Babui Panmato Kuer v. Ram Agya Singh (1968)

The condition that a bride must consent is worth nothing if she is never told the truth about the man she is being given to. This is the decision that makes the consent ground work for a girl in a household where marriages are settled over her head: it holds that a misrepresentation made to her mother, and overheard by her, is a fraud practised on her, and that the fraud need not be committed at the wedding itself.

The petitioner was a little over eighteen when she was married in May 1959. Just before the marriage she overheard her father telling her mother that he had fixed a husband for her who was in an affluent financial condition and between twenty-five and thirty years of age. Having heard this, she raised no objection, and so consented by her silence.

At the wedding she was, as is customary in a rural Hindu household, under a heavy veil and could not see the bridegroom. He left the next morning without the ceremony that would have taken her to his home.

In early 1960 he brought a criminal case against her father, whereupon her father, who had earlier refused to send her, agreed, and the prosecution was withdrawn. On 15 April 1960 her father took her to the respondent's house, and there that night she discovered for the first time that besides being a man of very ordinary means he was older even than her father — over sixty. She wept, took no food for two days and insisted on being sent back, whereupon he beat her. She escaped to her father, who chided her; she left and took shelter with her uncle. A second criminal case followed against her parents and uncle. He succeeded in taking her to his house, where she was confined in a room; she escaped again. In March 1961 she petitioned for annulment on the ground of fraud, saying there had been no cohabitation at all.

The respondent filed a written statement denying the allegations but did not contest the hearing, and her evidence was substantially accepted as correct. The Additional District Judge nonetheless dismissed the petition on two grounds: that nothing had been represented to her directly, the particulars having merely been overheard; and that a fraudulent misrepresentation under the provision must be made at the time of solemnization and not during the negotiations.

The dismissal was set aside and the marriage annulled. The judge below was wrong on both points. There was a fraudulent misrepresentation to the petitioner intended to procure her consent, and the provision does not require the fraud to occur at the moment of the marriage.

1. Use the statutory definition of fraud. Fraud includes the suggestion, as a fact, of what is not true by one who does not believe it to be true, the active concealment of a fact by one having knowledge or belief of it, and any other act fitted to deceive.

1. The mother was the agent. The petitioner was sui juris, so her consent should have been obtained directly; it was not. The particulars were conveyed to her mother precisely with a view to procuring her consent, and in the circumstances the mother was acting as her agent. The judgment takes judicial notice of the reality that in an average Hindu family talks about a daughter's marriage are not carried on with her directly but through a female relative, usually the mother.

1. The father could not have believed what he said. He must have seen the respondent and must have known that he was nowhere near twenty-five to thirty. Giving out an age of twenty-five to thirty when the man was in the region of sixty was the active concealment of a fact within his knowledge.

1. A father owes his daughter a duty to disclose. Even taking it that he meant to procure her consent indirectly through her mother, he had a duty to make a true disclosure, particularly as to the bridegroom's age. The point is illustrated by the contract law on the duty to speak: where the buyer is a daughter who has just come of age, the seller, because of his relation to her, must disclose the defect. Had the true facts been conveyed and she had still not protested, the position would have been materially different.

1. The impression persisted to the wedding and beyond. Being under a heavy veil, she had no opportunity even at the ceremony to see her husband and withdraw her consent; the truth did not reach her until 15 April 1960.

1. Read the clause as it stands. A Calcutta decision had required the fraud to be at the time of the marriage. That view is not borne out by the words, and would amount to adding words to the clause. The expression "at the time of the marriage" appears in two other clauses of the same sub-section but not in this one. All the provision requires is that consent was obtained by force or fraud before the marriage was solemnized.

It opens the voidable-marriage question on consent. Set out the definition of fraud, then work the three steps this case supplies: was the representation made to her or to her agent; was it a concealment of a material fact by someone under a duty to disclose; and did it operate on her mind when she assented. Use it also on the wider theme of a bride's real bargaining position in an arranged marriage.

It disposes of the objection that the girl was told nothing directly, and the objection that a deception during the negotiations comes too late — or rather, too early — to found the ground.

It does not decide any question of limitation or of ratification by subsequent cohabitation; the petitioner's case was that there was no cohabitation at all. Nor does it hold that any disappointment about a spouse's means or qualities is fraud — what was concealed here was a fact of the first importance, stated by a father who knew it to be false. A note to the same effect records a Punjab and Haryana decision annulling a marriage where a wife's true age and mental state had been concealed from the husband, so the ground is not one-sided.