Shiv Dayal, J.
1. This appeal under Section 28 of the Hindu Marriage Act, 1955. (hereinafter referred to as the Act) has been preferred by the husband, whose marriage with the respondent (has been held to be null and void under Section 11 of the Act, on the ground that he had a wife living on the date of the marriage. A decree of nullity has also been passed under Section 12 of the Act on the ground that the respondent's consent to the marriage was obtained by fraud within the meaning of Clause (c) of Sub-section (1) of that section.
2. Smt. Deepabai (respondent) was married to Rajaram (appellant) on November 25, 1964, in the Hindu sacramental form of marriage. On September 2, 1965, she made an application under Section 11 of the Act for a declaration that the marriage was nullity inasmuch as Rajaram had been married to one Kewalibai, daughter of Kashinath Loharof Bai-Ka-bagicha, about 10 years earlier. It was also alleged that the fact of the previous marriage was deliberately suppressed from her so that her consent to the marriage was obtained by fraud.
3. The application was resisted by the appellant, denying that he was married earlier. He asserted that he did not even know Kewalibai although he knew Kashinath.
4. Parties produced their evidence. Parmanand (P. W. 2) and Kishanlal (P. W. 3) stated that Raiaram had been married to Kewalibai, 'daughter of Kashinath. Rajaram had stated that he had not been married to Kewalibai. His witnesses, Ujagar (D. W. 2) and Sitaram (D. W. 3) supported him. The learned District Judge thought it necessary to examine the mother of Kewalibai. Accordingly, Indrawati, mother of Kewalibai, was examined as a Court witness. She stated that her daughter. Kewalibai, had been married to Rajaram about 10 years before her deposition, which was recorded on January 11. 1967.
5. After Indrawati's evidence, Rajaram applied for leave to amend the written statement. He wanted to plead, in the alternative, that he had been married to Kewalibai in the year 1954, but later on the marriage was dissolved by the Panchas in accordance with the Caste custom and that Kewalibai had remarried another man. The application wag rejected by the trial Court.
6. The learned District Judge, relying on the evidence of Parmanand (P. W. 2). Kishanlal (P. W. 3) and Indrawati (C. W. 1) held that Kewalibai, daughter of Kashinath and Indrawati, had been married to Rajaram 'about 10 years back'. Since there was no material to show that the marriage with Kewalibai had been lawfully dissolved, the held that the marriage had to be deemed to be subsisting. He, therefore, held that the marriage between Raiaram and Deepabai was a nullity within the meaning of Section 11, read with Section 5(i) of the Act.
7. He further held that there was deliberate suppression from Deepabai of a material fact that Rajaram had been married earlier to another girl, which amounted to fraud within the meaning of Section 12(1)(c) of the Act, and accordingly passed a decree of nullity under that section as well.
8. In this Court, it was first contended for the appellant that the trial Court erred in refusing him leave to amend the written statement. We granted him leave. The written statement has been amended, but no further evidence was sought to be produced by the appellant who relied on the present material itself.
9. Learned counsel for the appellant contended that the learned District Judge was in error when he annulled the marriage by a decree of nullity under Section 12(1)(c) of the Act. The argument is that there was neither pleading nor proof that Deepabai gave consent to the marriage with the appellant either because of force or fraud within the meaning of Clause (c) of Section 12(1) of the Act. Mere suppression of a fact is not fraud within the meaning of matrimonial law. In our opinion, this contention must be accepted.
10. Section 12(1)(c) of the Act reads as follows---
'12(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.-
xxx x x x x (c) that the consent of the petitioner ............was obtained by force or fraud.'
It is clear law that 'fraud' within the meaning of this section is not each and every misrepresentation or concealment, which may be fraudulent. The word 'fraud' in the section has a limited meaning. In the section 'fraud' refers to and refers only to, the consent of the petitioner to the solemnization of the marriage. Learned counsel for the respondent strenuously argued that where there is suppression of a material fact the law cannot support the marriage and that is the object and meaning of Section 12(1)(c) of the Act. We are unable to accept this contention.
