Dear Members and guests,
Look at this case study and post your opinion. It will be a great help to me.
Wife and husband had court marriage against family wish. Soon after marriage problem started and Wife moved again with her parents. Wife completed her education at her parent’s home and started working in different state where her parents has moved. Wife and husband have many grievances and husband is not at all bothered about her wife. Wife and husband are living separately since last 7 years.
Wife now filed for divorce. Now for filing the divorce she got in hand her husband’s passport which the husband got issued a year back. Now looking at the age described in the passport the husband was of 19 years during the court marriage. Now it is obvious from the following that either he has manipulated the fact in the supporting documents he has submitted for the court marriage or he has manipulated the papers for the passport because for husband he must have completed 21 years for marriage.
Now as already contested divorce is filled and it is in the starting phase only, wife sees the hope for the annulment of marriage on the concealment of the fact regarding his age, education and income. However we do have the fraud regarding his age as I mentioned about the papers above. We do not have proof that he lied about his education and income because it was verbal earlier.
Now my question is should wife file for annulment of marriage under Section 12 in the Hindu marriage Act. Please do not answer to reunite because she already filed for divorce and looking for various ways to get rid of the husband. Husband is kind of “dehati” while the wife belongs to good family.
To help you out of this case let me put down the facts I discovered as under.
Section 12 in The Hindu Marriage Act, 1955
12 Voidable marriages .
(1) Any marriage solemnised, 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:
12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent];
(ii) Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter consented for the marriage believing the statement to be true. It was held that the consent was vitiated by fraud; Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.
Section 17 in The Indian Contract Act, 1872
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 agent1, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:— —‘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. Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak2, or unless his silence, is, in itself, equivalent to speech. Illustrations
(a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horse’s unsoundness. This is not fraud in A.
(b) B is A’s daughter and has just come of age. Here the relation between the parties would make it A’s duty to tell B if the horse is unsound.
(c) B says to A—‘‘If you do not deny it, I shall assume that the horse is sound”. A says nothing. Here, A’s silence is equivalent to speech.
(d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform B.
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Here I want suggestions on my opinion to put the case for annulment on following basis:
Wife married to husband where in husband’s mother acted as an agent and deceived the wife and pestering her for marriage saying that the husband is well above 21 years, having education and is highly earning. Wife was only of the tender age of 22 at that time tempted to get married for such a good husband and family. Soon after marriage the husband started cruelty and was also indulged in adultery. Then wife came back to her parents home and is separated since 7 years and while filing the divorce came to know about the age of the husband.
So according to section 12 the consent of the wife was obtained by concealment and “fraud” While the fraud has been defined by section 17 of indian contract act, 1872.
Also we have the judgement of Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190.
In this case the husband was of 60 years but in our case the husband was minor around 19 to 20 years.
What you all want to say on this?? Please comment. It is an interesting and fresh real case study and the 13(a) is still pending but wife seeking for annulment.
