The next question arises whether declaration relating to the above facts and circumstances given in bio data would amount to fraud if they are found to be incorrect. Earlier common friends and relatives used to be involved in getting the marriages settled and whatever information they used to give to both the parties were depended upon and the marriages were solemnised. If after the marriage any fraud was detected the parties could do nothing as there was nothing in writing. Now marriages are to a large extent being settled through advertisements and exchange of bio data. Joint family living is dissipating and individual units have emerged. The result is that it is rather difficult to ascertain correct facts and the parties are largely dependent upon the bio datas exchanged. Therefore, it becomes very necessary for the parties to issue correct bio datas and to see that the bio datas do not contain any inflated or false information. They have to be very careful about the declarations made therein. Why should there be any false representations, in the bio datas given in writing. Therefore, if as to the material facts and circumstances the representations are inflated or false and the difference or falsity is significant, I see no reason why they cannot be called fraud within the meaning of that term used in Section 12 of the Hindu Marriage Act. However, where the difference or falsity is only trivial, a different view may be taken. It will depend upon case to case. The tendency to give false and inflated informations regarding material facts in the bio datas exchanged in marriage negotiations should be curbed. They are generally given for eliciting better proposals and if the other party is hooked the purpose is served. Therefore, this tendency is not to be allowed to prosper. Benefit of said section must be given to the party which has suffered the fraud.
1. This is the husband's appeal filed against judgment and order dated 7-2-1996 passed by Shri S. M. Chopra, Additional District Judge in H.M. A. Petition No. 393/95 instituted by wife under Section 12(l)(c) of the Hindu Marriage Act, 1955 (for short 'the Act') for annulment of her marriage with the appellant by a decree of nullity. By the impugned order, the marriage between the parties has been annulled on the grounds that the consent of the respondent was obtained by fraud as to the material facts and circumstances concerning the appellant.
2. The facts in brief are that the appellant and the respondent got married at Delhi on 24-7-1994 according to Hindu rites. They lived together for some time but differences arose between them which even led to lodging -of a complaint by the respondent to Dowry Cell of the Delhi Police on 14-9-94. An FIR was also lodged by the respondent against the appellant and his parents. The respondent is said to have left the company of the appellant in August, 1994 itself and thereafter it is alleged that they did not live together. Before the Dowry Cell, an agreement was reached between the parties on 29-9-1994 duly signed by them in the following terms:--
"We, Anurag and Sunita decided to live peacefully in any accommodation which is suitable to both of us, it must not be very near to our parents' house. The gold is not with us. -Sd/- Sd/-
Sunita Anand Anurag 29-9-94.
I shall be responsible for her welfare and security after she supports living with me.
Sd/-
Anurag
29-9-94.
I will not pursue with this complaint anymore.
Sd/-
Sunita."
The case of the respondent before the lower Court was that after the aforesaid settlement she became suspicious about the antecedents of the appellant and, therefore, requested the DCP, Women Cell to verify the particulars as given in the bio data of the appellant. She also made enquiries from her own sources and came to know that the respondent's father had given false particulars and had made material factual misrepresentation with respect to the appellant's date of birth, salary and property status. She, therefore, contended in her petition before the lower Court that her consent for the marriage had been induced by the opposite party and his family members by having made false representations relating to the aforesaid material facts.
4. It would be appropriate to have in mind the facts relating to the settlement and solemnization of the marriage between the appellant and the respondent.
5. On 22-5-1994, an advertisement was placed in the matrimonial columns of the Hindustan Times by the father of the respondent seeking a groom for the respondent. The advertisement read as under:--
"Wanted for a Brahmin, Mohyal girl, 24/155, fair, beautiful, slim, educated, working in Pvt. Airlines, getting 5,000/-, of respectable family, preferably from IAS/ IRS/ Customs/ Doctors/ Engineers, any other established vocations. Box 44515-CA, Hindustan Times, New Delhi-110001."
6. In response to the above advertisement, the appellant's father addressed the following communication to respondent's father:--
"Dear Sir,
Reference your matrimonial advertisement /letter, dated 22-5-94. I give below the particulars of my son and family for your consideration.
Date of Birth : 28th December,1964
Height : 175 cms.
Educational : Schooling from Springdales
Qualifications : Public School, New Delhi.
B.Com. Delhi University.
Post Graduate Diploma in
Marketing.
Job : Working as a Sales Manager
with reputed organisation
based at Delhi.
Salary : Rs. 8,500/- P.M.
Father : Retired as Regional
Manager from a
Pharmaceutical concern.
Mother : House wife
(Non-practicingAdvocate).
Sister : Younger - Working in a foreign bank.
Married to a MBA.
We are a Punjabi Khatri family hailing from Jammu and Kashmir and settled in Delhi. We have our own three bed room society apartment and a 110 sq. yards plot, and maintain a Maruti Car and a two wheeler."
7. In response to the aforesaid letter of the appellant's father, the father of the respondent gave the particulars of the respondent and also family background as under:--
"Name : Sunita Mehta.
Age : 23 years (19-2-1970).
Height : 159 cms.
Appearance : Very fair, smart.
Caste : Punjabi Mehtas.
Educational : Graduate Diploma in
Qualifications Computer Course.
Job/ : Hostess in a renouned
Employments : Private Airlines
Achana Airways.
Employments : Rs. 5000/- p.m. + promising future prospect General : Being of an adjustable and
pleasing nature she confirms
to a joint family system.
Family : Father : Ex-Director NIRD
background : (Ministry of Agriculture).
Present : Rajasthan Warehousing
Director : Corporation (Govt. of
India).
Working at senior most Managerial
position in a leading New Delhi
Automobile Dealeeship
Outlet
Mother : Pious housewife
Brothers Elder brother married and
well settled in a Const, of
Export Business.
2nd brother : Married and involved in
the business of construction.
Sister Married to an Officer in a
Nationalised Insurance
2nd sister Married Family established
in a furniture business."
8. Thereafter meetings took place between the parties and the marriage was settled.
9. In her statement on oath before the lower court, the respondent stated that father of the appellant saying that he was a heart-patient wanted an early marriage of his son and that was how the marriage was performed early; that her bio data was sent by her father to the appellant's father on 12-6-1994 and that on 13-6-1994, father of the appellant had given a phone call to her father and wanted everyone in the family to visit the appellant's house on that very date in the evening so that there could be progress in marriage negotiations. It is also stated that both the families met at the residence of the appellant's father in the evening of 13-6-1994 and soon thereafter the marriage was settled. This statement on oath is uncontroverted. It shows that the marriage negotiations proceeded very fast. The fraud alleged was in respect of three counts, namely, the appellant's age, his monthly emoluments and his property status. The respective contentions of the parties on these counts are as follows:--
(i) Age: The appellant's date of birth was declared as 28-12-1964. The contention of the respondent was that, in fact, the date of birth of the appellant was 28-12-1963. It was contended by the appellant that his recorded age in the School Leaving Certificate was 28-12-1964 and that was the only date of Birth known to him at the time when the bio data was issued. It was, however, contended that a male child was born to the parents of the appellant on 28-12-1963 but he had died and, therefore, the birth certificate filed from the side of the respondent did not relate to the appellant.
