S. Datta, J.
1. On the 8th September 1955 the petitioner Anath Nath De filed this petition under the Hindu Marriage Act of 1955 for a declaration that his marriage with the respondent Lajjabati Devi is null and void. In the petition the uncle and two brothers of Lajjabati Devi are impleaded as defendants.
2. The undisputed facts leading to this unfortunate litigation is as follows: Sometime in January 1955 negotiations for marriage between the parties were opened through a match-maker. At the end of December 1954 or on the 1st or 2nd of January 1955 the terms as to the marriage regarding cash dowry and other things were settled. The petitioner was represented by his mother and his elder brother. The respondent was represented by her mother and her brothers.
3. On 6-2-1955 the Ashirvad ceremony took place at the house of the respondents. In that ceremony the maternal uncle and the elder brother of the petitioner were present.
4. On 13-2-1955 the marriage was solemnised. On the 20th February 1955 the respondent went back to her brother's house. After her return she had an attack of fever.
5. In or about April 1955 it was discovered after examination that she suffered from Tuberculosis. On or about June 1955 she was sent to Kurseong for treatment. She remained there for a few months. After her return from Kurseong, on or about 19-1-1957, she was examined at the Jadavpur Hospital and it was found that she had almost recovered.
6. The plaint is founded on the basis that during the course of negotiation for marriage the respondents Nos. 2, 3 and 4 represented to the petitioner that Lajjabati Devi was of sound health, and was not suffering from any disease. The petitioner relying on such representation gave his consent to the proposal for marriage and went through the form of marriage. After the marriage on or about 19-2-1955 it was discovered that she was suffering from Tuberculosis from sometime before the said form of marriage was gone through. Therefore the petitioner's consent to the said marriage was obtained by false and fraudulent representation.
7. The respondents in their answers denied that the respondent No. 1 suffered from Tuberculosis before it was discovered in or about April 1955 and asserted that they did not make any representaion as alleged in the plaint.
8. In these circumstances the following issues were settled;
1. Does the petition disclose any cause of action?
2. Was the consent to marriage with the respondent No. 1 obtained on false and fraudulent representation as alleged in paragraph 6 of the petition?
3. To what relief, if any, is the petitioner entitled?
9. Mr. Nandy appearing for Lajjabati Devi submitted that even assuming that the allegation of fraudulent misrepresentation was correct as made in the petition, the petition as a matter of law does not disclose any cause of action against the respondents.
10. This submission did not appeal to me at the time of the argument.
11. On further consideration of the matter it seems to me that the contention is well founded on principle and authorities.
'Marriage, according to the Hindu law, is a holy union for the performance of religious duties. It is not a contract.' Mulla, 12th Edition, Article 427.
12. The question of consent of the parties to the marriage arise at two stages; firstly at the time when the parties consent to solemnize the marriage and secondly at the time when the marriage itself is solemnized.
13. The marriage according to Hindu Law not being a contract, the consent at the first stage though obtained by fraud cannot affect the validity of the marriage. The consent at the time of the solemnization is the material consent. It is well settled that the consent at the time of solemnization of marriage though a marriage is a sacrament according to the Hindus, if obtained by fraud, affects the validity of the marriage. In this connection the cases reported in Venkatacharulu v. Rangacharyulu, ILR 14 Mad 316 and Mulchand v. Bhudhia, ILR 22 Bom 812 may be referred. Mullah in the same article summarises this aspect of the law as follows :
'A marriage brought about by force or fraud is altogether invalid.'
14. Let us now turn to Section 12(c) of the Hindu Marriage Act which is as follows:
'Section 12. 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-
(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 fraud.'
'Any marriage solemnized .... shall be voidable and may be annulled by a decree of nullity on any of the following grounds' imply that at least one of the grounds must be existing at the time of the marriage. This is made clear by express words in Clauses (a), (b) read with Section 5(ii) and (d). This is also impliedly indicated in Sub-clause (c) of the said clause by the words 'where the consent of the guardian in marriage of the petitioner is required under Section 5 of the Act'. Section 5 of the Act which deals with the condition of marriage also points out to the same direction.
