Prior to the Marriage Laws Amendment Act of 1976 Clause (c) of Sub-section (1) of Section 12 of the Act read as under : "That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud." The words 'force' and 'fraud' have not been defined in the Act. Section 17 of the Indian Contract Act defines the word 'fraud' in the following terms :- Fraud-means & includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :- (1) The suggestion, as to a fact, of that which is not true, by one who does not believe in to be true, (2) the active concealment of a fact by one having knowledge or belief of the fact ; (3) a promise made without any intention of performing it ; (4) any other act fitted to deceive ; (5} any such act or omission as the law specially declares to be fraudulent. Explanation-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such (hat, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself equivalent to speech. The term 'fraud' used in Clause (c) cannot be given the same meaning as defined under Section 17 of the Contract Act. The expression 'fraud' used in Clause (c) does net 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.Section 5 & 7 of the Act makes it clear that a Hindu Marriage has both religious as well as secular aspects. Therefore, the marriage leas 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 Section 5 of the Act deals with the capacity of the spouse to enter into an alliance for a marriage. The words 'force' and 'fraud' that are contemplated in Clause (c) are as to 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 Clause (c). The word 'fraud' used in this clause connotes deception or misrepresentation. If there is a misrepresentation or concealment of a material fact concerning the respondent then the provision contained in Clause (c) would definitely be attracted for anulling the marriage. What is a misrepresentation or concealment of a material fact 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. The fraud or misrepresentation need not necessarily be at the time of marriage, it can be one made even before marriage. In our opinion the pre-marital status of a party is a material fact which the other party must know before imparting consent for marriage. It may not be a very vital factor when both the parties are divorcees or there is a history of both of them being previously married. But in a case where one of the parties is previously married and the other is unmarried it becomes a relevant aspect to be considered by the party who is unmarried. A party is under an obligation to disclose whether he was previously married or not. If so, what is the position of the previous spouse? In the present case the appellant is contending that he had legally divorced the first wife, Balbir Kaur by means of a customary divorce but on the other hand Balbir Kaur is asserting that she is still the legally wedded wife of the appellant and there was no legal divorce. The appellant was obliged to disclose to the respondent about the factum of his previous marriage and the alleged divorce by custom. If any. This is an admitted case of the parties that the respondent was a virgin. The previous marriage of the appellant with Balbir Kaur was a material fact concerning the appellant which was intentionally suppressed and was not disclosed to the respondent. The case of the respondent is that she was a virgin and she would not have consented to marry the appellant had she known the fact that the appellant was previously married to Balbir Kaur.
(2) The facts giving rise to this appeal are that the appellant, Rajinder Singh married Smt. Pomila, respondent on 3-5-1981 according to Hindu/Sikh reties and ceremonies. The respondent filed a petition under Section 11 read with Section 5(1) and Section 12(l)(c) of the Hindu Marriage Act for declaring the marriage between the appellant and the respondent null and void. The petition proceeded on the allegations that the marriage between the parties was solemnised at Delhi on 3-5-1981. No child was born out of the wedlock. It is averred that after the solemnisation of the marriage the respondent stayed with the appellant as his wife at House No. D-7, Rajouri Garden, New Delhi for about 4 days. Thereafter the respondent stayed at Delhi with her parents while the appellant went back and joined his duties in District Jalandhar. It was further stated that the respondent came to' Delhi on 25-5-1981 and the parties left for Goa on 27-5-1981 and stayed for about 20 days at the house of the elder sister of the respondent. The parties returned to Delhi on 21-6-1981 from Goa. Thereafter the appellant again joined the School duties in District Jalandhar while the respondent remained at her parent's house. The appellant again came to Delhi around 1-7-1981 and took the respondent with him on 6-7-1981 to his parental house at Village Aur in District Jalandhar where the parties resided for about a week. The respondent came down to Delhi on 13-7-1981 and joined her school on 15-7-1981. The allegations proceeded further that on 22-8-1981 the appellant came to the house of the parents of the respondent and stayed up to 28-8-1981. It is stated that Smt. Balbir Kaur D/o. S. Mahna Singh of Village Bada Pind, near Phillaur, Distt. Jalandhar came to Delhi Along with her aunt and on 28-8-1981, informed the respondent, her brother and parents, through S. Lachhman Singh Nagar of Sant Nagar, New Delhi that Balbir Kaur was already married to the appellant and her marriage with the appellant had taken place on 7-5-1975 at Bada Pind and their marriage was still subsisting. It is stated that the respondent was completely taken aback and shocked to know that the appellant was already married and that the precious life of the respondent had been ruined fraudulently by the appellant. It is further stated that they talked to the appellant immediately on 28-8-1981 who admitted his previous marriage with Smt. Balbir Kaur and left the house of the respondent's parents on the same day. The grievance made in the petition was that the consent of the respondent was obtained by fraud as to the material fact and circumstances concerning the appellant. The appellant never told the respondent about his previous marriage with Smt. Balbir Kaur and had the respondent knowledge of such marriage she would never have married the appellant. It was further alleged that the respondent learnt that the appellant on 21-7-81 had once again responded to an advertisement for a suitable boy in the matrimonial columns of "THE TRIBUNE". Reliance is placed upon the reply of the appellant in response to that advertisement which was sent to Box No. 4643 on 13-7-1981. On these allegations the declaration was sought that the marriage between the parties be declared null and void.
(3) The appellant contested the petition and filed his written statement in opposition to the petition. The factum of marriage between the appellant and the respondent was not denied. It was stated that the marriage between the appellant and Smt. Balbir Kaur was not subsisting. The marriage was dissolved on 19-5-1976 before the Sub-Registrar of Nawanshahar, Punjab according to the custom prevailing amongst Jat Sikhs of Jalandhar District, Punjab. Reliance was placed on a registered document dated 20-5-1976 which was claimed to be duly attested by the Sdm, Nawanshahar. It was further stated that during the exchange of information and pre-martial enquiry for the particulars of the parties the documents of divorce were shown to the respondent and other members of her family. The father and brother of the respondent were satisfied regarding the divorce. To sumup, the case of the appellant as disclosed in the written statement was that the respondent and her parents were fully aware that the marriage between the appellant and Balbir Kaur had been dissolved by a decree of divorce according to customary law and the question of suppression of material facts did not arise at all. It was denied that the consent of the respondent was obtained by fraud. The allegations that the appellant again applied in response to a matrimonial advertisement were denied and the stand taken was that the appellant did not send any letter on 13-7-1981 to any third party in response to any advertisement, The claim of the respondent for declaration that the marriage solemnised between the parties was null and void was repudiated. It was also alleged that the petition was a counter-blast to the petition filed by the appellant under Section 9 of the Hindu Marriage Act in the Court of Senior Sub-Judge, Jalandhar.
(4) The respondent filed replication, reiterating what had been stated in the petition and denying the case set up by the appellant. On the pleadings of the parties the trial Judge framed the following issues :-
1. Whether the fact of previous marriage and its dissolution was not notified by the respondent to the petitioner and her consent obtained by fraud ? If so, to what effect ?
2. Whether the marriage of the respondent with his first wife Smt. Balbir Kaur was validly dissolved on 19-5-1976 as alleged by the respondent ?
(5) Before the parties could read evidence on the issues framed, an application under Order 12 Rule 6 read with Section 151 Civil Procedure Code was filed on behalf of the respondent claiming a decree on the basis of the admission made by the appellant. It was stated in the application that the appellant during the pendency of the petition had himself admitted the existence of his marriage with his first wife Smt. Balbir Kaur in a petition which he had filed on 4-5-1982 under Section 13 of the Hindu Marriage Act for dissolution of his marriage with Balbir Kaur on the ground of desertion. In reply to this application the appellant admitted having filed a petition against Balbir Kaur for dissolution of marriage in the court of District Judge, Jalandhar on the ground of desertion. Further it was alleged that the petition filed by the appellant was misconceived which was subsequently withdrawn with the following statement :-
"MY marriage with the respondent stands already dissolved by divorce in pursuance of the custom with which the parties are governed and embodied in the deed dated 19-5-1976. This petition has become therefore, redundant. In these circumstances I withdraw this petition and the same be dismissed as withdrawn."
(6) The trial judge heard arguments on the application of the respondent under Order 12, Rule 6 and came to the conclusion that there was admission by the appellant that the marriage between the appellant and Balbir Kaur was subsisting and as such the respondent was entitled to the relief claimed for in the application. Consequently the application succeeded and the marriage of the parties was annulled by a decree of nullity under Section 12(l)(c) read with Section 5(1) of the Hindu Marriage Act (hereinafter referred to as the Act). Aggrieved by this order the appellant preferred first appeal in the High Court at Delhi which was dismissed in liming on 1-3-1982 by a speaking order. The appellant was not satisfied with the order of the learned Single Judge and he preferred this Letters Patent Appeal which is before us for decision.
(7) The appeal was admitted by a Division Bench of this Court on 1-11-1983. On 16-4-1984 the Bench framed the following issue :- .
"WHETHER Rajinder Singh was previously married and whether this fact stood disclosed to the respondent, her father and any of her relations."
The burden of proof was placed on the appellant because it was his case that the factum of his previous marriage was disclosed to the respondent and her parents. The parties were given liberty to lead evidence on the above issue. The evidence was recorded by the Deputy Registrar of this court.
(8) We have heard the learned counsel for the parties at length and have gone through the record of the case. There are certain more facts which need be mentioned for the decision of this case. Balbir Kaur is denying the factum of divorce by custom as alleged by the appellant. Her case is that the marriage between her and the appellant is still subsisting and there had been no divorce. On 20-9-1981 the appellant also filed a suit at Nawanshah 'ar, District Jalandhar for declaration to the effect that the marriage between him and Balbir Kaur stood dissolved by means of a customary divorce. The suit was dismissed. The appellant is stated to be pursuing the matter further in appeal. Balbir Kaur also filed a criminal complaint under Section 494 Criminal Procedure Code against the appellant. In those proceedings the appellant was convicted and sentenced rigorous imprisonment for one year. On appeal the appellant claims to have been acquitted.
(9) In support of his contention the appellant has led oral as well as documentary evidence. He produced five witnesses. He has examined himself as A.W. 3 and stated that he got married on 7-5-1975 to Balbir Kaur and she lived for only one month with him and he divorced her on 19-5-1976 by executing a deed before a Tahsildar. He also produced 15 copies of unilateral divorce-deed executed according to Jat Sikh community of Jalandhar. He further stated that told S. Pritam Singh, father of the respondent in the presence of Rajinder Singh Dhillon and the respondent orally as well as in writing .hat he was a divorcee and his first marriage stood dissolved since 19-5-1976 is per the divorce-deed executed according to the custom prevalent amongst the Jat Sikhs. He admitted to have sent a printed bio-data dated 16-11-1980. He also stated that the words 'and divorcee' were written by him when he sent the bio-data to the father of the respondent. He further stated that Rajinder Singh Dhillon, brother of the respondent came to their village on 1-1-1981 with the printed bio-data letter dated 16-11-1980 and Rajinder Singh Dhillon was told by him, his father, maternal uncle, Jagchanan Singh Sandhu and his younger brother Sukhvinder Singh that he was a divorcee. It is also stated that they showed him the divorce deed also at that time. In his statement he further narrated that on 6-1-1981 his father received one letter from S. Pritam Singh and in that letter Pritam Singh had mentioned the old relationship with them I also stated 'No objection if Rajinder is divorcee.'
