Delhi High Court
Smt Reeta Jha vs Sh Mukund Kumar Jha on 27 August, 2025
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 19.08.2025
Judgment delivered on: 27.08.2025
+ MAT.APP.(F.C.) 49/2025 and CM APPL. 7144/2025
SMT REETA JHA .....Appellant
Through: Mr. Sanjeev Kumar, Adv.
versus
SH MUKUND KUMAR JHA .....Respondent
Through: Mr. Adarsh Varma and Ms.
Swati Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
% JUDGEMENT
HARISH VAIDYANATHAN SHANKAR J.
1. The present appeal under Section 19(1)(4) of the Family Courts
Act, 1984 read with Section 151 of the Code of Civil Procedure, 1908,
is preferred against the Judgment and Decree dated 05.11.20241 by
which the learned Principal Judge, Family Courts, Tis Hazari
Courts (West), Delhi 2 , has declared the marriage as between the
parties herein as null and void under Section 12(1)(c) of the Hindu
Marriage Act, 19553.
1
Impugned Judgement.
2
District Judge.
3
Act.
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2. The solitary challenge in this Appeal, as urged on behalf of the
Appellant, is that the provisions of Section 12(1)(c) of the Act are not
applicable to the present case. Learned counsel for the Appellant
submits that there was no concealment of any material fact at the time
of marriage. It is argued that the Appellant herself was unaware of her
medical condition, namely, the absence of a uterus, and therefore, in
the absence of such knowledge, the question of deliberate
concealment does not arise.
3. We have heard the submissions advanced by the learned
counsel for the Appellant as well as the Respondent, and have also
perused with care the detailed judgment rendered by the learned
District Judge. For the sake of convenience, we consider it appropriate
to extract the relevant portions of the Impugned Judgment herein
below:
"A. Absence of uterus in the Respondent
14. Admittedly, the marriage of the parties was an arranged
marriage, solemnized on 21.04.2016 in Delhi. The case of the
petitioner (PW1) as made out in his deposition is that the
respondent and her family kept him and his family in the dark
about the respondent not having a uterus because of which she
could not conceive. The petitioner wanted to have children. The
petitioner in his examination-in-chief (evidence affidavit PW1/A)
has deposed how the respondent avoided the issue of having
children and going to the doctor and that finally on 13.11.2017, the
petitioner took her to Origyn Fertility & IVF Centre, B.M. Gupta
Hospital, Uttam Nagar, Delhi where she underwent an ultrasound
of her lower abdomen. It was on 16.11.2017, that after obtaining
the report when they went to the doctor, during the discussion, for
the first time it came to the knowledge of the petitioner that the
respondent did not have a uterus and her left kidney and thus, she
could never conceive. The petitioner in his cross- examination, has
reiterated that it was on 16.11.2017, after he got the medical
reports, for the first time he came to know that the respondent did
not have a uterus and one kidney. He has further stated that this fact
was concealed from him and his parents at the time of the
marriage.
Signature Not Verified
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15. The petitioner examined Dr. Rashmi Sharma as PW3 who
testified that the prescription dated 13.11.2017 (Ex. PW l/4) of the
respondent was prepared by Dr. Ranu Dadu. She was not cross
examined, The prescription (Ex. PW l/4) was prepared on her
letterhead. The petitioner examined Dr, Ranu Dadu as PW4, who
testified that her clinic was in the name of Dadu Surgical and
Gynae Clinic in Pitampura, New Delhi she was a practicing
gynaecologist since 2004, She proved the prescription of the
respondent dated 13.11.2017 (Ex.PW 1/4) prepared by her, In the
prescription she had recommended the respondent for the
ultrasound of lower abdomen to Dr. Rajeev. The petitioner has
examined Dr. Rajeev Choudhary as PW2, Dr. Rajeev Choudhary
(PW2) has testified to having conducted the ultrasound
examination and prepared the ultrasound report of the respondent
dated 16.11.2017 (Ex PW-1/5) at his clinic Doctor Rajeev
Ultrasound Lab as per this report the respondent did not have a
Uterus and left kidney. Dr. Rajeev Choudhary (PW2) in his cross
examination has denied the suggestion that he had not conducted
the ultrasound of the respondent or that the report was prepared
falsely at the instance of the petitioner. Significantly, the
respondent (RW1) herself in her admitted handwritten
acknowledgement dated 02.12.2017 [Ex. PW-1/8 (Colly)] and in
her cross examination has clearly admitted that she did not have a
uterus and one kidney. Thus, in view of the above findings, it
stands proved that the respondent did not have a uterus.
B. Did the respondent intentionally conceal the fact about not
having a uterus?
16. The petitioner has deposed how on one pretext or the other
on every occasion the respondent started avoiding discussion of her
conceiving and she told the petitioner that they should adopt. He
has deposed that when the respondent failed to conceive, he
requested the respondent to accompany him to a doctor but she on
one pretext or the other kept avoiding for four to five months.
Finally, when the. petitioner put his foot down and insisted that she
accompany him to the doctor, she sought a week's time and
convinced him to try for the last time and that if she did not
conceive she would go with him for medical treatment. Finally on
13.11.2017, he took her to the doctor who recommended an
ultrasound and from the ultrasound report on 16.11.2017 for the
first time it came to the knowledge of the petitioner that the
respondent did not have a uterus and her left kidney. He has
deposed that on being asked, the respondent for the first time
disclosed that her parents earlier also had got her treated from
several doctors for the same problem however, in vain.
