A Marriage, being a civil contract, mandates both parties to disclose material facts beforehand. Concealment of material facts amounts to cruelty, fraud, and many times becomes a valid ground for divorce under Section 13 of Hindu Marriage Act, on grounds of cruelty.(1) Moreover a marriage can also be declared also makes the marriage null and void.
As Per Section 12 of Hindu Marriage Act, A Marriage shall be declared void and annulled by a decree of nullify-
a. If a party’s mental or physical condition makes consummation of marriage a practical impossibility.(impotent).
b. If any party has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.(Section 5)
c. If Consent of the party or guardian was obtained by fraud or force,
d. If the wife was at the time of the marriage pregnant by some person other than the husband.
However, Petition for annulment of marriage will not be encouraged under subclass (c) if-
● The Petition was filed more than one year after the force had ceased to operate or the fraud had been discovered.
● The Petitioner continued to live as husband or wife, with his or her full consent, even after the force ceased to operate or the fraud was discovered.
And, Petition for annulment of marriage will be not be encouraged under subclass (d) if-
● The Petitioner knew that the other party was pregnant at the time of marriage.
● If The petition on this ground has not been filed within one year from the date of the marriage. If the marriage was solemnized before the enforcement of this act, one year from commencement of this Act.
● The Petitioner had marital intercourse with his full consent, even after the discovery of the concealed fact.
Indian Courts on concealment of facts prior to marriage–
1. Non-disclosure of major ailments amounts to cruelty but not the fact that such a person has ailments.(2)
2. The impotence of the wife and her having not attained her menarche, had a missing ovary and her uterus being absent is concealed; later the non-consummation of marriage after marriage. The court annulled the marriage stating that even though the wife is not impotent as per her medical examinations, her impotence seems psychological and that her mental defect prevented her from the consummation of marriage(3).
3. In 2017, Bombay HC held that the disclosure of incurable and hereditary diseases before the marriage is necessary. The court made it mandatory to reveal such facts before the marriage.
4. Non-disclosure of previous marriage amounts to fraud(4).
5. The suppression of the fact that the wife is suffering from delusion disorder is not material non-disclosure. Concealment of one particular fact does not amount to fraud. In addition, the party is supposed to make a disclosure of active concealment and the case in hand has no such disclosure before the court of law. Being silent in the initial stage of the case about the said fraud is not considerable. There is no room for discussion or question of marriage annulment(5).
6. Lying about the educational qualification before marriage by either of the spouses may amount to fraud but not a ground for divorce unless it is proved there is a mental cruelty involved.
REFERENCES:
1. Himani v Rohit Bisht, 2019 SCC OnLine Utt 448.
2. Supra
3. Smt. Urmila Devi v. Shri Narinder Singh, AIR 2007 HP 19.
4. Ali v. Ummu Selma KP, MANU/KE/3160/2018.
5. Xxxxx vs xxxxx, MANU/KE/1323/2021.
Authors:
1. Ms. Roohi Babu, B.SC., B.L., (Hons), Advocate practicing at Madras High Court, with 5 years of experience in IPR and Family matters.
2. B. Smruthi, 4th Year student of BA, LLB (Hons) at Saveetha School of Law, SIMATS, Chennai.