(ii) Monthly . Emoluments. The total monthly emoluments of the appellant were declared as Rs. 8,500/- per month. On the other hand, the respondent in her petition before the trial court contended that the declaration of the monthly emoluments of the appellant was false. During trial of the case, the respondent filed an original letter issued by Hindusthan Seals Limited addressed to the appellant which contained the terms and conditions of the appointment of the appellant with the aforesaid company. They are as follows:--
"You have been appointed on following terms and conditions given as under:
Basic Salary : Rs. 3550 per month
H.R.A. : Rs. 1150" "
Conveyance : Rs. 1000" "
Rs. 5700" "
Gross Annual : Rs. 68,400.00
Bonus : Rs. 3,800.00
L.T.A. Month : Rs. 3,550.00
Medical :
1 Month : Rs. 3,550.00
Provident
Fund 10% : Rs. 4,260.00
Total per annual Rs. 83,600.00
Besides above you will be getting Actual fuel and maintenance for your own Scooter as per company rule."
On the basis of the aforesaid terms and conditions of employment of the appellant, the contention of the respondent was that the monthly emoluments of the appellant were only Rs.5,700/- per month and not Rs.8,500/- per month.
In the written statement, it was contended by the appellant that in addition to his employment with the said company, he was also doing part time job and thus his total emoluments were Rs. 8,500/- per month at the relevant lime.
(iii) Property Status. In the bio data given from the side of the appellant, it was stated that the parents of the appellant had their own three bed room society apartment and a 110 sq. yards plot. From the side of the respondent, it was contended that the respondent's family neither had a three bed room society apartment nor a 110 sq. yards plot in Delhi in their name.
In the written statement, the appellant stated that his family was allotted a residential flat in plot No. 44, Vasundhara Apartment, and the flat consisted of three bed rooms.
It was also stated in the written statement that the appellant's mother was a member of a Co-operative Society which was constructing a flat for her and the said flat was in possession of the appellant and his parents. The written statement, however, did not state that the appellant's family also owned a 110 sq. yards plot. A replication was filed by the respondent in which it was vehemently denied that the appellant's family owned a residential flat in Building No. 44 Vasundhara Apartment at the relevant time, that is to say, when the bio data was given or when the marriage between the parties was solemnized.
10. The learned lower Court on the aforesaid three factual counts came to a conclusion that the representations made by the appellant in respect thereof were false and accordingly believing the respondent annulled the marriage on the grounds that the consent of the respondent was obtained by fraud as to the material facts and circumstances concerning the appellant.
11. The appellant has challenged the findings of the trial Court on the grounds, inter alia, that the trial court has gravely erred in law and fact that there was no concealment by the appellant and the consent of the respondent was not obtained by concealment or fraud as regards the material facts and circumstances concerning the appellant; that the appellant had given out his gross salary; that there was no misrepresentation regarding owning a flat or a plot in Delhi; that the date of birth given out in the bio data was the correct date of birth; and that the respondent having actually cohabited with the appellant after the disclosure of the alleged fraud, the fraud, if any, shall be deemed to have been abandoned by the respondent.
12. On facts, the case taken up in this appeal is that the respondent after 29-9-1994 cohabited with the appellant as husband and wife for a few days and only thereafter left for her parents house; that nowhere the appellant gave out that his monthly salary was Rs. 8,500 plus perks; that the respondent had herself misrep'resented her salary saying that she was drawing Rs. 5000/- per month plus perks; that the appellant and his mother Smt. Kusum Anand were members of Vasundhara Group Housing Society Limited and as such they were entitled to a three bedroom flat which was under construction on a plot of land in Sector IX, Rohini; that, in fact, a three bed room flat being No. 26 in Type 'B' (HIG) was allotted to the appellant and his mother in the draw of lots held on 16-7-1995 and possession of the same was handed over on 12-9-1995; that as such, there was no misrepresentation regarding the financial status of the appellant and his family; and, that even, if the date of birth of the appellant is taken to be 28-12-1963, the difference in age of the appellant and the respondent would be six years one month and, therefore, in view of the case of the respondent that she could accept a husband who was older to her by six years, the controversy about the date of birth of the appellant was redundant.
13. The learned counsel for the appellant and the respondent were heard at length.
14. In deciding this appeal, it would be necessary to first decide the respective factual contentions of the parties regarding the aforesaid three counts, namely the date of birth, salary and property status of the appellant. I would like to deal with them separately one by one.
15. So far as the date of birth of the appellant is concerned, the only controversy is whether he was born on 28th Dec. 1963 or 28th Dec. 1964. There is no dispute between the parties that the recorded date of birth of the appellant in the School Leaving Certificate is 28-12-1964. The doubt has been raised only on the ground that the appellant's birth was not recorded in the register of birth and a male child is recorded to have born to the appellant's father on 28-12-1963. The appellant has showed his ignorance about his date of birth but his father, who appeared as witness stated on oath that since appellant was born in Kashmir, his birth was not recorded in the register of births maintained in Delhi. He has also stated on oath that a male child was born to him on 28-12-1963 and that child had died in Kashmir. May be the dates of birth of two male children to the appellant's father coincide to 28th Dec. one in the year 1963, and the other in the year 1964, but the statement of the appellant's father on path cannot be rejected solely on a presumption that there cannot be such a coincidence. Moreover, when the appellant's father stated on oath that the male child born to him on 28-12-1963 had died, 1 am not going to believe that it did not happen. I am also not going to believe that if the appellant was born on 28-12-1963, the appellant's father would state on oath that the male child born to him on 28th Dec. 1963 had died. Therefore, I see no reason to disbelieve the appellant on this count and I hold that the appellant's date of birth is 28-12-1964. The finding of the trial court on this count is reversed. However, this controversy of the dale of birth looses its significance in the face of the acceptance by the respondent that she could accept a husband who was older to her by six years. Therefore, if for arguments sake, the date of birth of the appellant could be taken as 28-12- 1963, the age difference between the appellant and the respondent would only be six years one month and twenty two days. When a gap of six years is acceptable such gap is always approximate and not so meticulous as not to accept the age difference of six years one month and twenty two days. In these circumstances, this age difference ceased to be a material fact and circumstance concerning the appellant.
16. So far as the salary of the appellant is concerned, I am of the opinion, that there had been misrepresentation on the part of the appellant and his family members. His salary statement is on record and the same has been reproduced in para 9 of this judgment. It shows the basic salary as Rs. 3550, house rent allowance as Rs. 1150 and conveyance as Rs. 1000 per month. The total comes to. Rs. 5700 per month. The salary declared in the bio data was Rs. 8500 per month. The learned counsel for the appellant says that besides Rs. 5700 per month, the appellant was also entitled to bonus, leave travel allowance, medical allowance and provident fund plus the actual fuel and maintenance for own scooter as per Company's rule. He says that the gross annual entitlement of the appellant was Rs. 83,600 plus actual fuel and maintenance of the scooter owned by the appellant. Even if the annual gross entitlement (Rs. 83,600) as alleged by the appellant is taken to be correct still the per month entitlement of the appellant comes to about Rs. 6970. Though the company in which the appellant was working also promised to compensate actual fuel and maintenance of scooter as per Company's rule, it cannot be accepted that the balance of Rs. 1530 per month the appellant would be getting from the company as fuel and maintenance of his scooter. It is only an argument on behalf of the appellant without proving the facts. The appellant has not given any evidence to prove that besides the gross annual of Rs. 83600 he was ever given fuel and maintenance actuals for the scooter owned by him at a rate of Rs. 1530 per month. The Company's Rule has not been filed. It has also not been shown to any Court that the Company's rule made the appellant entitled to a sum of Rs. 1530 per month over and above the conveyance allowance of Rs. 1000/- per month.
