@ Author
Read your PM sent to me today and I have a serious doubt to facts placed before us that you may not succeed to annul your short marriage as per briefs stated limited facts.
Let us discover why I say so;
As per Mulla, in Principles of Hindu Law, 11th Edition, deals with this aspect at page 739 thus:
"Fraud:-- It is essential to note that the section does not speak of fraud in any general way or of every misrepresentation or concealment which may be fraudulent but fraud whereby the consent of the petitioner was obtained to the solemnization of the marriage. If there was actual consent to the solemnization of the marriage with the respondent the marriage cannot be annulled on the ground of fraud. In matrimonial law when fraud is spoken of as a ground for avoiding a marriage, it does not include such fraud as induces a consent but is limited to such fraud as procures the appearance without the reality of consent. This distinction is clearly brought out by the case where it was held that concealment by a woman from her husband at the time of her marriage of the fact that she was then pregnant by another man was no ground for avoiding the marriage on the plea that the consent was obtained by clause (d). It will be noticed that the Legislature has in view of this expressly provided in clause (d) that in such a case the marriage may be annulled if the petitioner was at the time of the marriage ignorant of that fact. In another case, which seems to illustrate the rule it was held that concealment of the fact that the wife had been a naikin by profession and even in the keeping of more than one person prior to the marriage was not fraud if there was consent to the marriage (e). A person who freely consents to a solemnization of the marriage with the other party in accordance with customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot raise an objection to the validity of the marriage on the ground of any fraudulent representation or concealment. Thus for instance a marriage cannot be avoided by showing that the petitioner was induced to marry the respondent by fraudulent statements relating to family or fortune or caste or religion or age or character of the respondent.
The test is that there should be real consent to solemnization of marriage and consent to marry the particular person. Where, however, there is no real consent, as for instance where a party is kept under the impression that what is being performed is only a betrothel or there is deception as to the identity of the other party, that would be fraud which affords a ground for annulment of the marriage under the rule laid down in this clause.
The position therefore is that even if there was misrepresentation at the time when consent was obtained from one party to the marriage by the other party, if the solemnization is not vitiated by any fraud or force, there is no scope for seeking annulment of the marriage. Therefore even if the act of not disclosing real date/month/year of birth of man amounts to fraud on the part of the man's parents, that may not be sufficient in this case to hold that the marriage should be annulled.
You should understand well the argument that the question of consent of the parties to the marriage arise at two stages; firstly at the time when the parties consent to solemnize the marriage and secondly at the time when the marriage itself is solemnized."
The marriage according to Hindu law not being a contract [though my personal opinion differs but this is not the case in hand so let us differ to my personal opnions for a while J], the consent at the first stage though obtained by fraud cannot affect the validity of the marriage. The consent at the time of the solemnization is the material consent. It is well settled that the consent at the time of solemnization of marriage though a marriage is a sacrament according to the Hindus, if obtained by fraud, affects the validity of the marriage.
Finally resuming where we left that there was misrepresentation with regard to the date of birth, that will not, in any way, affect the "ordinary marital life" so that it amounts to "fraud" under S. 12 (1) (c) of the Act.
You say discovered DOB etal are material facts and claim to annul marriage based on fraud done upon you ! I reiterate that "Material fact" has not been defined in the Hindu Marriage Act. Fraud or force is also not defined in the Hindu Marriage Act.
For general readers clarity S. 12 (1) (c) of the Hindu Marriage Act reads thus:
12. 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
(a) & (b) xxx
(c) 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...
The original section was amended and the present Section was incorporated by virtue of the 59th Report of the Law Commission and it will be interesting read by you if you somehow dig out the 59th. LCI report and read how squarely it may not apply to your facts!
This is my interpretation about your briefs before us and your PM of today, generic people may differ to my views, let us see that in a short while as LCI Experts are today on strike at LCI so they will not touch queries and even if they come out of their slumber and plan to touch these queries they may say this is an academic query so till you explore right Expert I stand by my above interpretation to your query and place a illustration as silent twist to test your resolve to meet hubby in Court to get to know more of him J
Illustration:
Suppose a lady wearing contact lens was married off. Later after marriage her husband discovers that she is wearing contact lens. The question before us now is can the marriage be dissolved under S. 12 (1) (c) HMA hai rabba fraud ho gaya kar key ????. Wear thinking cap and answer and same answer lis your brief question before us J