15. This construction is also in consonance with the accepted principles of Hindu Law as to marriage prevalent prior to the enactment of the Hindu Marriage Act.
16. In England, where marriage was originally intertwined with religion, fraud has been confined to a restricted field. Rayden on Divorce 7th Edition page 72 Article 11summarises the law on the point as follows:
'11. Fraud and duress: Apart from duress or imbecility of mind amounting to insanity and apart from the grounds for avoiding a marriage in the circumstances introduced by statute in 1937, fraudulent misrepresentation, or concealment, does not affect the validity of a marriage to which the parties freely consented with a knowledge of the nature of the contract. But if a person is induced to go through a ceremony of marriage by threats; or duress or in a state of intoxication, without any real consent to the marriage, it is invalid; in all such cases the test of validity is real consent to the marriage.'
17. There is an analogous provision in Section 19 of the Indian Divorce Act, modelled on the then law of marriage in England, which deals with the grounds of decree in these terms:
'Nothing in this section shall affect the jurisdiction of the High Court to make decree of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.'
18. It is well settled under the Indian Divorce Act that fraudulent misrepresentation in inducing consent to marriage does not vitiate a marriage. On the other hand it has been held when there is no consent at the time of the marriage or the consent is obtained to the solemnization of marriage by force or fraud, the marriage is invalid. Hence marriage was avoided when a party was kept under the impression that what is being per-formed is only betrothal or there is a deception as to indentity of the other party.
19. Therefore, in order to find out whether a marriage is invalid on the ground of fraud, it is necessary to find out whether there was consent of the petitioner at the time of the solemnization of the marriage.
20. In this case, the petitioner avers that there was fraudulent misrepresentation at the time when the petitioner consented to the marriage or in the language of the petitioner when 'the petitioner gave his consent to the proposal for marriage.'
21. There is no allegation that there was fraud at the time of the solemnization of marriage so the petitioner consented to the solemnization of the marriage.
22. Hence the petition does not disclose any cause of action against the wife or the other respondents.
23. Mr. Mitter submitted that in view of the averments of the plaint and the prayer, there was no cause of action as against the other respondents that is to say respondents Nos. 2, 3 and 4.
24. The petitioner alleged in the petition that the respondents Nos. 2, 3 and 4 are guilty of fraudulent misrepresentation. The petitioner, however, has not alleged that he has suffered any damages assessable in money by reason of such fraudulent misrepresentation.
25. The petitioner has not claimed any relief against the respondents Nos. 2, 3 and 4, by way of damages. Hence, in my opinion the contention advanced on behalf of the respondents Nos. 2, 3 and 4 is well founded.
26. Turning to the allegations in the plaint the case was that the representation was made sometime in January 1955. The representation was made to the petitioner. The respondents 2, 3 and 4 made the representations. The representation was to the effect that Lajjabati Devi was of sound health and did not suffer from any disease. In the letter dated 16th Baisakh 1362 B.S. corresponding to 30-4-1955 written by Anath Nath De to Sailendra Nath Mullick, the uncle, the petitioner suggests that the representation, if any, was made to his mother and her consent was obtained by misrepresentation. In the evidence before me it was said that the representation was on the Ashirvad day, that is, the 6th of February 1955 by Sailendra Nath Mullick to the maternal uncle of Anath Nath De. Mr. Mohan Chand Sen. The representation made to him was made as a result of certain enquiries made regarding the health of the girl. The representation was that she was lean because she had suffered from fever for about 41 days and had recovered only very recently. This was substantially admitted by the elder brother of Lajjabati Devi.
27. There was a definite issue as to false and fraudulent representation based on the averments in the plaint. There is no evidence to support that case. Therefore, on the issue as framed the petitioner is bound to fail.
28. Mr. S.K. Acharya, learned Counsel appearing for the petitioner, submitted that the case of the petitioner has been substantially made out in the evidence and in the ends of justice the plaint should be liberally construed.