(10) The next witness is AW-5 Shiv Dayal Singh, father of the appellant. He supported the case of the appellant by stating that the appellant married Balbir Kaur on 7-5-1975 and she was a quarrel some lady and did not abide by the wishes of the appellant. She left the village without their consent and went back to her parents. She stayed with them hardly for a month. She was divorced by getting a deed registered with the Sub-registrar, Nawanshahar. It was also stated that the words 'and divorcee' were there in the bio- by the dated 16-11-1980 when this document was filed in court on 27-11-1980 the respondent. He further stated that when Rajinder Singh Dhillon and S.S. Sohal had come to his village Aur on 1-1-1981 Rajinder Singh Dhillon told them that he had verified from Jagtar Singh that Rajinder Singh was a divorce. He showed the divorce deed to Rajinder Singh Dhillon in the presence of his sons-Rajinder Singh and Sukhvinder Singh and his brother-in- law Jagchanan Singh and one Harjeet Singh whereby divorce had been given to Balbir Kaur. He further stated that in the letter dated 6-1-1981 written by the father of the respondent the words 'No objection if Rajinder is divorcee' existed in the letter from the very beginning.
(11) The next witness is Shri Jagjit Singh who stated that Shiv Dayal Singh is his mother's sister's husband. He also testified that Rajinder Singh divorced Baibir Kaur on 17-5-1976 and Rajinder Singh had sent a letter under certificate of posting on 21-5-1976 to Baibir Kaur. The writing regarding divorce was also got registered with the Sub-Registrar on 19-5-1976. He further stated that Rajinder Singh Dhillon came to Village Aur on 1-1-1981 Along with his brother-in-law, S.S. Sohal. He stated that he was in Village Aur at that time and that his maternal uncle Jagmohan Singh, Shiv Dayal Singh and Rajinder Singh and Sukhvinder Singh were also there. All of them told Rajinder Singh Dhillon and S.S. Sohal that Rajinder Singh had divorced his first wife Baibir Kaur. He further stated that Rajinder Singh Dhillon had brought with him a letter dated 16-11-1980 which was written by Rajinder Singh to Pritam Singh. It had been made clear in that letter that Rajinder Singh was a divorcee. Aw 7 is Shri Jagchanan Singh who stated that Shri Shiv Dayal Singh was his brother-in-law and that Rajinder Singh was first married with Baibir Kaur on 17-5-1975 and on 19-5-1976 Rajinder Singh gave her divorce unilaterally. The divorce deed was reduced to writing and was got registered with the Sub-Registrar, Nawanshahar. Rajinder Singh sent an intimation to Balbir Kaur under certificate of posting. He testified that Rajinder Singh Dhillon and S.S. Sohal came to them on 1-1-1981 and they had brought with them a letter dated 16-11-1980. The words 'and divorcee' in that letter were also there. It has also come in his statement that Shiv Dayal Singh had shown the letter dated 6-1-1981 to him. The words 'No objection if Rajinder is divorcee' were there. He further stated that in 1977 Pritam Singh and Shiv Dev Singh, father of Major Rattan Singh had come to his residence. Pritam Singh had enquired if Rajinder Singh was a divorcee and as to whether he had married a second wife. He told them that Rajinder Singh had not married second time. He also informed Pritam Singh and Shiv Dev Singh that Rajinder Singh had given divorce to his first wife Baibir Kaur. He further stated that Gurcharan Singh, his maternal uncle lived in Rana Pratap Bagh in 1978. In his house also Pritam Singh had enquired from him whether Rajinder Singh had married second time, to which the witness replied in the negative. The statement further proceeded that Pritam Singh met him in Nawanshahar in January, 1980. At that time also he had enquired whether Rajinder had married a second wife and he gave reply in the negative. In the cross-examination he further stated that he met Pritam Singh in 1977 and the matter regarding divorce of Rajinder Singh was discussed 4/5 times with Pritam Singh. Pritam Singh had stated that since Rajinder Singh was an educated person he would like his daughter to be married with him. He advised that he should contact Shiv Dayal Singh. The contact was made in January, 1980.
(12) AW8 is Gurbax Singh. He stated that Rajinder Singh was married to Baibir Kaur on 7-5-1975 and Balbir Kaur went to her parents on her own accord and after a year Rajinder Singh divorced her on 19-5-1976. He stated that he met Pritam Singh in Batala in 1980 and enquired from him whether his nephew Rajinder Singh had married. I told him that Rajinder Singh had married Balbir Kaur in May, 1975 and that because of certain differences between the two Rajinder Singh had divorced her. On further enquiry he told him that Rajinder Singh had not married second time. '
(13) The respondent also led oral as well as documentary evidence. She examined five witnesses. Rw 1 is Pritam Singh, father of the respondent who testified that he advertised in the "TRIBUNE" for the marriage of his daughter and he got a letter from :he appellant in response to that advertisement. He had no contact with the appellant side prior to that. He stated that the words 'and divorcee' written in ink in hand were not there at that time when he received the letter. He stated that the letter was filed in the trial court and even at that stage the words 'and divorcee' were not there. It is in his statement that when the matter came up for reconciliation before the court the appellant's counsel in the trial court pointed out these words in the letter Ex. Aw 3/1 and at that stage it was found that addition had been made by the appellant side in the trial court after the letter had been filed. He filed a photo copy of the letter in which these words did not exist. He testified that if he had known that the appellant was a divorcee he would not have entered into any negotiations with them for the marriage of his daughter. The respondent was virgin and no member of his family would have agreed to marry her to a person who was a divorcee. He stated that he had no relationship with the appellant side prior to the marriage of his daughter and they were not known to him before that. He stated that Shiv Dayal Singh visited their house Along with Mr. and Mrs. Piara Singh on 25-1-1981 and the father of the appellant did not disclose at that time or at any other time that Rajinder Singh, appellant was married earlier and was a divorcee. On the day of marriage also the appellant side did not mention the fact that the appellant was a married man or a divorcee. If they had mentioned that fact he would not have married his daughter with the appellant. No divorce document was shown to him at any stage from the appellant side. He further stated that when he admitted the letter dated 6-1-1981 in the trial court on 10-2-1982 the sentence 'no objection if Rajinder is divorcee' and the other overwritings in the other portions of the letter were not there. On other aspects he supported the case of the respondent. Rw 2 is the respondent herself who stated that when the bio-data of the appellant was received the words 'and divorcee' were not there. They had no relationship with the appellant's family before the receipt of that letter. She asserted that when the bio-data letter was filed in the court of Additional District Judge the words 'and divorcee' were not there. Had they known that the appellant was a divorcee her parents would never have agreed for the marriage. She herself would not have agreed for the marriage. She supported the allegations made in the petition. She further testified that the words 'no objection if Rajinder is divorcee' in the letter dated 6-1-1981 were not in the hand other father. The words 'and divorcee' are stated to be added by the appellant after the letter was filed in the court. Rw 3 is Smt. Balbir Kaur, the first wife of ' the appellant. In her statement she stated that she was married to Rajinder Singh on 9-5-1975 and she was not divorced by the appellant. Rajinder Singh also filed a petition for dissolution of marriage on 4-5-1982 in the court of ' Additional District Judge, Jalandhar on the ground of desertion and she contested that case and filed the written statement. They were called for reconciliation by the Additional District Judge and the appellant thereafter withdrew that ease. She further stated that the appellant had filed a suit for declaration against her in the court of Sub-Judge, Jalandhar which was dismissed on the ground of jurisdiction. Thereafter another suit for declaration to the effect that the parties had been divorced was filed in the court at Nawanshahar. That suit was. also dismissed on 4-4-1984. She came to know about the second marriage of Rajinder Singh with the respondent in the last week of July, 1981. She met the respondent at her residence on 28-8-1981 at Kalkaji. On her enquiry she was told that Rajinder Singh had been married according to Sikh rites to the respondent. When she told them that she was already married to the appellant they were shocked to hear that. She told them that she had not been divorced by Rajinder Singh. She further told them that Rajinder Singh was trying to marry for the third time. The next witness is Rw 4, Rajinder Singh Dhillon, the brother of the respondent. He stated that when the biodata was received from the appellant the words 'and divorcee' were not there and these words were added subsequently when the letter was filed in the court. He further stated that the appellant side never told them at any stage that the appellant was already married and was a divorcee. Had they told them they would not have married their sister to the appellant. He further stated that the words 'no objection if Rajinder is divorcee' were not in the hand of his father. He never visited Shri Mohan Behari Lal, Advocate on any date for consultation purposes or for any other purpose. He also supported the case of the respondents on other aspects.
(14) Shri Pritam Singh, father of the respondent had advertised in 'THE TRIBUNE' for the marriage of his daughter. In response to the advertisement a letter was received from the appellant which is Ex. Aw 3/1. By this letter the appellant had furnished his particulars. For the sake of convenience this letter is reproduced herein below (the entire letter is printed except the portion which is underlined herein) :- "Dear Sardar Sahib, Aur Dated 16-11-1980. Sat Sri Akal. I hereby furnish my particulars as under in accordance to your advt. in the Tribune of 16-11-1980 regarding matrimonial alliance. Myself:- Age-26, Ht. 6' 00" Educational QUALIFICATIONS: 1. B. Sc. in 2nd Division ; 2. B. Ed. in 2nd Division ; 3. M. Sc. in 1st Division ; 4. Mechanical Engineering in 1st Division ; 5. Doing Doctorate degree now and going to U.S.A. by getting job; 6. At present, I am in Govt. job and my pay is Rs. 900- per month nearly. Having an excellent and conspicuous personality and athletic look. Family :- Jat Sikh Jagirdar family of Distt. Amritsar and Gurdaspur-well connected both to military and civil sides "and to the Punjab Chiefs. It consists of father, mother, 3 sons and 2 daughters. Father is a M.A. and Ex Principal, now supervising his own land farm of 60 acres near Gwalior and also in Punjab. Mother is undergraduate and Jat Sikh Sandhu by caste. She belongs to Wadala Sandhuan Family (Punjab Chiefs), now in Pakistan. One sister is B.A., B. Ed. and married, other is M.A. English and Lecturer in College. One brother is doing Pre-medical, other is a student of 8th class. I the eldest son, and divorcee. Sub Caste - The sub caste of the family is Jat Sikh "SARAH". Incase the above particulars suit you then please reply so as to proceed further. With kindest regards and best wishes. Yours Sincerely, PI. reply with recent snap for our view ------- (returnable) and write correct age ? ------- The underlined portion in the letter Ex. Aw 3/1 is written in hand. This document was filed by the respondent on 16-11-1981 before the Additional Distt. Judge, Delhi, where her petition for divorce was pending. The case of the appellant is that the words 'and divorcee' were written by him at the time when this letter was dispatched. On the other hand the case of the respondent is that the words 'and divorcee' were later on added after this document was filed in Court.
(15) We have given our careful thought to the respective contentions of the parties and we have come io this conclusion that the words 'and divorcee' were added later on and were not there at the time when this letter was sent to the father of the respondent. The reason is obvious. The respondent had filed the petition on the ground that a fraud had been practiced on her by not disclosing the factum of previous marriage of the appellant with Balbir Kaur. This document was very crucial. If the words 'and divorcee' were there when the letter was sent by the appellant to the father of the respondent then there was no occasion for the respondent to file this document because it had the effect of demolishing her entire case. This is not the case where this document was got produced by the appellant from the respondent by means of a notice or through the order of the court. It was done by the respondent of her own volition. It does not appeal to reason that the respondent would file a document which would go deadly against her and would non-suit her. There are other important aspects which would show that the words 'and divorcee' did not exist at the time of filing of this letter. A photostat copy of this letter dated 16-11-1980 was also filed subsequently in order to show that the words 'and divorcee' were added later on. In the photo-copy the words 'and divorcee' do not appear. It is surprising that such an important and vital point was not mentioned in the written statement. It would have been the mainstay to the defense of the appellant. In the written statement it was nowhere slated that the appellant had expressly stated in the bio-data that he was a divorcee. The conduct of the appellant after marriage with the respondent would also negative his contention that words 'and divorcee' were there at.the time of writing the letter dated 16-11-1980. In the petition the respondent has stated in paragraph No. 9 that the appellant again applied to 127 some party who had advertised for a suitable boy in the matrimonial columns of 'THE TRIBUNE' of 5-7-1981. The reply of the appellant to Box No. 4643 of the said advertiser was by his letter, the envelope of which bears the postal stamp of 13-7-1981. It was stated that the appellant again wanted to have matrimonial alliance with another girl which also shows that the appellant was posing again as unmarried and was trying to defraud and cheat another innocent girl. In the reply the appellant denied all these allegations. Aw 3/12 is a photostat copy of the letter written by the appellant in response to a matrimonial advertisement. It reads as under :- "Dear Sardar Sahib, S.S.A. Wrt. yours' advt. in The Tribune I give below my particulars as under:- Age-26, Ht. 6'-0" Educational Qualification: 1. M. Sc. in 1st Division ; 2. Mech. Engg. in 1st Division ; 3. Doing Ph. D. now. Family:- Father : Jat Sikh "Sarah". Now supervising his land farm. Mother:- Jat Sikh "Sandhu", belongs to Punjab's Chiefs family. One brother is doing medical and other is in S.S. Kapurthala. If above particulars suits you then please reply so as to proceed further at following address (where I am posted in Govt. job and getting Rs. 1,000 p.m.). With regards, Yours sincerely, sd/- Rajinder Singh, M. Sc. Govt. High School, V.P.O. Pasla, near Phillaur, Distt. Jullundur, (Pb.)". . Photostat copy of the envelope under which this letter is stated to have been sent is Ex. Aw 3/13. The respondent had stated that the appellant, after her marriage was trying to marry another girl. The case of the appellant is that the letter was sent in response to an advertisement appearing in 'THE TRIBUNE' of 1-3-1981 against box No. 1643F.