17. The respondent in her written statement has baldly denied
the above allegations. However, a scrutiny of her testimony shows
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inconsistencies in her version as to when and how she discovered
for the first time that she did not have a uterus and a kidney, which
makes her testimony doubtful. The respondent in her written
statement and her examination-in-chief, has claimed that she had
no problem in conceiving and no medical checkup or medical
treatment was ever got done by the petitioner when she was in the
matrimonial home. She has also claimed that the petitioner did not
want to have children because of his affair with his cousin Nikki
Chaudhary. However, later in her cross examination she admitted
having been examined vide prescription (Ex.PW l/4) of Dr. Ranu
Dadu (PW4). She also admitted undergoing the ultrasound
examination and the ultrasound report (Ex PW l/5) showing she did
not have a uterus and left kidney. In her examination-in-chief she
has claimed that she once, conceived and became pregnant
however, due to the immense torture and tension of the petitioner
she suffered a miscarriage during her stay at the matrimonial home
and was not provided any medical treatment or checkup. This claim
of hers is falsified in view of her admission (later in her cross
examination) that she did not have a uterus and that she was
medically examined, Interestingly, while in her examination-in-
chief she claimed everything was normal and that she had
conceived, when questioned & her cross examination she admitted
that she never got pregnant ever and claimed it was God‟s wish.
18. The credibility of the respondent becomes all the more
doubtful, considering the completely new version she has put up in
the cross examination of the petitioner by way of suggestions, that
the petitioner for getting her treated for stones got her (admitted in
the hospital and got her uterus and kidney removed. She has further
claimed that she had this apprehension because of the alleged stitch
marks she found below her navel. The petitioner has denied this
version put through suggestions to him. The respondent in her
cross examination has claimed having an apprehension qua the
alleged stitch marks below her navel which the acts of the
petitioner. Here she was confronted with para C of her reply to the
application under Section 340 Cr.P.C wherein she had stated that
she had got to know about the stitches on 17.03.2020 On the one
hand she claimed that she got to know about the stitches during her
stay in the matrimonial home however, admittedly she did not stay
in her matrimonial home after 2017. In her cross examination when
questioned further, she was not sure about specific date or year
when she got to know about the stitch marks below her navel. She
has admitted in her cross examination that she did not visit any
doctor pursuant to her allegedly gaining knowledge qua the stitch
marks in her matrimonial home and even after coming back to her
parental home after 06.12.2017. She admitted that she had neither
mentioned anything about stitch marks below her navel in her
written statement or in any of her complaints nor produced any
documents qua the same. Although she has claimed that she had an
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apprehension about the petitioner being responsible for the stitch
marks however, she has nowhere stated about filing any complaint
with regard to the same. The respondent in her cross examination
was confronted with her complaint filed under the Protection of
Women from Domestic Violence Act, 2005 (Ex. R/X2) where in,
there is not a whisper about any such incident having taken place.
The petitioner when questioned stated in his cross examination that
during intercourse with the respondent he had not seen any surgery
marks and stitch marks on her lower abdomen or near her private
parts. The new version put up by the respondent to explain the
absence of her uterus and kidney makes her claim doubtful that she
was not aware about the absence of her uterus or kidney.
19. The father of the respondent Brij Bhushan Jha (RW3) has
significantly, put up yet again, another modified version. He has
testified that the respondent was normal and had no bodily
infirmity but the petitioner and his family got her treated for a
„disease‟ best known to them and later levelled the allegation that
she does not have "an ovary" and kidney. In his cross examination
he stated that he was not sure about any "disease" of the respondent
as mentioned by him in his evidence also admitted, that he had not
seen any surgery marks on the body of the respondent, He also
admitted that his allegation with regard to the disease were not
mentioned in the written statement of the respondent, Santosh
Kumar (RW4) the friend of the father of the respondent testified
with regard to the money and gifts given at the time of the marriage
and about the efforts of reconciliation made by the family of the
respondent in January 2018, however he has not stated anything on
this aspect.
20. The respondent has although claimed that she apprehended
that the alleged stitch marks were due to the acts of the petitioner
however, she could not give the reason why she did not get herself
medically checked despite having this apprehension, which is
something any ordinary prudent person would do. The
improvement made by the respondent in the case put to the
petitioner by way of suggestions in his cross examination and in
her own cross-examination and in her reply to the application under
Section 340 Cr.P.C, that it was the petitioner who had got her
operated upon and got her uterus removed (something which is not
mentioned in her written statement or in her evidence affidavit)
only goes to make the claim of the petitioner appear to be truthful
that the respondent was aware about not having uterus before her
marriage.
21. The petitioner has deposed that on 14.05.2017, the
petitioner on the advise of his parents went to the Vaishno Devi
shrine for seeking blessings and after coming back the respondent
informed the petitioner and his mother that she had missed her
periods and that 10 days had lapsed and she was pregnant,
However, around 28.05.2017 to 30.05.2017, the respondent went to
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her parental home and after a lapse of about fifteen to twenty days
when the petitioner asked the respondent about her well-being, she
informed him that she had fallen from the stairs and had a
miscarriage. The respondent in her written statement and
examination-in-chief has claimed that she had once conceived and
got pregnant however, due to immense torture and tension of the
petitioner she suffered a miscarriage during her stay at the
matrimonial home and was not provided any medical treatment or
checkup. This claim of the respondent has to be seen the light of
her clear admission in her cross examination that she did not have a
uterus. Where the respondent did not have a uterus, menstruation
was not a possibility. It is important to note that the respondent at
one point in her cross examination has claimed to have
menstruation till the time she was residing at her matrimonial home
(i.e. till 06.12.2017) while again later she claimed that after
16.11.2017 she did not get menstruation pursuant to which she got
herself medically examined. She still further, improved stating that
she did not have menstruation and this fact was told to her by the
petitioner. She again further contradicted itself in her cross
examination by stating that she did not get herself medically
checked also. She stated that she could not say whether after
collecting the ultrasound report dated 16.11.2017 she went and
reconsulted any doctor. The self- contradicting stance of the
respondent makes her version doubtful.
