contended that the

marriage with the plaintiff was conducted after the divorce. According to her,

after the divorce the family members of the plaintiff and the defendant

discussed among them and it was on that basis that she married the plaintiff

on 2.2.1991. Apparently, she did not deny the allegation that the factum of

earlier marriage between the defendant and Alavi was not informed to the

plaintiff.

3. Before the Family Court, plaintiff was examined as PW1. Defendant

and two witnesses were examined as RW1 to RW3. Ext.B1 is the document

marked on the side of defendant.

4. The Family Court found that in so far as there was a divorce

between Alavi and the defendant, the marriage between the plaintiff and the

defendant is valid and therefore no declaration can be given to the effect that

the marriage is null and void.

5. Sri. Dheerendrakrishnan, learned counsel for the appellant was

engaged to appear on behalf of the appellant since the appellant expressed his

inability to engage a counsel. Learned counsel argued that the Family Court

did not consider the question of fraud in conducting the marriage. It is argued

that a Muslim marriage (Nikah) is in the form of a contract and when a

contract is entered into without disclosing the true and correct particulars
M.F.A.No.1080/2001
4

regarding the earlier marriage of the defendant, it amounts to fraud and

hence the marriage between the plaintiff and defendant is to be declared as

null and void. That apart, even regarding the alleged ‘Talaq’ (divorce) between

the defendant and Alavi, the evidence is self contradictory and the evidence of

RW1 to RW3 will not prove that there was a valid divorce between the

defendant and Alavi. It is argued that thought the plaintiff had averred and

given evidence as PW1 that the previous marriage was not made known to

him, there was absolutely no cross examination on the point.

6. The learned counsel for the appellant also relied upon the following

judgments:-

i). Saly Joseph v. Baby Thomas (1999 (1) KLT 74). This is a case in which

a Division Bench of this Court while considering the scope of Sections 18 and

19 of the Divorce Act, 1869 held that if there is deceit about an essential or

significant quality and one party manipulates the will of the other, it amounts

to fraud and the court can declare the marriage as null and void.

ii). In Jose Chacko v. Elsamma (2000 KHC 815), a Single Judge of this

Court having placed reliance on Saly Joseph (supra) held that, if the consent

of the petitioner for marriage was obtained by fraud, it is enough to declare the

marriage as null and void under Section 19 of the Divorce Act.

iii) In Reema Aggarwal v. Anupam (2004 (3) SCC 199), the Apex Court

held that in order to constitute a valid marriage, the relationship of husband

and wife may require strict interpretation, where claim for civil rights, right to
M.F.A.No.1080/2001
5

property etc. may follow or flow and a liberal approach and different perception

cannot be an anathema when the question of curbing a social evil is

concerned.

iv). In Sunder Lal Soni v. Namita Jain (2006 KHC 3756), a Division Bench

of Madhya Pradesh High Court was considering a case for annulment of

marriage under Section 12 (1)(c) of the Hindu Marriage Act, 1955. That was

also a case wherein the Court came to a finding that the appellant entered into

wedlock without disclosing the factum of earlier marriage which amounts to

fraud and suppression of material fact, which had a bearing in the marriage.

That was a case in which respondent/wife was not aware of the fact that

appellant/husband had four major daughters and a major son and if she was

aware of that she would not have entered into the marriage. It was held that

in such an event the marriage was held as null and void. Paragraph 17 is

relevant which reads as under:-

“17. From the above said, it is absolutely manifest that the
appellant entered into wedlock by practising fraud inasmuch as
he had suppressed the material fact which had a bearing on the
marriage. Had the respondent wife been aware of the fact that
the appellant husband had four major daughters and a major
son, she would not have conceived the idea of getting married to
the appellant. It is noteworthy to state that marriage is a sacred
institution, which cements a bond between two persons. It is a
sacrosanct relationship for the purpose of carrying on the light of
human race. The basic conception of procreation is at the
foundation of marriage. Marriage saves an individual from the
tyranny of sex. It is not an institution meant for personal thirst
and wantonness. The purpose of marriage is to establish accord,
M.F.A.No.1080/2001
6