In his written statement, the appellant had contended that he was employed and was also doing part time job and thus the total emoluments were Rs. 8,500 per month at the relevant time. In his statement on oath before the trial court, the appellant did not state that he was also doing part time job and was earning over and above the salary he was drawing from the Company. It appears that only because of this, the appellant has not, in this appeal, taken a plea that he was also doing a part time job. Thus a positive inference may be drawn that the appellant is only trying unsuccessfully to make out a case that on the relevant date his monthly salary was Rs. 8500 per month instead of Rs. 5700 as contended by the respondent.
17. The learned counsel for the appellant tried to make out a case that the respondent was also guilty of declaring false salary. In the grounds of appeal, it has been alleged that the respondent misrepresented that she was getting Rs. 5000 plus perks. 1 do not agree with this contention because in the bio data given on behalf of the respondent, the emoluments of the respondent was declared as Rs. 5000/- per month. Nowhere, it says that Rs. 5000 with perks. The sign of "+" attached to Rs. 5000 would only indicate that the emoluments were Rs. 5000 and few hundred more per month. This sign of "+" does not indicate perks. In the grounds of appeal, the appellant himself says that M/s. Archana Airways was paying to the respondent a basic pay of Rs. 3000/-, house rent allowance in the sum of Rs. 1200 and uniform allowance in the sum of Rs. 1000 and as such her net pay was Rs. 5200 per month. The "+" sign is thus fully explained. Therefore it is wrong to allege that the respondent also misrepresented her monthly emoluments.
18. Coming to the property status of the petitioner and his family. I find that on this count also there have been misrepresentations on the part of the appellant. In the bio data given on behalf of the appellant, it has been specifically stated that "we have our own three bed room society apartments and a 110 sq. yards plot". This bio data was given to the respondent's father on 12-6-1994. There is nothing on record to show that on that date the appellant's parents owned a three bed. room society of apartment and a 110 sq. yards plot. Regarding three bed room society apartment, the contention of the appellant in the written statement was that the appellant's mother was a member of a Co-operative Group Housing Society which were constructing a flat for her and the plot was in possession of the appellant and his parents. It was also stated that the family of the appellant did own a residential flat in building No. 44 Vasundhara Apartments and that the said flat was a three bed room apartment. No documentary proof regarding the aforesaid flat was filed in the trial court. In his statement on oath before the trial court the appellant stated that he along with his family members had a three bed room flat at Rohini in New Delhi, that he did not bring the relevant documents with him; that possession of the flat was taken four years back; and that he and his parents were still living as a tenant at 86 Lok Nayak Apartment, Rohini. It was further stated by him that the flat owned by him and his family members situated at Vasundhara Apartment was lying locked with them. He denied the suggestion that he and his family members did not own or possess any three bed room society apartment in May, 1994. In cross-examination, when he was asked about 110 sq. yards of plot, he stated that the same was allotted to him and his family members by the DDA more than two years back and that he and his family members had asked the DDA to convert a SFS apartment and that his father might be knowing as to whether he had paid the price or not. He, however, admitted that on 25-5-1994 the plot was not in their possession. According to him, the plot was on lease basis. He showed his ignorance whether a lease deed for the plot had been executed in his favour. He, however, denied the suggestion that 110 sq. yards, plot was neither owned nor possessed by him and his family members on 25-5-1994. The father of the appellant appeared as a witness. In his examination-in-chief, he only stated that the appellant was born on 28-12-1964 and that the appellant's salary on 25-3-1994 was about Rs. 8500 per month. He did not state that he or his family members owned a three bed room flat and a 110 sq. yards plot on the date the bio data of the appellant was given to respondent's father, when he could have been the best person to slate so. In his cross-examination, he admitted that as on 25-5-1994 (the relevant date when the bio data of the appellant was given), the society had not given the physical possession of the flat to him. Though he stated that he was member of the society on that date and had paid full amount and that physical possession of the flat was given only 4/5 months back but he did not file any documents relating to any fiat in his name or a plot of land in his name. He only stated that he could produce the receipt of deposits made by him. The statement of the appellant and his father were recorded by the trial Court on 12-1-1996. It is not understandable as to why even on 12-1-1996 the appellant could not file documents to show that he and his family members did own immoveable ' property as alleged. Those documents could be the best evidence. The absence of such documents goes against the appellant.
It is worth to note that the appellant had stated that the possession of the flat had been taken by him and his family members four years back whereas the appellant's father stated that the possession of the flat had been taken by him 4/5 months back. The dates of their statements are same. Thus, it is a major contradiction. The statement of the appellant that he had taken possession of the flat in the year 1992 is false in the face of his father's statement on oath that on 25-5-1994, the society had not given physical possession of the flat and that the physical possession was given only 4/5 months back, that is to say, in or about August, 1995. On the other hand, the respondent has all along been saying that the appellant and his family members did not own any three bed room flat and a 110 sq. yards plot either on the date when the bio data of the appellant was given or on the date when the marriage was solemnized and, therefore, the property status of the appellant's family as declared was false.
I have given my careful consideration to what has come on record relating to this controversy and, I am of the view, that the appellant failed to prove that he and his family members did own a three bed room flat and a plot measuring 110 sq. yards, either when his bio data was issued or when the marriage, was solemnized between him and the respondent. Though the appellant has failed to produce any document to prove that he and his family members acquired a three bed room flat in the year 1995 but even if it were so it would not save the situation because the bio data did not say that the appellant and his family members were expected to acquire a three bed room flat. The bio data specifically, stated that the appellant's family did own a three bed room flat and a 110 sq. yards plot. This declaration has been found to be false.
19. The result is that the bio data of the appellant regarding his salary and property status was inflated and false. Now, it is to be examined whether these inflated and false representations would amount to fraud as to the material facts and circumstances concerning the appellant to entitle the respondent to have a decree of nullity under Section 12(1)(c) of the Act.
20. The learned counsel for the appellant contended that even if the representations made in the bio data were found to be not correct, they would not amount to fraud as to the material facts and circumstances concerning the appellant, so as to entitle the respondent to get a decree of nullity under the aforesaid Act. His contention is that neither the alleged incorrect statements in the bio data are material facts and circumstances nor the appellant committed any fraud on the respondent to take her consent for the marriage.
21. His argument is that the word "fraud" used in Section 12 of the Act should carry the same meaning as has been assigned to it under Section 17 of the Indian Contract Act and therefore, on that touchstone the appellant cannot be held to have committed fraud on the respondent.
