Non-disclosure of a material fact, such as vasectomy, in a matrimonial relationship constitutes fraud, vitiating the affected spouse's consent for marriage.

Thomas. J

A widower, father of three children, married again, but the wife after twelve years of married life sought to have the marriage annulled on the ground that her consent was obtained by fraud. Learned Single judge declared the marriage null and void. The fraud alleged is this: Before the second marriage, appellant (husband) had undergone vasectomy, but he did not disclose it to the respondent (wife). As she did not conceive for thirty months, she was anxious to know the reason. Appellant then divulged to her that he had undergone vasectomy before marriage. But he pacified her that he would undergo recanalisation. However, he later changed his mind and declined to undergo recanalisation. His excuse for this volte-face is that such a course is repugnant to Pentecostal faith to which he has subscribed on becoming a member of Assemblies of Church of God.

2. Though appellant contended that respondent was told about his vasectomy during marriage negotiation stage itself, learned single judge found, on evidence, that it was not disclosed to her earlier. Further contention of the appellant that she too did not want to bear children as she had rheumatic heart conditions, was found against by the learned single Judge. We are not persuaded to disturb those findings on fact arrived at by the learned single judge on appreciation of evidence, despite the efforts made by the learned counsel for the appellant to interfere with those findings. He therefore focused on the legal question whether non-disclosure of the said fact would amount to fraud as understood in S.19 of the Indian Divorce Act, 1896 (for short 'the act).

3. Sri. P.K. Balasubramanyan, learned counsel for the appellant, developed his arguments thus: S.19 of the Act which recognises jurisdiction of the High Court to make a decree on the ground that consent was obtained by fraud is to be strictly interpreted; the concept of fraud envisaged in the section is narrower than the word "fraud" defined in S.17 of the Contract Act; mere concealment of a fact, unless it relates to the identity of a spouse or the ceremony to be undergone, does not amount to fraud; hence non-disclosure of information regarding vasectomy is not fraud of such a nature as to vitiate the consent for marriage.

4. Under S.17 of the Con tract Act, active concealment of a fact with intent to induce another person to enter into a contract is enough to constitute fraud. In the Explanation to the Section it is made clear that mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud. This clarification is, however, subject to a rider that if circumstances are such that it is the duty of the person keeping silence to speak, then, even silence may amount to fraud.

5. No doubt, the concept of fraud in the Contract Act is of wide amplitude. Fraud, in relation to matrimonial causes, cannot be understood as including concealment of every fact which relates to marriage. It has to be borne in mind that at the time of negotiation or courtship, parties would try to project themselves in the best possible form. Some amount of exaggeration in representation is often experienced to make him or her acceptable to the other as a spouse. Mere concealment or overstatement of facts by itself does not invalidate a marriage. Hence contours of concept of fraud as widely envisaged in the Contract Act cannot be imported hook line and sinker to matrimonial proceedings.

6. It has been held in different cases (Harbhajan Singh v. Brijbalab Kaur - AIR 1964 Punjab 359 and Ranibala Debnath v. Ram Krishna Debnath - 73 C.W.N. 751) that neither the girl nor her relatives are under any obligation to disclose about her prenuptial moral lapses. Similarly, misstatement or concealment regarding the fortune or family status of a spouse is no ground for annulment eventhough consent would have been procured by disingenuous representation. In one case, even concealment of wife's disease (epilepsy)