22. Dr. Ranu Dadu the gynaecologist (PW4) proved her
prescription, Ex. PW l/4. It is important to note that as per the
history given by the respondent to the said doctor as mentioned in
the prescription, her last menstrual period was on 28.10.2017. The
false history given by the respondent clearly proves that she was all
through concealing the fact that she did not have a uterus and did
not menstruate. The respondent was a 24 year old city bred woman
at the time of her marriage. As a female she must have become
aware of the absence of menstruation as a teenager and so it is
difficult to believe that she was ignorant of the fact of not having a
uterus. In the light of the above observations, it is held that the
respondent despite being aware, all thorough intentionally
concealed the fact that she did not have a uterus.
C. Was the concealment of not having a uterus and this not
being able to conceive a material fact concerning the
respondent?
23. The case of the petitioner will come under Section 12(1) (c)
of the HMA only if the consent of the petitioner was obtained by
fraud as to a material fact or circumstance concerning the
respondent. This brings us to the question whether the
concealment, of the fact of not having a uterus by the petitioner,
amounted to concealment of a material fact or circumstance
concerning the respondent, The criteria of a material fact or
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circumstance concerning the respondent, has been laid down in a
number of decisions as discussed below.
24. In Vandana J Kasliwal V. jitendra N. Kasliwal
MANU/MH/1196/2006, the Bombay high Court Observed:
"25................in our considered opinion, though
marriage is sacrosanct, it requires consent of both spouses
or their guardians, if spouses are not capable of giving
consent, and it must be a free consent and in that sense,
have to consider whether the consent was given
voluntarily. Here aid of definition of fraud, even from the
Indian Contract Act, 1872 need not be overlooked and we,
therefore, respectfully differ from the view taken by the
single Judge in the case of Raghunath Gopal (supra), that
mere non-disclosure prior to the marriage or concealment
of curable epilepsy disease of girl and false representation
that she was healthy does not amount to fraud within the
meaning of the word used in Section I2 (1) (c) of Hindu
Marriage Act, 1955. If regard be had to Section 12(1)(c)
of the Act of 1955, it is clear that if a fact, or
circumstances so material as to affect decision of giving
consent to marriage and if there is fraud regarding the
same, may be by express words or even by concealment,
then, marriage could be annulled However, we hasten to
make it clear that it is not every fact or circumstance
which would be covered by the provision, but it must be
substantially something which goes to the root of the
matter, which definitely would weigh with any prudent
person to change his mind. It most not be easily
detectable. The Court would be very circumspect, cautious
and pragmatic in identifying such fact or circumstance. In
this case, the first part of the written statement itself shows
that when query regarding abnormal behaviour of the
appellant was made during marriage ceremony, it was
stated that it might be because of mental stress due to
failure in the examination and for want of sleep.
(Emphasis added)
25. In Pradeep s/o Namdeorao Ambhore V. Pallavi Pradeep
Ambhore MANU/MH/0859/2017, the Hon‟ble Bombay High
Court while dealing with section 12 (1) (c) of the HMA after
discussing various decisions held thus:
"12.... What can be gathered from the aforesaid
decisions is that a fact or circumstance which would
materially interfere with a happy marital life would be a
'material fact' as also a fact which if disclosed would have
resulted in the husband or the wife not agreeing or
consenting to the marriage would also be a 'material fact'
In our view, it cannot be said that only such facts and
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circumstances which would materially interfere with a
happy marital life would only be material facts. A fact,
though it may not seriously interfere with the marital life
of the party but, would be of such a nature, which if
disclosed, would result in-either of the party not
consenting for the marriage, would also be a 'material fact
In the cases which we have referred to hereinabove, a
decree of annulment of marriage is granted where the
spouse suffered from epilepsy the uterus was not in a place
, the wife had never got menses, the husband had disclosed
inflated income or misrepresented about His job, the wife
suffered from chrome periodontitis, etc. in all the aforesaid
cases, it is held that the wrongful disclosure of a material
fact or the concealment of a material fact like the ones
which are referred in those cases, would result in the
annulment of the marriage under Section I2(l)(c) of the
Act."
26. The petitioner has testified how he loved children and that
was the reason why he had opted for giving tuition as a profession.
He has also testified with regard to his keenness to have his own
children because of which he time and again requested the
respondent that they should have their own children. He has also
testified that when the respondent could not conceive despite
repeated attempts in two months, he became depressed thinking he
could not have children of his own. It is on the insistence of the
petitioner that the respondent finally agreed to go to the doctor to
get herself checked, when she could not conceive after few months
of her marriage, On 16.11.2017, when the petitioner learned from
the doctor that the respondent could not conceive, it is then that he
was shocked and felt cheated and defrauded.
