A.M.SHAFFIQUE, J.

1. This appeal is filed by the petitioner in O.P.No. 164/1999 challenging the dismissal of a petition filed by him. Petitioner filed O.S.No.491/1998 before the Civil Court seeking for a declaration that his marriage with the defendant solemnized on 2nd February, 1991 as per Muslim religious law is to be declared as null and void. In the suit he alleged that after the marriage they lived together for 15 months and thereafter they got separated. The defendant filed M.C.No.114/1994 and C.C.No. 73/1994 against him before the Chief Judicial Magistrate Court, Manjeri. The MC was filed for maintenance and C.C.No.73/1994 was filed alleging matrimonial cruelty. He further contended that the defendant was married to one Alavi in the year 1989 as per Muslim law and they lived together as husband and wife. There was no divorce in accordance with Muslim law and without informing the plaintiff about the earlier marriage and concealing the same the father and brothers of the defendant had proposed marriage of the plaintiff with the defendant and accordingly the Nikah was conducted. He had come to know about the same when he made enquiries, after the defendant had filed M.C.No.114/1994. He had gone to the place of the defendant and he got information about the previous marriage only on 17.10.1998. The above suit was made over to Family Court and renumbered as O.P.No. 164/1999.

2. The defendant in her objection denied the allegations. She contended that though Nikah was conducted with Alavi, the marriage was not consummated and he did not take her to the matrimonial home. The divorce was performed as per Muslim law on 10.7.1990 and the matter was informed to the Jama-Ath mosque committee. Therefore she contended that the marriage with the plaintiff was conducted after the divorce. According to her, after the divorce the family members of the plaintiff and the defendant discussed among them and it was on that basis that she married the plaintiff on 2.2.1991. Apparently, she did not deny the allegation that the factum of earlier marriage between the defendant and Alavi was not informed to the plaintiff.

3. Before the Family Court, plaintiff was examined as PW1. Defendant and two witnesses were examined as RW1 to RW3. Ext.B1 is the document marked on the side of defendant.

4. The Family Court found that in so far as there was a divorce between Alavi and the defendant, the marriage between the plaintiff and the defendant is valid and therefore no declaration can be given to the effect that the marriage is null and void.

5. Sri. Dheerendrakrishnan, learned counsel for the appellant was engaged to appear on behalf of the appellant since the appellant expressed his inability to engage a counsel. Learned counsel argued that the Family Court did not consider the question of fraud in conducting the marriage. It is argued that a Muslim marriage (Nikah) is in the form of a contract and when a contract is entered into without disclosing the true and correct particulars regarding the earlier marriage of the defendant, it amounts to fraud and hence the marriage between the plaintiff and defendant is to be declared as null and void. That apart, even regarding the alleged 'Talaq' (divorce) between the defendant and Alavi, the evidence is self contradictory and the evidence of RW1 to RW3 will not prove that there was a valid divorce between the defendant and Alavi. It is argued that thought the plaintiff had averred and given evidence as PW1 that the previous marriage was not made known to him, there was absolutely no cross examination on the point.

6. The learned counsel for the appellant also relied upon the following judgments:-

(i). Saly Joseph v. Baby Thomas (1999 (1) KLT 74). This is a case in which a Division Bench of this Court while considering the scope of Sections 18 and 19 of the Divorce Act, 1869 held that if there is deceit about an essential or significant quality and one party manipulates the will of the other, it amounts to