S.K. Kapur, J.
1. The present appeal arises out of a petition for annulment of marriage under Section 12(1)(c) of the Hindu Marriage Act, 1955 by Surjit Kumar petitioner, the husband of Raj Kumari respondent.
2. The appellant's case is that at the time of betrothal it was represented to him that the girl was virgin, but after marriage it was discovered that that was not correct and, in fact, on an earlier occasion, she had become preganant and aborted. The appellant claims that his consent was, in the circumstances, obtained by fraud. Upon the pleadings of the parties, the following two issues were framed --
(1) Whether the consent of the petitioner to the marriage was obtained by fraud?
The learned Additional District Judge, by his judgment dated 3-5-1963, decided that (a) the respondent was guilty of lapses in the matter of chastity before marriage to the petitioner, and (b) since neither the respondent nor her relations who negotiated the marriage, were duty bound to disclose the unchastity of the respondent it could not be said that any fraud had been committed on the petitioner in obtaining his consent.
3. In support of the plea by the appellant that the consent to marriage was obtained by fraud, reliance has been placed on his own evidence as P. W. 5 and on the evidence of Hans Raj P. W. 1 and Gokal Singh. P. W. 2. The appellant deposed that at the time of betrothal on 6/7-10-1960, Nanak Chand, Bhola Nath and another person came from the respondent's house and talked to the appellant and his mother about the marriage. He also said that Bhola Nath stated that the character of the respondent was good. It is relevant to mention that the illegitimate relations alleged were with Bhola Nath, who is the husband of the respondent's father's sister, and the respondent had been brought up in Bhola Naths family eversince the death of her mother while she was only three or four years old.
Hans Raj P. W. 1 is the brother-in-law of the appellant. He spoke about Bhola Nath and another person having come to the appellant's house for negotiating the marriage. He further said, 'those persons also stated that the girl was gold and would suit them'. Gokal Singh P. W. 2 is also a close relation of the appellant. He also deposed about a representation having been made by Bhola Nath and his companion that the girl was good-natured.
In support of the allegation about the un-chastity of the girl, reliance is placed on letters exhibits 'PB', PC' and PD' written in the respondent's hand. These letters have been discussed in detail in the judgment under appeal and it is not necessary to discuss them over again. That is more so, because, in my opinion, even if she is held to be unchaste, as alleged by the appellant, it provides no ground, in the circumstances of this case, to grant the appeal.
What emerges from the evidence of the aforesaid three witnesses, namely, the appellant P. W. 5, Hans Raj P. W. 1 and Gokal Singh P. W. 2, is that they generally represented that the girl was good. The grievance of the appellant mainly is that they ought to have disclosed that the girl had an unchaste career, particularly because Bhola Nath knew about it. Relying on Shinhomal Jialdas v. Manager Encumbered Estates, Sind, AIR 1914 Sind 28; Mt. Umrao Begum v. Sheikh Rahmat Ilahi, AIR 1939 Lah 439 and Thangachi Nachial v. Ahmed Hussain Malumiar, AIR 1957 Mad 194, it is said that fraud in Section 12 of the said Act should not be limited to its definition in Section 17 of the Contract Act and it cannot be proved to the very hilt by direct evidence, but should be inferred from the various circumstances. For the purposes of this case, I am prepared to assume that fraud in Section 12(1)(c) of the Hindu Marriage Act is not to be so limited.
The heart of the problem required to be dealt with in this case is whether a general observation by the relations of the girl at the time of engagement to the effect that the girl was good amounts to obtaining consent of The husband by force or fraud within the meaning of Section 12(1)(c) of the said Act. I do not think that, without any enquiry being made from the witnesses, it was, in any sense, obligatory on their part to disclose to the appellant or his relations about the old unchastity of the girl, even if it was known to them.
A perusal of Section 12(1)(d) would show that the marriage may be annulled only if at the time of the marriage the girl was pregnant by some person other than the husband. That sheds a considerable light on the intention of the Legislature. It shows that past unchastity is not made a ground for annulment of marriage. Past illicit relations of a girl with some man may per se not be a factor taken into consideration by all persons agreeing to enter into a marriage tie. This is not a circumstance, which, in all cases, would result in breakage of the marriage negotiations. Can then it be said that the relations were under any obligation to disclose about the girl's past unchastity? I think, the answer must be 'no'.
