Asha Qureshi v. Afaq Qureshi (2002)

The secular marriage law is the statute this paper offers as the route past discriminatory personal law, and this is one of the few decisions on how a marriage under it is annulled. It is also the case that shows the ground of fraud operating against a woman: her widowhood, not disclosed, was held to be a material fact whose concealment vitiated her husband's consent. Whether that is a defensible view of what a woman must confess before marriage is the question the case leaves a student to argue.

The parties were married at Jabalpur on 23 January 1990 under the secular marriage statute and lived as husband and wife for about a year before relations became strained and they separated.

The husband petitioned for a decree of nullity. His case was that after the marriage he came to know that the wife had already been married to a man who had died before her marriage to him; that she had suppressed this; and that he had agreed to marry her believing her to be unmarried. He said that had he known, he would not have entered into the marriage.

She denied suppressing anything, saying he was fully aware she was a widow. In evidence she admitted the earlier marriage and said that when they became friends about eight years earlier she had told him she was a widow. He admitted in cross-examination that he had known her for five or six years before the marriage, and said that when he asked her why she was not married despite her age she told him there was no responsible person in her family to arrange it. He denied knowing of the earlier marriage. A document executed by her after the dispute arose, signed also by her brother and another witness, recited only that there was a dispute and that the parties wished to be divorced, without stating the cause.

The trial court held she had suppressed the earlier marriage and that the husband's consent had been obtained by fraud, and declared the marriage null and void. She appealed.

The appeal was dismissed and the decree of nullity affirmed. The concealment of her earlier marriage amounted to fraud within the statutory ground, and the husband was entitled to the decree.

1. Identify the ground and its borrowed definition. The husband's case fell under the clause avoiding a marriage where consent was obtained by fraud, and fraud is to be taken as defined in the contract law: the suggestion as a fact of what is not true by one who does not believe it true; the active concealment of a fact by one having knowledge or belief of it; a promise made without intention of performing it; any other act fitted to deceive; and anything the law specially declares fraudulent. Mere silence as to facts likely to affect willingness to contract is not fraud unless the circumstances are such that it is the duty of the silent party to speak, or the silence is itself equivalent to speech.

1. Prefer the pleaded case to the improved one. Her written statement nowhere specifically averred that she herself had informed him; it asserted vaguely that he was aware she was a widow, with no particulars of date, time or occasion. She had also first said he learnt it from her neighbours and only later that she told him. That improvement, unsupported by her pleadings, was held unreliable, and his evidence was preferred.

1. Read the settlement document for what it does and does not prove. She argued that the document executed after the alleged disclosure did not mention the earlier marriage as the cause of the dispute, and that this showed the dispute was really about something else and the document had been extracted by force or deception. The Court rejected this: the document, not drafted by a lawyer and executed in her brother's presence, recorded only that there was a dispute and that the parties wished to divorce, and the mere absence of a stated cause proved nothing about disclosure before the marriage.

1. No express words are needed. To constitute fraud it is not essential that there be any misrepresentation in express words; it is enough that the party deceiving knowingly induced the other to enter the contract by leading him to believe what the deceiver knew to be false.

1. There was a duty to speak. On the facts and circumstances it was the obligation and duty of the appellant to have informed the respondent of her earlier marriage, and she failed to do so; the suppression and active concealment of the fact of her earlier marriage and her widowhood amounted to a material misrepresentation.

It opens the question of annulment under the secular marriage law, which is otherwise thinly covered: the ground, the borrowed definition of fraud, and the pleading standard. It is also the case to use for the proposition that silence becomes fraud only where there is a duty to speak — and the place to note that the duty here was found against a woman for not volunteering her widowhood.

It disposes of the argument that a vague assertion of the other party's knowledge, unsupported by particulars, will defeat a nullity petition.

It does not decide what other facts a party must disclose before marriage, and it lays down no general rule that a previous marriage must always be volunteered — the finding rests on these facts and this record. Read it with the decision annulling a marriage where a bridegroom's age was concealed from the bride, which applies the same reasoning the other way.