22. Therefore, firstly the meaning of the word "fraud" as used in said Section 12 of the Hindu Marriage Act has to be settled. This word has neither been defined in the Hindu Marriage Act, 1955 nor in the General Clauses Act, 1897. It has, no doubt, been defined in the Indian Contract Act but it is to be seen whether the definition given to this word in that Act would be applicable while interpreting Section 12 of the Hindu Marriage Act. This question came up for consideration before a Division Bench of this Court in Rajinder Singh v. Smt. Pomila, , and the following was observed (at pp 298 and 299 of AIR):
"The term "fraud", used in Cl. (c) of Section 12 cannot be given the same meaning as defined under Section 17 of the Contract Act. The expression "fraud" used in Cl. (c) does not speak of fraud in any general way or that every misrepresentation or concealment is fraudulent. A marriage under the Hindu Law is not purely a contract. A reading of Ss. 5 and 7 makes it clear that a Hindu Marriage has both religious as well as secular aspects. Therefore, the marriage has to be treated both as sacrament and as a contract. It is a sacrament because certain customary rights and, ceremonies as described in Section 7 of the Act have to be performed for the completion of marriage. It is a contract as S. 5 deals with the capacity of the spouse to enter into an alliance for a marriage. The words "force" and "fraud" that are contemplated in Cl. (c) of Section 12 are as the nature of the ceremonies or as to the material facts or circumstances concerning the respondent. If the consent of a party to the marriage is obtained by practicing fraud as to any material fact or circumstance concerning the respondent the marriage can be annulled under Cl. (c). The word "fraud" used in this clause connotes deception or misrepresentation. What is a misrepresentation or concealment of a material fact which depends upon the facts and circumstances of each case. The material fact is that vital and important fact which would induce or influence the mind of a party to give or withhold the consent to marry."
Learned counsel for the appellant has not placed before this Court any contrary view given by the Supreme Court. Thus as per the view of this very court the term "fraud" as used in Section 12 of the Hindu Marriage Act cannot be given the same meaning as has been assigned to it under Section 17 of the Indian Contract Act, The word fraud used in Section 12 of the Hindu Marriage Act would only connote deception or misrepresentation.
23. The second point which arises for disposal of this appeal is as to what is a material fact and circumstance concerning the parties to a marriage as envisaged in Section 12 of the Hindu Marriage Act. The material facts and circumstance are those vital and important facts and circumstances which would induce or influence the mind of a party to give or withhold the consent to marry. This would appear to be the intention of the Legislature while enacting Section 12 of the Hindu Marriage Act. Having this interpretation in view it has to be seen as to what would be the material facts and circumstances as envisaged in the aforesaid section. The marriage is a union between a man and a woman and while accepting any person as a husband or wife there are certain vital considerations which are definitely looked into before the parties or their parents give their consent for the marriage proposal. These considerations may be age, educational qualifications, income caste, marital status, family status coupled with financial status, religion or nationality of the other party. They may be termed as material facts and circumstances. This list may not be exhaustive, as between certain parties some other factors may as well be material facts and circumstances depending upon the facts and circumstances of their case.
24. For a girl to give her consent to a marriage proposal unless it is a love marriage, financial status of the other party is quite an important factor. Why? it is because everyone wants to have a comfortable living. For that a level of monthly income and a level of property status of the other party are required. In addition to monthly income of the other party his property status is assuming considerable importance. One needs financial security in time of need to fall back. This level of monthly income and property status would differ from case to case depending upon the status of the family of the girl. Further, if the girl is herself working then it also becomes her aspiration to marry a boy who is earning more than her. A girl would definitely prefer a boy in marriage whose parents have already sufficient landed property and thus she has not to curtail her monthly expenditure for acquiring landed property to fall back in emergent needs. She needs a minimum level of expenditure capacity in the house of her husband. She may not accept a marriage proposal if she does not find the aforesaid.
25. In view of the aforesaid the monthly income and the property status of the appellan can easily be called material facts and circumstance concerning him as envisaged in Section 12 of the Hindu Marriage Act.
26. The next question arises whether declaration relating to the above facts and circumstances given in bio data would amount to fraud if they are found to be incorrect. Earlier common friends and relatives used to be involved in getting the marriages settled and whatever information they used to give to both the parties were depended upon and the marriages were solemnised. If after the marriage any fraud was detected the parties could do nothing as there was nothing in writing. Now marriages are to a large extent being settled through advertisements and exchange of bio data. Joint family living is dissipating and individual units have emerged. The result is that it is rather difficult to ascertain correct facts and the parties are largely dependent upon the bio datas exchanged. Therefore, it becomes very necessary for the parties to issue correct bio datas and to see that the bio datas do not contain any inflated or false information. They have to be very careful about the declarations made therein. Why should there be any false representations, in the bio datas given in writing. Therefore, if as to the material facts and circumstances the representations are inflated or false and the difference or falsity is significant, I see no reason why they cannot be called fraud within the meaning of that term used in Section 12 of the Hindu Marriage Act. However, where the difference or falsity is only trivial, a different view may be taken. It will depend upon case to case. The tendency to give false and inflated informations regarding material facts in the bio datas exchanged in marriage negotiations should be curbed. They are generally given for eliciting better proposals and if the other party is hooked the purpose is served. Therefore, this tendency is not to be allowed to prosper. Benefit of said section must be given to the party which has suffered the fraud.
27. In the present case I find that the bio data of the appellant was given to the respondent's father on 12-6-1994 and on 13-6-1994 both the parties met and the marriage was settled. Soon thereafter the marriage was solemnised on 24-7-1994. These facts and circumstances would indicate that the marriage was settled on the basis of what was stated in the bio datas and what was seen of each other in personal meeting on 13-6-1994. There was no time for any party to ascertain the correctness of the bio data from the sources from which it could have been done. Even if there could have been time for such ascertainment, I am not prepared to excuse a party which had issued a false bio data. The other party could act on the basis of the bio data issued for giving his/her consent for marriage with the other party. If the material facts and circumstances declared in the bio data are found to be false and the falsity is striking the very foundation of the marriage becomes shaky. Mutual confidence is gone. Then what is the purpose of a married life unless the love still remains and the erring party is excused or forgiven. In the present case the falsity on the part of the appellant is significant and can be called deception or misrepresentation. The respondent has not excused the appellant.
28. The marriage between the parties lost its colour even from the stage of its take off and thereafter the bio data of the appellant was also found to be false in certain material particulars. Resultantly, the respondent filed the petition in question for annulment of the marriage on the grounds of fraud.
29. Learned counsel for the appellant also argued before me that the respondent was working in an airlines and she could easily ascertain the monthly salary of the appellant before giving her consent to the marriage. I am not in agreement with this argument. Firstly on the ground that the appellant was working in a private company and if 1 am not incorrect private employers do not give out the terms and conditions of its employees to a stranger. Sometimes even one employee of a company does not know the terms of employment of the other employee. Secondly, considering the status of the appellant's family, his father being a Regional Manager in a Pharmaceutical Concern and his mother being a non-practicing Advocate, no one could believe that the bio-data issued by the appellant's father would be false in material particulars.
30. In view of above discussion I find that the facts of this case are covered by the provisions of Section 12 of the Hindu Marriage Act and the marriage has rightly been annulled by the lower Court.
31. Learned Counsel for the appellant also contended that after the alleged misrepresentations were allegedly known to the respondent she stayed with the appellant for some time as husband and wife and, therefore, the respondent shall be presumed to have abandoned that ground. This argument does not borne out from the facts of the case. There is nothing on record to show that after 12-9-1994 the respondent stayed with the appellant. Rather the evidence is that the respondent had left the company of the appellant since August 1994 itself. In her petition the respondent had stated that she came to know about the alleged fraud only after 12-9-1994. Therefore this argument is not acceptable.
