Facts of Asha Qureshi Vs Afaq Qureshi
The marriage between the Asha & Afaq was solemnized on 23.01.1990 under the religious rites and rituals applicable to the form of marriage. Soon after their wedlock, the relations between the parties became strained and hence, they decided to live separately.
It was alleged by the respondent that the appellant/wife had exercised fraud by suppressing the fact of her earlier marriage with Motilal Vishwakarma, who had died prior to their marriage. Therefore, a petition was being filed by the respondent under Sections 24 and 25 of the Act, to seek a decree of nullity and of a declaration of their marriage as null and void.
In view of the above-mentioned allegations, it was contended that the appellant and the respondent were known to each other for a long time prior to the marriage, and the respondent knew fully that the appellant was a widow. Hence, the allegation of suppressing any material fact so as to constitute an exercise of fraud was denied by the appellant.
Issue of Asha Qureshi Vs Afaq Qureshi
- Whether the appellant/wife suppressed the fact of her earlier marriage and she being a widow?
- Whether the suppression of any material fact amounts to fraud under Section 17 of the Indian Contract Act, 1872?
- Whether the appellant obtained the consent of the respondent/husband for marriage by exercising fraud?
- Whether the respondent is entitled to seek a decree of nullity of marriage under Section 25 of the Special Marriage Act?
Observation of Asha Qureshi Vs Afaq Qureshi
In view of question (1), it was noticed that the appellant/wife in her written statement nowhere specifically averred that she had intimated the respondent about her first marriage. It was only vaguely asserted by her that the respondent was aware of her being a widow. However, it was not pleaded that she herself informed the respondent about her earlier marriage, prior to the marriage with the respondent.
Regarding questions (2) and (3), it is quite evident from the above discussions that the appellant was married before and was a widow at the time of her marriage with the respondent, which was a material fact that was never intimated by her to the respondent. It was also submitted that if the respondent had known about her earlier marriage, he would not have entered marital ties with her proving that the consent of the respondent for marriage was obtained by exercising fraud in view of Section 17 of the Indian Contract Act, 1872.
To constitute fraud under Section 17 of the Indian Contract Act, it is not essential that there should be any misrepresentation by express words. It is sufficient if the party deceiving knowingly induced the defendant to enter a contract by leading him to believe that which the party deceiving knew to be false.
Regarding question (4), any marriage solemnized under the Act shall be voidable and may be annulled by a decree of nullity in the following cases:
- If the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage, or
- In case at the time of marriage, the respondent was pregnant by some other person other than the petitioner, or
- If the consent of either party to the marriage was obtained by coercion or fraud, as defined in Section 17 of the Indian Contract Act 1872,
Provided that, in the case specified in clause (ii), the Court shall not grant a decree unless it is satisfied:
- That at the time of marriage, the petitioner was ignorant of the facts alleged.
- Those proceedings were instituted within a year from the date of the marriage ,and
- That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
Judgement of Asha Qureshi Vs Afaq Qureshi
In view of the above-mentioned facts and circumstances, Trial Court held that the appellant suppressed the material fact of her earlier marriage with Motilal Vishwakarma, and thus the consent of the respondent for the marriage was obtained by fraud.
Since it was made clear that suppression and active concealment of the fact of her earlier marriage and her being a widow amounted to material misrepresentation; It entitled the appellant to a decree of nullity under Section 25 (iii) of the Special Marriage Act. Therefore, the impugned judgment of the Trial Court was justified by the Learned Counsel, and the appeal was dismissed.