Cohabitation after discovering fraud constitutes condonation, barring annulment under Hindu Marriage Act.

1. The petitioner appellant brought a petition for annulment of the marriage with opposite party and in any case for dissolution of marriage with opposite party. The main stand of the petitioner was that the opposite party was divorcee, having married to one Yogesh Kumar earlier and this fact was suppressed from the petitioner and his parents, and had it been known to them they would have not gone for marriage and there has been a fraud. According to the petitioner, he first came to know of this earlier marriage and divorce in April 1979. It would appear that the couple later parted and respondent ceased to live with the petitioner. The case of the appellant is that this happened near about 4-9-1979. The case of the respondent is that she lived with the petitioner up to 15-9-1979. Respondent's further stand was that as there was marriage in petitioner's family invitation card was sent and the husband also rang the wife and even after institution of the suit, which had been filed on 18-12-1979, the respondent again returned back to the petitioner on 3-3-1980 and cohabited and lived with him up to 27-6-1980. The petitioner of course denies this. The petitioner's further stand was that the wife went to picture with his servant of the house and the petitioner suspected immoral relations between them and the servant also later ran away with certain cash.

2. The trial court decreed the petitioner's claim under S.12 of the Hindu Marriage Act that is for annulment. The first appellate court reversed that decree and dismissed the petition.

3. The husband feeling aggrieved from the finding and judgment of the first appellate court has preferred this second appeal. The first appellate court has concurred with the findings of the trial court that the matter of earlier marriage of the present respondent and divorce was suppressed and the fraud was practised upon the petitioner and his father in that regard. The two courts below also found that wife went with the servant to Cinema and the first appellate court held that this may amount to cruelty. The first appellate court, however, found that there has been condonation on the part of the husband and when that is the position neither a decree for annulment can be passed nor a decree for dissolution of marriage can be granted. I may proceed to consider the aspect of condonation which is most vital for the decision of this appeal.

4. Under S.12 of the Hindu Marriage Act voidable marriages have been considered providing for annulment of marriage including on ground of fraud and then S.12(2)(ii) of the Act provides that the petition annulling the marriage on ground of fraud as provided under S.12(1)(c) of the Act, shall not be entertained if the petitioner has with his or her full consent lived with the other party to the marriage as husband or, wife after.....the fraud had been discovered. The first appellate court held that this provision was attracted hence the marriage could not be annulled. Learned counsel for the appellant urged that condonation must mean complete and actual reconciliation. In that connection reliance has been placed upon the case of Dr. N. G. Dastane v. Mrs. S. Dastane AIR 1975 SC 1534 and two English cases, (1) Mackrell v. Mackrell , 1948 (2) All ER 858 and (2) Burch v. Burch , 1958 (1) All ER 848. So far as the two English cases are concerned, I may, at the outset, observe that the Western conception concerning sanctity of the ties differ from Indian conception. In fact, in Western countries divorce can be claimed also on any very petty ground which would be considered flimsy by the Indian Society and in the matter of annulment of marriage and divorce the provisions under the H