27. The parties admittedly had an arranged marriage through
marriage bureau, Brij Bhushan Jha (RW3) the father of the
respondent has testified about the manner in which the marriage
was arranged between the parties, both being brahmins from
Mithila region. The marriage being a traditional arranged marriage
the parties were not known to each other before the marriage. The
petitioner has clearly deposed in his testimony about how
important it was for him to have children as already stated above
and how shattered and disappointed he was when the respondent
could not conceive, Significantly, the admitted written
acknowledgment [Ex .PW1/8 (colly)] of the respondent dated
02.12.2017 wherein she has stated that she was giving permission
to her husband to get married again because she could not give him
an heir and joy of a child as she could not conceive since she did
not have a uterus, affirms that the concealment of not having a
uterus, was a material fact concerning the respondent, Thus, it is
held that concealment of the fact of not having a uterus and thus
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not being able to conceive, is clearly a material fact concerning the
respondent which would seriously interfere with the marital life of
the parties and was definitely something of such nature which if
disclosed would have resulted in the petitioner not consenting for
the marriage.
D. Did the petitioner after the discovery of the fraud live with
his full consent with the respondent as her husband? Is the
petition barred under section 12 (2) (a) (ii) of the HMA?
28. Section 12 (2)(a) of the HMA reads: -
(2) Notwithstanding anything contained in sub-section (I),
no petition for annulling a marriage
(a) On the ground specified in clause (c) of sub-section
(1) shall be entertained if
(i) the petitton.is presented more than one year after the
fraud had been discovered to operate or, as the case may
be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived
with the other party to the marriage as husband or wife
after the force had ceased to operate or, as the case may
be, the fraud had been discovered;
29. The fraud i.e. the concealment of the fact that the
respondent did not have a uterus and was thus not able to conceive
was discovered on 16.11.2017. The respondent left the matrimonial
home on 06.12.2017. The issue that arises is whether in the
interregnum i.e. between 16.11.2017 to 06.12.2017 the petitioner
with his full consent lived with the respondent as her husband, if
so, then the petition on this ground cannot be entertained. The
picture that emerges from the testimony of the parties is that after
discovery of the fraud on 16.11.2017, the relations never
normalized between them, As made out from the testimony of the
petitioner after the discovery of the fraud, the relations between the
parties became strained. The petitioner has deposed how on the
fraud being discovered, he questioned the respondent who for the
first time disclosed that her parents earlier also had got her treated
"from several doctors for the same problem however, In vain. He
has testified how when the doctor categorically, stated that the
respondent could never conceive and have children and how he
was shocked while the respondent remained silent. He has time and
again reiterated that he felt that he had been cheated and defrauded
by the respondent and her family members. This part of his
testimony remains unrebutted.
30. The petitioner has deposed that around 20.11.2017 to
22.11.2017, to make the situation better when the father of the
petitioner intervened and tried to calm the respondent, she got
angry and started abusing him and attempted to hang herself from
the fan and threatened to falsely implicate them. He has claimed
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that he was still in a state of shock as his dream of having his own
children got shattered. However, the respondent instead of making
the situation better kept hurling abuses at the petitioner and his
family. He has also deposed about how things got worse when he
found a recording in her mobile phone, in which she was
requesting her mother to send goons to teach the petitioner and his
family a lesson and that it also contained a recording in which she
was planning and plotting to usurp the property of the father of the
petitioner. The recordings took place because of a pre-planned
application in the mobile. On opening the chats in the mobile
phone, he was shocked to find that the respondent had on several
occasions texted "I love you babu" to a person not known to the
petitioner. He also came across an audio recording in which the
respondent in a luring tone had recorded "I love you babu" which
was addressed and delivered to the above said person whose name
was not saved in contact list he has further testified that when he
confronted the respondent with the same, she started quarrelling
and asked him why he had touched her mobile phone without
asking her and that he had guts asking her who this person was also
that it was enough for him to know that this person was her friend
and she loved him very much. The petitioner was shocked. The
testimony of the petitioner on the above aspects has remained more
or less unrebutted.
31. The petitioner has testified as to how the respondent on
realizing that she could no longer control the petitioner and his
family on 01.12.2017, expressed her desire to stay at her parental
home and as the parents of the petitioner were not keeping well
when he requested her to-stay back as there was no one to take care
of them in his absence, she became infuriated and went to the puja
room and lighted a camphor tablet on her hand threatening him to
set herself ablaze and how finally on 06.12.2017 the respondent
without informing anyone went to her parental home, He has
further testified that being acquainted with the nature of the
respondent and considering that she had threatened to implicate
them in false cases, he had at the first / instance intimated about the
entire chain of events to the police Vide Complaint dated
19.12.2017, The father of the respondent Brij Bhushan Jha (RW3)
has testified that in the beginning of December 2017, the petitioner
met him and asked him to take away the respondent from the
matrimonial home and how later the petitioner did not respond to
his calls. As per the version of the respondent also things were
never fine between them even after the fact of not having a uterus
was discovered and it was the petitioner-who made sure she left the
matrimonial home on 06.12.2017. The respondent in her cross
examination has state that after 06.12.2017 she called the petitioner
several times on his phone however, he kept avoiding her. All this
shows that things never normalized after the discovery of the fraud.
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Also the fact that they were recording each other‟s conversations,
shows that the relationship never resumed normalcy.
