This is the second part in a series of two articles which discussed the idea of ‘Fraud in Hindu Marriages’. The first part can be found here, which dealt with the introductory part, and also the concepts of ‘Pre-requisites of Marriage’, ‘Fraud as a ground for dissolving marriages’, and ‘Annulment of Marriage’. This second and final part shall be dealing with the question of ‘Material fact’ and the conclusion.
Material Fact
Now, it becomes an important question as to what would constitute a material fact so as to constitute fraud under the said provision. Under Hindu law, fraud is considered to take place had the full disclosures of the fact prevented the marriage from manifestation at the first place.[1]
The Allahabad High Court has laid down the explanation in the case of Pradeep Kumar Maheshwari v. Anita Agarwal stating that [2] the term cannot be inflexibly or specifically laid down. Hence the parameters to categorise a fact as a material fact are given by the court as follows-
“It (Material Fact) varies from one family to another, according to culture, ethos and social system in ages and situation. For example in a conservative family having attachment with puritan society in a marriage inevitable and unerring expectation is that both the bride and groom must not have any record of prior marriage in any sense nor will have any marriage in any sense, not even any premarital affairs with other boy or girl (as the case may be). They cannot think of even marrying outside their caste and community, conversely, a family with liberal and cosmopolitan approach, thought, particularly in urban area will not mind in case of marriage even having knowledge of background of prior marriage or premarital affair with other counter sex outside their caste and community. In case of former, concealment of caste, community or background of prior marriage or premarital affairs before or at the time of marriage is obviously extremely material and it amounts to fraud in obtaining consent.”
Such a rendition of the material fact opens flood gates for interpretations and constructions. One may always argue, hence, that the pre marital status of a party at the time of the marriage would not amount to be a material fact if the context is of an urban mileu and metropolitan arena. Hence while navigating through the decisions of the courts of law, one may get the perspective in which the laws have changed and taken different facts to be material facts.
Before 1976
Under the then provision, the law was clear which said that if the person freely consents to the solemnisation of marriage under the Act with the other party in accordance with customary ceremonies, later the marriage cannot be objected to on grounds of fraudulent representation or concealment.[3]
In the landmark case of Anath Nath De v. Smt. Lajjabati Devi[4], the concealment of the fact by the wife that she suffered from curable tuberculosis was not held to be fraud for nullifying the marriage. The court came to the conclusion relying on the proposition that fraudulent misrepresentation, or concealment, does not affect the validity of a marriage to which the parties freely consented with knowledge of the nature of the contract.[5]
‘Chastity of woman’ came in question and it was contended that the same should be considered a material fact in the case of Surjit Kumar Harichand v. Smt. Raj Kumari[6]. But the Hon’ble High Court categorically held that suppression of such a fact, which is a mere personal quality do not relate to the existence of marriage, hence it won’t amount to fraud.
Taking further the limited understanding of the material fact and fraudulent representation, the Madhya Pradesh High Court in Rajaram Vishwakarma v. Deepabai,[7] the fact that husband had been married in the past and had a wife was not considered to be a material fact since the “fraud” pertains only to the solemnisation of marriage.
After 1976
In the case of Balbir Kaur v. Meghar Singh, the fact of the left side of the wife being deformed was not being disclosed. Since she was found disabled and the court took notice of the conscience of the Parliament in inserting new grounds for categorising an action as fraud in 1976, the same was held to be fraud and the marriage was dissolved.
Contrary to the view taken in the earlier cases as shown above, the Calcutta High Court recently ruled in the case of Saswati Chattopadhyaya v. Avik Chattopadhyaya[8] that the premarital status is a material fact since the same is related to the position of the person and the definition of fraud is no more limited to the solemnisation of marriage. The same was earlier held by the Delhi High Court as well in the case of Rajinder Singh v. Pomilla.[9]
Similarly, non-disclosure of illness is again a material fact contrary to the Calcutta High Court ruling in Ananth Nath case as cited above. The same was held in the case of Govindan Embranthiri v. Poolakkal House[10] by the Hon’ble Kerala High Court. Similarly, insanity is also a material fact under the law now as held by the same High Court.[11]
Conclusion
The said exposition of the law related to the ground of fraud for invalidating the Hindu Marriage leads to the conclusion that the provision is balanced and wide enough to cure wide forms of injustice. The 59th Law Commission of India Report, 1974,[12] which led to the said amendment in 1976 stated the purpose for the insertion of the additional clauses, as “No doubt scope should not be left for all kinds of flimsy excuses for avoiding the marriage on the ground of fraud. But, at the same time, serious injustice is likely to result if fraud affecting vital matters (such as absence of a particular disease) is totally disregarded”. The Commission did not find any reason for non- interference if one party is cheated by the other party on grounds of essential matters. Hence, the law had been modified accordingly.
But at the same time, a humane and equitable approach has also been found in the effort of the courts to conserve the institution of marriage. In the case of V. Shankar Ram v. Sukanya[13], where the husband raised the plea of impotency of the wife not being disclosed to him, apart from insufficiency of evidence, the court also considered the fact that the Hindu Brahmin wife likes her husband and still wants to live with him. Thus, the court dismissed the appeal with the interesting observation that “marriages are made in heaven”. The court called on the parties to forget the past and always look for the possibility of reconciliation. This gives an optimist turn to the otherwise derailing institution of marriage as it so appears. But as the times are changing, lots of questions are in front of all of us whether this heaven made institution is sustainable or not. I think only the time will aptly answer this question.
[1] J.D.M. Derrett, Introduction to Modern Hindu Law 193 (Oxford University Press 1963).
[2] Pradeep Kumar Maheshwari v. Anita Agarwal, 2018 (131) ALR 566.
[3] Raghunath Gopal Daftardar v. Vijaya Raghunath Daftardar (1970) 73 Bom. L.R. 840.
[4] AIR 1959 Cal 778.
[5] Rayden, Rayden on Divorce 72 (Butterworths Law 1998).
[6] AIR 1967 P&H 172.
[7] AIR 1974 MP 52.
[8] F.A. 337 of 2007 (Cal HC).
[9] AIR 1987 Del 285.
[10] AIR 2017 Ker 168.
[11] Joy v. Shilly 1995 KHC 349.
[12], 59th Law Commission of India Report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954, March, 1974, 63, Law Commission of India.
[13] AIR 1997 Mad 394.
ABOUT THE AUTHOR
Rishab Aggarwal
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.
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