(16) We have perused the photo copy of the envelope which bears the date 13-7-1981. I he stand taken by the appellant is obviously unsustainable. We are convinced that this letter was dispatched on 13-7-1981. It is surprising that the appellant had sent this letter in response to an advertisement appearing in March, 1981 after a period of 4 months. The explanation is not convincing. There can be no other conclusion except that this letter was sent on 13-7-1981 in respect of box No. 4643. This letter also shows the conduct of the appellant that he wanted to marry another girl and it is pertinent to note that in this letter there is no mention that the appellant was a divorcee. The explanation put forward by the appellant that he had sent this letter in response to an advertisement by a widow and there was no occasion to mention the word 'divorcee' is most unconvincing. It lends support to the case of the respondent that the words 'and divorcee' did not exist at the time when the letter dated 16-11-1980 was sent to the father of the respondent.
(17) The oral evidence led by the appellant to the effect that when Rajinder Singh Dhillon had come to Village Aur on 1-1-1981 he had this letter with him and the words 'and divorcee' were there does not inspire any confidence. All the witnesses produced by the appellant on this aspect are interested witnesses and their statements cannot be believed. We are of the considered opinion that the words 'and divorcee' had been added later on after this letter was filed in court.
(18) The next letter is Ex. Aw 3/4. This letter was written by Pritam Singh father of the respondent to Shri Shiv Dayal Singh, father of the appellant This letter was filed in original by the appellant in the court of Additional District Judge on 10-2-1982. This letter was admitted by the father of the respondent. There is a serious dispute between the parties that the words 'no objection, if Rajinder is divorcee' were added by the appellant and these words did not exist when the letter was written to the father of the appellant. The entire letter is reproduced for the sake of convenience. The words 'No objection if Rajinder is divorcee' are underlined : "Dear Brother, 6-1-1981. Sat Sri Akal. Last evening on my return home I received the good news about the receipt of your kind letter of 4th instt. We are happy and thank you very much for conveying your desire to give concrete shape to the mutually agreed proposal of creating the relationship. It is further heartening to know that we are also connected from your in-laws' side. I have a feeling that we would be giving new shape and content to the already created relationship by our elders, it would be a sort of renewal. I pray, God may bless both the families. About the further programme we have already left the matter to your sweet will and convenience. I gave a bit of my mind that we should move according to the times and everybody agreed and appreciated that. You know, brother, that in earlier times all the carriages were arranged marriages. With the spread of education times have changed and change is the law of nature. You would agree that we are now passing through a period which can be termed as arranged-cum-approved marriages period. One may like it or not but one has to move with the times. Personally I feel that it is good because the responsibility of parents gets very much lightened. Once the would be life partners approve each other the rest becomes easy. So would it not be prudent turn us both to acquire that sense of relief and case. That is what I am aiming at and certainly you will bear me out in this. The revelation of our older connections has strengthened my desire that every member of your family, without exception, may kindly make it convenient to give us the pleasure of their company at our place. It would be an honour to us. I am going to my in-laws to attend a marriage. From 11-2-1981 to 14-2-1981 I would be away. On 15th (Sunday) morning I will reach back home. You are welcome any day you may find it convenient to come Along with all the members of the family. Three of my elder daughters are here and one son-in-law (son of S. Shivdev Singh) is also here. So everybody would be pleased to meet everybody. It would be a good time I feel. No objection if Rajinder is divorcee. About the further programme and how to proceed further it is entirely up to you. We can do as be convenient to you. So we would be waiting to hear from you in this respect. Meanwhile please convey my sincere regards to dear sister and love to dear young ones. with deep regards. Yours Brotherly, sd/- (P.S. Dhillon)" During the bearing of the L.P.A. the counsel for the respondent brought to the notice of the Bench that not only there was interpolation made by the appellant in the letter dated 16-11-1980 but also there was interpolation in the letter dated 6-1-1981 purported to have been written by the respondent's father. He further stated that the interpolation in the letter dated 6-1-1981 had been made after the dismissal of the appeal by the learned Single Judge However, the counsel for the appellant had denied the complaint made on behalf of the respondent regarding interpolation in the letter dated 16-11-1980 and in the letter dated 6-1-1981. Counsel for the parties were given time to file affidavits in support of their respective contentions. We have considered this matter very carefully. In our opinion there seems to be interpolation by adding the words "No objection if Rajinder is divorcee". .If we read the entire letter it would show that where the words 'no objection if Rajinder is divorcee' have been written is quite out of context. This was a very important factor and it should have been written in the body of the letter in some understandable manner with proper background. We have also noticed the words and they look to be of a different handwriting. No doubt the parties have produced experts to support their respective contentions but from the appearance it is obvious that these words had been added by somebody else and not by the same writer. The counsel for the respondent staled that these lines were added after the disposal of the first appeal by the High Court. His contention is that nowhere before the trial court or before the learned Single Judge reliance was placed on this very important fact and no such mention was made in the written stalement. However, we find from the record that these words 'No objection if Majinder is divorcee did exist before filing the same in court We get support from the photostat copy of this document, which was filed in court on 10-2-1982. In that photostat copy also these words "No objection if Rajinder is divorcee' do appear. Moreover there is a statement by the counsel for the appellant, Shri Mohan Singh, who stated that the original document was produced in the court of Shri R.D. Aggarwal for the purpose of admission/ denial Along with other documents. It was shown to S. Pritam Singh, father of she respondent for admission/denial. S. Pritam Singh checked up and admitted the same in the court and his endorsement to that effect appears on it. He further stated that before showing this letter in the court he had himself read the same to know what it was about. The sentence 'No objection if Rajinder is divorcee' was there. From the evidence we do find that the words 'No objection if Rajinder is divorcee' were there when it was filed in court on 10-2-1982. However, as we have held earlier that the words 'No objection if Rajinder is divorcee' seem to have been added later on when the document was in possession of the appellant. He could write anything he liked because this letter remained with him for about a year or so.
(19) The case of the respondent is that on 28-8-1981 when Balbir Kaur informed them about the factum of her marriage with the appellant they were shocked and the appellant was confronted with that fact. The respondent's case further is that thereafter they had broken all the relations with the appellant. There are two letters dated 12-9-1981 and 15-9-1981 which were written by the appellant to the respondent and her brother which have also a bearing on the controversy involved. The letters are reproduced for the sake of convenience: "My dearest Pomila Sarah and Daddyji, Pasla 12-9-1981. Sat Sri Akal. I am O.K. here and wish you the same. Few days back I applied for job of Math/Science in by sending my resume at following schools as informed by "Overseas Employment and Education Information Service, P.O. Box 3364) Erie, Pennysylvania 16509 U.S.A." acc. to my Regd. No. SE-Edt. S-14372 due to some vacancies :- 1. Barnesville School, Maryland 20838 U.S.A. 2. St. Michael Grammar School, 3182, U.S.A. 3. Laurison Girls Schools, 3143 Victoria, Australia. 4. Braehm College, Victoria 3442, Australia. 5. Wesley College Malbourne, Victoria, Australia. 6. Carey Baptist Grammar School, Victoria, 3101, Australia. 7. 63, Venice St. Mentone, Victoria 3194, Australia. 8. Elthan College, 3095, Victoria, Australia. 9. Montclair College, C.A. 91406 U.S.A. 10. Alka 3298...Los Angeles C.A. 90034, U.S.A. 11. Immasulate Heart College, Victoria 3072, Australia.