32. The learned counsel for the appellant contended that no serious note of the alleged incorrectness of the bio data of the appellant be taken and the marriage between the parties be sustained. Though the general tendency of the Courts is that the marriage should be sustained as far as possible and this tendency is no doubt good for a laudable object but at the same time the Courts have also to take into consideration that by their reluctance to set aside a marriage brought out by fraud the Courts may be encouraging such false representations in the bio datas issued for attracting better proposals. I am, therefore, I not inclined to accept the contention of the learned counsel for the appellant that the marriage between the parties be not annulled.
33. In view of above the appeal has no force and the same is dismissed with costs. The interim order dated 13-3-1996 stands vacated.
34. Appeal dismissed.
Print Page
Delhi High Court
Anurag Anand vs Sunita Anand on 11 October, 1996
Equivalent citations: 1997 IAD Delhi 37, AIR 1997 Delhi 94, 65 (1997) DLT 1037
JUDGMENT1. This is the husband's appeal filed against judgment and order dated 7-2-1996 passed by Shri S. M. Chopra, Additional District Judge in H.M. A. Petition No. 393/95 instituted by wife under Section 12(l)(c) of the Hindu Marriage Act, 1955 (for short 'the Act') for annulment of her marriage with the appellant by a decree of nullity. By the impugned order, the marriage between the parties has been annulled on the grounds that the consent of the respondent was obtained by fraud as to the material facts and circumstances concerning the appellant.
2. The facts in brief are that the appellant and the respondent got married at Delhi on 24-7-1994 according to Hindu rites. They lived together for some time but differences arose between them which even led to lodging -of a complaint by the respondent to Dowry Cell of the Delhi Police on 14-9-94. An FIR was also lodged by the respondent against the appellant and his parents. The respondent is said to have left the company of the appellant in August, 1994 itself and thereafter it is alleged that they did not live together. Before the Dowry Cell, an agreement was reached between the parties on 29-9-1994 duly signed by them in the following terms:--
"We, Anurag and Sunita decided to live peacefully in any accommodation which is suitable to both of us, it must not be very near to our parents' house. The gold is not with us. -Sd/- Sd/-
Sunita Anand Anurag 29-9-94.
I shall be responsible for her welfare and security after she supports living with me.
Sd/-
Anurag
29-9-94.
I will not pursue with this complaint anymore.
Sd/-
Sunita."
The case of the respondent before the lower Court was that after the aforesaid settlement she became suspicious about the antecedents of the appellant and, therefore, requested the DCP, Women Cell to verify the particulars as given in the bio data of the appellant. She also made enquiries from her own sources and came to know that the respondent's father had given false particulars and had made material factual misrepresentation with respect to the appellant's date of birth, salary and property status. She, therefore, contended in her petition before the lower Court that her consent for the marriage had been induced by the opposite party and his family members by having made false representations relating to the aforesaid material facts.
4. It would be appropriate to have in mind the facts relating to the settlement and solemnization of the marriage between the appellant and the respondent.
5. On 22-5-1994, an advertisement was placed in the matrimonial columns of the Hindustan Times by the father of the respondent seeking a groom for the respondent. The advertisement read as under:--
"Wanted for a Brahmin, Mohyal girl, 24/155, fair, beautiful, slim, educated, working in Pvt. Airlines, getting 5,000/-, of respectable family, preferably from IAS/ IRS/ Customs/ Doctors/ Engineers, any other established vocations. Box 44515-CA, Hindustan Times, New Delhi-110001."
6. In response to the above advertisement, the appellant's father addressed the following communication to respondent's father:--
"Dear Sir,
Reference your matrimonial advertisement /letter, dated 22-5-94. I give below the particulars of my son and family for your consideration.
Date of Birth : 28th December,1964
Height : 175 cms.
Educational : Schooling from Springdales
Qualifications : Public School, New Delhi.
B.Com. Delhi University.
Post Graduate Diploma in
Marketing.
Job : Working as a Sales Manager
with reputed organisation
based at Delhi.
Salary : Rs. 8,500/- P.M.
Father : Retired as Regional
Manager from a
Pharmaceutical concern.
Mother : House wife
(Non-practicingAdvocate).
Sister : Younger - Working in a foreign bank.
Married to a MBA.
We are a Punjabi Khatri family hailing from Jammu and Kashmir and settled in Delhi. We have our own three bed room society apartment and a 110 sq. yards plot, and maintain a Maruti Car and a two wheeler."
7. In response to the aforesaid letter of the appellant's father, the father of the respondent gave the particulars of the respondent and also family background as under:--
"Name : Sunita Mehta.
Age : 23 years (19-2-1970).
Height : 159 cms.
Appearance : Very fair, smart.
Caste : Punjabi Mehtas.
Educational : Graduate Diploma in
Qualifications Computer Course.
Job/ : Hostess in a renouned
Employments : Private Airlines
Achana Airways.
Employments : Rs. 5000/- p.m. + promising future prospect General : Being of an adjustable and
pleasing nature she confirms
to a joint family system.
Family : Father : Ex-Director NIRD
background : (Ministry of Agriculture).
Present : Rajasthan Warehousing
Director : Corporation (Govt. of
India).
Working at senior most Managerial
position in a leading New Delhi
Automobile Dealeeship
Outlet
Mother : Pious housewife
Brothers Elder brother married and
well settled in a Const, of
Export Business.
2nd brother : Married and involved in
the business of construction.
Sister Married to an Officer in a
Nationalised Insurance
2nd sister Married Family established
in a furniture business."
8. Thereafter meetings took place between the parties and the marriage was settled.
9. In her statement on oath before the lower court, the respondent stated that father of the appellant saying that he was a heart-patient wanted an early marriage of his son and that was how the marriage was performed early; that her bio data was sent by her father to the appellant's father on 12-6-1994 and that on 13-6-1994, father of the appellant had given a phone call to her father and wanted everyone in the family to visit the appellant's house on that very date in the evening so that there could be progress in marriage negotiations. It is also stated that both the families met at the residence of the appellant's father in the evening of 13-6-1994 and soon thereafter the marriage was settled. This statement on oath is uncontroverted. It shows that the marriage negotiations proceeded very fast. The fraud alleged was in respect of three counts, namely, the appellant's age, his monthly emoluments and his property status. The respective contentions of the parties on these counts are as follows:--
(i) Age: The appellant's date of birth was declared as 28-12-1964. The contention of the respondent was that, in fact, the date of birth of the appellant was 28-12-1963. It was contended by the appellant that his recorded age in the School Leaving Certificate was 28-12-1964 and that was the only date of Birth known to him at the time when the bio data was issued. It was, however, contended that a male child was born to the parents of the appellant on 28-12-1963 but he had died and, therefore, the birth certificate filed from the side of the respondent did not relate to the appellant.
(ii) Monthly . Emoluments. The total monthly emoluments of the appellant were declared as Rs. 8,500/- per month. On the other hand, the respondent in her petition before the trial court contended that the declaration of the monthly emoluments of the appellant was false. During trial of the case, the respondent filed an original letter issued by Hindusthan Seals Limited addressed to the appellant which contained the terms and conditions of the appointment of the appellant with the aforesaid company. They are as follows:--
"You have been appointed on following terms and conditions given as under:
Basic Salary : Rs. 3550 per month
H.R.A. : Rs. 1150" "
Conveyance : Rs. 1000" "
Rs. 5700" "
Gross Annual : Rs. 68,400.00
Bonus : Rs. 3,800.00
L.T.A. Month : Rs. 3,550.00
Medical :
1 Month : Rs. 3,550.00
Provident
Fund 10% : Rs. 4,260.00
Total per annual Rs. 83,600.00
Besides above you will be getting Actual fuel and maintenance for your own Scooter as per company rule."
