Sec 12 i1 C - Fraud

Smt. Bindu Sharma vs Ram Prakash Sharma And Others on 24/2/1997

JUDGMENT

1. This appeal is filed by the unsuccessful wife (petitioner-appellant) seeking annulment of her marriage with respondent No. against the judgment and decree dated 13-2-1991 passed by learned Judge, Family Court, Bareilly.

2. The annulment of the marriage is sought under Section 12(1) clause (c) of the Hindu Marriage Act, 1955 (the Act, for short), which, in so far as the relevant for the purpos of this case, reads that 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 the ground that the consent of the petilioner, was obtained by force or by fraud as to the nature of ceremony or as to any material fact or circumstance concerning the respondent.

3. Section 12 describes the circumstances rendering a marriage voidable. A coidable marriage remains valid and binding and continues to subsist for all purposes unless a decree is passed by the court annulling the same on any of the grounds, mentioned in this Section. There is a distinction between a marriage void ipso jure and a marriage which is voidable at the instance of one of the parties to the same; the former is a nullity from the inception and the latter continues to be valid, unless annulled by a decree of the competent court of law.

4. The ceremony of marriage under the Act, although it creates relation and a status not imposed or defined by contract, does require the consent of the parties to the solemnisation of it. Absence of consent does not render the marriage void ipso jure but voidable at the instance of the party whose consent was obtained by force or fraud. This rule is not absolute and will not operate if:

(i) the petition is presented more than one year after the force ceases or the fraud is discovered; or

(ii) the petitioner, has, with his or her full consent and knowledge exist in the marriage by living with the other party to the marriage as husband or wife.

5. The marriage is sought to be annulled by a decree of nullity by the petitioner in this case on the ground of fraud and in alternative on the ground of cruelty. The case of the petitioner is that her marriage was celebrated on 6-2-1988 and Vida look place on 7-2-1988; that after Vida she went to the matrimonial home where she stayed for about four days; that after four days of the marriage she was brought back to her parent's house by her brother; that she returned to the matrimonial home after one month; that she was pestered all the time by her in-laws to arrange a cash of Rs. 50,000/-; that her father came to Moradabad lo see her on 29-5-1988; then she was told by the respondents that he (her father) would not be permitted to enter into the matrimonial home, unless he handed over Rs. 50,000/- as pan of dowry; lhat it was then that the petitioner discovered that he husband (respondent No. 1) was unemployed and was not an Assistant Chemist in Bajpur Sugar Factory, which he professed to be at the lime of the negotiations of the marriage, which lured the petitioner to give her consent to the marriiage and that he demanded Rupees 50,000/- from her for being given as bribe to secure a job for himself. It is averted that mere is much disparity in academic standard of both the spouses; whereas the petitioner is a first class post graduate in drawing and painting and she has also done B.Ed. and thereafter was doing research in drawing and painting, her husband is only a science graduate. It is averred that at the time of negotiations of the marriage, respondent No. 1 and members of his family, who visited the petitioner on 20-12-1978 for ihe first time for approving her for marriage, had mis-represented that respondent now was well employed in the aforesaid Sugar Factory on a salary of Rupees 1700/- per month. The contention of the petitioner is that she would not have given consent lo marry with respondent No. 1 if she had known the true fact that respondent No. I did not have a secured job in the Sugar Factory. It is said that ihe petitioner expressed her willingness to marry with respondent No. 1, because the latter represented to her before the marriage that he was employed in the Sugar Factory on a monthly salary of Rs. 17,00/-.

6. The trial court framed an issue; whether the respondent obtained the consent of the petitioner for her marriage with respondent No. 1 by fraud. The petitioner and respondent No. 1 both examined themselves. Considering their evidence, the trial court held as follows :--

".....It is very well recognised that the job of the bridegoom is not a material fact regarding the settlement of marriage. It can only be treated as a circumstances relevant for consideration of proposal of marriage..... The certificate from the Bazpur Co-operalive Sugar Factory filed by the respondents, shows that he was in the service of the Bazpur Sugar Factory. Thus the material fact that the respondent No. 1 was in the service of Bazpur Sugar Factory was not basically false. It is, however, not relevant as lo on what post he was serving and what were his emoluments. The respondent No. 1 admits that he was retrenched later on. If the status of the bridegroom changes after the marriage due to a circumstance beyond his control it cannot be regarded as a fraud played upon the bride or her parents....."