12. Director of Personal Services...Texas...78852 U.S.A. and I have received job letter from one School of U.S.A. and sure will receive from others also. After my settlement in U.S.A. I like you (Mrs. Pomila Sarah) also to settle with me in life (as life is much better than India and we will be having no problem due to my previous wrong marriage 7 years ago) as we have got married and I can never think life like now (separate) in future i am sure you will be happy and will co-operate me in future life and then only every problem will be solved after some time. Similarly I am sure we will receive reply from Kenya also where we applied both, for job of tr. in school. Because rules for Divorce & Marriage are entirely different in foreign countries like U.S A., Kenya, etc. and we can live secretly for 2/3 years and everything will be O.K. after it. Whatever happened up to now is all due to my mistakes-I think and due to Divorce document as I was not sure whether totally right or wrong. Most of people were telling me it is right therefore, 1 committed mistake and told some secret of mine to Mr. Satnam Singh Tr. in primary school, Pasla who was my friend and he told those things to Barapind and exploited such of them. I am sure they are nothing and will do nothing in future, and had to suffer a lot. In future there will be no mistake and everything will become alright. To err is human. Please excuse me. I am also sure they are nothing and will and can do nothing in future, as they can't do from last 7 years. Only one old (50 years) brother and 40 years sister are in their family and no maternal and parental relatives at all. There can be so many solutions to our problem of settlement in life if it is sure now that Divorce document is not correct at all. Recently I got interview letter for lecturer in Matins from D.A.V. College, Sadhura (Ambala). I am sure I will be selected and will leave this area secretly and we can meet at Ambala easily at your's elder sister's residence (Bibi Surinder Bajwa ji) after a week or two for Saturday, Sunday as desired by you and address already written to me in your previous letters, and then both will solve our settlement problem better. We are both post-graduates, highly qualified, and can get job easily. Please do write me. Is it not better we meet at Ambala Cantt. after a week or two on any Saturday and Sunday and solve our problem (let there be love only and no marriage and issue for 1 or 2 years until we do not settle well in life) and get correct divorce document or any solution within this period. I think 'Nothing is impossible in this world' for me and myself is M. Sc. 1st. Class and Lion of Punjab and belongs to Pb. Chiefs family, can solve everything in life and can do everything for you as we have got married and got blood relation and you are mine and I am yours only. If we both co-operate and 'solve this problem we can do it within some days or months etc. We can also pass some months at some place like Goa, Bhopal, J&K, Ambala, etc. by getting with pay Cm leaves) etc. ..If one or two years passed then everything will become alright, & nothing to worry, I have got 7 years separation from 1st marriage from 1st day as my first marriage was cheating done by middleman because girl was totally black: coloured, not shown to me at all, 10 years overage, rude behaved and character less, etc. medically unfit, etc. and everybody in his village is interested in her divorce from me and moreover she is living separately from his brother also. Anybody living separate for more than 3 years is always considered divorce and can get divorce within few months and I will get within few days due to rewaj in Jullundur distt. Jat Sikha & 7 years separation, I am living in Jullundur Distt. from last 30 years in Village Aur. Nothing to worry, please, everything will be solved in future. Better meet me once at Ambala Cantt. & write me once and you all are highly qualified and rich etc. well settled in life. Please write any other correct solution if any, according to you all. Nowadays, I am busy to get divorce signed from Panchayat or in applying to Sessions Judge, Jullundur as my friend who is Major in Army of Village near Aur (Mehrampur) has got married second time whereas his first case of divorce is going on in Court. It is a rule one can get second marriage if his first case for divorce is going on in court. Similarly my friend Major Sahib's case & I have also seen many other cases like this. Nothing wrong happen only you are (Mrs. Pomila Sarah & her parents) are to co-operate me for some time. Therefore, try to your best to make better life of both (Myself & Pomila) either by not showing or (let it to be not proved of second marriage) when we both parties will cooperate and say we have done no marriage, how other can say yes ? and can prove ? & who bothers for them We have done no registered marriage-only photos are required to spoiled or burnt up, etc. Note It (1) I will try my best to solve or get divorce by getting cooperation of my Maserji of Sardar of Mukandpur & Mammaji etc. and inform you soon the progress, wait only few days please. Now write me soon in order to avoid worry and anxiety of mine in future Now I never sleeps all the nights and cannot live without seeing you please. What will be happening with you ! In future there will be no mistake from my side and I will improve my behave also and will solve and live happily and enjoy our married life better etc...............Convey my S.S.A. to dearest cider brother Rajinder Dhillonji & Surjitji & others and love to youngers. Yours only for ever. sd/- Rajinder Singh Sarah, M.Sc." Letter dated 15-9-1981 (Ex. Aw 3/5) reads as under :- "Pasia 15-9-1981. My dear brother Rajinder Dhillon, S.S.A. I am O.K. here by the grace of Almighty and wish you all the same, Yesterday while coming back from Chandigarh I tried to talk to you . on telephone from Birowal. For whether I should correct more my divorce document by applying in Sessions Judge, Jullundur court or not and yours views & whether you will co-operate me in saying we both parties have done no marriage and will not give any proof of photos, etc. Then nobody can do anything & we will be able to get pacca divorce within few months or at the most a year. But on the other hand rewaj (custom) for Hindu Jat Sikhs of Jullundur distt. ace. to regarding one sided divorce is 100% correct & nothing to worry for you please, that is why Tehsildar and S.D.M., Nawanshahar has signed on Rs. 33 Astam papers which clearly states as on page 142 of Air 1968 SC. "That there exists custom (rewaj) between Hindu Jat Sikhs of Jullundur distt. in which husband can divorce wife and divorced wife can remarry in the lifetime of her husband etc." Only due to this rewaj in Jullundur distt. & now extended in surrounding distts. also many people succeeded in getting divorce from 1st marriage & got possession of land from second marriage and succeeded up to Supreme Court (as is the case of Angrej Kaur & Gurdit Singh of Jullundur distt. acc. to . Moreover your mother-in-law and
father-in-law were already knowing about my previous marriage as some relative of Garcha told them and also about divorce. I also shown my documents of Tahsildar & S.D.M. to S. Jagtar Singh Virk who were knowing the Tahsildar (Sub-Registrar) Mr. Joshi (who signed) well & was most wise and intelligent P.C.S. Officer and he signed after reading the rules from Air 1968 Sc page 142 getting clarification from Advocate etc... After that Panchayat also agreed and we need not to got signs of Sarpanchs, etc. as Tahsildar has executive powers of Magistrate & more powers than Sarpanchs. Also other party got no objection after receiving this on 20-5-1976 even within one or 2 years, now they can not do anything after 6 years. Yours father-in-law also happy to read all & assured me and you not to worry at all everything is alright. He must write you & talk you on telephone about it. He was best friend of S. Jagat Singh (Ex-Chairman) of Nawanshahar of Canada now (i.e., my Mammaji's father-in-law of Village Mallan near Aur). He write you not to worry at all, everything is alright, one must be optimistic and never pessimistic in life my dear. Only thing, if you like to do we will do apply in Sessions Judge, Jullundur with your's co-operation if you will not show photos etc., and Act anybody to prove of my marriage. If we both parties co-operate and say that no marriage, then nobody can do anything, not even neighbours etc............ Please reply followings :- 1. Should I apply in Sessions Judge, Jullundur or not ? When we already know nobody from Barapind will go to court & also she is going to Canada after one or 2 months as I am informed as they have not done anything from last 7 years & our documents signed by P.C.S. & I.A.S. Officers is also correct. If wrong why they signed it. Punishment will be given to them first, not we people. No Gazetted Officer can do a wrong task for your kind information. 2. Let me know any interview of Delhi & Baby's health and if she & you allow her to meet me at 3/21 Patterson Road, Ambala Cantt. etc. during Saturday, Sunday or Deshera holidays. Confirm me by return of post reply to above pt. (i.e., whether we should apply to Sessions Judge, Jullundur or not at all now and your views ? about it) & forget past think future, all this happened due to nature or mistake or unforeseeable circumstances of life etc....... We can't change it now. Be brave & write me in soon everything will be solved soon or any other solution from your side for us. Rest is O.K. With best regards & love to youngers. Yours loving brother, sd/- Rajinder Singh Sarah, M. Sc. Govt. High School, V.P.O. Pasia, Near Phillaur, Distt. Jullundur (Pb.). P.S. I am also sending you photostat copies of divorce for your more clarifications, security, remove doubts, etc... ..............."
(20) From these letters it appears that the appellant had not told the respondent, her father and brother about the factum of his previous marriage and divorce with Balbir Kaur otherwise it would have been clearly stated in these letters regarding the fact that Rajinder Singh Dhillon, brother of the respondent had been apprised of the entire matter. This is not the trend and tenor of the letters. Rather the letters speak something else. They do not support the case of the appellant at all and rather support the version of the respondent that they were not at all told about the factum of previous marriage respondent that may of the appellant and the alleged divorce. The contention of the appellant that they had taken the father and brother of the respondent to Shri Mohan Behari, Advocate to satisfy them that the marriage of the appellant with Balbir Kaur had been validly dissolved, also does not inspire confidence. Pritam Singh and Rajinder Singh Dhillon had specifically and categorically stated that they had not gone to the counsel and the story was fictitious. The appellant also tried to establish by evidence that the mother of the respondent was related to the father of the appellant but it has not been proved. It was stated that the respondent's mother is the phua (father's sister) of the father of the appellant. If there was relationship between the parties then it is surprising why this matrimonial alliance by advertisement in the paper. It was also tried to be established that Pritam Singh had known Rajinder Singh even prior to his marriage but that also does not inspire any confidence. If Pritam Singh had made enquiries about Rajinder Singh in the year 1977 or 1980 as disclosed by the witnesses there was no occasion why Pritam Singh had not pursued the matter further and contacted the father of the appellant for matrimonial alliance.
(21) The appellant tried to lead evidence in this case to prove that there existed a custom amongst Jat Sikhs of District Gurdaspur and Jalandhar by which a marriage could be dissolved unilaterally. The appellant was not allowed to lead evidence on this aspect. We are not going into this question whether there exists such a custom and as to whether the marriage between the appellant and Balbir Kaur stood dissolved by a divorce. The issue framed by the Bench does not relate to this aspect. But the fact remains that Balbir Kaur is agitating that her marriage with the appellant is not dissolved and she is claiming to be the wife of the appellant.
(22) We are of the firm view that Rajinder Singh did not disclose to the respondent, her father and any of her relations about the factum of his previous marriage with Smt. Balbir Kaur.
(23) The next point which falls for consideration is whether concealment and non-disclosure by the appellant about the factum of his previous marriage with Balbir Kaur comes within the mischief of Clause (c) of Subjection (1) of Section 12 of the Act. Section 12 of the Act reads as under :-
SECTION 12- Voidable MARRIAGES-(1) 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) that the marriage has not been consummated owing to the impotence of the respondent ; or
(B) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5 ; or
(C) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 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 to any material fact or circumstances concerning the respondent) ; or
(D) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in Sub-section (1), no petition for annulling marriage-
(A) on the ground specified in Clause (c) of Sub-section (1) shall be entertained if-
(I) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or
(II) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered ;
(B) on the ground specified in Clause (d) of Sub-section (1) shall be entertained unless the court is satisfied -
(I) that the petitioner was at the time of the marriage ignorant of the facts alleged ;
(II) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage ; and
(III) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
Prior to the Marriage Laws Amendment Act of 1976 Clause (c) of Sub-section (1) of Section 12 of the Act read as under : "That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud." The words 'force' and 'fraud' have not been defined in the Act. Section 17 of the Indian Contract Act defines the word 'fraud' in the following terms :- Fraud-means & includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :- (1) The suggestion, as to a fact, of that which is not true, by one who does not believe in to be true, (2) the active concealment of a fact by one having knowledge or belief of the fact ; (3) a promise made without any intention of performing it ; (4) any other act fitted to deceive ; (5} any such act or omission as the law specially declares to be fraudulent. Explanation-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such (hat, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself equivalent to speech. The term 'fraud' used in Clause (c) cannot be given the same meaning as defined under Section 17 of the Contract Act. The expression 'fraud' used in Clause (c) does net 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.Section 5 & 7 of the Act makes it clear that a Hindu Marriage has both religious as well as secular aspects. Therefore, the marriage leas 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 Section 5 of the Act deals with the capacity of the spouse to enter into an alliance for a marriage. The words 'force' and 'fraud' that are contemplated in Clause (c) are as to 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 Clause (c). The word 'fraud' used in this clause connotes deception or misrepresentation. If there is a misrepresentation or concealment of a material fact concerning the respondent then the provision contained in Clause (c) would definitely be attracted for anulling the marriage. What is a misrepresentation or concealment of a material fact 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. The fraud or misrepresentation need not necessarily be at the time of marriage, it can be one made even before marriage. In our opinion the pre-marital status of a party is a material fact which the other party must know before imparting consent for marriage. It may not be a very vital factor when both the parties are divorcees or there is a history of both of them being previously married. But in a case where one of the parties is previously married and the other is unmarried it becomes a relevant aspect to be considered by the party who is unmarried. A party is under an obligation to disclose whether he was previously married or not. If so, what is the position of the previous spouse? In the present case the appellant is contending that he had legally divorced the first wife, Balbir Kaur by means of a customary divorce but on the other hand Balbir Kaur is asserting that she is still the legally wedded wife of the appellant and there was no legal divorce. The appellant was obliged to disclose to the respondent about the factum of his previous marriage and the alleged divorce by custom. If any. This is an admitted case of the parties that the respondent was a virgin. The previous marriage of the appellant with Balbir Kaur was a material fact concerning the appellant which was intentionally suppressed and was not disclosed to the respondent. The case of the respondent is that she was a virgin and she would not have consented to marry the appellant had she known the fact that the appellant was previously married to Balbir Kaur. The counsel for the appellant relied upon Raja Ram v. Deepabai, in support of his contention that the concealment of the fact that the appellant had been once married to another woman could not be a ground for annulment of the marriage. We have perused the authority relied upon by the learned counsel for the appellant, in this case Clause (c) of Sub-section (1) of Section 12 of the Act as it stood prior to the amendment of 1976 was interpreted. Clause (c) prior to amendment read as under:
"THAT the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud."
After the amendment of 1976 there is a radical change in Clause (c) and the following words have been added :-
"AS to the nature of the ceremony or to any material fact or circumstance concerning the respondent".
(24) Even otherwise with respect we do not agree with the law laid down in Raja Ram's case as an abstract proposition that in no circumstances the concealment of the fact that the appellant had been once married to another woman could be a ground for annulment of marriage. It depends upon the facts and circumstances of each case, as we have explained earlier.
(25) The respondent has been able to bring home the charge that her consent in bringing about, the marriage was obtained by deception, misrepresentation and concealment of material fact concerning the appellant. The respondent is, therefore, entitled to the relief claimed for annulling the marriage under Clause (c) of Sub-section (1) of Section 12 of the Act.