harmony and suitable balance in the society. No man or woman
should play with such a collective institutional principle. No man
should harbour the idea that a woman is to be made a life
partner by marriage as marriage is a conquest or a victory. Long
back, it has been said that consent gives sacrosanctity to the
marriage and the same holds true in law. A cynic may propagate
that in marriage the husband is the monarch or proclaim that a
woman cries before the wedding and the man afterwards, but,
the marriage is a socially sensible and respectable institution and
has a great human purpose. In the case at hand, the appellant
husband has created a concavity in the institutional paradigm by
employing his skills in astrology and medicine. In addition, he has
suppressed the most material fact of his having five major
children. Such a fraud may or may not invite criminal culpability
but indubitably satisfies the requirement of Section 12(1)(c) of
the Act. It is well settled that fraud vitiates all acts, be it
ecclesiastical or mundane. Thus, we have no doubt that the
marriage between the appellant and the respondent has been
founded on fraud from the very inception and hence, it is bound
to founder and accordingly it is a nullity. Ergo, we perceive no
infirmity in the judgment of the learned Family Judge, the same
being totally presentable and absolutely impeccable.”

v) In Govindan Embranthiri V v. Sujatha (2017 (3) KHC 160), in which one

among us was a party to the decision, this Court had occasion to consider the

scope of declaring a marriage under Section 12 of the Hindu Marriage Act,

1955 as null and void. It was held at paragraph 17 as under:-

“17. In order to attract S.12, it is not necessary that the petitioner
has to prove that the mental disorder alleged is of incurable nature
and it is difficult for him to live with the respondent on account of
the same, as is required to be proved for getting a decree for
dissolution of marriage under S.13(1)(iii) of the Act. He need only to
M.F.A.No.1080/2001
7

allege and prove that certain material fact relating to the mental
illness of the respondent has been suppressed and his consent was
obtained by fraud by suppressing such material fact relating to the
respondent and if the same has been disclosed earlier, he would not
have given consent for the same. Then the burden is on the
respondents to prove that these facts were disclosed to the
petitioner and with that knowledge he had agreed for the alliance
and thereafter he condoned the same and started residing with the
respondent as husband and wife. If this fact is not proved by the
respondent and earlier part of the burden was discharged by the
petitioner, then he is entitled to get a decree for nullity of marriage
under S.12(1)(c) of the Act.”

7. On the other hand learned counsel for the defendant/respondent

while supporting the judgment of Family Court contended that the main

contention urged by plaintiff/appellant was that the previous marriage was not

divorced. The evidence of RW1, RW2 and RW3 clearly proves that there was a

divorce between the defendant and Alavi. Ext.B1 is the certificate issued by

concerned Jama-Ath committee. That apart, when Alavi who is examined as

RW2 has specifically stated about the divorce which was confirmed by RW3, a

person who had witnessed the divorce (Talaq), which was accepted by RW1,

there is no reason to doubt the genuineness of the said Talaq. As a result

there is no inhibition for the defendant to contract another marriage under the

Muslim law.

8. One factor which we would like to highlight is that the Court below did

not consider the question whether the plaintiff was informed about the

previous marriage of the defendant with Alavi. In the plaint one of the reasons

by which the plaintiff sought for declaring marriage as nullity was non-
M.F.A.No.1080/2001
8

disclosure of the previous marriage of defendant. He specifically alleged that

the said fact was not disclosed to him at the time he entered into the contract

of marriage with the defendant.

9. To constitute a valid marriage among persons professing Muslim

religion, there should be a proposal made by or on behalf of one of the parties

to the marriage, and an acceptance of the proposal by or on behalf of the

other, in the presence and hearing of two male or one male and two female

witnesses, who must also be sane and adult Mohammedans. Apparently,

Muslim marriages is in the form of a contract. Payment of ‘Mahr’ or dower is

also an essential condition of the marriage which forms the consideration paid

by the husband to the wife. If the marriage contract is the outcome of a fraud,

the contract becomes voidable at the option of the person who is so deceived.

10. Even under various other statutes, viz., the Special Marriage Act,

1954 and the Hindu Marriage Act, 1955, fraud is treated as an exception to a

valid marriage and is voidable.

