Nullity of Marriage and Divorce

Sec. 12 - Consent to Marriage Obtained by Force or Fraud [Section 12(1)(c)]

According to this clause, the marriage is voidable on the ground that the consent of the petitioner to the marriage was obtained by force or fraud. In this context, the term "consent of the petitioner" includes consent given by the petitioner to the marriage as a result of negotiations made on their behalf by their parents, elders in the family, or other relatives, including friends.

For the case to fall under this provision, consent must have been obtained by force or fraud at the time of the marriage, though it is not necessary for this to have occurred prior to 1976. Before that, a marriage could be avoided under this clause only when consent was obtained by fraud, and the crucial time for determining the existence of fraud was the time when the marriage was actually performed.

Thus, in Rasiklal v. Sulochana, the court held that a fraud practiced at the time of an agreement to marry, which would also include betrothal, would not automatically constitute a ground for an aggrieved party to annul the marriage.

In the absence of specific details of fraud in the substantive petition, merely mentioning fraud or fraudulent acts of concealment is ineffective. The party alleging fraud is required to prove every instance of fraud and how it was practiced on them. They must also prove that they were influenced by the fraud. The alleged disorder or ailment of the appellant was not incurable and did not render her unfit for conjugal life. It was held that the concealment of such a disorder or ailment would not constitute fraud relating to a material fact or circumstance. Inflated or false representations regarding one's salary and property status amount to fraud concerning the material facts and circumstances related to a party to the marriage.

What constitutes fraud in relation to obtaining consent to marriage is expressly set out and defined in the section. Fraud could be related to the nature of the ceremony or any material fact or circumstance concerning the respondent. However, prior to this, fraud had not been explicitly limited to deception regarding the marriage ceremony or the identity of the party marrying in many judicial decisions.

For instance, where a wife with high academic qualifications consented to a marriage based on a representation made by the husband that he had an attractive job, whereas in fact, he was undergoing only an apprenticeship training in a factory, it was held to be a case of misrepresentation, and annulment was decreed.

Similarly, where a woman, a practicing lawyer, was deceived by a man's impressive bio-data, leading her to marry him, a Delhi district court held that misrepresentation by the husband regarding his age, qualifications, and salary amounted to fraud upon the wife. Such a marriage was voidable and could be annulled if fraud was proved. In this case, the woman's testimony about being deceived by a false bio-data remained unchallenged and provided sufficient grounds for a divorce (Woman Gets Divorce Over Husband's False Claims, Hindustan Times, December 24, 2007).

In another case, where misrepresentation about the age of the bridegroom was made to the mother acting as an agent, and the daughter consented to the marriage believing the representation, it was held that her consent was vitiated by fraud.

Cases Referenced:

• Kalawati v. Devi Ram, AIR 1961 HP 7
• Alka v. Abhinesh Chandra Sharma, 1991 (2) HLR 335 (MP); see also Surinder Kaur v. Bhupinder Singh, 1986 (2) HLR 469 (P&H)
• Babuji Ponmato Kuer v. Ram Agua Singh, AIR 1968 Pat 190
• (1967) ILR 822 (Guj)
• Anand Nathy, Laijabati Devi, AIR 1959 Cal 778; Harbhajan Singh v. Brij Bala, AIR 196 (1075) II B 1469 (Ker)

Written By: S Kundu & Associates
Email: [email protected], Ph No: +9051244073