7. The question is whelher in the facts and circumstances of the case, the aforementioned view taken by the court below, can be sustained. If it is proved that Ihe consent was obtained by fraud, then the decree of nullity as sought by the petitioner, will have to be granted, but if the petitioner fails to prove the mis-representation as averred, then the decree of annulment will be declined. The words : consent, fraud and mis- representation are not defined in the Act. Section 17 of the Indian Contract Act defines the word fraud and under that Section fraud means and includes the suggestion as to a fact of that which is not true by one who does not believe it to be true and the active concealment of a fact by one having knowledge or belief of the fact. When analysed the ingredients of Section 17(1) are as follows:

(i) there should be a suggestion as to a fact:

(ii) the fact suggested should not be true;

(iii) the suggestion should have been made by a person who does not believe it to be true; and

(iv) the suggestion should be made with intent either to deceive or to induce the other party to enter into the contract.

8. A mere false statement is not fraud. Fraud is committed whereever one man causes another to act on a false belief by a representation which he does not himself believe to be true.

9. Section 18 of the Contract Act defines misrepresentation meaning interalia the positive assertion in a manner not warranted by the information of the person, making it, of that which is not true, though he believes it to be true.

10. Under Section 13 of the Contract Act two or more persons arc said to consent when they agree upon the same thing in the same sense. The case of the peiitioner is that respondent No. I knew well that he was not employed, but he induced her to believe by mis-representing that he was well employed and that she consented for marriage on account of the consideration of a well secured job and not otherwise. This is how the petitioner pleaded that respondent No. 1 had played a fraud upon her and that her consent was obtained by respondent No. 1 by misrepresentation. Under Section 12(1)(c), fraud must be exercised as to a material tact and fraud about a fact simplicitcr is not enough to vitiate the consent. What is the material fact? Whether a mis-representation or false statement or concealment is as to any such material fact, this to a large extent is dependent on the facts and circumstances of each case. But it must be something vital touching or affecting the respondent and such as it definitely induced or influenced consent. The petitioner must show that but for such false representation or statement or concealment she would nol have married the respondent. The question is; whether in the facts and circumstances of the case the appellant would have consented for marriage had respondent No. not been well employed, which he professed to be before the marriage. The courts are required to find out an answer of this question in the context of the modern days, when there is no difference between educated boys and girls. An educated girl has a life long aspiration and a cherished desire to marry with a suitable boy having a lucrative job providing the former a status in the society and financial security. No well educated girl would tike to marry with an uneducated or with a lesser educated person wholly unable to meet out her financial requirements. But this perspective will hold good only to the cases of arranged marriages. If it is a case where the two get united out of sheer love then the considerations may be different, because love sets no bounds or knows no limitations. The finding of the court below that the job of the bridegroom is not a material fact, therefore, cannot be countenanced. Such finding is contrary to the conduct of a reasonable personand the perception of the present -- day society. Every girl before marriage, and more so a well educated girl like the petitioner in this case, would prefer to marry a well employed person to secure her future and marriage with an unemployed person will be the last resort. The petitioner being a well educated girl having much higher academic standard than the petitoner would have weighed pros and cons before giving consent. She would have nodded for the marriage on the consideration that respondent No. 1 was possessed of an attractive job, therefore, the fact of employment isa material fact. But for that fact, the petitioner having no mental or physical deficiency would nol have consented to marry with respondent No. 1. The contrary finding of the court below in this behalf has to be rejected.

11. Then the trial court held that there was no mis-representation on the part of respondent No. 1, as he was employed which he professed to be prior to the marriage. We can take note of some important facts, which are gleaned from the judgment of the trial court. The trial court observed that respondent No. 1 filed a certificate dated 10- 10-1986 from the General Manager, Bazpur Co operative Sugar Factory Ltd.. which certified that he had been under going apprenticeship training in the Lab as Lab Trainee since 17-1- 1986 and that he would complete his one year's tenure on 16-1-1987 and that the Sugar Factory had no objection to relieve him if he got selected for appointment by any concern. On these facts, the trial court referred as follows :

".....The certificate from the Bazpur Coopertive Sugar Factory filed by the respondent shows that he was in the service of Bazpur Sugar Factory....."

