Pradeep Kumar Maheshwari vs Smt. Anita Agarwal
2018 Latest Caselaw 3056 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Court No. - 5
 
Case :- FIRST APPEAL No. - 153 of 2017
 
Appellant :- Pradeep Kumar Maheshwari
 
Respondent :- Smt. Anita Agarwal
 
Counsel for Appellant :- Rajesh Kumar Pandey,Mukteshwar Mishra
 
Counsel for Respondent :- Abhishek Misra,Satendra Kumar (Singh)
 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Abhai Kumar ,J.

The aforesaid First Appeal under Section 19(i) of the Family Court Act, 1984 arises out of the judgment and order dated 24.10.2017 passed by the Principal Judge, Family Court, Lucknow, whereby the petition preferred by the appellant for annulling his marriage with Smt. Anita Agarwal has been rejected summarily on the ground that the case does not fall under Section 12(1)(c) of the Hindu Marriage Act.

In short, the facts as narrated in the memo of appeal are that marriage of Pradeep Kumar Maeshwari was solemnized with Smt. Anita Agarwal on 22.4.2016 as per Hindu rites and customs at Jagdishpur Dharamshala, Aisbagh Lucknow. After marriage, the wife refused to consummate marriage on one pretext or the other. Some doubts were created by the respondent that the appellant is impotent and to remove such doubts, the appellant went under medical check-up alongwith respondent at King George Medical University where the doctor after examination declared him fit. Even after medical check-up, the wife not only refused to consummate marriage but refused to perform diurnal work of the house and started misbehaving with the appellant and his parents and one day she left the matrimonial house. The appellant made all his sincere efforts to save his matrimony but she refused to accompany him.

It was utter shock and surprise for the appellant when he came to know that the respondent was previously married to one Mr Sanjay Agarwal, who had earlier filed a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which was registered as regular suit no.1152 of 2004. Later on, said Mr Sanjay Agarwal had filed a petition under Section 13 of the Act for dissolution of marriage on the ground of cruelty. The said marriage was dissolved on the basis of compromise vide order dated 24.5.2007.

There was another shock for the appellant when it also came to his knowledge that after divorce with the first husband, the respondent had performed second marriage with Mr Nitin Mittal son of Sri Ramesh Mittal. As the factum of her earlier two marriages were concealed by the respondent from the appellant and his parent; and marriage was solemnized by playing fraud, the appellant filed a petition under Section 12 of the Hindu Marriage Act, 1955 for annulment of marriage.

As averred above, the Family Court rejected the petition preferred by the appellant summarily on the ground that the case does not fall under Section 12(1)(c) of the Hindu Marriage Act. Hence the appellant has filed the instant appeal.

It has vehemently been argued by the learned Counsel for the appellant that the learned Court below had committed manifest error of law in rejecting the petition preferred by the appellant under Section 12 of the Act overlooking the fact that the appellant had narrated in clear words that the marriage was performed by playing fraud with the appellant and his family members and at no point of time, it was disclosed that the respondent was a divorcée. Had the appellant or his family members been informed about the earlier two marriages, there was no occasion for the appellant or his family members to agree for the said marriage.

On the strength of decisions rendered in Gurmeet Kaur vs Narinder Singh; 1978 HLV 521, Saswati Chattpadhyaya (nee Saswati Mukherjee) vs. Avik Chattopadhyay; (2011) 3 ICC 51, Govindra Embranthiri vs Poolakkal House; AIR 2017 Ker 168 and Perminder Charan Singh vs Harjit Kaur (2003) 10 SCC 161, learned Counsel for the appellant has vehemently argued that 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, which has not been done by the respondent.

Refuting the assertions of the appellant, it has been argued on behalf of the respondent that there is no defect in the impugned judgment passed by the Family Court. It has also been submitted that before the final settlement of the marriage, the members of family has categorically stated before the parents of the appellant that the respondent is a divorcée. It was also disclosed that Sri Sanjay Agrawal had divorced the respondent. The factum of second marriage of the respondent with Sri Nitin Mittal was also disclosed at the time of settlement of marriage. Relying upon the judgment rendered in Rajaram Vishwakarma vs. Deepabai; AIR 1974 MP 52 and Prakash Singh Thakur vs Smt Bharti; AIR 2001 MP 1, learned Counsel for the respondent has submitted that no fraud has been played as asserted by the appellant with regard to settlement of marriage.