11. Before the enactment of the Hindu Marriage Act. 1955, the textual Hindu Law which was in force, did not permit dissolution of a Hindu marriage. In Hindu Law an admixture of religion and ethics with legal precept was congruent. Marriage under the Hindu Law as it then stood, was primarily and essentially a sacrament (religious aspect); and the marriage was considered to be a gift of the bride to the bridegroom (secular element). The textual concept of a Hindu marriage was that It constituted not only a union of two bodies but also of the soul in them. Except in exceptional cases, where dissolution was recognised by custom, with all its elements which would give it a force of law, a Hindu marriage could not be dissolved particularly among the three regenerate classes.
12. Divorce, under the textual Hindu Law, was not allowed except in certain communities in the lower social strata where it was permitted by custom. The smritikars did not deal with, divorceas such although there is a celebratedtext of Narad:--
'If the husband be missing, or dead or retired from the world, or impotent, or degraded, in these five calamities a woman may take another husband.'
(Nashte mrite pravrajite kleebe cha patite patau; panchat sva patsu nareeham patrienyo vidheeyate--xxi-37)
In practice, however, there was no remarriage in the regenerate castes even during the smriti period.
13. Influences of modern civilization and forces, of social conditions demanded change in the law. Alternative conditions had arisen in matters, social, economic and political. Undoubtedly, marriage for life is the most natural form of marriage and best adopted to a civilized society, yet there can be justification for a marriage to be indissoluble even in circumstances of exceptional hardship or exceptional depravity.
14. The Hindu Marriage Act. 1955, therefore, introduced for the first time provisions for legal dissolution of marriage. The Act creates a relation and status, not defined by contract but by law. However, the legislature was jealous enough to make stringent rules for judicial separation and divorce. The provisions contained in Sections 10, 12 13 are not meant to be used as a mere pretext or an instrument for leaving one wife to have another. The word 'fraud' in Section 12(1)(c) of the Act has to be read with the above background.
15. Bearing in mind the above background it is to be seen whether the word 'fraud' in Section 12(1)(c) is wide enough to include any and every misrepresentation or suppression of a material fact. To do this let us contemplate the following cases in which there has been deliberate misrepresentation or suppression of fact:--
(1) The other party to the marriage is really a person other than the one who is represented to be.
(2) What is being performed is something other than solemnization of marriage; for instance, betrothal.
(3) The other party has a spouse living at the time of the marriage.
(4) The other spouse is an idiot or a lunatic.
(5) The other party is impotent
(6) The bride is pregnant by some person other than the bridegroom at the time of the marriage.
(7) The other party is suffering from general disease in a communicable form.
(8) Fraudulent misrepresentation or concealment as regards the family to which the other party belongs.
(9) Fraudulent misrepresentation or concealment as to the caste or religion to which the other party, belongs.
(10) Fraudulent misrepresentation or concealment as to the financial status of the other party.
16. Now cases Nos. (1) and (2) clearly fall within the purview of 'fraud' under Section 12(1)(c) of the Act. Free consent to a marriage has two elements: (1) consent as to the identity of the other party with whom the marriage is being performed; and (2) consent to the actual solemnization of the marriage. If there is fraud in respect of the identity of the other party, or there is deception as to what is being performed is not marriage bilt something else, it must be said that the consent of the petitioner has been obtained by fraud. The test is whether there was real consent to the solemnization of the marriage with the other party. But where there is intention to marry and also the knowledge of the nature of the ceremonies; there is no fraud within the meaning of this section.