On the basis of the aforesaid terms and conditions of employment of the appellant, the contention of the respondent was that the monthly emoluments of the appellant were only Rs.5,700/- per month and not Rs.8,500/- per month.
In the written statement, it was contended by the appellant that in addition to his employment with the said company, he was also doing part time job and thus his total emoluments were Rs. 8,500/- per month at the relevant lime.
(iii) Property Status. In the bio data given from the side of the appellant, it was stated that the parents of the appellant had their own three bed room society apartment and a 110 sq. yards plot. From the side of the respondent, it was contended that the respondent's family neither had a three bed room society apartment nor a 110 sq. yards plot in Delhi in their name.
In the written statement, the appellant stated that his family was allotted a residential flat in plot No. 44, Vasundhara Apartment, and the flat consisted of three bed rooms.
It was also stated in the written statement that the appellant's mother was a member of a Co-operative Society which was constructing a flat for her and the said flat was in possession of the appellant and his parents. The written statement, however, did not state that the appellant's family also owned a 110 sq. yards plot. A replication was filed by the respondent in which it was vehemently denied that the appellant's family owned a residential flat in Building No. 44 Vasundhara Apartment at the relevant time, that is to say, when the bio data was given or when the marriage between the parties was solemnized.
10. The learned lower Court on the aforesaid three factual counts came to a conclusion that the representations made by the appellant in respect thereof were false and accordingly believing the respondent annulled the marriage on the grounds that the consent of the respondent was obtained by fraud as to the material facts and circumstances concerning the appellant.
11. The appellant has challenged the findings of the trial Court on the grounds, inter alia, that the trial court has gravely erred in law and fact that there was no concealment by the appellant and the consent of the respondent was not obtained by concealment or fraud as regards the material facts and circumstances concerning the appellant; that the appellant had given out his gross salary; that there was no misrepresentation regarding owning a flat or a plot in Delhi; that the date of birth given out in the bio data was the correct date of birth; and that the respondent having actually cohabited with the appellant after the disclosure of the alleged fraud, the fraud, if any, shall be deemed to have been abandoned by the respondent.
12. On facts, the case taken up in this appeal is that the respondent after 29-9-1994 cohabited with the appellant as husband and wife for a few days and only thereafter left for her parents house; that nowhere the appellant gave out that his monthly salary was Rs. 8,500 plus perks; that the respondent had herself misrep'resented her salary saying that she was drawing Rs. 5000/- per month plus perks; that the appellant and his mother Smt. Kusum Anand were members of Vasundhara Group Housing Society Limited and as such they were entitled to a three bedroom flat which was under construction on a plot of land in Sector IX, Rohini; that, in fact, a three bed room flat being No. 26 in Type 'B' (HIG) was allotted to the appellant and his mother in the draw of lots held on 16-7-1995 and possession of the same was handed over on 12-9-1995; that as such, there was no misrepresentation regarding the financial status of the appellant and his family; and, that even, if the date of birth of the appellant is taken to be 28-12-1963, the difference in age of the appellant and the respondent would be six years one month and, therefore, in view of the case of the respondent that she could accept a husband who was older to her by six years, the controversy about the date of birth of the appellant was redundant.
13. The learned counsel for the appellant and the respondent were heard at length.
14. In deciding this appeal, it would be necessary to first decide the respective factual contentions of the parties regarding the aforesaid three counts, namely the date of birth, salary and property status of the appellant. I would like to deal with them separately one by one.
15. So far as the date of birth of the appellant is concerned, the only controversy is whether he was born on 28th Dec. 1963 or 28th Dec. 1964. There is no dispute between the parties that the recorded date of birth of the appellant in the School Leaving Certificate is 28-12-1964. The doubt has been raised only on the ground that the appellant's birth was not recorded in the register of birth and a male child is recorded to have born to the appellant's father on 28-12-1963. The appellant has showed his ignorance about his date of birth but his father, who appeared as witness stated on oath that since appellant was born in Kashmir, his birth was not recorded in the register of births maintained in Delhi. He has also stated on oath that a male child was born to him on 28-12-1963 and that child had died in Kashmir. May be the dates of birth of two male children to the appellant's father coincide to 28th Dec. one in the year 1963, and the other in the year 1964, but the statement of the appellant's father on path cannot be rejected solely on a presumption that there cannot be such a coincidence. Moreover, when the appellant's father stated on oath that the male child born to him on 28-12-1963 had died, 1 am not going to believe that it did not happen. I am also not going to believe that if the appellant was born on 28-12-1963, the appellant's father would state on oath that the male child born to him on 28th Dec. 1963 had died. Therefore, I see no reason to disbelieve the appellant on this count and I hold that the appellant's date of birth is 28-12-1964. The finding of the trial court on this count is reversed. However, this controversy of the dale of birth looses its significance in the face of the acceptance by the respondent that she could accept a husband who was older to her by six years. Therefore, if for arguments sake, the date of birth of the appellant could be taken as 28-12- 1963, the age difference between the appellant and the respondent would only be six years one month and twenty two days. When a gap of six years is acceptable such gap is always approximate and not so meticulous as not to accept the age difference of six years one month and twenty two days. In these circumstances, this age difference ceased to be a material fact and circumstance concerning the appellant.
16. So far as the salary of the appellant is concerned, I am of the opinion, that there had been misrepresentation on the part of the appellant and his family members. His salary statement is on record and the same has been reproduced in para 9 of this judgment. It shows the basic salary as Rs. 3550, house rent allowance as Rs. 1150 and conveyance as Rs. 1000 per month. The total comes to. Rs. 5700 per month. The salary declared in the bio data was Rs. 8500 per month. The learned counsel for the appellant says that besides Rs. 5700 per month, the appellant was also entitled to bonus, leave travel allowance, medical allowance and provident fund plus the actual fuel and maintenance for own scooter as per Company's rule. He says that the gross annual entitlement of the appellant was Rs. 83,600 plus actual fuel and maintenance of the scooter owned by the appellant. Even if the annual gross entitlement (Rs. 83,600) as alleged by the appellant is taken to be correct still the per month entitlement of the appellant comes to about Rs. 6970. Though the company in which the appellant was working also promised to compensate actual fuel and maintenance of scooter as per Company's rule, it cannot be accepted that the balance of Rs. 1530 per month the appellant would be getting from the company as fuel and maintenance of his scooter. It is only an argument on behalf of the appellant without proving the facts. The appellant has not given any evidence to prove that besides the gross annual of Rs. 83600 he was ever given fuel and maintenance actuals for the scooter owned by him at a rate of Rs. 1530 per month. The Company's Rule has not been filed. It has also not been shown to any Court that the Company's rule made the appellant entitled to a sum of Rs. 1530 per month over and above the conveyance allowance of Rs. 1000/- per month.
In his written statement, the appellant had contended that he was employed and was also doing part time job and thus the total emoluments were Rs. 8,500 per month at the relevant time. In his statement on oath before the trial court, the appellant did not state that he was also doing part time job and was earning over and above the salary he was drawing from the Company. It appears that only because of this, the appellant has not, in this appeal, taken a plea that he was also doing a part time job. Thus a positive inference may be drawn that the appellant is only trying unsuccessfully to make out a case that on the relevant date his monthly salary was Rs. 8500 per month instead of Rs. 5700 as contended by the respondent.
