Concealment of a curable disease, such as tuberculosis, does not render a marriage voidable under the Hindu Marriage Act.

( 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