Report No. 90
4.10. Willful deception.-
The second situation mentioned above (willful deception), is also, in substance, covered by the last paragraph of section 19 of the Indian Divorce Act. That part of the section preserves the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud. No doubt, the jurisdiction to grant such a decree (on this particular ground) is confined to the High Court. The reason for this seems to be that the High Courts in India have inherited their jurisdiction on the subject from the Supreme Courts, which, in their own turn, had inherited the power to make a decree of nullity (on the ground of duress or fraud) from the ecclesiastical courts.1 If the present position causes serious hardship, by reason of the jurisdiction being so confined the point can, no doubt, be looked into,2 at the time when the entire Divorce Act is revised.
But what needs to be pointed out is that the law applicable to Christians, even now, does provide some remedy to deal with circumstances of fraud or duress, in the field of matrimonial relief. Thus, the present law cannot be regarded as substantially inadequate. Nor can it be said that courts have not captured the spirit of the principles on which the jurisdiction in question may be exercised. From a study of reported decisions, it appears that, on the whole, courts, when elaborating the concept of fraud, have laid stress on the fact that the essence of a valid marriage is free consent both in regard to the person with whom the marriage is undergone3 and in regard to the ceremony of marriage.4 By and large, serious cases of fraud seem to have been taken care of by the present law.
1. T. Saroja David v. Christie Francies, AIR 1965 AP.
2. Point for further consideration (jurisdiction of High Courts).
3. Ayukut v. Ayukut, AIR 1940 Cal 75 (Decison under Specific Relief Act, 1877).
4. Mehta v. Mhta, (1945) 2 All ER 690 (This is an English case, but the position will be the same in In a.)
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