29. The allegations relate to fraudulent misrepresentation. It is well settled that in such cases the allegations must be definite.
30. It does not mean that any variation between the allegations in the plaint and the facts proved will disentitle the plaintiff from getting relief in the suit.
31. There is in this case a gulf of difference between the representation mentioned in the plaint and the representation made on the Ashirbad day, as to time when it was made, the persons to whom it was made and the kind of representation.
32. In my opinion, liberal construction cannot embrace such variance between the pleading and the evidence.
33. The case of fraudulent representation, however, is not convincing on the facts.
34. Three cases have been made out on the question of representation, one in the letter written to Sailendra Nath Mullick, the other in the plaint and the third in the course of evidence. The evidence makes it clear that there was no fraudulent misrepresentation to the petitioner. In such circumstances, I am unable to hold that 'that the petitioner has substantially established the case made out in the plaint. Hence on this ground also the petitioner is bound to fail on merits.
35. The next suggestion of Mr. Acharya is that in any event it is clear that Lajjabati Devi suffered from Tuberculosis before the marriage and this fact was suppressed or concealed from the petitioner and/or his guardians. Therefore this marriage should be avoided. This case was not pleaded in the plaint.
36. It may however be said with great force that the fraudulent misrepresentation pleaded included the plea of concealment of Tuberculosis. Therefore, I shall deal with this question. It is an undisputed fact that she was lean and thin. There is a further undisputed fact that she suffered from fever for about 41 days sometime before the marriage. It is also an undisputed fact that she suffered from fever sometime after her return to her brother's house on 20-2-1955. It is a further undisputed fact that in April 1955 an X'ray plate was taken and found that she was in an advanced stage of the disease, such that it must have been at least one year old. Both the lungs were affected. There was cavity on the right side.
37. In this connection, there was controversy before me as to whether the father of Lajjabati Debi died of tuberculosis. The respondent and her relations including her elder brother were reluctant to admit that their father died of tuberculosis.
38. The petitioner relied on a certified copy of an extract from the Register of Deaths. It appears from that the father of Lajjabati Debi died on 16-1-1954 from tuberculosis. On the evidence before me and taking into consideration the death certificate, I hold that the father of the respondent died of tuberculosis.
39. There was a further controversy before me as to whether Lajjabati had fever on the Fulsajja night and whether on the 19th February an X'ray plate was taken and whether it was found that she was suffering from tuberculosis. On this point the petitioner and Dr. Boral, a relation of the petitioner, who attended the lady, gave evidence. Dr. Boral's prescription was proved before me in order to support the part of the case. I have no hesitation in holding that she had an attack of fever on the Fulsajja night.
40. Dr. Mukherjee, a Radiologist, deposed on behalf of the petitioner and said that he took an X'ray plate of the respondent who was introduced by Dr Bosal to him. Dr. Boral said that he arranged with Dr. Mukherjee. The petitioner said that he took his wife to Dr. Mukherjee for screening. Lajjabati denied that she at all went to the doctor's clinic. Dr. Mukherjee was not in a position to identify the lady now. It was suggested at the time of the argument that the X'ray plate and the relative report which have been identified by Dr. Mukherjee may not relate to Lajjabati at all. This case was not put directly to Dr. Mukherjee. The mere fact that Dr. Mukherjee did not support his evidence with his diary or records does not induce me to reject his evidence. There is also evidence that Dr. Boral prescribed medicines for the lady suitable for treatment of Tuberculosis. Therefore, I hold that it was discovered on 19-2-1955 that Lajjabati was suffering from Tuberculosis as a result of the examination by Dr. Mukherjee.