Before proceeding with the case, we deem it proper to reproduce relevant provision of Section 12(1)( c) of the Act, which reads as under:-

"12 (a) ........

(b)

( 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 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance."

On careful reading of the said clause (c) Section 12(1), it will appear that both the parties in case of adult (here it is so) are obliged to divulge mutually and unequivocally the material fact or circumstances to each other before or at least at the time of marriage so much so element of deception is ruled out. The words material fact or circumstances have not been defined or specified. We think it cannot be inflexibly or specifically laid down. It varies from one family to another, according to culture, ethos and social system in ages and situation. For example in a conservative family having attachment with puritan society in a marriage inevitable and unerring expectation is that both the bride and groom must not have any record of prior marriage in any sense nor will have any marriage in any sense, not even any premarital affairs with other boy or girl (as the case may be). They cannot think of even marrying outside their caste and community, conversely, a family with liberal and cosmopolitan approach, thought, particularly in urban area will not mind in case of marriage even having knowledge of background of prior marriage or premarital affair with other counter sex outside their caste and community. In case of former, concealment of caste, community or background of prior marriage or premarital affairs before or at the time of marriage is obviously extremely material and it amounts to fraud in obtaining consent.

In the case of Saswati Chattopadhyaya,(supra) the husband (plaintiff) was not informed about the earlier marriage at the time of negotiation or at the time of solemnization of the marriage. On inquiry, the husband came to know that there had been previous marriage of the appellant with one Sudip and it was also discovered that the earlier marriage was dissolved by consent. When the matter reached to the Family Court, it came to the conclusion that there has been suppression of the relevant fact with regard to the pre-marital status of the appellant and such relevant fact goes to the root of the matrimonial relationship. On an appeal, the Calcutta High Court endorse the view taken by the Trial Court and observed that per-marital status of a party is a material fact which the other party must know before imparting consent for marriage.

In the case of Govindan Embranthiri (supra) the wife was suffering from schizophrenia and she was being treated for the same even prior to the marriage and this fact was not disclosed. When the matter reached to the Kerala High Court, the Court after examining the provisions of Section 12 of the Act came to the conclusion that factum of illness and taking medicine was suppressed and consent was obtained by fraud and as such the Court granted the decree of annulment of marriage under Section 12(1)( C) of the Act and declared the marriage as null and void.

In the decision reported in Joy vs. Shilly (1995 KHC 349), it has been held that it would amount to fraud, if there is a concealment of the fact that one of the parties to the marriage was insane.

In view of what has been stated above, we are of the view that concealment of earlier marriage or divorce would provide a ground to the petitioner to seek annulment of his or her marriage. It may be noted that Section 12(1)(c) of the act was amended in the year 1976 to include fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. Prior to the amendment a person who freely consented to solemnization of marriage with knowledge of nature of ceremony and intention to marry could not avoid the marriage by showing that the respondent had induced by fraudulent statements relating to family, status, caste, religion, character or age of the respondent. Now after the amendment the petitioner can avoid the said marriage if he proves that a fraud has been played and certain material fact has been suppressed.

It is the case of the respondent/plaintiff that there has not been any disclosure of fact at the time of negotiation before or at the time of solemnization of the marriage, about the earlier marriages. It was stated before the Court below that the factum of occurrence of previous marriage is within the special knowledge of Smt. Anita Agarwal, hence it was her obligation to disclose it since she was adult, or for that matter her parents. In the petition before the court below, the appellant has stated in explicit words that before marriage, the appellant was given a hand written bio-data of the appellant in which there is no mention that the respondent is a divorcee. In our view, all these disputed question of facts are to be proved before the Trial Court by adducing evidence. In these circumstances, there was no justification for the Family Court to reject the petition summarily.

For the reasons aforesaid, we are of the view that the learned Court below committed an error in not deciding the petition on merits.

Accordingly, the appeal is allowed. The impugned judgment and order dated 24.10.2017 is hereby quashed and the case titled as Pradeeh Kumar Maheshwari vs. Smt. Anita Agarwal filed in the Court of Principal Judge, Family Court, Lucknow is restored. The Family Court is directed to decide the case on merits after giving opportunity of hearing to the parties concerned within a period of six months from the date of production of certified copy of this order as the matrimonial dispute is lingering since April, 2016.

Order Date :-5th October, 2018

MH/-