IMPORTANT POINT
Concealment of a prior marriage constitutes fraud under Section 12 of the Hindu Marriage Act, justifying annulment of the subsequent marriage.

JUDGMENT :

Om Prakash Shukla, J.

Prelude

1. This is an appeal filed under Section 28 of the Hindu Marriage Act, 1955 by the wife/appellant, challenging the judgment/ decree dated 31.07.2012 passed by the Principal Judge, Family Court, Faizabad in Original Suit No. 44 of 1997: Raj Kumar alias Golu vs. Smt. Kajal Kiran alias Guddi and another, filed by the husband/respondent under Section 12 (Voidable marriages) of the Hindu Marriage Act, 1955.

2. Vide judgment/decree dated 31.07.2012, the Principal Judge, Family Court, Faizabad, has allowed the Original Suit No. 44 of 1997 and has declared the marriage of the respondent/ husband with appellant/wife dated 26.04.1994 as void and ineffective.

Factual Matrix

3. Shorn of unnecessary details, facts in brief, as borne out from the pleadings, are as under:-

I. On 26.04.1995, the marriage of the appellant was solemnized with respondent. Gauna took place subsequently and thereafter appellant and respondent lived as husband and wife at Faizabad. One Shri Rajendra Prasad Gupta, resident of Mohalla Gillat Bazar, Varanasi, came to the respondent’s house on 28.04.1995 and told him as well as the respondent’s father and mother that prior to marriage of the respondent with the appellant, the appellant had married him on 17.05.1990 in accordance with Hindu rites and rituals. Shri Gupta told him (respondent) that subsequently, the appellant developed illicit relationship with another man and as such she was not ready to come back to him. Consequently, his marriage with the appellant was dissolved in accordance with mutual understanding for which written agreement was also entered between them on 16.08.1992, which bears signature of the appellant and her father, and, thumb impression of her mother.

II. On verification, respondent found these facts to be correct. On being confronted, as per the respondent/plaintiff, the appellant/ defendant accepted these facts and also that they were concealed by her from the respondent/husband. This led to the filing of the Original Suit No. 256 of 1995 by the respondent under Section 12 of the Act, 1955 in the District Court on 11.07.1995.

III. The case of the plaintiff was that the defendant has committed a fraud on him by concealing the factum of her earlier marriage and alleged divorce from him, which was a material fact/circumstance regarding her marital status, therefore, he is entitled to relief as prayed on the ground of Section 12 (1) (c) of the Act, 1955. Defendant of the case denied these allegations and stated that these facts were disclosed to the plaintiff and his family members, who were well aware of the same, before marriage, but a cooked up story has been putforth only because the demand of dowry of the plaintiff etc. could not be met by the defendant and her family members.

IV. In the said suit, the Judge (Small Causes Court), Faizabad passed an order of interim maintenance on 22/24.01.1996. This order was put to challenge by the plaintiff by filing Civil Revision No. 23 of 1996, wherein an interim order was passed by the District Judge, Faizabad, staying the order of trial Court dated 22/24.01.1996. Ultimately, the revision was allowed on 05.12.1997, with the prima facie observation that divorce of the defendant from the first husband Shri Gupta was not proved, therefore, prima facie, she does not appear to be the wife of revisionist/plaintiff. Thereafter, the Family Court was constituted at Faizabad and on the file being transferred to it, the suit was renumbered as Original Suit No. 44 of 1997.

V. On the basis of the pleadings in the suit, the Family Court framed four issues as under :-

VI. Parties led evidence before the trial Court on the issues framed.

VII. In support of his case, respondent/husband recorded his own deposition as P.W.1 and also filed documents viz. (i) affidavit sworn by the respondent/husband (marked as paper no. 174 Ga 2); and (ii) affidavit sworn by one Brijesh Kumar Singh (marked as paper no. 175 Ga 2).

VIII. Apart from it, the re