A marriage cannot be annulled on the ground of fraud if the consent of the petitioner was obtained through a person authorized by him to negotiate the marriage and select the bride, and the petitioner is estopped from denying such authority.

( 1 ) THE marriage of the wife-appellant with the husband-respondent has been annulled by the learned Judge on the ground that the consent of the husband was obtained as a result of "non-disclosure of material facts" concerning the wife. Having heard the learned Counsel for the parties and after going through the records ourselves, we are satisfied that we, in our turn, must annul that decree of annulment.

( 2 ) THE husband has filed the petition giving rise to this appeal under S. 12 (1) (c) of the Hindu marriage Act whereunder a marriage may be annulled by a decree of nullity on the ground that "the consent of the petitioner was obtained by force or fraud as to the nature of the ceremony or to any material fact or circumstance concerning the respondent. " In paragraph 3 of the petition, the petitioner has stated that "the petitioner could not know that the respondent is devoid of female organ and incapable of cohabitation" and that "had the petitioner known, he would not have entered into marriage with respondent. " At the trial, however, the case made out by the husband appears to be that he found that "her entire body bears burn marks and she does not have the right breast and so far her left breast is concerned only the nipple was evident. "

( 3 ) NOW as to the pleadings in a case of fraud, it is well-settled that the person alleging fraud must do so with clarity and precision, must set forth all the particulars in his pleading and that the case can be decided only on the particulars set forth without any deviation or departure. We are afraid that the husband having come forward with a definite case of fraud on the ground of non-disclosure that the wife was "devoid of female organ and incapable of co-habitation", should not have been allowed to give a go by to that case at the trial and to proceed with the case that the Non-disclosure related to the wife having defective or deformed breasts.

( 4 ) BUT that apart, we are also satisfied that the husband's petition ought to have been dismissed on merits also and that this appeal by the wife is to be allowed. Admittedly, the marriage was a negotiated one and was settled by the guardians. It is also not disputed that the father of the husband finalised the settlement on behalf of his son. In paragraph IV of the written statement it has been categorically asserted that at the time of negotiation, the respondent's father and her brother, PW-2, informed the petitioner's father about the physical defects of the bride. Such a case was also clearly put to the petitioner, PW-1, and to his sister, PW-2, during their cross-examination. But far from being able to effectively deny that such disclosure was made to the father, the petitioner has stated that "the talks which took place between my father and that of the respondent in the matter of marriage are not known to me" and his sister, PW-2, has stated that "my father never discussed anything about the marriage with us. " It is also the categorical assertion of DW-2 the wife's brother Tapan, in his deposition that the petitioner's father was informed about the physical defects. But still then, this father of the petitioner has not been examined as a witness and no explanation is at all forthcoming for his non-examination.

( 5 ) ABOUT seven decades ago, the Privy Council in Murugesam Pillai v. Gnana Sambandha Sannadhi, AIR 1917 PC 6 at p. 8 condemned it as "inversion of sound practice" for a party desiring to rely on a certain state of facts, to withhold, "by trusting to the abstract doctrine of onus of proof", the best evidence in his possession which would throw light on any material issue in a proceeding. This view was again reiterated by the Privy Council in Rameshwar v. Bajit Lal, AIR 1929 P. C. 95 and has also been endorsed by the Supreme Court in Hiralal v. Badkulal, AIR 1953 SC 225 at p. 227 and then in Gopal Krishnaji v. Mohamed Haji Latif, AIR 1968 SC 1413 at p. 1416. In the last cited decision, the