Concealment of material facts constituting fraud under the Hindu Marriage Act, 1955.

1. Meghar Singh got married to Smt. Balbir Kaur on 10-12-1980. Soon after the marriage when Smt. Balbir Kaur came to the house of her husband, the women folk found that her left side was defective and found deformity therein. On account of that, the husband s case is that there was no consummation of marriage and she was sent back to her parents, house. On 7-2-1981, i.e., within two months of the marriage; the husband filed a petition under Sec.12(1)(c) of the Hindu Marriage Act, 1955 , for annulment of the marriage on the ground that he was not told that her left side was deformed or defective and it was given out that she was in sound health. He pleaded that it amounted to fraud and if he had been told that she had those defects he would not have agreed to the marriage. The wife contested the petition and in reply pleaded that she was physically and mentally alright.

2. On the contest of the parties, the following issues were framed :-

1. Whether the consent of the petitioner to the marriage was obtained by fraud as stated in para 4 of the petition and as such the marriage is liable to be annulled?

2. Relief.

3. During the trial of the case, besides other evidence, the Court got the wife examined by the Senior Medical Officer, Civil Hospital, Sangrur, with the consent of the parties, who submitted his report Exhibit P. 1 and was called to appear as a witness. His report and the statement made in Court show the following defects in the wife : -

"Left upper limb showed wasting of left fore-arm and muscles. The size of the right fore-arm was 8" while the left fore-arm was 7.25" in girth. There was weakness of the left thumb. In my opinion, the respondent had wasting of small muscles of the left hand mainly with disused atrophy of left fore-arm and weakness of left thumb as a result of Polio in childhood. Medically she will be treated to be partially disabled from left hand."

4. On the basis of the aforesaid statement of the doctor, the Court below concluded that the wife was not physically normal and was disabled. It was further concluded that the disability of the wife was not told to the husband or his relations before marriage and the same was kept concealed. Sine the husband did not consummate the marriage and the wife was sent away immediately after the defect/deformity was known to the family of the husband, the marriage was annulled by a decree of nullity. This is wife s appeal in this Court.

5. After hearing the learned counsel for the parties and on perusal of the record, I am of the view that there is no scope for interference in this appeal. By amendment made by Act No. 68 of 1976, a new ground for annulment of marriage was provided to the effect that if the consent of the petitioner is obtained by fraud as to any material fact or circumstance concerning the respondent, the marriage can be annulled by granting a decree of nullity. In the present case, it is not the plea of the wife that the husband or his relations were told about the deformity; rather the plea in the written statement was that she was physically fit. Therefore, it is clear that the deformity was kept concealed from the husband.

6. The counsel for the wife wanted to argue that the girl was seen before the marriage and, therefore, it should be assumed that the husband or his relations knew about the deformity. Evidence has come on the record that as customary in the village, the wife was brought with the assistance of other ladies fully clad in clothes and, therefore, it was not possible to see her deformity while she was covered in clothes. Rather the impression left on reading of the pleadings and evidence is that the deformity was deliberately kept concealed from the husband and his relations. Therefore, this argument has no merit.

7. Now the question arises whether the deformity in the left arm of the wife as found by the doctor, can be termed a material fact or circumstance concerning the respondent which may entitle the husband to seek n