Merely keeping quiet about such past history would not, therefore, lead to a conclusion that (he consent to marriage had been obtained by fraud. Relations of the girl cannot, without any enquiry in this behalf, be expected to speak about every event in the girl's past life. Of course, if an enquiry had been made of them and they had given a wrong or an evasive reply tilings may have been different. But that is not the appellant's case. In my opinion, speaking generally that the girl was good as gold or was good natured does not entitle a husband to ask for annulment of marriage on the ground that if the relations had said that she had been unchaste he would not nave agreed to the marriage.
In 'Rattigan on Divorce' (second edition), page 308, it is said--
'Generally speaking, concealment or deception by one of the parties in respect to traits or defects of character, habits, temper, reputation, bodily health, and the like, is apt sufficient ground for avoiding a marriage. The parties must take the burden of informing themselves by acquaintance and satisfactory enquiry before entering into a contract of the first importance to themselves and to society in general.
Concealment of a loathsome and incurable venereal disease from the other party is generally recognised as a fraud sufficient to warrant annulment, especially where the existence of the disease is discovered by the other party before the marriage is consummated and the parties immediately separate.
As a general rule prenuptial unchastity of the wife though unknown to the husband at the time of the marriage is not a ground for a decree of nullity.
Nor is express misrepresentation by a woman as to her chastity of itself ground for avoidance of the marriage, though, of course, it may be taken into consideration together with other circumstances indicative of fraud.
Chastity, it is said, is a mere personal quality, and its non-existence at the time pf the marriage does not amount to absence of an essential condition of the marriage relation. Moreover, it is declared, prenuptial unchastity does not necessarily prevent the woman from becoming a faithful wife or from performing her part in the bearing of off spring, and to consider misrepresentation in regard thereto a ground for decreeing nullity of marriage would be inconsistent with reason and sound policy. A fortiori, a man cannot complain of his wife's pre-nuptial unchastity where he was aware of it at the time of the marriage. In England the rule seems to be that the concealment by the wife of her pregnancy by another man at the time of the marriage is not ground for decreeing nullity of the marriage at the suit of the husband.'
It is said that the conditions in England are different and that rule ought not to be applied in India. I am afraid I do not agree. Conditions in that country may be different, but, for the reasons given by me above, I think the same rule ought to apply in this country so far as the past unchastity goes. If a husband attaches that value to the past unchastity of his would-be wife, what is there to stop him from making enquiries on his own or from the girl's relations at the time of the negotiation of marriage? It is only then that he should be able to show that though the relations of the girl were aware of her past unchastity, they misled him.
4. On behalf of the respondent, it is argued that the appeal discloses no cause of action and ought to be dismissed on that ground. Reliance is placed for this view on a decision of Pandit, J. In Harbhajan Singh v. Smt. Brij Ballab, (1964) 66 Pun LR 204: (AIR 1984 Punj 359) where relying on Anath Nath De v. Sm. Lajjabati Devi, AIR 1959 Cal 778, Pandit, J. Held that consent obtained by fraud at the stage when the parties consented to solemnise the marriage cannot vitiate the marriage and it is only the consent, vitiated due to fraud, obtained at the time of solemnisation of the marriage, that is recognised for its annulment under Section 12 of the Hindu Marriage Act.
No doubt, marriage is not a mere civil contract, but on the plain reading of Section 12(1)(c) it appears to me that if fraud is practised in obtaining consent even at the earlier stage, the marriage would take place in pursuance of that consent and, therefore, such a fraud at this stage may vitiate the marriage. It is not, however, necessary to carry the matter any further, because I am not in agreement with the arguments on behalf of the appellant that the marriage can be annulled in the circumstances of this case.
5. A challenge was also thrown on behalf of the respondent on the findings of unchastity arrived at by the trial Court. It is also not necessary to record a finding thereon in view of my decision on the other question.
6. It is then suggested on behalf of the appellant that it stands established on the record that the respondent is living in adultery and, therefore, I should pass a decree for divorce. Admittedly, this point was never taken in the petition and, apart from the question whether the respondent can in the circumstances be said to be 'living in adultery', this point cannot be considered at this stage, because it would have been open to the other side to plead condonation if the point had been raised in the petition. Faced with this difficulty, Mr. Frank Anthony, learned counsel for the appellant, did not pursue the matter any further.
7. In the circumstances mentioned above, this appeal must fall and is dismissed, but the parties will bear their own costs.