41. There was further controversy as to the reason why she came back on the 20th to his brother's house. In the evidence before me the petitioner made the case that according to the usual custom on the Asthamangala day she was sent back to her people. The respondent's case is that it was represented to her that as the University examination of her husband was going to be held in a month or so, it was preferable that she should go back to her mother. It is clear from the evidence that no attempt was made by the respondent or her relations to send her back to her husband's house after her return on the 20th. There is no evidence as to any attempt made by the parents of the petitioner to take their daughter-in-law back. There is also no evidence to show that the petitioner made any attempt or showed any anxiety to bring her to his house. In these circumstances and having regard to the fact that it was discovered on the 19th that she was suffering from tuberculosis, I am unable to accept the versions either of the petitioner or the respondent. It seems to me clear that after having discovered that she was suffering from tuberculosis the parents of the petitioner wanted to get rid of her as soon as possible. They did so immediately on 20-2-1955. Asthamangala day is a mere coincidence.
42. There was also a controversy before me as to whether outward manifestation of the disease would ordinarily be expected before it was discovered in February 1955. The Specialists were inclined to the view that in most cases outward manifestation o the disease such as spitting of blood, emaciation, loss of appetite and fever would exhibit themselves long before the disease reaches such an advanced stage, but there may be rare cases in which it does not so exhibit itself.
43. The doctor who treated Lajjabati during her illness prior to the marriage was not called as a witness. He is said to be a family physician. There is no sufficient explanation on record as to the reason why he was not called. In my opinion, he was a very material witness.
44. The respondent tendered Dr. Jotindra Nath Sen Gupta who treated Lajjabati after her return on 20-2-1955. He treated her some time for fever. Thereupon it seemed to him that there might be a mistake in diagnosis. Therefore, he had an X'ray plate taken. It was then found that she was suffering from tuberculosis. The X'ray plate was not produced. Dr. Sen Gupta said that the radiologist told him that it was in an early stage. The prescriptions made by Dr. Sen Gupta have not been produced. Lajjabati was advised to go to a hospital.
45. In these circumstances, I am unable to place any reliance on the evidence of Dr. Sea Gupta that he treated her for fever at first and that on examination of the X'ray plate Dr. Chatterjee the radiologist said that the disease was in am early stage. On the evidence before me, the circumstances and probabilities it is clear that the family members of Lajjabati Debi and Lajjabati knew that she was suffering from Tuberculosis before the marriage and the respondents concealed this fact from the petitioner and/or his people.
46. The next question for consideration is whether concealment of Tuberculosis is a sufficient ground for avoiding a marriage.
47. Section 5 states, inter alia, that if a party to the marriage is an idiot or lunatic the marriage is void.
48. Section 13 states that on a petition presented by either the husband or the wife, any marriage solemnized before or after the commencement of the Act, may be dissolved, inter alia, on the following grounds:
'(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or
(iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virluent and incurable form of leprosy, or
(v) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from veneral disease in a communicable form;'
These provisions clearly suggest that concealment of a disease other 'than those mentioned in the said section cannot be the foundation for avoiding the marriage.
49. It is also well established by authoritativeI pronouncements made on the analogous provisionof the Indian Divorce Act that concealment of adisease does not avoid a marriage.
50. There seems to be no reported case as to the concealment of Tuberculosis.
51. There is, however, the judgment of Sir Ashutosh Mukherjee reported in Birendra Kumar Biswas v. Hemlata Biswas, AIR 1921 Cal 459, regarding concealment of syphilis which now falls in certain circumstances within the ambit of Section 13 of the Hindu Marriage Act.
52. One of the questions in that case was whether the existence of syphilis in either party at the time of the marriage renders the marriage voidable. His Lordship after reviewing several cases came to the following conclusion:
'It can hardly be doubted that sound public policy would not permit an extension of the rule to cases where the disease is easily curable. It is the permanent or probably permanent character of the malady, rendering sexual intercourse impracticable throughout the continuance of the marriage, that furnishes the reason for the annulment' and the maxim should apply cessante rationae cessat lex ipsa.'
53. There is evidence before me that the petitioner (Respondent No. 1) is almost cured. One of the Specialists said that in his opinion it is likely to disappear. Therefore, it cannot be said that it is an incurable disease. Even on this ground concealment of tuberculosis which is curable cannot entitle the aggrieved party to avoid the marriage.
54. In the result, the petition should be dismissed with costs.