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9.In support of this argument, the learned Counsel Mr. Paranjape has relied upon Section 25(iii) of the Special Marriage Act, 1954. It provides that any marriage solemnized under that Act shall be voidable and may be annulled by a decree of nullity if the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872. Now, fraud is defined in Section 17 of the Indian Contract Act, 1872, which runs thus :-

" 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract :

The learned Counsel Mr. Paranjape argued that the word "Fraud" used in Section 12(1)(c) of the Hindu Marriage Act, 1955, must also be understood in the sense in which it is defined in Section 17 of the Indian Contract Act, 1872. The question, therefore, is whether the provisions of Section 17 of the Indian Contract Act, 1872, apply to fraud as understood in Section 12(1)(c) of the Hindu Marriage Act, 1955.

10. The difficulty arises because the word "fraud" is not defined in the Hindu Marriage Act, 1955. But in my opinion, the provisions of Section 17 of the Indian Contract Act cannot apply to fraud as understood in Section 12(1)(c) of the Hindu Marriage Act. It is necessary to bear in mind that there is a difference between the marriage under the Special Marriage Act, 1954 and the marriage under the Hindu Marriage Act, 1955. The Special marriage Act, 1954 provides a special form of marriage in certain cases. It is permissible to a Hindu, by virtue of this Act, to have his marriage with another Hindu or a person belonging to any other community solemnized in accordance with the requirements of the Act: The rights, obligations and status of the parties to such civil marriage in matters relating to restitution of conjugal rights, judicial separation, nullity of marriage and divorce are regulated by the provisions contained in that Act. The succession to property of two Hindus married under that Act as also to the property of the issues of such marriage is governed by the relevant provisions of the Indian Succession Act, 1925 and not by the Hindu Law of succession. It is significant to notice that no ceremonies are necessary for the marriage being valid under that Act. Obviously, therefore, the marriage under the Special Marriage Act, 1954, is a contract. The position under the Hindu Marriage Act, 1955, however, is different. It is needless to say that marriage under the Hindu Law is treated as a samskara or a sacrament. The Hindu Marriage Act, 1955, contemplates a ceremonial marriage which must be solemnized in accordance with the customary rites and ceremonies of one of the two parties. Non-observance of the essential customary rites and ceremonies of at least one of the parties would amount to failure to solemnize the marriage. In other words, a marriage under the Hindu Marriage Act which is not solemnized by performance of the essential ceremonies is, under the Act, no marriage at all: It is true that the conditions laid down in Section 5 of the Hindu Marriage Act must also be fulfilled before a marriage under that Act is gone through. But the non-fulfilment of every one of the conditions and requirements enacted in Section 5 does not ipso facto render the marriage null and void or even voidable: It seems to me, therefore, that under the Hindu Marriage Act, the marriage which is a ceremonial marriage which is a ceremonial marriage is essentially a sacrament (Samskara).

"Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud." This Act also does not define fraud and, therefore, it is of no assistance to us in this case. But it is well settled under the Indian Divorce Act that fraudulent misrepresentation in inducing consent to marriage does not vitiate a marriage. I have not been pointed out any decided case under the Indian Divorce Act, 1869, which lays down that non-disclosure or concealment of a fact and/or misrepresentation of a fact amounts to fraud. It seems to me, therefore, that even under the Indian Divorce Act, 1869, the definition of 'fraud' given in Section 17 of the Indian Contract Act does not appear to apply. It is true that this High Court has held in A. v. B., 54 Bom LR 725 = (AIR 1952 Bom 486) that a Hindu marriage is also a civil contract. But at the same time, the learned Judge (Tendolkar, J.) has held in that case that a Hindu marriage is also a sacrament. The Hindu Marriage Act, 1955, does not depart from this position, under the Hindu Law. I am, therefore, of the opinion that Section 17 of the Indian Contract Act, 1872, does not apply to a case of fraud under Section 12(1)(c) of the Hindu Marriage Act, 1955.