Fraud Not Proved: P&H High Court Dismisses Husband's Plea To Annul Marriage Over Alleged Concealment Of Pre-Marital Affair By Wife

The Punjab and Haryana High Court has dismissed a husband's plea seeking annulment of his marriage on the ground that his wife had allegedly concealed a pre-marital affair. 

It was the husband's case that, prior to their marriage, during a separate meeting, he had categorically asked the wife whether she was in a relationship, to which she had denied. However, after their marriage, a video was posted on a social media platform allegedly showing her in a compromising position with another man.

A bench of Justice Anil Kshetarpal and Justice Rohit Kapoor said, "The evidence in respect of concealment of material facts at the time of separate meeting and during the period of courtship prior to the marriage, could have been deposed by the appellant alone, being the facts in his personal knowledge. Having failed to step into the witness box, an adverse inference in terms of illustration (g) of Section 114 of the Evidence Act, 1872, is required to be drawn against him."

Speaking for the bench Justice Rohit Kapoor observed that, the appellant has failed to prove, by leading any cogent evidence, that his consent was obtained by fraud.

"It has not been shown by the appellant that the evidence taken as a whole, cannot reasonably justify the conclusion arrived at, or there is an element of improbability arising from proved circumstances, which outweigh the finding of the Family Court," the Court added.

The Court was hearing an appeal filed by the husband against the judgment  passed by the Family Court, Fatehgarh Sahib, whereby the petition filed by him under Section 12(1)(c) of the Hindu Marriage Act, 1955 (HMA) for seeking annulment of his marriage with wife, was dismissed.

Facts In Brief 

The couple had married in 2016 and and they had been residing and cohabiting as husband and wife at his village. No child was born from their wedlock. It was alleged by the appellant that prior to the solemnisation of the marriage, he had categorically asked his wife as to whether she is having any relationship, however the same was denied by her. In the month of November 2017, one video was posted on social media and on many other websites, in which she and her alleged paramour were seen in a compromising position.

The wife also lodged an FIR of rape and extortion, against the alleged paramour and his family members, wherein she allegedly admitted her relationship with him since 2012 and also admitted that she had not disclosed about the relationship to the appellant and his family members.

Annulment of the marriage was sought on the ground of fraud alleging concealment of prior relationship, by filing petition under Section 12 (1) (c) of HMA. The Husband while being in abroad handed over the power of attorney to his mother to conduct the case.

After considering the arguments the Family Court opined that the appellant husband has failed to prove the allegations regarding his consent having been obtained by fraud due to concealment of facts by the wife.

The High Court opined that "there is no error or illegality in the impugned judgment and decree."

It noted that the premise on which the appellant sought the decree of nullity of marriage under Section 12(1)(c) was, that prior to the solemnization of his marriage with respondent No.1, a 'separate meeting' was held and at that time, he categorically asked his wife as to whether she is having any relationship or liking for any other person.

Justice Kapoor noted that undisputedly the appellant never stepped into the witness box himself and no opportunity of cross-examination was provided to the wife regarding the aforementioned allegations, which were within the specific knowledge of the appellant alone.

Referring to Section 114 of the Evidence Act (Court may presume existence of certain facts), the Court said that as husband failed to step into the witness box, an adverse inference in terms of illustration (g) of Section 114 of the Evidence Act, 1872, is required to be drawn against him.

The illustration (g) provides that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it.

Reliance was also placed on Rupinder Mann v. Gurpartap Singh” 2011 SCC Online P&H 17109, in which Supreme Court in 'Man Kaur (Dead) by LRs Vs. Hartar Singh Sangha', 2010 (10) SCC 512 was referred to underscore that, "the attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge."

The Court highlighted that, even the power of attorney holder of the appellant, who is his mother, while appearing as witness has admitted in her cross-examination that there was no concealment of fact by respondent No.1 before the marriage.

"It has also been admitted by the said witness produced by the appellant that respondent No.1 (wife) has not committed any cheating with them after her marriage with the appellant," it added.

In the light of the above, the plea was dismissed.

Title: XXXX v. XXXX 

Mr. Navjot Singh, Advocate for the appellant.