Posted in Family Law

Fraud in Hindu Marriages: The Enlarged Understanding (Part – I)

As referred to as a “partnership” between husband and wife,[1]  marriage has been considered as a linchpin of the social and moral order.[2] It has been termed as a ‘significant’ social institution which has various aspects in its social history.[3] It is ‘a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties.[4] Such duties envelope the person either in the form of a sacrament, as Hindus put it, or as a holy union or contract as others describe it’.[5]

In this article, we shall explore into the breach of such duty created in law for Hindus. In doing so, we’ll be dealing with the subject matter in two parts (the second part is available here), and following sections, for the convenience of the reader:

  1. Pre-requisites of Marriage
  2. Fraud as a ground
  3. Annulment of marriage
  4. Material fact
  5. Conclusion

Pre-requisites of marriage

Hindu marriages, according to Vedas, is an ‘indissoluble’ union of “bones with bones, flesh with flesh and skin with skin, the husband and wife become as if they are one person.”[6]As referred to as indissoluble, even after the death of the husband, the tie is not dissolved. But, in ancient texts, in case of five calamities, the wife is permitted to have another husband, i.e., in the cases of-

  1. Husband being missing
  2. Husband being dead
  3. Husband retired from the world
  4. Husband being impotent
  5. Husband as degraded

In the modern realm, Parliament has enacted certain conditions for the effectuation of marriage for the Hindus.[7] The conditions are as follows-

(i) neither party has a spouse living at the time of the marriage;

2 [(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity 3 [***];]

(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age of 5[eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

The marriage can be nullified on the ground of non-fulfilment of these conditions which renders the marriage as void[8] or voidable[9] as the case may be. One such occurrence takes place in the case of fraud as mentioned in section 12 (1) (c). It makes the marriage as voidable, i.e. valid until the court declares it invalid.

Fraud as a ground

From being a vitiating factor in invalidating the contracts to being a ground for imprisoning the party at default, fraud is a reverberating concept across different laws. Primarily and distinguishably present in Section 17 of the Indian Contract Act,[10]  which elaborately juxtaposes various elements of fraud as under-

‘Fraud’ means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent1, 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.

Even under the Criminal law, fraud finds a mention through Section 25 of the Indian Penal Code which defines “fraudulently” as doing a thing with “intent to defraud” but not otherwise, hence stressing on the “mens rea” of the person. The cliché legal jargon of “Chaar Sau Bees” that finds constant mention in movies and conversational references, is the Section 420, Indian Penal Code[11] that is a special case of occurrence of cheating and dishonest misappropriation of property. Through Sections 421, 422, 423 and 424 of Indian Penal Code, Fraud runs as the sea bed of the different curves of legal illustrations for punishing the fraudulent exercise.

The same element if present in the creation of the institution of marriage can lead it to be dissolved. Under Section 19 of the Indian Divorce Act, the High Court is empowered to pass the decree for nullity of marriage if the consent of either party was obtained by force or fraud.[12] For Hindu marriages, the marriage can be nullified as being voidable if the consent of either party or his guardian, as the case may be, was obtained from force or fraud. In 1976, this was amended with the Marriage Laws (Amendment) Act, 1976, adding the terminology ahead of fraud, “as to the nature of ceremony or as to any material fact or circumstance concerning the respondent”[13]. This shows that the definition of fraud includes the consent, not only to marry but also to marry a particular person.[14] Such a tool goes to attack the very inception of marriage and demolishes its institution.

Annulment of Marriage

As pointed out above in the provision of contract law, the two important elements of fraud are found in the form of suggestio falsi (suggestion of falsehood)[15] and suppresio veri (suppression of fact)[16]. Their existence in the marriage laws is found through the courts’ considerations and decisions for annulling the marriage. If the fact that the husband had major children at the marriage was not disclosed, it has been considered to be tantamount to fraud under Section 12 (1) (c) of the Hindu Marriage Act, 1955.[17] Similarly, if the age of the bridegroom has been suggested falsely to the bride’s side, it would take the umbrage of fraud and become a ground of nullity of marriage.[18]

But this collocation must not be understood to take both the provisions as pari passu. It has been categorically held by the courts that the definition of fraud as provided under Section 17, Indian Contract Act cannot be attributed in a same meaning to the mention of fraud under Section 12 (1) (c) of the Hindu Marriage Act.[19] The simple reason is the latter being a special enactment and the earlier being a general law.[20] On this ground, the single bench decision of Madhya Pradesh High Court in Bimla Bai v. Shankerlal[21], wherein the marriage was invalidated on grounds of fraudulent misrepresentation under the Indian Contract Act, was dissented to later by the Bombay High Court in the case of Raghunath v. Vijaya[22]. The Division Bench of the Madhya Pradesh High Court later itself approved the latter.[23]