17. The learned counsel for the appellant tried to make out a case that the respondent was also guilty of declaring false salary. In the grounds of appeal, it has been alleged that the respondent misrepresented that she was getting Rs. 5000 plus perks. 1 do not agree with this contention because in the bio data given on behalf of the respondent, the emoluments of the respondent was declared as Rs. 5000/- per month. Nowhere, it says that Rs. 5000 with perks. The sign of "+" attached to Rs. 5000 would only indicate that the emoluments were Rs. 5000 and few hundred more per month. This sign of "+" does not indicate perks. In the grounds of appeal, the appellant himself says that M/s. Archana Airways was paying to the respondent a basic pay of Rs. 3000/-, house rent allowance in the sum of Rs. 1200 and uniform allowance in the sum of Rs. 1000 and as such her net pay was Rs. 5200 per month. The "+" sign is thus fully explained. Therefore it is wrong to allege that the respondent also misrepresented her monthly emoluments.
18. Coming to the property status of the petitioner and his family. I find that on this count also there have been misrepresentations on the part of the appellant. In the bio data given on behalf of the appellant, it has been specifically stated that "we have our own three bed room society apartments and a 110 sq. yards plot". This bio data was given to the respondent's father on 12-6-1994. There is nothing on record to show that on that date the appellant's parents owned a three bed. room society of apartment and a 110 sq. yards plot. Regarding three bed room society apartment, the contention of the appellant in the written statement was that the appellant's mother was a member of a Co-operative Group Housing Society which were constructing a flat for her and the plot was in possession of the appellant and his parents. It was also stated that the family of the appellant did own a residential flat in building No. 44 Vasundhara Apartments and that the said flat was a three bed room apartment. No documentary proof regarding the aforesaid flat was filed in the trial court. In his statement on oath before the trial court the appellant stated that he along with his family members had a three bed room flat at Rohini in New Delhi, that he did not bring the relevant documents with him; that possession of the flat was taken four years back; and that he and his parents were still living as a tenant at 86 Lok Nayak Apartment, Rohini. It was further stated by him that the flat owned by him and his family members situated at Vasundhara Apartment was lying locked with them. He denied the suggestion that he and his family members did not own or possess any three bed room society apartment in May, 1994. In cross-examination, when he was asked about 110 sq. yards of plot, he stated that the same was allotted to him and his family members by the DDA more than two years back and that he and his family members had asked the DDA to convert a SFS apartment and that his father might be knowing as to whether he had paid the price or not. He, however, admitted that on 25-5-1994 the plot was not in their possession. According to him, the plot was on lease basis. He showed his ignorance whether a lease deed for the plot had been executed in his favour. He, however, denied the suggestion that 110 sq. yards, plot was neither owned nor possessed by him and his family members on 25-5-1994. The father of the appellant appeared as a witness. In his examination-in-chief, he only stated that the appellant was born on 28-12-1964 and that the appellant's salary on 25-3-1994 was about Rs. 8500 per month. He did not state that he or his family members owned a three bed room flat and a 110 sq. yards plot on the date the bio data of the appellant was given to respondent's father, when he could have been the best person to slate so. In his cross-examination, he admitted that as on 25-5-1994 (the relevant date when the bio data of the appellant was given), the society had not given the physical possession of the flat to him. Though he stated that he was member of the society on that date and had paid full amount and that physical possession of the flat was given only 4/5 months back but he did not file any documents relating to any fiat in his name or a plot of land in his name. He only stated that he could produce the receipt of deposits made by him. The statement of the appellant and his father were recorded by the trial Court on 12-1-1996. It is not understandable as to why even on 12-1-1996 the appellant could not file documents to show that he and his family members did own immoveable ' property as alleged. Those documents could be the best evidence. The absence of such documents goes against the appellant.
It is worth to note that the appellant had stated that the possession of the flat had been taken by him and his family members four years back whereas the appellant's father stated that the possession of the flat had been taken by him 4/5 months back. The dates of their statements are same. Thus, it is a major contradiction. The statement of the appellant that he had taken possession of the flat in the year 1992 is false in the face of his father's statement on oath that on 25-5-1994, the society had not given physical possession of the flat and that the physical possession was given only 4/5 months back, that is to say, in or about August, 1995. On the other hand, the respondent has all along been saying that the appellant and his family members did not own any three bed room flat and a 110 sq. yards plot either on the date when the bio data of the appellant was given or on the date when the marriage was solemnized and, therefore, the property status of the appellant's family as declared was false.
I have given my careful consideration to what has come on record relating to this controversy and, I am of the view, that the appellant failed to prove that he and his family members did own a three bed room flat and a plot measuring 110 sq. yards, either when his bio data was issued or when the marriage, was solemnized between him and the respondent. Though the appellant has failed to produce any document to prove that he and his family members acquired a three bed room flat in the year 1995 but even if it were so it would not save the situation because the bio data did not say that the appellant and his family members were expected to acquire a three bed room flat. The bio data specifically, stated that the appellant's family did own a three bed room flat and a 110 sq. yards plot. This declaration has been found to be false.
19. The result is that the bio data of the appellant regarding his salary and property status was inflated and false. Now, it is to be examined whether these inflated and false representations would amount to fraud as to the material facts and circumstances concerning the appellant to entitle the respondent to have a decree of nullity under Section 12(1)(c) of the Act.
20. The learned counsel for the appellant contended that even if the representations made in the bio data were found to be not correct, they would not amount to fraud as to the material facts and circumstances concerning the appellant, so as to entitle the respondent to get a decree of nullity under the aforesaid Act. His contention is that neither the alleged incorrect statements in the bio data are material facts and circumstances nor the appellant committed any fraud on the respondent to take her consent for the marriage.
21. His argument is that the word "fraud" used in Section 12 of the Act should carry the same meaning as has been assigned to it under Section 17 of the Indian Contract Act and therefore, on that touchstone the appellant cannot be held to have committed fraud on the respondent.
22. Therefore, firstly the meaning of the word "fraud" as used in said Section 12 of the Hindu Marriage Act has to be settled. This word has neither been defined in the Hindu Marriage Act, 1955 nor in the General Clauses Act, 1897. It has, no doubt, been defined in the Indian Contract Act but it is to be seen whether the definition given to this word in that Act would be applicable while interpreting Section 12 of the Hindu Marriage Act. This question came up for consideration before a Division Bench of this Court in Rajinder Singh v. Smt. Pomila, , and the following was observed (at pp 298 and 299 of AIR):
"The term "fraud", used in Cl. (c) of Section 12 cannot be given the same meaning as defined under Section 17 of the Contract Act. The expression "fraud" used in Cl. (c) does not speak of fraud in any general way or that every misrepresentation or concealment is fraudulent. A marriage under the Hindu Law is not purely a contract. A reading of Ss. 5 and 7 makes it clear that a Hindu Marriage has both religious as well as secular aspects. Therefore, the marriage has to be treated both as sacrament and as a contract. It is a sacrament because certain customary rights and, ceremonies as described in Section 7 of the Act have to be performed for the completion of marriage. It is a contract as S. 5 deals with the capacity of the spouse to enter into an alliance for a marriage. The words "force" and "fraud" that are contemplated in Cl. (c) of Section 12 are as the nature of the ceremonies or as to the material facts or circumstances concerning the respondent. If the consent of a party to the marriage is obtained by practicing fraud as to any material fact or circumstance concerning the respondent the marriage can be annulled under Cl. (c). The word "fraud" used in this clause connotes deception or misrepresentation. What is a misrepresentation or concealment of a material fact which depends upon the facts and circumstances of each case. The material fact is that vital and important fact which would induce or influence the mind of a party to give or withhold the consent to marry."