17. Thus, the other cases illustrated above do not constitute fraud within the meaning of this section. Provision is made in other sections of the Act to deal with them. In the third case the marriage is a nullity by virtue of Section 11, read with Section 5(i) of the Act. In the fourth case, the marriage can be annulled by a decree of nullity under Clause (b) of Section 12(1). In the fifth case, the marriage can be annulled by a decree of nullity under Clause (a) of Section 12(1). In the sixth case, the marriage can be annulled by a decree of nullity under Clause (d) of Section 12(1). Under the English Law, it is not a good ground for avoiding marriage on the plea that the consent was obtained by fraud. See Moss v. Moss (1897 P.D. 263). In the seventh case, the marriage can be dissolved under Section 13(1)(v), provided the disease continues for at least three years immediately preceding the presentation of a petition for divorce.
18. In the 8th, 9th or 10th case, there can be no annulment of the marriage on the ground of fraud.
19. The conclusion is that: (1) fraud within the meaning of Section 12(1)(c) of the Act means either (a) deception as to the identity of the other party to the marriage, or (b) deception as to the nature of the ceremonies being performed. (2) where consent is given with the intention to marry the other party and with the knowledge that what is being solemnized is marriage, an objection to the validity of the marriage on the ground of any fraudulent misrepresentation or concealment is not tenable.
20. Judged by these tests in the present case, mere concealment of the fact that the appellant had been once married to another woman, cannot be a ground forannulment of the marriage, because it cannot be said that Smt. Deepabai's consent was caused by fraud within the meaning of Section 12(1)(c) of the Act. It is different that the marriage will be declared a nullity if a spouse was living at the time of the marriage.
21. Adverting now to the declaration of the marriage as null and void under Section 11 of the Act, the appellant's contention is that Kewalibai had already remarried another person and had children by him, so that the marriage could not be said to be subsisting on the date of the appellant's marriage with Deepabai. It has been found on evidence, the credibility of which is not in dispute that Kewalibai, (daughter of Indrawati) (C. W. 1) and her deceased husband. Kashinath, had been married to Rajaram somewhere in the year 1957. Deepabai was married to Rajaram in the year 1964. It is also proved that Kewalibai had left Rajaram several years earlier and later on produced some children by any man but not Rajaram. The question is whether the marriage between Rajaram and Kewalibai stood dissolved on November 25. 1964, when Deepabai was married to him. The date is crucial. There is no positive evidence produced by the appellant how and when the marriage between him and Kewalibai was dissolved. Learned counsel for the appellant argues that a presumption must be made that she was remarried to another man because of the fact that she has produced some children after she left Rajaram. He relies on Rewaram v. Ramratan, AIR 1963 Madh. Pra 160.
22. It is clear law that long cohabitation between a man and a woman raises a strong presumption of marriage, particularly when children are born and such children are treated by the community as those of the man. In such a case, if the woman had been married previously to another man the previous marriage can be taken as dissolved provided it is permitted by caste custom. Such presumption is raised when there is positive evidence that the woman has been continuously cohabiting with the particular man.
23. In the present case there is no positive evidence of a long and continuous cohabitation of Kewalibai with a particular man after she left Rajaram. Even Indrawati does not name any particular man. She merely states that Kewalibai was given to another man. 'Dusari Jagah Baitha Diya.' She also states that later on a few children have been born to Kewalibai. The date or the period of the commencement of cohabitation with another, man is not proved. Therefore,from her evidence , which is vague and indefinite, it cannot be said to be proved that the marriage between Rajaram and Kewalibai stood dissolved on or before November 25, 1964, on which date Deepabai was married to Rajaram. All that can be concluded is that because of long cohabitation between Kewalibai and another person, by whom she has produced children what can be said today is that she is a legally married wife of the man by whom she has produced children. But there is no material to ascertain the date on which that other man and Kewalibai commenced cohabitation, so that they could be presumed to have become husband and wife from that date. In this view of the matter, the second contention must be rejected.
24. The appeal is dismissed. In the circumstances of the case, we direct that the parties shall bear their own costs in this Court as well as in the trial Court.