12. The question is whether on the basis of the certificate which simply stated that respondent No. 1 had under gone apprenticeship training in the Lab of the Sugar Factory during the period from 17-1-1986 to 16-1-1987. can the inference of respondent No. 1 being employed in the Sugar Factory be drawn Apprenticeship training may enable respondent No. 1 to secure a job but that by itself cannot be said to be a regular job. Training is training and that may be necessary to procure a given job, but that by itself cannot be said to be a job substantively. The case of respondent No. I is that after the apprenticeship period was over he was retrenched. Conceptually 'retrenchment' is altogether different. Upon the expiry of training, it cannot be saidthat respondent No. 1 was retrenched. Retrenchment lakes place only when services are no longer required of employee(s) by a given department. Respondent No. 1 had undergone only the apprenticeship training, and no evidence was produced by him on record that he was under employment permanent or tcmporary-before the marriage. The finding of the court below is as under:

".....The respondent No. 1 admits that he was retrenched later on. If the status of the bridegroom changes after the marriage due to circumstances beyond his control it cannot be regarded as a fraud played upon the bridge or her parents....."

13. The court below concluded that respondent No. 1 was employed at the relevant time when the representation about the employment was made to the petitioner and that he was retrenched later and that subsequent circumstance absolutely beyond the control of respondent No. 1, could not be construed as a mis-representation on the part of respondent No.

1. This finding is wholly contrary to the record. Had respondent No. 1 been employment at the point of time when he suggested to the petitioner that he was employed on monthly salary of Rs. 1700/- in the Sugar Factory and if there were post-marriage-retrenchment, then surely the finding of the court below would have been legally sustainable, but as respondent No. I had simply undergone apprenticeship training and was not under emloyment prior to the marriage, it cannot be said to be a case of unemployment in post-marriage-period and hence such finding of the court below is unsustainable.

14. From the evident of the parties and in the facts and circumstances of the case, it is established that respondent No. 1 had made false statements to the petitioner that he was employed on monthly salary of Rs. 1700/- in the Sugar Factory and he induced the petitioner to give assent for marriage on the basis of that misrepresentation and, therefore, the petition for annulment of marriage has to be decreed.

15. The trial court recorded an alternative finding tht the petition having been made beyond the expiry of one year from the date of discovery of fraud, no decree of nullity can be granted in this case. The view of the court below is that the petitioner stayed in her matrimonial home immediately after marriage for about four days i.e. from 7-2-1988 to 11-2-1988 and that during that period she would have discovered the fact that her husband was not in service in the Sugar Factory. It is not probable in the circumstances of the case that respondent No. 1 who knowingly mis-represented to the petitioner that he was employed in the Sugar Factory to induce her to consent for marriage, would have come out with a clean heart immediately after the marriage nor was there any occasion for the appellant to make a deeper probe into the factum of employment right at the inception of her nuptial lie with respondent No. 1. Matrimonial relationship is a matter of faith and mutual trust and, therefore, the appellant might have taken the statement of respondent No. 1 made by him regarding employment before marriage on the face value. Therefore, the view taken by the court below that the appellant in all probabilities would have discovered the true position regarding 'the employment within four days immediately after the marriage during which she stayed in the matrimonial home in the first instance, is not correct.

16. The petitioner pleaded that her father had come to Moradabad to see her in the matrimonial home on 29-5-1988 and then respondent No. 1 reiterated the demand of Rs. 50,000/- of which he was in dire need to offer the same as bribe to secure employment for himself and then the appellant discovered the factum of fraud. Moreover the trial court did not frame any issue on the point of limitation and recorded the finding on such vital issue straightway without calling upon the parties to lead the evidence on any such specific issue. Such finding of the trial court cannot be sustained in any way.

17. The court below then made a reference to the principle of caveat emptor, which is applicable to the sale of goods. This principle, has no application to the matrimonial matters.

18. Before paning with the appeal, we make it clear that while hearing the appeal we were well conscious of the desirability of reconcilliation efforts. Neither respondent No. 1 nor his counsel appeared on the date of hearing even in the revised list and, therefore, we heard only the counsel for the appellant. Since none had put in appearance on behalf of respondent No. 1 when the appeal came up for hearing on January, 30, no purpose would have been served by fixing a date for reconcilliation and, therefore, we proceeded straightway to hear the appeal without fixing a date for reconcilliation.

19. Since the main plea of fraud has been established by the petitioner, there is no need for us to go into the alternative case of cruelty and, therefore, the appeal succeedsand is allowed; the judgment and decree dated 13-2-1991 passed by the court below, are set aside and the petition for annulment of marriage of the petitioner with respondent No. 1 is decreed with cost.

20. Appeal allowed.