S.S. Sandhawalia, C.J.
1. Whether a singly act of sexual intercourse by a spouse who had been fraudulently inveigled into a marriage by fraud would amount to total condonation, so as to bar a petition for the annulment of such a voidable marriage under S. 12 of the Hindu Marriage Act is the solitary though significant question which falls for determination in this appeal under Clause 10 of the Letters Patent.
2. The factual matrix is otherwise brief and further calls for notice only in so far as it is relevant for the aforesaid issue. The appellant-husband was married to the respondent on June 19, 1977. On Oct. 22, 1977, the appellant presented an application under S. 12 of the Hindu Marriage Act (hereinafter called the Act), seeking annulment of the marriage. Therein he alleged that prior to the marriage he and his mother were shown an altogether different girl who was both literate and beautiful and he had consequently given his consent to a marriage with her. However, when the respondent after the marital rites was brought to the husbands home his mother discovered that the girl was a different one from that earlier shown to them According to the petitioner-appellant the respondent was illiterate of ugly looks was aged about 40 years, and of small stature, and had grey hair. Further she also had some artificial teeth and was suffering from venereal disease in a communicable form and had weak eye-sight and certain defect in her eyes. According to the husband the respondent-wife stayed in the house only for the night and was taken away in the morning by her brother. Thereafter the parties never lived as husband and wife.
3. The respondent-wife contested the aforesaid application on the ground that there was no fraud played upon the petitioner and sought to allege that she had stayed with the appellant-husband for nearly 20 days. She alleged that thereafter the husband started demanding Rs. 5,000/- and a motor-cycle from her parent and when they could not meet the demand she was turned out of the house. Later her parents approached the appellant-husband but he refused to keep her unless the aforementioned demand was satisfied.
4. On the pleading of the parties, the following issues were framed:--
(1) Whether the respondent has been married by fraud?
(2) Whether the petitioner is entitled to a decree as prayed for?
The trial Court came to the categoric finding that a fraud had been played up on the appellant-husband and therefore, he was entitled to a decree of nullity of marriage which was granted.
5. The respondent-wife appealed. The factual finding of fraud arrived at by the court below was not challenged on her behalf and the solitary argument raised by her counsel before the learned singly Judge was that the appellant-husband having admitted that after the fraud he had cohabited with the wife, he was consequently barred from seeking the relief under Section 12 of the Act. This contention found favour with the learned single Judge and accepting the appeal, he dismissed the petition of the appellant husband.
6. Now to clear the deck for a closer examination of the solitary legal issue which arises herein it may first be notified that the sole contention of behalf of the respondent-wife before the learned single Judge was that the appellant even after getting some wind of the fraud and impersonation practiced on him, never the less admitted to having cohabited with the wife once for the solitary night during which she stayed at his house. It calls for pointed notice that both in the petition itself and also in the examination-in-chief of the appellant-husband the firm stand taken was that on the very next day, following the wedding the brother of the respondent-wife had come and take her away. Significantly this position was not even sought to be assailed by a single specific question by way of cross-examination. The trial Court though slightly ambivalent had itself come to a clear finding that the wife had lived in the house only for one night and the allegation made on her behalf of having stayed in her husband's house for 20 days was not at all established. The learned single Judge himself noticed that the counsel for the appellant had not challenged the finding of the trial Court that the fraud had been played on the husband. Consequent on these virtually accepted facts, the pristine legal issue was raised before the learned single judge whether a solitary act of sexual inter-course was tantamount to a total condonation of the fraud and impersonation by which the voidable marriage had been brought about. On this issue, the learned single Judge took a rather stringent view in the following words :--
'....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 the aforesaid dictum which calls for examination in the present case.
7. Now the principle of a total condonation of a matrimonial offence and the results flowing therefrom are both subtle and profound. Though well understood it does not admit of an all comprehensive definition. Nevertheless, the authoritative formulation of the concept in ' Rayden on Divorce' XI Edition may be noticed instructively:--
'Condonation is the reinstatement in his or her former marital position of the spouse who has committed a matrimonial wrong of which all material facts are known to the other spouse with the intention of forgiving and remitting the wrong, on condition that the spouse whose wrong is so condoned does not thenceforward (a) commit any further matrimonial offence (b) condonation therefore consists of a fatcum of reinstatement and an animus remittendi. ...'