32. What is of most significance is the deposition of the
petitioner that the elders and respected members of the society
intervened from 29.11.2017 till 02.12.2017 after which the
respondent acknowledged in writing vide her two handwritten
notes dated 29.11.2017 and 02.12.2017 [Ex. PW1/8 (colly)] that
she was separating from the petitioner and she did not want
anything from him and also acknowledged that she did not have a
uterus and one kidney and thus would never be able to conceive
and thereby granted permission to the petitioner to get married
again. The first handwritten acknowledgment dated 29.11.2017 of
the respondent states that she was separating from her husband in
her full senses and that she did not want anything from her
husband. The second handwritten acknowledgment of the
respondent dated 02.12.2017 as already, mentioned, states that she
was giving permission to her husband to remarry because she could
not give him an heir as she did not have uterus and one kidney and
she could not give her husband the joy of a child.
33. The respondent in her cross examination has admitted
executing the said handwritten acknowledgments Ex. PW1/8
(colly), However, she has claimed that she executed them under
threat-of the petitioner that he would murder her, The petitioner has
deposed that the said documents were executed in the presence of
parents of both the parties and elders. The claim of the respondent
that she wrote the two notes under threat of being murdered
becomes difficult to believe considering that no complaint qua the
alleged threat was ever made by her or her family, Also the said
claim appears to be a clear afterthought. The second handwritten
note of the respondent is dated 02.12.2017 and the respondent left
the matrimonial home on 06.12.2017. It is no where the case of
either of the parties that after 16.11.2017 (the date of discovery of
the fraud) they resumed normal relations or cohabited.
34. In Bikkar Singh V. Mohinder Kaur MANU/PH 0146/1981,
while discussing the law laid down by Section 12(l )(c) of the
HMA, the Hon‟ble High Court of Punjab and Haryana observed
that:
"8..................The statute declares that it is no marriage
in the eye of law where one of the parties was induced to
enter into a matrimonial alliance under coercion, duress
or fraud evidencing lack of free consent. Therefore,
marriage procured by force or fraud has no sanctity and is
voidable at the election of the injured party. This being the
substantive provision, the legislature, however, bars a
decree of annulment of marriage as an exception if the
specific conditions spelt out in sub-section (2) of Section
12 are satisfied. An analysis of this provision relevant to
clause (c) of sub-section (1) would indicate that even after
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the discovery of fraud two other significant conditions
have to be satisfied; firstly, the most significant one is tie
Upturn of the two spouses living together as husband
and wife; secondly, that such living together must be with
the full and free consent of the condoning spouse The
language used here is meaningful. It first pin-points that
one spouse must live with the other, but that by itself may
not be sufficient For instance, if both of them are merely
living in the same premises but not as husband and wife,
the same may not be conclusive, The Statute father
requires that such a living must be a matrimonial living
together as husband and wife even alter a conscious
discovery of the fraud and with a full and free consent.
The import of the language used, therefore, is only a
pointer to the fact that there has to be a conscious and
deliberate condonation and a fill ratification of the
matrimonial status which alone would amount to a bar
against challenging a marriage which otherwise is
vitiated by force or fraud In other words, both the
physical and the mental requirements must concur to
ratify a marriage which intrinsically is not valid, but is to
be given ex post &facto sanction by subsequent conduct
living together as husband and wife with free consent. I
do not think that these stringent conditions of the statute
would stand satisfied by a solitary act of sexual
intercourse and the present case is a patent example of the
inequity which would result from a contrary construction.
9. A close analysis of the judgment under appeal would
show that the larger principle and the concept of
condonation of matrimonial offence was not adequately
canvassed before the learned Single Judge, In particular
pointed attention was apparently not drawn to the
provisions of sub-section 2(a) (i) and (ii) which were the
most relevant and material ones and called for specific
interpretation with greatest respect to the learned Single
Judge, we are inclined to hold that keeping the specific
language of the statute in mind as also the larger principle
of condonation, it would be an overly strict and if we
may so, a hyper technical construction to lay down that a
marriage otherwise patently voidable and fit for;
annulment would become sanctified beyond challenge and
be rendered irrevocable by a solitary act of sexual
intercourse without more.
(Emphasis added)
35. Considering the entire chain of events since the fraud was
discovered on 16.11.2017 and especially the handwritten
acknowledgments dated 29.11.2017 and 02.12.2017 [Ex. PW1/8
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(colly)] executed by the respondent, just because the parties lived'
under the same roof till 06.12.2017, it cannot be said that after
discovering the fraud, the petitioner has with his full consent lived
with the respondent as her husband. The said handwritten
acknowledgments would not have been executed by the
respondent, if the petitioner would have lived with the respondent
as a husband, after the fraud was discovered. Living as a husband
would presume resumption of normalcy and cohabitation i.e. the
intention to rebuild the broken. This would be possible if there was
a bilateral intention on the part of both spouses which in this case
was consciously missing. Thus it can be safely held that after the
discovery of fraud on 16.11.2017, the petitioner with his full
consent did not live with the respondent as her husband. Thus,
the bar of Section 12 (2) (a)(ii) of the HMA would not apply in this
case.
36. To sum up, this Court finds that the petitioner has
succeeded in discharging the onus upon him and has been able to
prove on record that his consent was obtained by fraud as to a
material fact concerning the respondent in terms of Section 12(1)
(c) of the HMA. The marriage between the petitioner and the
respondent is liable to be declared voidable as per Section 12 (1)
(c) of the Hindu Marriage Act. In view of my finding on this issue
there is no need for a finding on the alternate issue. Issue no.1 is
accordingly decided in favour of the petitioner and against the
respondent and hence the petitioner is entitled to a decree of
annulment of the marriage under Section 12(1) (c) of the HMA.