Hence the distinguishing thread between the two doctrines is that the fraud under the marriage law must be interpreted to mean such circumstances or conditions as to show want of real consent to the marriage.[24] ‘Fraud’ within the meaning of Section 12 (1) (c) is such which procures the appearance without the reality of consent and thereby becomes an act fitted to deceive.[25] If the person freely consented to the solemnisation of marriage with full knowledge of the nature of ceremonies and intention to marry, then the objection of the validity of the marriage cannot be taken.[26]

The rationale is to secure a free consent of the party entering into marriage. Hence the intention has to be respected. As has been categorically held that if a party underwent the ceremony of marriage without any intention to regard it as a real marriage, the marriage would be liable to be annulled.[27] On similar lines, the marriage with of an English girl with an Indian was held to be void since no intention existed to marry, since she understood the ceremony to be the one of her conversion to Hindu faith.[28] Same was the fate of a marriage which was considered to be a mere engagement ceremony.[29] Thus, intention is a crucial element that has to be fair and pure for the marriage to exist and survive.

Hence, the provision under the Section 12 (1) (c) balances between the wide and narrow interpretation of the term, “fraud”, since, the provision neither speaks of fraud in a general way nor does it include every concealment or misrepresentation so to say. As defined as “deceit”[30], before the 1976 amendment, the marriage could be invalidated only if the consent is taken on account of deceiving for marriage. But after the amendment, the emphasis is no more on the factum of marriage but to any case where there is a deception as to any material fact or circumstances concerning the respondent.[31] This is an enlargement of the scope for invalidating the marriage for the parties so engaged in wedlock.

In the next part, we shall delve into discussing what shall constitute a material fact so as to constitute fraud.

[1] R. v. R., (1991) 4 All ER 481 (HL).

[2] Bonnie G. Smith, The Oxford Encyclopaedia of Women in World History 30 (Oxford University Press 2008).

[3] Joseph Shine v. Union of India, (2019) 3 SCC 39.

[4] De v. Rh, (2015) 5 SA 83 (CC).

[5] Amarjit Paul Singh v. Kiran Bala, PLR (1985) 88 P&H 151.

[6] 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).

[7] Hindu Marriage Act, 1955, § 5, No. 25, Acts of Parliament, 1955 (India).

[8] Hindu Marriage Act, 1955, § 11, No. 25, Acts of Parliament, 1955 (India).

[9] Hindu Marriage Act, 1955, § 12, No. 25, Acts of Parliament, 1955 (India).

[10] Indian Contract Act, 1872, § 17, No. 9, Acts of Parliament, 1872 (India).

[11] Indian Penal Code, 1860, § 420, No. 45, Acts of Parliament, 1860 (India).

[12] Indian Divorce Act, 1869, § 19, No. 4, Acts of Parliament, 1869 (India).

[13] Hindu Marriage Act, 1955, § 12 (1)(c), No. 25, Acts of Parliament, 1955 (India).

[14] D. Tolstoy, Law and Practice of Divorce and Matrimonial Causes 112 (Sweet & Maxwell 1951).

[15] Indian Contract Act, 1872, § 17 (1), No. 9, Acts of Parliament, 1872 (India).

[16] Indian Contract Act, 1872, § 17 (2), No. 9, Acts of Parliament, 1872 (India).

[17] Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51.

[18] Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.

[19] Anurag Anand v. Sunita Anand, AIR 1997 Del 94.

[20] Nandkishore vs Smt. Munnibai, AIR 1979 MP 45.

[21] AIR 1959 MP 8.

[22] AIR 1972 Bom 132.

[23] Madhusudan v. Chandrika, 1975 MPLJ 381.

[24] Smt. Renu Singh vs Brijendra Singh, W.P.(Art. 227)No.739/2016 (Chh HC).

[25] Id.

[26] Dinshaw Fardunji Mulla et. al., Hindu Law 682 (Lexis Nexis 2013).

[27] Shireen v. Taylor, AIR 1952 P&H 277.

[28] Mehta v. Mehta, (1945) 2 All ER 690.

[29] Kelly v. Kelly, (1933) 148 LT 143.

[30] Chambers, The Chambers Dictionary 435 (John Murray Learning 2011).

[31] Nalini Kumari v. K.S. Bopaiah, 2007 (1) Kar LJ 342.


ABOUT THE AUTHOR

Rishab Aggarwal

20190705_135950

Rishab is a third-year law student from Gujarat National Law University. He is the Editor of International Review of Human Rights law and was adjudged Best Student Advocate at the Symbiosis International Criminal Trial Advocacy Competition 2019. He has interned under Hon’ble Chief Justice of Punjab and Haryana High Court and Senior Advocate Geeta Luthra.

Author:

A project by Law Matters Centre for Research, Education, and Social Action (LaMCRESA).

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