11. In Rajinder Singh v. Smt. Pomilla (AIR 1987 DELHI 285), it was

held that the non-disclosure of premarital divorced status by one party to the

other party who was unmarried amounts to concealment of a material fact

amounting to fraud. In that case a Division Bench of the Delhi High Court had

occasion to consider as to whether non-disclosure of the earlier marriage would

amount to fraud and would come within the ambit of voidable marriage under

Section 12(1)(c) of the Hindu Marriage Act, 1955. The Delhi High Court
M.F.A.No.1080/2001
9

observed that the Hindu Marriage has to be treated as sacrament and as a

contract. The word ‘fraud’ used in Section 12(1)(c) connotes deception or

misrepresentation and if there is a misrepresentation or concealment of a

material fact concerning the respondent, it amounts to fraud. What amounts

the misrepresentation or concealment of the material facts depends upon the

facts and circumstances of each case.

12. This is also a case in which the plaintiff has in clear terms

contended that, if he was informed about the previous marriage of the

defendant, he would not have contracted the marriage with her. There is no

doubt about the fact that existence of the earlier marriage is a material fact, or

a vital information, which ought to have been disclosed prior to the marriage

and if it is not done, it clearly amounts to non-disclosure amounting to fraud.

In matrimonial matters, fraud becomes relevant when a vital fact which is

required to be disclosed well before the marriage is not disclosed, as consent

to the marriage will depend upon the disclosure of the said information or not.

13. It is not in dispute that a Nikah under the Shariat law is a contract

between the bride and bride’s father or guardian. It is an offer and

acceptance. When a Muslim marriage is treated as a contract, if there is non-

disclosure of vital fact or information or if there is deceit or misrepresentation

or fraud in the matter relating to the essentials of a marriage, the said

marriage will become voidable at the option of the person who suffers the

deceit, fraud misrepresentation or non-disclosure as the case may be.
M.F.A.No.1080/2001
10

14. ‘Fraud’ is defined under Section 17 of the Indian Contract Act, 1872

as under:

“S.17. ‘Fraud’ defined.–‘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;

(3) a promise made without any intention of performing it;

(4) any other act fitted to deceive;

(5) any such act or omission as the law specially declares
to be fraudulent.”

15. Non-disclosure of vital information which may affect the marital

contract would amount to active concealment of a fact. The Apex Court had

occasion to consider a somewhat similar issue in Amina v. Hassan Koya (AIR

2004 SC 1227). That was a case in which the plaintiff sought for a declaration

that the marriage with his wife was null and void on the ground that she was

pregnant prior to the marriage. The Apex Court while considering the said

question, held at paragraph 4 as under:

“4. The legal question that arises for consideration is whether such
a marriage can be said to be void or illegal. It is settled law that
under the Muslim Law a marriage is a contract unlike the Hindu
Law, where it is a sacrament.”

In that case, on facts it was found that the husband would have known about

the pregnancy as the pregnancy was 5 months by then and therefore his
M.F.A.No.1080/2001
11

contention that he was not aware of her pregnancy cannot be believed and if

the said fact was known to the respondent, the marriage cannot be treated as

illegal or void. The Apex Court also placed reliance upon the judgment of this

Court in Abdullah v. Beepathu [ILR (1967) 1 Ker. 361], wherein it was held

that if the pregnancy of the bride at the time of marriage was not made known

to the bridegroom at the time of marriage, it ipso facto invalidates the

marriage. In Abdullah (supra), this Court was considering the obligation of a

husband to pay maintenance to a child and the contention taken was that the

wife was pregnant even at the time of marriage which was not disclosed.

16. In Abdul Latif Khan v. Niyaz Ahmed Khan [(1909) ILR 31

Allahabad 343] (supra), the question related to a suit for dower, the husband

took up a contention that he was not made known about the fact that the wife

was suffering from an illness at the time of the marriage on account of which,

the marriage could not be consummated. While considering the same, the

court observed that if a marriage was procured by fraud, it is invalid. The High

Court of Bombay in Kulsumbi Kom Abdul Kadir v. Abdul Kadir Walad

Saikh Ahmad [ILR (1921) 45 Bombay.151] while considering a claim for

dower distinguished the above judgment on facts. It was observed that if

fraud can be a ground for cancellation of marriage, it must be express and not

implied. That was a case in which the husband denied the obligation to pay

dower on the ground that the wife delivered a fully developed child within five

months after the marriage. The Bombay High Court held at paragraph 3 as

under:

M.F.A.No.1080/2001
12

“3. Now although marriage is spoken of as a contract and no
doubt in the first instance there must be an agreement between
the parties to marry, the performance of the contract
accompanied by the appropriate ceremony involves a change of
status. The contract is merged in the new status acquired by the
parties, and as long as that status continues so long do the rights
and liabilities of the parties under the contract continue. There
may be facts which, if proved, will bring about the cancellation of
the marriage, in which case the parties will be relegated to the
position they occupied before the marriage as if there had been
no contract at all, or the marriage bond may be dissolved by
divorce. But we have not been referred to any authority for the
proposition that an agreement to pay dower can be separated
after marriage from the marriage status and can be treated as
voidable on the ground of fraud, while the marriage bond
continues.”

17. In Mahmad Usaf Abasbhai Bidiwale v. Hurbanu Mansur Atar

[1979 (81) Bombay LR 172], a learned Single Judge of the Bombay High Court

had occasion to consider the case for recovery of money for the value of

articles given at the time of marriage. It was found that the articles were

given in consideration of the marriage and a question was raised whether they

were liable to be returned in view of the termination of the marriage. While

considering the same, it was observed:-

“It is well-settled that marriage under the Mahomedan law
is a civil contract. Hence it should attract all the incidents
of contract as any other contract. The rescission of a
Muslim marriage therefore will entail consequences
stipulated in the Contract Act. The provisions of Section 64
of the Contract Act, will be squarely applicable to a case
such as the present one where the marriage has been
M.F.A.No.1080/2001
13

rescinded unilaterally by defendant No.1. In this view of
the matter, the defendant No.1 will become liable to return
all the articles which he has received in view of the finding
that the articles in question were received by the defendant
No.1 in consideration of, and therefore as benefits under
the contract of marriage.”

18. In the light of the view expressed by the Apex Court and other

judgments already referred, the legal position is rather clear that Muslim

marriage is treated as a contract and if fraud is committed by either of the

parties by non-disclosure of a material fact, which has bearing on the consent

to be given by the respective parties, the marriage becomes voidable at the

option of the party who suffers the fraud.

19. In the case on hand, the plaintiff had clearly stated in his pleadings

as well as in his deposition as PW1 that the factum of defendant’s earlier

marriage was not disclosed to him. In fact, the said pleading had not been

denied and PW1 was not cross examined on that point.

20. But RW1 in her evidence deposes that PW1 was aware of the

earlier marriage and the divorce. Her version in this regard is not believable.

First of all she did not have any such pleading. Secondly, the marriage was

arranged between the plaintiff’s relatives and the defendant’s relatives.

Therefore, this fact should have been communicated to the plaintiff or his

relatives by the relatives of the defendant. It cannot be believed for a moment

that the defendant would have participated in the said discussions. It is

stated that her father is not alive and he could not be examined. Even
M.F.A.No.1080/2001
14

according to her, the marriage with the plaintiff is fixed by her father and

brothers. None of her brothers were examined to prove the said fact.

21. Therefore, we have to proceed on the basis that the plaintiff’s

contention that the earlier marriage of the defendant was not informed to the

plaintiff stands proved. Once we have arrived at such a finding, it is rather

clear that the plaintiff’s claim for declaring the marriage as nullity is justifiable.

Of course, RW1 in her evidence states that the plaintiff was informed about

her earlier marriage. But her version alone cannot be believed. She has even

gone to the extent of stating that her first marriage with Alavi was not

consummated. But Alavi in his evidence as RW2 stated that they were living as

husband and wife in Alavi’s house for two months. There is also discrepancy in

the evidence of RW1, RW2 and RW3 regarding the divorce with Alavi. But we

don’t think it necessary for us to go into the correctness of the said divorce, as

concealment of a vital fact for entering into a contract of marriage by itself

amounts to fraud and the marriage can be declared as null and void. Hence

we are of the view that the Family Court completely erred in not considering

this crucial aspect and therefore the plaintiff is entitled for a decree as sought

for.

The appeal is therefore allowed. The judgment and decree of the Family

Court in O.P. No.164/1999 is set aside and the original petition is decreed as

under:-

M.F.A.No.1080/2001
15

The marriage contracted between the plaintiff and the defendant on

2.2.1991 is declared to be null and void.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

True copy JUDGE
kp
P.A. To Judge.

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