ISSUE NO2: Relief:
37. In view of my findings on issue No.1, the marriage
between the petitioner Mukund Kumar Jha and the respondent
Rita Jha is declared null and void under Section 12 (1) (c) of
the Hindu Marriage| Act, 1955. Parties are left to bear their own
cost. Decree sheet be drawn up accordingly. File be consigned to
the Record Room."
4. Upon due consideration, this Court is of the view that the
present case squarely attracts the provision of Section 12(1)(c) of the
Act, which stipulates as under:
"12. Voidable marriages. - (1) Any marriage solemnised, whether
before or after the commencement of this Act, shall be voidable
and may be annulled by a decree of nullity on any of the following
grounds, namely: -
(a) that the marriage has not been consummated owing to the
impotence of the respondent; or
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(b) that the marriage is in contravention of the condition specified
in Clause (ii) of Section 5; or
(c) that the consent of the petitioner, or where the consent of
the guardian in marriage of the petitioner was required
under Section 5 as it stood immediately before the
commencement of the Child Marriage Restraint (Amendment)
Act, 1978, the consent of such guardian was obtained by force
or by fraud as to the nature of the ceremony or to any material
fact or circumstances concerning the respondent); or
(d) that the respondent was at the time of the marriage pregnant by
some person other than the petitioner."
(emphasis supplied)
5. Section 12(1)(c) of the Act contemplates annulment of a
marriage on the ground of fraud "....as to any material fact or
circumstance concerning the respondent". The issue that arises for
determination is whether the absence of uterus is a "material fact or
circumstance" sufficient to render the marriage as between the parties
voidable and whether there was any concealment of the same by the
Party of such a "material fact or circumstance" leading to a conclusion
that it amounted to obtaining consent by playing a fraud on the party.
Both would need to be established.
6. It is well settled that the expression "fraud" occurring in this
provision is to be understood in the matrimonial context, distinct from
its meaning under the India Contract Act, 18724.
7. In the process of matrimonial negotiations, minor exaggerations
or omissions are often made and by themselves do not constitute
fraud. The Court is required to assess whether the concealment
pertains to a fact so essential that it strikes at the very foundation of
the marital relationship and materially impairs the fulfilment of its
obligations. Concealment or misrepresentation of trivial particulars
would not suffice; however, non-disclosure of a circumstance that
4
Contract Act
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fundamentally affects the prospects of a normal and happy married
life would amount to fraud within the meaning of Section 12(1)(c).
8. The principles governing the scope and meaning of „fraud‟ in
the matrimonial context, as distinct from its interpretation under the
Contract Act, stand crystallized in a catena of decisions. In this
context, this Court‟s judgment in Asseem Aggarwal v. Ashi Kumar5,
is particularly instructive, and reads as follows: -
"25. Clause (c) of Section 12(1) of the Act of 1955 provides that
the marriage may be annulled by a decree of nullity if, (i) the
consent of the petitioner is obtained by "force" or by "fraud"; (ii)
such "force" or "fraud" must be as to the "nature of the ceremony"
or as to "any material fact or circumstance" concerning the
respondent.
26. The term „Fraud‟ in the context of Section 12(1)(c) was
interpreted by the Bombay High Court in the case of Raghunath
Gopal Daftardar v. Vijaya Raghunatha Gopal Daftarda, 1971
SCC OnLine Bom 52. It culled out a distinction between the term
„fraud‟ as appearing in Section 17 of the Indian Contract Act, 1872
and in Section 12 of Hindu Marriage Act, 1955 by observing that
marriage under Hindu Law is treated as a Samskara or a sacrament
and not a mere civil contract. The term "fraud" as used in the
Hindu Marriage Act, 1955 is not a "fraud" in any general way and
that every misrepresentation or concealment would not be
fraudulent. If the consent given by parties is a real consent to the
solemnization of marriage, then the same cannot be circumvented
by alleging fraud.
27. Similarly, in the case of Harbhajan Singh v. Shrimati Brij
Balab, 1963 SCC OnLine Punj 139, it was observed that „fraud‟ as
a ground for annulment of marriage under the Hindu law is limited
to those cases where the consent for marriage was obtained by
some deception. It could not have been the intention of the
legislature to include every misrepresentation that can be alleged,
as a ground for dissolving a marriage.
28. Thus, under the Hindu Law, not every misrepresentation or
concealment of a fact shall amount to "fraud" as envisaged under
Section 12(1)(c) for annulment of a marriage. The fraud must be
material as to the nature of ceremony or to any material fact or
circumstance concerning the respondent and thus, at this point it is
pertinent to consider what would tantamount to a material fact."
5
2023 SCC OnLine Del 5007.
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9. In Jasbeer v. Nishta Dawar6, this Court, while relying upon the
decision of the Madras High Court in Sujatha v. Hariharan7, made
certain significant observations in reference to "Fraud" under Section
12(1)(c) of the Act. The pertinent extracts from Jasbeer (supra) are
reproduced herein below:
"17. In Sujatha v. Hariharan, (1995) 2 Mad LJ 327 DB, of Ma-
dras High Court observed that to constitute a "fraud" under Section
12(1)(c) of the HMA there must be an abuse of confidential posi-
tion, some intentional imposition or some deliberate concealment
of material facts which are the fundamental basis of the marriage
contract.