(26) The learned counsel for the appellant feebly argued that the petition filed by the respondent was a counter blast to the petition filed by the appellant under Section 9 of the Hindu Marriage Act against the respondent. The contention is mis-conceived. The respondent filed the petition under Section 12 prior to the petition filed by the appellant under Section 9 of the Act at Jalandhar. How can be the petition filed by the respondent a counterblast to the petition filed by the appellant which was filed subsequently to the filing of the petition by the respondent.
(27) The appeal is devoid of force and lacks merit. It is liable to be dismissed. We order accordingly and dismiss the appeal with costs. Counsel's feeRs. 1,500. C.M. 89/1986. This is an application filed on behalf of the appellant seeking permission to produce the evidence in rebuttal. The application is misconceived. The issue as framed by a Bench of this court is, "Whether Rajinder Singh was previously married and .whether this fact stood disclosed to the respondent or any of her relations?" The onus of this issue was on the appellant and he has led the evidence. The question of leading evidence in rebuttal does not arise. The application is dismissed.
Print Page
Delhi High Court
Rajinder Singh vs Pomila on 5 May, 1987
Equivalent citations: AIR 1987 Delhi 285, 1987 (13) DRJ 119
(1) This Letters Patent Appeal is directed against the order of the learned Single Judge dated 1-3-1983 by which the first appeal of the appellant, Rajinder Singh was dismissed in liming by a speaking order.(2) The facts giving rise to this appeal are that the appellant, Rajinder Singh married Smt. Pomila, respondent on 3-5-1981 according to Hindu/Sikh reties and ceremonies. The respondent filed a petition under Section 11 read with Section 5(1) and Section 12(l)(c) of the Hindu Marriage Act for declaring the marriage between the appellant and the respondent null and void. The petition proceeded on the allegations that the marriage between the parties was solemnised at Delhi on 3-5-1981. No child was born out of the wedlock. It is averred that after the solemnisation of the marriage the respondent stayed with the appellant as his wife at House No. D-7, Rajouri Garden, New Delhi for about 4 days. Thereafter the respondent stayed at Delhi with her parents while the appellant went back and joined his duties in District Jalandhar. It was further stated that the respondent came to' Delhi on 25-5-1981 and the parties left for Goa on 27-5-1981 and stayed for about 20 days at the house of the elder sister of the respondent. The parties returned to Delhi on 21-6-1981 from Goa. Thereafter the appellant again joined the School duties in District Jalandhar while the respondent remained at her parent's house. The appellant again came to Delhi around 1-7-1981 and took the respondent with him on 6-7-1981 to his parental house at Village Aur in District Jalandhar where the parties resided for about a week. The respondent came down to Delhi on 13-7-1981 and joined her school on 15-7-1981. The allegations proceeded further that on 22-8-1981 the appellant came to the house of the parents of the respondent and stayed up to 28-8-1981. It is stated that Smt. Balbir Kaur D/o. S. Mahna Singh of Village Bada Pind, near Phillaur, Distt. Jalandhar came to Delhi Along with her aunt and on 28-8-1981, informed the respondent, her brother and parents, through S. Lachhman Singh Nagar of Sant Nagar, New Delhi that Balbir Kaur was already married to the appellant and her marriage with the appellant had taken place on 7-5-1975 at Bada Pind and their marriage was still subsisting. It is stated that the respondent was completely taken aback and shocked to know that the appellant was already married and that the precious life of the respondent had been ruined fraudulently by the appellant. It is further stated that they talked to the appellant immediately on 28-8-1981 who admitted his previous marriage with Smt. Balbir Kaur and left the house of the respondent's parents on the same day. The grievance made in the petition was that the consent of the respondent was obtained by fraud as to the material fact and circumstances concerning the appellant. The appellant never told the respondent about his previous marriage with Smt. Balbir Kaur and had the respondent knowledge of such marriage she would never have married the appellant. It was further alleged that the respondent learnt that the appellant on 21-7-81 had once again responded to an advertisement for a suitable boy in the matrimonial columns of "THE TRIBUNE". Reliance is placed upon the reply of the appellant in response to that advertisement which was sent to Box No. 4643 on 13-7-1981. On these allegations the declaration was sought that the marriage between the parties be declared null and void.
(3) The appellant contested the petition and filed his written statement in opposition to the petition. The factum of marriage between the appellant and the respondent was not denied. It was stated that the marriage between the appellant and Smt. Balbir Kaur was not subsisting. The marriage was dissolved on 19-5-1976 before the Sub-Registrar of Nawanshahar, Punjab according to the custom prevailing amongst Jat Sikhs of Jalandhar District, Punjab. Reliance was placed on a registered document dated 20-5-1976 which was claimed to be duly attested by the Sdm, Nawanshahar. It was further stated that during the exchange of information and pre-martial enquiry for the particulars of the parties the documents of divorce were shown to the respondent and other members of her family. The father and brother of the respondent were satisfied regarding the divorce. To sumup, the case of the appellant as disclosed in the written statement was that the respondent and her parents were fully aware that the marriage between the appellant and Balbir Kaur had been dissolved by a decree of divorce according to customary law and the question of suppression of material facts did not arise at all. It was denied that the consent of the respondent was obtained by fraud. The allegations that the appellant again applied in response to a matrimonial advertisement were denied and the stand taken was that the appellant did not send any letter on 13-7-1981 to any third party in response to any advertisement, The claim of the respondent for declaration that the marriage solemnised between the parties was null and void was repudiated. It was also alleged that the petition was a counter-blast to the petition filed by the appellant under Section 9 of the Hindu Marriage Act in the Court of Senior Sub-Judge, Jalandhar.
(4) The respondent filed replication, reiterating what had been stated in the petition and denying the case set up by the appellant. On the pleadings of the parties the trial Judge framed the following issues :-
1. Whether the fact of previous marriage and its dissolution was not notified by the respondent to the petitioner and her consent obtained by fraud ? If so, to what effect ?
2. Whether the marriage of the respondent with his first wife Smt. Balbir Kaur was validly dissolved on 19-5-1976 as alleged by the respondent ?
(5) Before the parties could read evidence on the issues framed, an application under Order 12 Rule 6 read with Section 151 Civil Procedure Code was filed on behalf of the respondent claiming a decree on the basis of the admission made by the appellant. It was stated in the application that the appellant during the pendency of the petition had himself admitted the existence of his marriage with his first wife Smt. Balbir Kaur in a petition which he had filed on 4-5-1982 under Section 13 of the Hindu Marriage Act for dissolution of his marriage with Balbir Kaur on the ground of desertion. In reply to this application the appellant admitted having filed a petition against Balbir Kaur for dissolution of marriage in the court of District Judge, Jalandhar on the ground of desertion. Further it was alleged that the petition filed by the appellant was misconceived which was subsequently withdrawn with the following statement :-
"MY marriage with the respondent stands already dissolved by divorce in pursuance of the custom with which the parties are governed and embodied in the deed dated 19-5-1976. This petition has become therefore, redundant. In these circumstances I withdraw this petition and the same be dismissed as withdrawn."
(6) The trial judge heard arguments on the application of the respondent under Order 12, Rule 6 and came to the conclusion that there was admission by the appellant that the marriage between the appellant and Balbir Kaur was subsisting and as such the respondent was entitled to the relief claimed for in the application. Consequently the application succeeded and the marriage of the parties was annulled by a decree of nullity under Section 12(l)(c) read with Section 5(1) of the Hindu Marriage Act (hereinafter referred to as the Act). Aggrieved by this order the appellant preferred first appeal in the High Court at Delhi which was dismissed in liming on 1-3-1982 by a speaking order. The appellant was not satisfied with the order of the learned Single Judge and he preferred this Letters Patent Appeal which is before us for decision.
(7) The appeal was admitted by a Division Bench of this Court on 1-11-1983. On 16-4-1984 the Bench framed the following issue :- .
"WHETHER Rajinder Singh was previously married and whether this fact stood disclosed to the respondent, her father and any of her relations."
The burden of proof was placed on the appellant because it was his case that the factum of his previous marriage was disclosed to the respondent and her parents. The parties were given liberty to lead evidence on the above issue. The evidence was recorded by the Deputy Registrar of this court.
(8) We have heard the learned counsel for the parties at length and have gone through the record of the case. There are certain more facts which need be mentioned for the decision of this case. Balbir Kaur is denying the factum of divorce by custom as alleged by the appellant. Her case is that the marriage between her and the appellant is still subsisting and there had been no divorce. On 20-9-1981 the appellant also filed a suit at Nawanshah 'ar, District Jalandhar for declaration to the effect that the marriage between him and Balbir Kaur stood dissolved by means of a customary divorce. The suit was dismissed. The appellant is stated to be pursuing the matter further in appeal. Balbir Kaur also filed a criminal complaint under Section 494 Criminal Procedure Code against the appellant. In those proceedings the appellant was convicted and sentenced rigorous imprisonment for one year. On appeal the appellant claims to have been acquitted.
(9) In support of his contention the appellant has led oral as well as documentary evidence. He produced five witnesses. He has examined himself as A.W. 3 and stated that he got married on 7-5-1975 to Balbir Kaur and she lived for only one month with him and he divorced her on 19-5-1976 by executing a deed before a Tahsildar. He also produced 15 copies of unilateral divorce-deed executed according to Jat Sikh community of Jalandhar. He further stated that told S. Pritam Singh, father of the respondent in the presence of Rajinder Singh Dhillon and the respondent orally as well as in writing .hat he was a divorcee and his first marriage stood dissolved since 19-5-1976 is per the divorce-deed executed according to the custom prevalent amongst the Jat Sikhs. He admitted to have sent a printed bio-data dated 16-11-1980. He also stated that the words 'and divorcee' were written by him when he sent the bio-data to the father of the respondent. He further stated that Rajinder Singh Dhillon, brother of the respondent came to their village on 1-1-1981 with the printed bio-data letter dated 16-11-1980 and Rajinder Singh Dhillon was told by him, his father, maternal uncle, Jagchanan Singh Sandhu and his younger brother Sukhvinder Singh that he was a divorcee. It is also stated that they showed him the divorce deed also at that time. In his statement he further narrated that on 6-1-1981 his father received one letter from S. Pritam Singh and in that letter Pritam Singh had mentioned the old relationship with them I also stated 'No objection if Rajinder is divorcee.'
(10) The next witness is AW-5 Shiv Dayal Singh, father of the appellant. He supported the case of the appellant by stating that the appellant married Balbir Kaur on 7-5-1975 and she was a quarrel some lady and did not abide by the wishes of the appellant. She left the village without their consent and went back to her parents. She stayed with them hardly for a month. She was divorced by getting a deed registered with the Sub-registrar, Nawanshahar. It was also stated that the words 'and divorcee' were there in the bio- by the dated 16-11-1980 when this document was filed in court on 27-11-1980 the respondent. He further stated that when Rajinder Singh Dhillon and S.S. Sohal had come to his village Aur on 1-1-1981 Rajinder Singh Dhillon told them that he had verified from Jagtar Singh that Rajinder Singh was a divorce. He showed the divorce deed to Rajinder Singh Dhillon in the presence of his sons-Rajinder Singh and Sukhvinder Singh and his brother-in- law Jagchanan Singh and one Harjeet Singh whereby divorce had been given to Balbir Kaur. He further stated that in the letter dated 6-1-1981 written by the father of the respondent the words 'No objection if Rajinder is divorcee' existed in the letter from the very beginning.