Coming nearer home, an authoritative view of the concept of condonation has been spelt out by Chandrachud, J. (as his Lordship then was), in the under mentioned observation in the well-known case of Dr. N. G Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534(at p. 1545):--
'Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things; forgiveness and restoration: The law and Practice of Divorce and Matrimonial Causes by D. Tolstoy, Sixth Edition p. 75...'
From the aforesaid enunciation, it would be plain that condonation to be effective has both a factual and mental element. There is to be both a factum of reinstatement and a clear intention to forego and remit the wrong. Therefore, an effective and total condonation can arise only from a conscious and deliberate ratification of the marital status by the aggrieved spouse which may lead to a strong inference of a total wiping off a matrimonial offence. There is no inflexible rule that a solitary freakish act of sexual intercourse would raise an irrebuttable presumption of total condonation or forgiveness of a gross matrimonial offence.
8. Now apart from larger principle, the matter here has necessarily to be construed in the light of the language of the statute. Relevant parts of S. 12 are as follows:--
'(1) Any marriage solemnised, 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:--
(a) and (b) xx xx
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Section 5, 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 concerning the respondent ;or
(d) xx xx
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage:--
(a) on the ground specified in clause (c) of the sub-section (1), shall be entertained if:--
(i) the petition is presented more than one year after the force had ceased to operate or as the case may be the fraud had been discovered or
(ii) the petitioner has with his or her full consent, lived with the other party the force had ceased to operate or, as the case may be, the fraud had been discovered.'
Now it is the plain language of the aforesaid provisions which calls for a close analysis here. The statute declare that it is no marriage in the eye of law where one of the parties was induced to enter into a matrimonial alliance under coercion, duress or fraud evidencing lack of free consent. Therefore, a marriage procured by force or fraud had no sanctity and is voidable at the election of the injured party. This being the substantive provision, the legislature, however, bars a decree of annulment of marriage as an exception if the specific condition spelt out in sub-section (2) of S. 12 are satisfied A analysis of this provision relevant to Cl (c) of sub-sec (1) would indicate that even after the discovery of fraud two other significant condition have to be satisfied firstly the most significant one is the factum of the two spouses living together as husband and wife, secondly that such living together must be with the full and free consent of the condoning spouse. The language used here is meaningful. It first pin-points that one spouse must live with the other. But that by itself may not be sufficient. For instance if both of them are merely living in the same premises but not as husband and wife. The same may not be conclusive. The statute further required that such a living must be a matrimonial living together as husband and wife even after a conscious discovery of the fraud and with a full and free consent. The import of the language used. Therefore, is only a pointer to the fact that there has to be a conscious and deliberate condonation and a full ratification of the matrimonial status which alone would amount to a bar against challenging a marriage which otherwise is vitiated by force or fraud. In other words, both the physical and the mental requirements must concur to ratify a marriage which intrinsically is not valid, but is to be given ex post facto sanction by subsequent conduct of living together as husband and wife with free consent. I do not think that these stringent condition of the statue would stand satisfied by a solitary act of sexual intercourse and the present case is a patent example of the inequity which would result from a contrary construction.
9. A close analysis of the judgment under appeal would show that the larger principle and the concept of condonation of matrimonial offence was not adequately canvassed before the learned singly Judge. In particular pointed attention was apparently not drawn to the provision of sub-section (2)(a)(i) and (ii) which were the most relevant and material ones and called for specific interpretation. With the greatest respect to the learned single judge, we are inclined to hold that keeping the specific language of the statute in mind as also the larger principle of condonation it would be an overly strict and if we may say so, a hypertechnical construction to lay down that a marriage otherwise patently voidable and fit for annulment would become sanctified beyond challenge and be rendered irrevocable by a solitary act of sexual intercourse without more.
10. The learned single Judge had attempted to draw some inspiration from a passing observation in Kunta Devi v. Siri Ram Kalu Ram, AIR 1963 Punj 235. The point before us did not directly arise in the said case. Indeed, the issue therein had arisen from a petition for restitution of conjugal rights only under S. 9 of the Act. The learned judge therein indeed held that no valid marriage had been performed between the parties. The observation that in the said case the marriage had not been ratified by voluntary cohabitation which might have neutralised the effect of earlier coercive and fraudulent, acts, in our view does not and the case of the respondent-wife.
11. To conclude, we would render the answer to the question posed at the outset in the negative and with the greatest respect hold that the finding of the learned single Judge is not sustainable. The appeal is, therefore, allowed and the judgment under appeal is set aside and that of the trial court restored. There will be no order as to costs.
S.C. Mital, J.
12. I agree.
13. Appeal allowed.