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Report No. 59

6.8. Section 12(1)(c), H.M.A.-

Fraud case law. One of the grounds for avoiding a marriage is the fact that the consent of the petitioner (or his or her guardian) to the marriage was obtained by force or fraud. The relevant provision is to be found in section 12(1)(c) of the Hindu Marriage Act. The section does not expressly limit "fraud" to deception in relation to the marriage ceremonies only or to the identity of the party marrying. But many judicial decisions have taken that view. In a recent Bombay case,1 for example, it was held that a person who freely consents to a solemnisation of the marriage under the Act with the other party in accordance with customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot object to the validity of the marriage on the ground of a fraudulent representation or concealment. Therefore, concealment of curable epilepsy and a false representation that a party to the marriage was healthy, does not amount to fraud within the meaning of section 12(1)(c) of the Act.

1. Raghunath Gopal Daftardar v. Vijaya Raghunath Daftardar, (1970) 73 Born LR 840 (reviews cases).

6.9. In a Calcutta case,1 the marriage was sought to be annulled on the ground that at the time of the marriage, the girl was suffering from tuberculosis and that there was a fraudulent misrepresentation about her health. Evidently, the marriage was consummated. It was held that the marriage was not voidable under the Hindu Marriage Act, 1955. Relying on the English Law and the position under the Indian Divorce Act, 1869, the High Court took the view that the fraud in relation to matrimonial consent must exist at the time of solemnization of a marriage. The High Court also stated that the provisions of the Hindu Marriage Act, 1955, "clearly suggest that concealment of a disease other than those mentioned in the said section (section 13) cannot be the foundation for avoiding the marriage."

1. Anath Nath v. Lajjabati Devi, AIR 1959 Cal 778 (782).

6.10. On the other hand, in a Madhya Pradesh case,1 the respondent before his marriage was represented as a Brahman boy, when actually he was a dasiputra (an illegitimate child born of gurmi woman). The marriage was held to be voidable.

1. Bimla Bai v. Shankerlal, AIR 1959 MP 8.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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