(11) The next witness is Shri Jagjit Singh who stated that Shiv Dayal Singh is his mother's sister's husband. He also testified that Rajinder Singh divorced Baibir Kaur on 17-5-1976 and Rajinder Singh had sent a letter under certificate of posting on 21-5-1976 to Baibir Kaur. The writing regarding divorce was also got registered with the Sub-Registrar on 19-5-1976. He further stated that Rajinder Singh Dhillon came to Village Aur on 1-1-1981 Along with his brother-in-law, S.S. Sohal. He stated that he was in Village Aur at that time and that his maternal uncle Jagmohan Singh, Shiv Dayal Singh and Rajinder Singh and Sukhvinder Singh were also there. All of them told Rajinder Singh Dhillon and S.S. Sohal that Rajinder Singh had divorced his first wife Baibir Kaur. He further stated that Rajinder Singh Dhillon had brought with him a letter dated 16-11-1980 which was written by Rajinder Singh to Pritam Singh. It had been made clear in that letter that Rajinder Singh was a divorcee. Aw 7 is Shri Jagchanan Singh who stated that Shri Shiv Dayal Singh was his brother-in-law and that Rajinder Singh was first married with Baibir Kaur on 17-5-1975 and on 19-5-1976 Rajinder Singh gave her divorce unilaterally. The divorce deed was reduced to writing and was got registered with the Sub-Registrar, Nawanshahar. Rajinder Singh sent an intimation to Balbir Kaur under certificate of posting. He testified that Rajinder Singh Dhillon and S.S. Sohal came to them on 1-1-1981 and they had brought with them a letter dated 16-11-1980. The words 'and divorcee' in that letter were also there. It has also come in his statement that Shiv Dayal Singh had shown the letter dated 6-1-1981 to him. The words 'No objection if Rajinder is divorcee' were there. He further stated that in 1977 Pritam Singh and Shiv Dev Singh, father of Major Rattan Singh had come to his residence. Pritam Singh had enquired if Rajinder Singh was a divorcee and as to whether he had married a second wife. He told them that Rajinder Singh had not married second time. He also informed Pritam Singh and Shiv Dev Singh that Rajinder Singh had given divorce to his first wife Baibir Kaur. He further stated that Gurcharan Singh, his maternal uncle lived in Rana Pratap Bagh in 1978. In his house also Pritam Singh had enquired from him whether Rajinder Singh had married second time, to which the witness replied in the negative. The statement further proceeded that Pritam Singh met him in Nawanshahar in January, 1980. At that time also he had enquired whether Rajinder had married a second wife and he gave reply in the negative. In the cross-examination he further stated that he met Pritam Singh in 1977 and the matter regarding divorce of Rajinder Singh was discussed 4/5 times with Pritam Singh. Pritam Singh had stated that since Rajinder Singh was an educated person he would like his daughter to be married with him. He advised that he should contact Shiv Dayal Singh. The contact was made in January, 1980.
(12) AW8 is Gurbax Singh. He stated that Rajinder Singh was married to Baibir Kaur on 7-5-1975 and Balbir Kaur went to her parents on her own accord and after a year Rajinder Singh divorced her on 19-5-1976. He stated that he met Pritam Singh in Batala in 1980 and enquired from him whether his nephew Rajinder Singh had married. I told him that Rajinder Singh had married Balbir Kaur in May, 1975 and that because of certain differences between the two Rajinder Singh had divorced her. On further enquiry he told him that Rajinder Singh had not married second time. '
(13) The respondent also led oral as well as documentary evidence. She examined five witnesses. Rw 1 is Pritam Singh, father of the respondent who testified that he advertised in the "TRIBUNE" for the marriage of his daughter and he got a letter from :he appellant in response to that advertisement. He had no contact with the appellant side prior to that. He stated that the words 'and divorcee' written in ink in hand were not there at that time when he received the letter. He stated that the letter was filed in the trial court and even at that stage the words 'and divorcee' were not there. It is in his statement that when the matter came up for reconciliation before the court the appellant's counsel in the trial court pointed out these words in the letter Ex. Aw 3/1 and at that stage it was found that addition had been made by the appellant side in the trial court after the letter had been filed. He filed a photo copy of the letter in which these words did not exist. He testified that if he had known that the appellant was a divorcee he would not have entered into any negotiations with them for the marriage of his daughter. The respondent was virgin and no member of his family would have agreed to marry her to a person who was a divorcee. He stated that he had no relationship with the appellant side prior to the marriage of his daughter and they were not known to him before that. He stated that Shiv Dayal Singh visited their house Along with Mr. and Mrs. Piara Singh on 25-1-1981 and the father of the appellant did not disclose at that time or at any other time that Rajinder Singh, appellant was married earlier and was a divorcee. On the day of marriage also the appellant side did not mention the fact that the appellant was a married man or a divorcee. If they had mentioned that fact he would not have married his daughter with the appellant. No divorce document was shown to him at any stage from the appellant side. He further stated that when he admitted the letter dated 6-1-1981 in the trial court on 10-2-1982 the sentence 'no objection if Rajinder is divorcee' and the other overwritings in the other portions of the letter were not there. On other aspects he supported the case of the respondent. Rw 2 is the respondent herself who stated that when the bio-data of the appellant was received the words 'and divorcee' were not there. They had no relationship with the appellant's family before the receipt of that letter. She asserted that when the bio-data letter was filed in the court of Additional District Judge the words 'and divorcee' were not there. Had they known that the appellant was a divorcee her parents would never have agreed for the marriage. She herself would not have agreed for the marriage. She supported the allegations made in the petition. She further testified that the words 'no objection if Rajinder is divorcee' in the letter dated 6-1-1981 were not in the hand other father. The words 'and divorcee' are stated to be added by the appellant after the letter was filed in the court. Rw 3 is Smt. Balbir Kaur, the first wife of ' the appellant. In her statement she stated that she was married to Rajinder Singh on 9-5-1975 and she was not divorced by the appellant. Rajinder Singh also filed a petition for dissolution of marriage on 4-5-1982 in the court of ' Additional District Judge, Jalandhar on the ground of desertion and she contested that case and filed the written statement. They were called for reconciliation by the Additional District Judge and the appellant thereafter withdrew that ease. She further stated that the appellant had filed a suit for declaration against her in the court of Sub-Judge, Jalandhar which was dismissed on the ground of jurisdiction. Thereafter another suit for declaration to the effect that the parties had been divorced was filed in the court at Nawanshahar. That suit was. also dismissed on 4-4-1984. She came to know about the second marriage of Rajinder Singh with the respondent in the last week of July, 1981. She met the respondent at her residence on 28-8-1981 at Kalkaji. On her enquiry she was told that Rajinder Singh had been married according to Sikh rites to the respondent. When she told them that she was already married to the appellant they were shocked to hear that. She told them that she had not been divorced by Rajinder Singh. She further told them that Rajinder Singh was trying to marry for the third time. The next witness is Rw 4, Rajinder Singh Dhillon, the brother of the respondent. He stated that when the biodata was received from the appellant the words 'and divorcee' were not there and these words were added subsequently when the letter was filed in the court. He further stated that the appellant side never told them at any stage that the appellant was already married and was a divorcee. Had they told them they would not have married their sister to the appellant. He further stated that the words 'no objection if Rajinder is divorcee' were not in the hand of his father. He never visited Shri Mohan Behari Lal, Advocate on any date for consultation purposes or for any other purpose. He also supported the case of the respondents on other aspects.
(14) Shri Pritam Singh, father of the respondent had advertised in 'THE TRIBUNE' for the marriage of his daughter. In response to the advertisement a letter was received from the appellant which is Ex. Aw 3/1. By this letter the appellant had furnished his particulars. For the sake of convenience this letter is reproduced herein below (the entire letter is printed except the portion which is underlined herein) :- "Dear Sardar Sahib, Aur Dated 16-11-1980. Sat Sri Akal. I hereby furnish my particulars as under in accordance to your advt. in the Tribune of 16-11-1980 regarding matrimonial alliance. Myself:- Age-26, Ht. 6' 00" Educational QUALIFICATIONS: 1. B. Sc. in 2nd Division ; 2. B. Ed. in 2nd Division ; 3. M. Sc. in 1st Division ; 4. Mechanical Engineering in 1st Division ; 5. Doing Doctorate degree now and going to U.S.A. by getting job; 6. At present, I am in Govt. job and my pay is Rs. 900- per month nearly. Having an excellent and conspicuous personality and athletic look. Family :- Jat Sikh Jagirdar family of Distt. Amritsar and Gurdaspur-well connected both to military and civil sides "and to the Punjab Chiefs. It consists of father, mother, 3 sons and 2 daughters. Father is a M.A. and Ex Principal, now supervising his own land farm of 60 acres near Gwalior and also in Punjab. Mother is undergraduate and Jat Sikh Sandhu by caste. She belongs to Wadala Sandhuan Family (Punjab Chiefs), now in Pakistan. One sister is B.A., B. Ed. and married, other is M.A. English and Lecturer in College. One brother is doing Pre-medical, other is a student of 8th class. I the eldest son, and divorcee. Sub Caste - The sub caste of the family is Jat Sikh "SARAH". Incase the above particulars suit you then please reply so as to proceed further. With kindest regards and best wishes. Yours Sincerely, PI. reply with recent snap for our view ------- (returnable) and write correct age ? ------- The underlined portion in the letter Ex. Aw 3/1 is written in hand. This document was filed by the respondent on 16-11-1981 before the Additional Distt. Judge, Delhi, where her petition for divorce was pending. The case of the appellant is that the words 'and divorcee' were written by him at the time when this letter was dispatched. On the other hand the case of the respondent is that the words 'and divorcee' were later on added after this document was filed in Court.
(15) We have given our careful thought to the respective contentions of the parties and we have come io this conclusion that the words 'and divorcee' were added later on and were not there at the time when this letter was sent to the father of the respondent. The reason is obvious. The respondent had filed the petition on the ground that a fraud had been practiced on her by not disclosing the factum of previous marriage of the appellant with Balbir Kaur. This document was very crucial. If the words 'and divorcee' were there when the letter was sent by the appellant to the father of the respondent then there was no occasion for the respondent to file this document because it had the effect of demolishing her entire case. This is not the case where this document was got produced by the appellant from the respondent by means of a notice or through the order of the court. It was done by the respondent of her own volition. It does not appeal to reason that the respondent would file a document which would go deadly against her and would non-suit her. There are other important aspects which would show that the words 'and divorcee' did not exist at the time of filing of this letter. A photostat copy of this letter dated 16-11-1980 was also filed subsequently in order to show that the words 'and divorcee' were added later on. In the photo-copy the words 'and divorcee' do not appear. It is surprising that such an important and vital point was not mentioned in the written statement. It would have been the mainstay to the defense of the appellant. In the written statement it was nowhere slated that the appellant had expressly stated in the bio-data that he was a divorcee. The conduct of the appellant after marriage with the respondent would also negative his contention that words 'and divorcee' were there at.the time of writing the letter dated 16-11-1980. In the petition the respondent has stated in paragraph No. 9 that the appellant again applied to 127 some party who had advertised for a suitable boy in the matrimonial columns of 'THE TRIBUNE' of 5-7-1981. The reply of the appellant to Box No. 4643 of the said advertiser was by his letter, the envelope of which bears the postal stamp of 13-7-1981. It was stated that the appellant again wanted to have matrimonial alliance with another girl which also shows that the appellant was posing again as unmarried and was trying to defraud and cheat another innocent girl. In the reply the appellant denied all these allegations. Aw 3/12 is a photostat copy of the letter written by the appellant in response to a matrimonial advertisement. It reads as under :- "Dear Sardar Sahib, S.S.A. Wrt. yours' advt. in The Tribune I give below my particulars as under:- Age-26, Ht. 6'-0" Educational Qualification: 1. M. Sc. in 1st Division ; 2. Mech. Engg. in 1st Division ; 3. Doing Ph. D. now. Family:- Father : Jat Sikh "Sarah". Now supervising his land farm. Mother:- Jat Sikh "Sandhu", belongs to Punjab's Chiefs family. One brother is doing medical and other is in S.S. Kapurthala. If above particulars suits you then please reply so as to proceed further at following address (where I am posted in Govt. job and getting Rs. 1,000 p.m.). With regards, Yours sincerely, sd/- Rajinder Singh, M. Sc. Govt. High School, V.P.O. Pasla, near Phillaur, Distt. Jullundur, (Pb.)". . Photostat copy of the envelope under which this letter is stated to have been sent is Ex. Aw 3/13. The respondent had stated that the appellant, after her marriage was trying to marry another girl. The case of the appellant is that the letter was sent in response to an advertisement appearing in 'THE TRIBUNE' of 1-3-1981 against box No. 1643F.
