1. This is an appeal against the judgment and decree of the Additional District Judge, Ludhiana, dated June 5, 1978, granting a decree of annulment of the marriage in favour of Bikkar Singh, petitioner.
2. Briefly, the facts are that the petitioner was married to the respondent on June 19, 1977. It is alleged that prior to the marriage he was shown a girl who was good looking and literate but when after the marriage the respondent came to the house of the petitioner, his mother and he on seeing her found that she was a different girl than the one shown to him. It is further stated that she was illiterate lady having small stature. and grey hair and was aged about 40 years. He further averred that his consent for the marriage with the respondent was obtained by fraud and consequently the marriage was not binding upon him. It is also alleged that she was suffering from a venereal disease at the time of marriage and he also contacted it after intercourse with her. He consequently prayed for a decree for annulment of the marriage under S. 12 of the Hindu Marriage Act (hereinafter referred to as the Act).
3. The application was contested by the respondent wherein she denied that any fraud was played upon the petitioner. She further said that she stayed with the petitioner for about 20 days, Thereafter, it is said, he started demanding Rs. 5,000/- and a motorcycle from her parents, and when they, could not meet the demand he turned her out. Later, her. Parents approached the petitioner but he refused to keep her unless her father paid Rs. 5,000/- and gave a motorcycle. On the pleadings of the parties the following issues were framed by the trial Court:--
1. Whether the respondent has been married by fraud?
2. Whether the petitioner is entitled to a decree as prayed for?
It held that fraud was played upon the petitioner and, therefore, he was entitled to a decree of nullity of marriage. Consequently, a decree was passed in his favour. The respondent-wife has come up in appeal to this Court.
4. The only contention of the learned counsel for the appellant is that the respondent admitted that after the fraud had been discovered, he cohabited with the appellant. According to him, if he cohabited with her then he is not entitled to decree of nullity of marriage. The counsel for the respondent, on the other hand has vehemently argued that he cohabited with her only once after the discovery of the fraud and consequently the decree had been correctly passed in his favour.
5. I have heard the learned counsel for the parties at a considerable length. I, however, find force in the contention of the learned counsel for the appellant. S. 12 of the Act deals with voidable marriages. Sub-section (1) provides that a marriage where the consent of the petitioner was obtained by fraud as to the nature of ceremony or as to material fact or circumstance concerning the respondent, shall be voidable and may be annulled by a decree of nullity. Sub-section (2) says that notwithstanding anything contained in sub-section (1) no petition for annulling marriage on the aforesaid ground shall be entertained if the petitioner has with his or her full consent lived with the other party to the marriage, after the fraud had been discovered. A reading, of the section shows that marriage is voidable if consent of a spouse has been obtained by fraud. But it stands ratified if they live together after discovery of fraud with the consent of the defrauded spouse.
6. Before dealing with the proposition of law, it is appropriate to mention that the learned counsel for the appellant has not challenged the finding of the trial Court that fraud had been played on the respondent. The counsel for the respondent has also admitted that the respondent cohabited with the appellant after discovery of fraud. The question arises as to whether the respondent is entitled to a decree of nullity if he had sexual intercourse with his wife once after having come to know that a fraud had been played upon him. In my view even a single act of cohabitation after the discovery of fraud, would be a good ground for dismissal of the petition for nullity of marriage. The principle underlying it is that of condonation. It is always open to the parties to the marriage to stand by the alliance even after their knowledge of a vitiating circumstance. If they approve the alliance by cohabiting together as husband and wife it will no longer be open to either of them to reprobate by filing a petition for decree of nullity. The language of the section is clear according to which the voluntary cohabitation by a spouse, who pleads fraud, condones the same. In the aforesaid view I am fortified by the observations of this Court in Kunta Devi v. Siri Ram Kalu Ram, AIR 1963 Punj 235, wherein it was held that a marriage procured by fraud, abduction terror or coercion has no sanctity and is voidable and is liable to annulment at the election of the injured party. It is further held that such a marriage may be ratified by voluntary cohabitation which may neutralise the effect of early coercive and fraudulent acts.
7. After taking into consideration all the facts and circumstances of the case, I am of the opinion that the respondent could not challenge the marriage on the ground of fraud as he had sexual inter-course with the appellant after having found that his consent to the marriage was obtained by fraud.
8. Mr. Gandhi, faced with the aforesaid difficulty sought to argue that the appellant was suffering from venereal disease and the respondent after having intercourse with her contacted the same. He argues that the respondent in the aforesaid situation was entitled to a decree of divorce. No issue on this plea was claimed in the trial Court. The prayer of the respondent was for a nullity of marriage under S. 12. He did not claim divorce under S. 13 of the Act. Consequently he cannot be allowed to raise the question in appeal.
9. For the reasons recorded above, I accept the appeal, set aside the judgment and decree of the trial Court and dismiss the petition for nullity of marriage under S. 12 of the Act. No order as to costs.
10. Appeal allowed.