- (1.) OM Prakash, J. This appeal is filed by the unsuccessful wife (petitioner-appellant) seeking annulment of her marriage with respondent No. 1 against the judgment and decree dated 13-2-1991 passed by learned Judge, Family Court, Bareilly.
(2.) THE annulment of the marriage is sought under Section 12 (1) Clause (c) of the Hindu Marriage Act, 1955 (the Act, for short), which in so far as the relevant for the purpose of this case, reads that any marriage solemnized whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on the ground that the consent of the petitioner, was obtained by force or by fraud as to the nature of ceremony or as to any material fact or circumstance concerning the respondent. Section 12 describes the circumstances rendering a marriage voidable. A voidable marriage remains valid and binding and continues to subsist for all purposes, unless a decree is passed by the Court annulling the same on any of the grounds mentioned in this Section. There is a distinction between a marriage void ipso jure and a marriage which is voidable at the instance of one of the parties to the same; the former is a nullity from the inception and the latter continues to be valid, unless annulled by a decree of the competent court of law. The ceremony of marriage under the Act, although it creates a relation and a status not imposed or defined by contract, does require the consent of the parties to the solemnisation of it. Absence of consent does not render the marriage void ipso jure but voidable at the instance of the party whose consent was obtained by force or fraud. This rule is not absolute and will not operate if: (i) the petition is presented more than one year after the force ceases or the fraud is discovered; or (ii) the petitioner, has with his or her full consent and knowledge exist in the marriage by living with the other party to the marriage as husband or wife.
(3.) THE marriage is sought to be annulled by a decree of nullity by the petitioner in this case on the ground of fraud and in alternative on the ground of cruelty. THE case of the petitioner is that her marriage was celebrated on 6-2-1988 and Vida took place on 7-2-1988; that after Vida she went to the matrimonial home where she stayed for about four days ; that after four days of the marriage she was brought back to her parents house by her brother; that she returned to the matrimonial home after one month; that she was pestered all the time by her in-laws to arrange a cash of Rs. 50,000/-; that her father came to Moradabad to see her on 29-5-1988 ; then she was told by the respondents that he (her father) would not be permitted to enter into the matrimonial home, unless he handed over Rs. 50,000/- as part of dowry ; that it was then that the petitioner discovered that her husband (respondent No. 1) was unemployed and was not an Assistant Chemist in Bajpur Sugar Factory, which he professed to be at the time of the negotiations of the marriage, which lured the petitioner to give her consent to the marriage and that he demanded Rs. 50. 000/- from her for being given as bribe to secure a job for himself. It is averred that there is much disparity in academic standard of both the spouses ; whereas the petitioner is a first class post graduate in drawing and painting and she has also done B. Ed. and thereafter was doing research in drawing and painting, her husband is only a science graduate. It is averred that at the time of negotiations of the marriage, respondent No. 1 and members of his family, who visited the petitioner on 20-12-1987 for the first time for approving her for marriage, had misrepresented that respondent No. 1 was well employed in the aforesaid Sugar Factory on a salary of Rs. 1700/- per month. THE contention of the petitioner is that she would not have given consent to marry with respondent No. 1 if she had known the true fact that respondent No. 1 did not have a secured job in the Sugar Factory. It is said that the petitioner expressed her willingness to marry with respondent No. 1, because the latter represented to her before the marriage that he was employed in the Sugar Factory on a monthly salary of Rs. 1700/ -. The trial court framed an issue : whether the respondents obtained the consent of the petitioner for her marriage with respondent No. 1 by fraud. The petitioner and respondent No. 1 both examined themselves. Considering their evidence, the trial court held as follows: ". . . . . . . . . . . . . It is very well recognised that the job of the bridegroom is not a material fact regarding the settlement of marriage. It can only be treated as a circumstances relevant for consideration of proposal of marriage. . . . . . . . . . . . . . . . . . The certification from the Bazpur Cooperative Sugar Factory filed by the respondents, shows that he was in the service of the Bazpur Sugar Factory. Thus the material fact that the respondent, No. 1 was in the service of Bazpur Sugar Factory was not basically false. It is, however, not relevant as to on what post he was serving and what were his emoluments. The respondent No. 1 admits that he was retrenched later on. If the status of the bridegroom changes after the marriage due to a circumstance beyond his control it cannot be regarded as a fraud played upon the bride or her parents. . . . . . . . . . . . . . . ";