Shivdayal, J.

1. This appeal under section 28 of the Hindu Marriage Act, 1955, (hereinafter referred to as the Act) has been preferred by the husband, whose marriage with the respondent has been held to be null and void under section 11 of the Act, on the, ground that he had a wife living on the date of the marriage. A decree of nullity has also been passed under section 12 of the Act on the ground that the respondent's consent to the marriage was obtained by fraud within the meaning of clause (c) of sub-section (1) of that section.

2. Smt. Deepabai (respondent) was married to Rajaram (appellant) on November 25, 1964, in the Hindu sacramental form of marriage. On September 2, 1965, she made an application under section 11 of the Act for a declaration that the marriage was a nullity inasmuch as Rajararam had been married to one Kewalibai, daughter of Kashinath Lohar of Bai-ka-bagicha, about 10 years earlier. It was also alleged that the fact of the previous marriage was deliberately suppressed from her so that her consent to the marriage was obtained by fraud.

3. The application was resisted by the appellant, denying that he was married earlier. He asserted that he did not even know Kewalibai, although he knew Kashinath.

4. Parties produced their evidence. Parmanand (P.W. 2) and Kishanlal (P.W. 3) stated that Rajaram had been married to Kewalibai, daughter of Kashinath. Rajaram stated that he had not been married to Kewalibai. His witnesses, Ujagar (D.W. 2) and Sitaram (D.W. 3) supported him. The learned District Judge thought it necessary to examine the mother of Kewalibai. Accordingly, Indrawati, mother of Kewalibai, was examined as a Court witness. She stated that her daughter, Kewalibai, had been married to Rajaram about 10 years before her deposition, which was recorded on January 11, 1967.

5. After Indrawati's evidence, Rajaram applied for leave to amend the written statement. He wanted to plead, in the alternative, that he had been married to Kewalibai in the year 1954, but latter on the marriage was dissolved by the Punchas in accordance with the caste custom and that Kewalibai had remarried another man. The application was rejected by the trial Court.

6. The learned District judge, relying on the evidence of Parmanand (P.W. 2), Kishanlal (P.W. 3) and Indrawati (C.W. 1) held that Kewalibai, daughter of Kashinath and Indrawati, had been married to Rajaram "about 10 years back". Since there was no material to show that the marriage with Kewalibai had been lawfully dissolved, he held that the marriage had to be deemed to be subsisting. He, therefore, held that the marriage between Rajaram and Deepabai was a nullity within the meaning of section 11, read with section 5 (i) of the Act.

7. He further held that there was deliberate suppression from Deepabai of a material fact that Rajaram had been married earlier to another girl, which amounted to fraud within the meaning of section 12 (1) (c) of the Act, and accordingly passed a decree of nullity under that section as well.

8. In this Court, it was first contended for the appellant that the trial Court erred in refusing him leave to amend the written statement. We granted him leave. The written statement has been amended, but no further evidence was sought to be produced by the appellant who relied on the present material itself.

9. Learned Counsel for the appellant contended that the learned District Judge was in error when he annulled the marriage by a decree of nullity under section 12 (1) (c) of the Act. The argument is that there was neither pleading nor proof that Deepabai gave consent to the marriage with the appellant either because of force or fraud within the meaning of clause (c) of section 12 (1) of the Act. Mere suppression of a fact is not fraud within the meaning of matrimonial law. In our opinion, this contention must be accepted.

10. Section 12 (1) (c) of the Act reads as follows :-

12 (1) Any marriage solemnised, whether before or after the commencement of this