18. The meaning of material fact or circumstances concerning
the respondent was examined in the case of Pradeep s/o Namdeo-
rao Ambhore vs. Pallavi Pradeep Ambhore 2017 (6) Mh.L.J.,
where the moot question was whether the concealment of the wife
suffering from sickle cell anemia, amounted to material fact or cir-
cumstance. It was observed that while it is difficult to define with
certainty what amounts to a material fact, it is safe to say that a fact
or circumstance which is of such a nature that was likely to inter-
fere with the marital life of the parties, then it is material fact or
circumstance. Such a material fact or circumstance must be in re-
spect of a person or the character of the person and it is immaterial
whether it is curable or not. Further, a fact crucial to the extent that
if disclosed would result in either of the parties not consenting to
the marriage, would also be termed as a material fact."
(emphasis supplied)
10. A perusal of the relevant portion of the Impugned Judgment
would clearly reveal that the learned District Judge has examined
painstaking the evidence led by the parties as well as the various
contentions that was canvassed, and thereafter, come to a categorical
conclusion that the Appellant was in fact guilty of having concealed,
from the Respondent, the fact of her not having a uterus. The learned
District Judge also notes that the absence of her uterus would indeed
constitute a "material fact or circumstance" concerning the
6
2023 SCC OnLine Del 5905
7
1995 (II) M.L.J. 327 (DB).
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Respondent and the concealing of which would render the same
voidable under Section 12 (1)(c) of the Act.
11. In Pradeep v. Pallavi Pradeep Ambhore 8 , the Bombay High
Court, while relying upon the decision in P. v. K. 9 , made certain
significant observations in reference to "Fraud" as contemplated under
Section 12(1)(c) of the Act, particularly in the context where
concealment of a serious medical condition such as prolapse or
absence of uterus was held to constitute suppression of a material fact
and that goes to the root of the marital relationship. The pertinent
extracts from Pradeep (supra) are reproduced herein below:
"12. What can be gathered from the aforesaid decisions is that a
fact or circumstance which would materially interfere with a happy
marital life would be a „material fact‟ as also a fact which if
disclosed would have resulted in the husband or the wife not
agreeing or consenting to the marriage would also be a „material
fact‟. In our view, it cannot be said that only such facts and
circumstances which would materially interfere with a happy
marital life would only be material facts. A fact, though it may not
seriously interfere with the marital life of the party but, would be
of such a nature, which if disclosed, would result in either of the
party not consenting for the marriage, would also be a „material
fact‟. In the cases which we have referred to hereinabove, a
decree of annulment of marriage is granted where the spouse
suffered from epilepsy, the uterus was not in place, the wife had
never got the menses, the husband had disclosed inflated
income or misrepresented about his job, the wife suffered from
chronic periodontitis, etc. In all the aforesaid cases, it is held
that the wrongful disclosure of a material fact or the
concealment of a material fact like the ones which are referred
in those cases, would result in the annulment of the marriage
under Section 12(1)(c) of the Act."
(emphasis supplied)
12. While examining the record, we note that, the Appellant‟s
testimony is riddled with material contradictions regarding her
8
MANU/MH/0859/2017.
9
AIR 1982 BOM 400
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medical condition, particularly the absence of a uterus, and her
knowledge thereof. On the one hand, she sought to portray herself as
capable of conceiving, even alleging pregnancy and miscarriage,
whereas, in her cross-examination, she categorically admitted that she
never had a uterus. This fundamental inconsistency, coupled with her
belated and unsubstantiated versions about alleged surgical removal
and stitch marks, destroys her credibility.
13. The Appellant‟s repeated denials, followed by subsequent
admissions, coupled with the mutually destructive stands taken in her
written statement, examination-in-chief, and cross-examination, lead
us to conclude that the Appellant was playing a cat and mouse game
and tried to concoct different versions of an unexisting state of affairs.
This, in our view, establishes that she was fully aware of her medical
condition but chose to suppress it.
14. Such deliberate concealment of a condition that strikes at the
very root of matrimonial life constitutes the core ground for our
affirmation of the findings of the learned District Judge, who rightly
held the Appellant guilty of practicing fraud upon the Respondent. The
learned District Judge rightly concluded that the Appellant had
changed her version on several factual aspects, leading to the
inescapable conclusion that her conduct lacked bonafides.
15. The material contradictions in the pleadings and assertions of
the Appellant are duly noted by the learned District Court in
paragraphs 17 and 32, as extracted hereinabove, of the Impugned
Judgment. This Court finds no reason to depart from the well-
considered findings of the learned District Judge. The omission in the
present case cannot be characterized as trivial or inadvertent; rather, it
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was a deliberate concealment of a fact, that goes to the very root of the
institution of marriage.
16. Procreation forms a genuine expectation of a spouse, being an
integral aspect of marital life alongside companionship and emotional
support. The inability to conceive, arising from the absence of a
uterus, strikes at the heart of marital obligations and expectations and
cannot, therefore, be treated as immaterial. It is well-recognized that
marriage encompasses procreation and companionship, as observed by
the Hon‟ble Supreme Court in Pinakin Mahipatray Rawal vs State of
Gujarat10. The relevant excerpt of the said judgment reads as follows:
"18. Marital relationship means the legally protected marital
interest of one spouse to another which include marital obligation
to another like companionship, living under the same roof, sexual
relation and the exclusive enjoyment of them, to have children,
their up-bringing, services in the home, support, affection, love,
liking and so on."