(16) We have perused the photo copy of the envelope which bears the date 13-7-1981. I he stand taken by the appellant is obviously unsustainable. We are convinced that this letter was dispatched on 13-7-1981. It is surprising that the appellant had sent this letter in response to an advertisement appearing in March, 1981 after a period of 4 months. The explanation is not convincing. There can be no other conclusion except that this letter was sent on 13-7-1981 in respect of box No. 4643. This letter also shows the conduct of the appellant that he wanted to marry another girl and it is pertinent to note that in this letter there is no mention that the appellant was a divorcee. The explanation put forward by the appellant that he had sent this letter in response to an advertisement by a widow and there was no occasion to mention the word 'divorcee' is most unconvincing. It lends support to the case of the respondent that the words 'and divorcee' did not exist at the time when the letter dated 16-11-1980 was sent to the father of the respondent.
(17) The oral evidence led by the appellant to the effect that when Rajinder Singh Dhillon had come to Village Aur on 1-1-1981 he had this letter with him and the words 'and divorcee' were there does not inspire any confidence. All the witnesses produced by the appellant on this aspect are interested witnesses and their statements cannot be believed. We are of the considered opinion that the words 'and divorcee' had been added later on after this letter was filed in court.
(18) The next letter is Ex. Aw 3/4. This letter was written by Pritam Singh father of the respondent to Shri Shiv Dayal Singh, father of the appellant This letter was filed in original by the appellant in the court of Additional District Judge on 10-2-1982. This letter was admitted by the father of the respondent. There is a serious dispute between the parties that the words 'no objection, if Rajinder is divorcee' were added by the appellant and these words did not exist when the letter was written to the father of the appellant. The entire letter is reproduced for the sake of convenience. The words 'No objection if Rajinder is divorcee' are underlined : "Dear Brother, 6-1-1981. Sat Sri Akal. Last evening on my return home I received the good news about the receipt of your kind letter of 4th instt. We are happy and thank you very much for conveying your desire to give concrete shape to the mutually agreed proposal of creating the relationship. It is further heartening to know that we are also connected from your in-laws' side. I have a feeling that we would be giving new shape and content to the already created relationship by our elders, it would be a sort of renewal. I pray, God may bless both the families. About the further programme we have already left the matter to your sweet will and convenience. I gave a bit of my mind that we should move according to the times and everybody agreed and appreciated that. You know, brother, that in earlier times all the carriages were arranged marriages. With the spread of education times have changed and change is the law of nature. You would agree that we are now passing through a period which can be termed as arranged-cum-approved marriages period. One may like it or not but one has to move with the times. Personally I feel that it is good because the responsibility of parents gets very much lightened. Once the would be life partners approve each other the rest becomes easy. So would it not be prudent turn us both to acquire that sense of relief and case. That is what I am aiming at and certainly you will bear me out in this. The revelation of our older connections has strengthened my desire that every member of your family, without exception, may kindly make it convenient to give us the pleasure of their company at our place. It would be an honour to us. I am going to my in-laws to attend a marriage. From 11-2-1981 to 14-2-1981 I would be away. On 15th (Sunday) morning I will reach back home. You are welcome any day you may find it convenient to come Along with all the members of the family. Three of my elder daughters are here and one son-in-law (son of S. Shivdev Singh) is also here. So everybody would be pleased to meet everybody. It would be a good time I feel. No objection if Rajinder is divorcee. About the further programme and how to proceed further it is entirely up to you. We can do as be convenient to you. So we would be waiting to hear from you in this respect. Meanwhile please convey my sincere regards to dear sister and love to dear young ones. with deep regards. Yours Brotherly, sd/- (P.S. Dhillon)" During the bearing of the L.P.A. the counsel for the respondent brought to the notice of the Bench that not only there was interpolation made by the appellant in the letter dated 16-11-1980 but also there was interpolation in the letter dated 6-1-1981 purported to have been written by the respondent's father. He further stated that the interpolation in the letter dated 6-1-1981 had been made after the dismissal of the appeal by the learned Single Judge However, the counsel for the appellant had denied the complaint made on behalf of the respondent regarding interpolation in the letter dated 16-11-1980 and in the letter dated 6-1-1981. Counsel for the parties were given time to file affidavits in support of their respective contentions. We have considered this matter very carefully. In our opinion there seems to be interpolation by adding the words "No objection if Rajinder is divorcee". .If we read the entire letter it would show that where the words 'no objection if Rajinder is divorcee' have been written is quite out of context. This was a very important factor and it should have been written in the body of the letter in some understandable manner with proper background. We have also noticed the words and they look to be of a different handwriting. No doubt the parties have produced experts to support their respective contentions but from the appearance it is obvious that these words had been added by somebody else and not by the same writer. The counsel for the respondent staled that these lines were added after the disposal of the first appeal by the High Court. His contention is that nowhere before the trial court or before the learned Single Judge reliance was placed on this very important fact and no such mention was made in the written stalement. However, we find from the record that these words 'No objection if Majinder is divorcee did exist before filing the same in court We get support from the photostat copy of this document, which was filed in court on 10-2-1982. In that photostat copy also these words "No objection if Rajinder is divorcee' do appear. Moreover there is a statement by the counsel for the appellant, Shri Mohan Singh, who stated that the original document was produced in the court of Shri R.D. Aggarwal for the purpose of admission/ denial Along with other documents. It was shown to S. Pritam Singh, father of she respondent for admission/denial. S. Pritam Singh checked up and admitted the same in the court and his endorsement to that effect appears on it. He further stated that before showing this letter in the court he had himself read the same to know what it was about. The sentence 'No objection if Rajinder is divorcee' was there. From the evidence we do find that the words 'No objection if Rajinder is divorcee' were there when it was filed in court on 10-2-1982. However, as we have held earlier that the words 'No objection if Rajinder is divorcee' seem to have been added later on when the document was in possession of the appellant. He could write anything he liked because this letter remained with him for about a year or so.
(19) The case of the respondent is that on 28-8-1981 when Balbir Kaur informed them about the factum of her marriage with the appellant they were shocked and the appellant was confronted with that fact. The respondent's case further is that thereafter they had broken all the relations with the appellant. There are two letters dated 12-9-1981 and 15-9-1981 which were written by the appellant to the respondent and her brother which have also a bearing on the controversy involved. The letters are reproduced for the sake of convenience: "My dearest Pomila Sarah and Daddyji, Pasla 12-9-1981. Sat Sri Akal. I am O.K. here and wish you the same. Few days back I applied for job of Math/Science in by sending my resume at following schools as informed by "Overseas Employment and Education Information Service, P.O. Box 3364) Erie, Pennysylvania 16509 U.S.A." acc. to my Regd. No. SE-Edt. S-14372 due to some vacancies :- 1. Barnesville School, Maryland 20838 U.S.A. 2. St. Michael Grammar School, 3182, U.S.A. 3. Laurison Girls Schools, 3143 Victoria, Australia. 4. Braehm College, Victoria 3442, Australia. 5. Wesley College Malbourne, Victoria, Australia. 6. Carey Baptist Grammar School, Victoria, 3101, Australia. 7. 63, Venice St. Mentone, Victoria 3194, Australia. 8. Elthan College, 3095, Victoria, Australia. 9. Montclair College, C.A. 91406 U.S.A. 10. Alka 3298...Los Angeles C.A. 90034, U.S.A. 11. Immasulate Heart College, Victoria 3072, Australia.
12. Director of Personal Services...Texas...78852 U.S.A. and I have received job letter from one School of U.S.A. and sure will receive from others also. After my settlement in U.S.A. I like you (Mrs. Pomila Sarah) also to settle with me in life (as life is much better than India and we will be having no problem due to my previous wrong marriage 7 years ago) as we have got married and I can never think life like now (separate) in future i am sure you will be happy and will co-operate me in future life and then only every problem will be solved after some time. Similarly I am sure we will receive reply from Kenya also where we applied both, for job of tr. in school. Because rules for Divorce & Marriage are entirely different in foreign countries like U.S A., Kenya, etc. and we can live secretly for 2/3 years and everything will be O.K. after it. Whatever happened up to now is all due to my mistakes-I think and due to Divorce document as I was not sure whether totally right or wrong. Most of people were telling me it is right therefore, 1 committed mistake and told some secret of mine to Mr. Satnam Singh Tr. in primary school, Pasla who was my friend and he told those things to Barapind and exploited such of them. I am sure they are nothing and will do nothing in future, and had to suffer a lot. In future there will be no mistake and everything will become alright. To err is human. Please excuse me. I am also sure they are nothing and will and can do nothing in future, as they can't do from last 7 years. Only one old (50 years) brother and 40 years sister are in their family and no maternal and parental relatives at all. There can be so many solutions to our problem of settlement in life if it is sure now that Divorce document is not correct at all. Recently I got interview letter for lecturer in Matins from D.A.V. College, Sadhura (Ambala). I am sure I will be selected and will leave this area secretly and we can meet at Ambala easily at your's elder sister's residence (Bibi Surinder Bajwa ji) after a week or two for Saturday, Sunday as desired by you and address already written to me in your previous letters, and then both will solve our settlement problem better. We are both post-graduates, highly qualified, and can get job easily. Please do write me. Is it not better we meet at Ambala Cantt. after a week or two on any Saturday and Sunday and solve our problem (let there be love only and no marriage and issue for 1 or 2 years until we do not settle well in life) and get correct divorce document or any solution within this period. I think 'Nothing is impossible in this world' for me and myself is M. Sc. 1st. Class and Lion of Punjab and belongs to Pb. Chiefs family, can solve everything in life and can do everything for you as we have got married and got blood relation and you are mine and I am yours only. If we both co-operate and 'solve this problem we can do it within some days or months etc. We can also pass some months at some place like Goa, Bhopal, J&K, Ambala, etc. by getting with pay Cm leaves) etc. ..If one or two years passed then everything will become alright, & nothing to worry, I have got 7 years separation from 1st marriage from 1st day as my first marriage was cheating done by middleman because girl was totally black: coloured, not shown to me at all, 10 years overage, rude behaved and character less, etc. medically unfit, etc. and everybody in his village is interested in her divorce from me and moreover she is living separately from his brother also. Anybody living separate for more than 3 years is always considered divorce and can get divorce within few months and I will get within few days due to rewaj in Jullundur distt. Jat Sikha & 7 years separation, I am living in Jullundur Distt. from last 30 years in Village Aur. Nothing to worry, please, everything will be solved in future. Better meet me once at Ambala Cantt. & write me once and you all are highly qualified and rich etc. well settled in life. Please write any other correct solution if any, according to you all. Nowadays, I am busy to get divorce signed from Panchayat or in applying to Sessions Judge, Jullundur as my friend who is Major in Army of Village near Aur (Mehrampur) has got married second time whereas his first case of divorce is going on in Court. It is a rule one can get second marriage if his first case for divorce is going on in court. Similarly my friend Major Sahib's case & I have also seen many other cases like this. Nothing wrong happen only you are (Mrs. Pomila Sarah & her parents) are to co-operate me for some time. Therefore, try to your best to make better life of both (Myself & Pomila) either by not showing or (let it to be not proved of second marriage) when we both parties will cooperate and say we have done no marriage, how other can say yes ? and can prove ? & who bothers for them We have done no registered marriage-only photos are required to spoiled or burnt up, etc. Note It (1) I will try my best to solve or get divorce by getting cooperation of my Maserji of Sardar of Mukandpur & Mammaji etc. and inform you soon the progress, wait only few days please. Now write me soon in order to avoid worry and anxiety of mine in future Now I never sleeps all the nights and cannot live without seeing you please. What will be happening with you ! In future there will be no mistake from my side and I will improve my behave also and will solve and live happily and enjoy our married life better etc...............Convey my S.S.A. to dearest cider brother Rajinder Dhillonji & Surjitji & others and love to youngers. Yours only for ever. sd/- Rajinder Singh Sarah, M.Sc." Letter dated 15-9-1981 (Ex. Aw 3/5) reads as under :- "Pasia 15-9-1981. My dear brother Rajinder Dhillon, S.S.A. I am O.K. here by the grace of Almighty and wish you all the same, Yesterday while coming back from Chandigarh I tried to talk to you . on telephone from Birowal. For whether I should correct more my divorce document by applying in Sessions Judge, Jullundur court or not and yours views & whether you will co-operate me in saying we both parties have done no marriage and will not give any proof of photos, etc. Then nobody can do anything & we will be able to get pacca divorce within few months or at the most a year. But on the other hand rewaj (custom) for Hindu Jat Sikhs of Jullundur distt. ace. to regarding one sided divorce is 100% correct & nothing to worry for you please, that is why Tehsildar and S.D.M., Nawanshahar has signed on Rs. 33 Astam papers which clearly states as on page 142 of Air 1968 SC. "That there exists custom (rewaj) between Hindu Jat Sikhs of Jullundur distt. in which husband can divorce wife and divorced wife can remarry in the lifetime of her husband etc." Only due to this rewaj in Jullundur distt. & now extended in surrounding distts. also many people succeeded in getting divorce from 1st marriage & got possession of land from second marriage and succeeded up to Supreme Court (as is the case of Angrej Kaur & Gurdit Singh of Jullundur distt. acc. to . Moreover your mother-in-law and