Learned counsel for the appellant has not placed before this Court any contrary view given by the Supreme Court. Thus as per the view of this very court the term "fraud" as used in Section 12 of the Hindu Marriage Act cannot be given the same meaning as has been assigned to it under Section 17 of the Indian Contract Act, The word fraud used in Section 12 of the Hindu Marriage Act would only connote deception or misrepresentation.
23. The second point which arises for disposal of this appeal is as to what is a material fact and circumstance concerning the parties to a marriage as envisaged in Section 12 of the Hindu Marriage Act. The material facts and circumstance are those vital and important facts and circumstances which would induce or influence the mind of a party to give or withhold the consent to marry. This would appear to be the intention of the Legislature while enacting Section 12 of the Hindu Marriage Act. Having this interpretation in view it has to be seen as to what would be the material facts and circumstances as envisaged in the aforesaid section. The marriage is a union between a man and a woman and while accepting any person as a husband or wife there are certain vital considerations which are definitely looked into before the parties or their parents give their consent for the marriage proposal. These considerations may be age, educational qualifications, income caste, marital status, family status coupled with financial status, religion or nationality of the other party. They may be termed as material facts and circumstances. This list may not be exhaustive, as between certain parties some other factors may as well be material facts and circumstances depending upon the facts and circumstances of their case.
24. For a girl to give her consent to a marriage proposal unless it is a love marriage, financial status of the other party is quite an important factor. Why? it is because everyone wants to have a comfortable living. For that a level of monthly income and a level of property status of the other party are required. In addition to monthly income of the other party his property status is assuming considerable importance. One needs financial security in time of need to fall back. This level of monthly income and property status would differ from case to case depending upon the status of the family of the girl. Further, if the girl is herself working then it also becomes her aspiration to marry a boy who is earning more than her. A girl would definitely prefer a boy in marriage whose parents have already sufficient landed property and thus she has not to curtail her monthly expenditure for acquiring landed property to fall back in emergent needs. She needs a minimum level of expenditure capacity in the house of her husband. She may not accept a marriage proposal if she does not find the aforesaid.
25. In view of the aforesaid the monthly income and the property status of the appellan can easily be called material facts and circumstance concerning him as envisaged in Section 12 of the Hindu Marriage Act.
26. The next question arises whether declaration relating to the above facts and circumstances given in bio data would amount to fraud if they are found to be incorrect. Earlier common friends and relatives used to be involved in getting the marriages settled and whatever information they used to give to both the parties were depended upon and the marriages were solemnised. If after the marriage any fraud was detected the parties could do nothing as there was nothing in writing. Now marriages are to a large extent being settled through advertisements and exchange of bio data. Joint family living is dissipating and individual units have emerged. The result is that it is rather difficult to ascertain correct facts and the parties are largely dependent upon the bio datas exchanged. Therefore, it becomes very necessary for the parties to issue correct bio datas and to see that the bio datas do not contain any inflated or false information. They have to be very careful about the declarations made therein. Why should there be any false representations, in the bio datas given in writing. Therefore, if as to the material facts and circumstances the representations are inflated or false and the difference or falsity is significant, I see no reason why they cannot be called fraud within the meaning of that term used in Section 12 of the Hindu Marriage Act. However, where the difference or falsity is only trivial, a different view may be taken. It will depend upon case to case. The tendency to give false and inflated informations regarding material facts in the bio datas exchanged in marriage negotiations should be curbed. They are generally given for eliciting better proposals and if the other party is hooked the purpose is served. Therefore, this tendency is not to be allowed to prosper. Benefit of said section must be given to the party which has suffered the fraud.
27. In the present case I find that the bio data of the appellant was given to the respondent's father on 12-6-1994 and on 13-6-1994 both the parties met and the marriage was settled. Soon thereafter the marriage was solemnised on 24-7-1994. These facts and circumstances would indicate that the marriage was settled on the basis of what was stated in the bio datas and what was seen of each other in personal meeting on 13-6-1994. There was no time for any party to ascertain the correctness of the bio data from the sources from which it could have been done. Even if there could have been time for such ascertainment, I am not prepared to excuse a party which had issued a false bio data. The other party could act on the basis of the bio data issued for giving his/her consent for marriage with the other party. If the material facts and circumstances declared in the bio data are found to be false and the falsity is striking the very foundation of the marriage becomes shaky. Mutual confidence is gone. Then what is the purpose of a married life unless the love still remains and the erring party is excused or forgiven. In the present case the falsity on the part of the appellant is significant and can be called deception or misrepresentation. The respondent has not excused the appellant.
28. The marriage between the parties lost its colour even from the stage of its take off and thereafter the bio data of the appellant was also found to be false in certain material particulars. Resultantly, the respondent filed the petition in question for annulment of the marriage on the grounds of fraud.
29. Learned counsel for the appellant also argued before me that the respondent was working in an airlines and she could easily ascertain the monthly salary of the appellant before giving her consent to the marriage. I am not in agreement with this argument. Firstly on the ground that the appellant was working in a private company and if 1 am not incorrect private employers do not give out the terms and conditions of its employees to a stranger. Sometimes even one employee of a company does not know the terms of employment of the other employee. Secondly, considering the status of the appellant's family, his father being a Regional Manager in a Pharmaceutical Concern and his mother being a non-practicing Advocate, no one could believe that the bio-data issued by the appellant's father would be false in material particulars.
30. In view of above discussion I find that the facts of this case are covered by the provisions of Section 12 of the Hindu Marriage Act and the marriage has rightly been annulled by the lower Court.
31. Learned Counsel for the appellant also contended that after the alleged misrepresentations were allegedly known to the respondent she stayed with the appellant for some time as husband and wife and, therefore, the respondent shall be presumed to have abandoned that ground. This argument does not borne out from the facts of the case. There is nothing on record to show that after 12-9-1994 the respondent stayed with the appellant. Rather the evidence is that the respondent had left the company of the appellant since August 1994 itself. In her petition the respondent had stated that she came to know about the alleged fraud only after 12-9-1994. Therefore this argument is not acceptable.
32. The learned counsel for the appellant contended that no serious note of the alleged incorrectness of the bio data of the appellant be taken and the marriage between the parties be sustained. Though the general tendency of the Courts is that the marriage should be sustained as far as possible and this tendency is no doubt good for a laudable object but at the same time the Courts have also to take into consideration that by their reluctance to set aside a marriage brought out by fraud the Courts may be encouraging such false representations in the bio datas issued for attracting better proposals. I am, therefore, I not inclined to accept the contention of the learned counsel for the appellant that the marriage between the parties be not annulled.
33. In view of above the appeal has no force and the same is dismissed with costs. The interim order dated 13-3-1996 stands vacated.
34. Appeal dismissed.
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