17. The learned District Judge also examined whether, after the
discovery of fraud, the Respondent had, with his consent, continued to
live with the Appellant as husband and wife. We concur with the
findings of the learned District Judge that the mere fact that the parties
resided under the same roof after the discovery of fraud cannot, in law,
be treated as a resumption of marital cohabitation. Cohabitation
necessarily implies a conscious and mutual intention of both spouses
to restore normalcy in their marital relationship, which was evidently
absent in the present case. Consequently, the bar under Section
12(2)(a)(ii) of the Act is not attracted.
10
(2013) 10 SCC 48
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18. On this point, the Bombay High Court in Pooja v. Shrikant
Rameshwarrao Kale11, made relevant observations and upon which
we place concurrence. Relevant portion of the said judgment reads as
under:
"29. Section 12(1)(c) of the Act of 1955 provides ground for decree
for annulment of the marriage in cases, where consent has been
obtained by force or by suppressing material fact. However,
Section 12(2)(ii) of the Act of 1955 is a rider on Section 12(1)(c) of
the Act of 1955. If after the force is removed or fraud is
discovered, the petitioner continues to live with the other party
with his full consent as husband and wife, the petition for
annulment of the marriage cannot be entertained.
30. The husband has come up with a case that he came to know
about the disease in first week of the August 2017 and also pleaded
that in June 2017 he had been to Hyderabad with the wife.
Therefore, from the sequence of the paragraphs in the petition, it
cannot be said that they went to Hyderabad after the husband got
knowledge of the disease. Rather, the cross examination of the wife
also shows that they had been to Hyderabad before August 2017. It
is matter of record that the husband came to know about the
disease in first week of August 2017, whereas the wife resided at
the house of the husband till 16/08/2017.
31. The expression used in Section 12(2)(ii) of the Act of 1955 that
the petitioner has with his full consent, lived with the other party to
marriage as husband emphasizes living as husband with full
consent for whatever period it may be, provided the alleged fraud
is condoned. If the husband or the wife, as the case may be,
overlooks the alleged fraud and condones it, with the result of
reconciliation, whatever may be the period, the petitioner can be
said to have lived with full consent with the other party to the
marriage as husband or wife, as the case may be. In other words,
the condition laid down in Section 12(2)(a)(ii) of the Act of 1955
does not depend upon the lapse of any time after the discovery of
the alleged fraud. In fact, if the fraud is condoned and there is a
reconciliation, such a reconciliation may be called with full
consent.
32. The case in hand does not show any reconciliation, rather, the
husband has come up with case of the non-consummation of
marriage. Mere staying at the husband's house for more than a
week after the husband got knowledge of the disease, does not
amount to condonation of the non- disclosure of material fact.
Therefore, bar under Section 12(2)(ii) of the Act of 1955 will
not be applicable to the case in hand."
11
2024:BHC-NAG:1601-DB
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(emphasis supplied)
19. We also stand fortified in our conclusion in the fact that the
pleadings of the Appellant before the learned District Judge are wholly
vague, and contain no categorical assertion of her alleged ignorance
regarding the absence of a uterus. We concur with the view of the
learned District Judge, as recorded in paragraph 22 of the Impugned
Judgment, that it is difficult to accept that a 24-year-old woman
residing in a metropolitan city like Delhi could have remained
unaware of the complete absence of menstruation.
20. It is a matter of settled medical knowledge that menstruation is
nothing but the shedding of the uterine lining, "endometrium" and
without a place for the endometrium to develop and thereafter shed,
the biological phenomenon of menstruation cannot occur. It is also a
well known fact that in several parts of India, Menarche is an occasion
to celebrate. It is difficult for this Court to comprehend the contention
of the Respondent, that till the age of 24, when she got married, she
believed that she had a uterus. This Court finds it hard to believe that
till the age of 24 she never sought to question the absence of
menstruation when in all likelihood, most women, from nearabout the
time when they are teenagers would experience Menarche. The report
of the Doctor states that she lacked a uterus and thereby she would not
have experienced the natural phenomenon of menstruation.
21. We also take note of the discussion and findings of the learned
District Judge regarding the manner in which the Appellant sought to
canvass a whole new version that she discovered certain stitches near
her navel and assumed that the Respondent might have caused the
removal of her uterus. This contention which is taken in the Appeal
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was neither raised in the Written Statement nor in the Affidavit of
evidence filed by the Respondent herein. This claim surfaced during
the cross examination of the Respondent, by way of a suggestion. We
do not find it necessary to enter into further details of the evidence,
which has already been meticulously examined and addressed by the
learned District Judge in the Impugned Judgment. The fact that the
Appellant chose to continuously spin a new version at various points
of time leads us to conclude that there is, in fact, no merit in the
Appeal.
22. Resultantly, we are of the considered opinion that the learned
District Judge, upon a scrupulous and comprehensive appreciation of
the material on record, has rightly and judiciously held that the
marriage, in the facts and circumstances of the present case, deserves
to be declared a nullity under Section 12(1)(c) of the Act.
Consequently, the present appeal stands dismissed.
23. The present appeal, along with pending application(s), if any, is
accordingly disposed of in the above terms.
24. No order as to costs.
ANIL KSHETARPAL, J.
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