father-in-law were already knowing about my previous marriage as some relative of Garcha told them and also about divorce. I also shown my documents of Tahsildar & S.D.M. to S. Jagtar Singh Virk who were knowing the Tahsildar (Sub-Registrar) Mr. Joshi (who signed) well & was most wise and intelligent P.C.S. Officer and he signed after reading the rules from Air 1968 Sc page 142 getting clarification from Advocate etc... After that Panchayat also agreed and we need not to got signs of Sarpanchs, etc. as Tahsildar has executive powers of Magistrate & more powers than Sarpanchs. Also other party got no objection after receiving this on 20-5-1976 even within one or 2 years, now they can not do anything after 6 years. Yours father-in-law also happy to read all & assured me and you not to worry at all everything is alright. He must write you & talk you on telephone about it. He was best friend of S. Jagat Singh (Ex-Chairman) of Nawanshahar of Canada now (i.e., my Mammaji's father-in-law of Village Mallan near Aur). He write you not to worry at all, everything is alright, one must be optimistic and never pessimistic in life my dear. Only thing, if you like to do we will do apply in Sessions Judge, Jullundur with your's co-operation if you will not show photos etc., and Act anybody to prove of my marriage. If we both parties co-operate and say that no marriage, then nobody can do anything, not even neighbours etc............ Please reply followings :- 1. Should I apply in Sessions Judge, Jullundur or not ? When we already know nobody from Barapind will go to court & also she is going to Canada after one or 2 months as I am informed as they have not done anything from last 7 years & our documents signed by P.C.S. & I.A.S. Officers is also correct. If wrong why they signed it. Punishment will be given to them first, not we people. No Gazetted Officer can do a wrong task for your kind information. 2. Let me know any interview of Delhi & Baby's health and if she & you allow her to meet me at 3/21 Patterson Road, Ambala Cantt. etc. during Saturday, Sunday or Deshera holidays. Confirm me by return of post reply to above pt. (i.e., whether we should apply to Sessions Judge, Jullundur or not at all now and your views ? about it) & forget past think future, all this happened due to nature or mistake or unforeseeable circumstances of life etc....... We can't change it now. Be brave & write me in soon everything will be solved soon or any other solution from your side for us. Rest is O.K. With best regards & love to youngers. Yours loving brother, sd/- Rajinder Singh Sarah, M. Sc. Govt. High School, V.P.O. Pasia, Near Phillaur, Distt. Jullundur (Pb.). P.S. I am also sending you photostat copies of divorce for your more clarifications, security, remove doubts, etc... ..............."
(20) From these letters it appears that the appellant had not told the respondent, her father and brother about the factum of his previous marriage and divorce with Balbir Kaur otherwise it would have been clearly stated in these letters regarding the fact that Rajinder Singh Dhillon, brother of the respondent had been apprised of the entire matter. This is not the trend and tenor of the letters. Rather the letters speak something else. They do not support the case of the appellant at all and rather support the version of the respondent that they were not at all told about the factum of previous marriage respondent that may of the appellant and the alleged divorce. The contention of the appellant that they had taken the father and brother of the respondent to Shri Mohan Behari, Advocate to satisfy them that the marriage of the appellant with Balbir Kaur had been validly dissolved, also does not inspire confidence. Pritam Singh and Rajinder Singh Dhillon had specifically and categorically stated that they had not gone to the counsel and the story was fictitious. The appellant also tried to establish by evidence that the mother of the respondent was related to the father of the appellant but it has not been proved. It was stated that the respondent's mother is the phua (father's sister) of the father of the appellant. If there was relationship between the parties then it is surprising why this matrimonial alliance by advertisement in the paper. It was also tried to be established that Pritam Singh had known Rajinder Singh even prior to his marriage but that also does not inspire any confidence. If Pritam Singh had made enquiries about Rajinder Singh in the year 1977 or 1980 as disclosed by the witnesses there was no occasion why Pritam Singh had not pursued the matter further and contacted the father of the appellant for matrimonial alliance.
(21) The appellant tried to lead evidence in this case to prove that there existed a custom amongst Jat Sikhs of District Gurdaspur and Jalandhar by which a marriage could be dissolved unilaterally. The appellant was not allowed to lead evidence on this aspect. We are not going into this question whether there exists such a custom and as to whether the marriage between the appellant and Balbir Kaur stood dissolved by a divorce. The issue framed by the Bench does not relate to this aspect. But the fact remains that Balbir Kaur is agitating that her marriage with the appellant is not dissolved and she is claiming to be the wife of the appellant.
(22) We are of the firm view that Rajinder Singh did not disclose to the respondent, her father and any of her relations about the factum of his previous marriage with Smt. Balbir Kaur.
(23) The next point which falls for consideration is whether concealment and non-disclosure by the appellant about the factum of his previous marriage with Balbir Kaur comes within the mischief of Clause (c) of Subjection (1) of Section 12 of the Act. Section 12 of the Act reads as under :-
SECTION 12- Voidable MARRIAGES-(1) 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) that the marriage has not been consummated owing to the impotence of the respondent ; or
(B) that the marriage is in contravention of the condition specified in Clause (ii) of Section 5 ; or
(C) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 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 to any material fact or circumstances concerning the respondent) ; or
(D) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in Sub-section (1), no petition for annulling marriage-
(A) on the ground specified in Clause (c) of Sub-section (1) shall be entertained if-
(I) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or
(II) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered ;
(B) on the ground specified in Clause (d) of Sub-section (1) shall be entertained unless the court is satisfied -
(I) that the petitioner was at the time of the marriage ignorant of the facts alleged ;
(II) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage ; and
(III) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
Prior to the Marriage Laws Amendment Act of 1976 Clause (c) of Sub-section (1) of Section 12 of the Act read as under : "That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud." The words 'force' and 'fraud' have not been defined in the Act. Section 17 of the Indian Contract Act defines the word 'fraud' in the following terms :- Fraud-means & includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :- (1) The suggestion, as to a fact, of that which is not true, by one who does not believe in to be true, (2) the active concealment of a fact by one having knowledge or belief of the fact ; (3) a promise made without any intention of performing it ; (4) any other act fitted to deceive ; (5} any such act or omission as the law specially declares to be fraudulent. Explanation-Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such (hat, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself equivalent to speech. The term 'fraud' used in Clause (c) cannot be given the same meaning as defined under Section 17 of the Contract Act. The expression 'fraud' used in Clause (c) does net 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.Section 5 & 7 of the Act makes it clear that a Hindu Marriage has both religious as well as secular aspects. Therefore, the marriage leas 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 Section 5 of the Act deals with the capacity of the spouse to enter into an alliance for a marriage. The words 'force' and 'fraud' that are contemplated in Clause (c) are as to 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 Clause (c). The word 'fraud' used in this clause connotes deception or misrepresentation. If there is a misrepresentation or concealment of a material fact concerning the respondent then the provision contained in Clause (c) would definitely be attracted for anulling the marriage. What is a misrepresentation or concealment of a material fact 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. The fraud or misrepresentation need not necessarily be at the time of marriage, it can be one made even before marriage. In our opinion the pre-marital status of a party is a material fact which the other party must know before imparting consent for marriage. It may not be a very vital factor when both the parties are divorcees or there is a history of both of them being previously married. But in a case where one of the parties is previously married and the other is unmarried it becomes a relevant aspect to be considered by the party who is unmarried. A party is under an obligation to disclose whether he was previously married or not. If so, what is the position of the previous spouse? In the present case the appellant is contending that he had legally divorced the first wife, Balbir Kaur by means of a customary divorce but on the other hand Balbir Kaur is asserting that she is still the legally wedded wife of the appellant and there was no legal divorce. The appellant was obliged to disclose to the respondent about the factum of his previous marriage and the alleged divorce by custom. If any. This is an admitted case of the parties that the respondent was a virgin. The previous marriage of the appellant with Balbir Kaur was a material fact concerning the appellant which was intentionally suppressed and was not disclosed to the respondent. The case of the respondent is that she was a virgin and she would not have consented to marry the appellant had she known the fact that the appellant was previously married to Balbir Kaur. The counsel for the appellant relied upon Raja Ram v. Deepabai, in support of his contention that the concealment of the fact that the appellant had been once married to another woman could not be a ground for annulment of the marriage. We have perused the authority relied upon by the learned counsel for the appellant, in this case Clause (c) of Sub-section (1) of Section 12 of the Act as it stood prior to the amendment of 1976 was interpreted. Clause (c) prior to amendment read as under:
"THAT the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, the consent of such guardian was obtained by force or fraud."
After the amendment of 1976 there is a radical change in Clause (c) and the following words have been added :-
"AS to the nature of the ceremony or to any material fact or circumstance concerning the respondent".
(24) Even otherwise with respect we do not agree with the law laid down in Raja Ram's case as an abstract proposition that in no circumstances the concealment of the fact that the appellant had been once married to another woman could be a ground for annulment of marriage. It depends upon the facts and circumstances of each case, as we have explained earlier.
(25) The respondent has been able to bring home the charge that her consent in bringing about, the marriage was obtained by deception, misrepresentation and concealment of material fact concerning the appellant. The respondent is, therefore, entitled to the relief claimed for annulling the marriage under Clause (c) of Sub-section (1) of Section 12 of the Act.
(26) The learned counsel for the appellant feebly argued that the petition filed by the respondent was a counter blast to the petition filed by the appellant under Section 9 of the Hindu Marriage Act against the respondent. The contention is mis-conceived. The respondent filed the petition under Section 12 prior to the petition filed by the appellant under Section 9 of the Act at Jalandhar. How can be the petition filed by the respondent a counterblast to the petition filed by the appellant which was filed subsequently to the filing of the petition by the respondent.
(27) The appeal is devoid of force and lacks merit. It is liable to be dismissed. We order accordingly and dismiss the appeal with costs. Counsel's feeRs. 1,500. C.M. 89/1986. This is an application filed on behalf of the appellant seeking permission to produce the evidence in rebuttal. The application is misconceived. The issue as framed by a Bench of this court is, "Whether Rajinder Singh was previously married and .whether this fact stood disclosed to the respondent or any of her relations?" The onus of this issue was on the appellant and he has led the evidence. The question of leading evidence in rebuttal does not arise. The application is dismissed.
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