On a careful reading of Clause (c)
of Section 12(1) of the Hindu Marriage Act, 1955, it will appear that both the parties,
in case of adult, are obliged to divulge mutually and unequivocally the
material fact or circumstances to each other before or at least at the time of
marriage so much so that element of deception is ruled out. The words material
facts or circumstances have not been defined or specified. It varies from one
family to another, according to culture, ethos and social system in ages and
situation. For example in a conservative family having attachment with puritan
society in a marriage inevitable and unerring expectation is that both the bride
and the groom must not have any record of prior marriage in any sense nor will
have any marriage in any sense, not even any premarital affairs with other boy
or girl (as the case may be). They cannot think of even marrying outside their
caste and community, conversely , a family with liberal and cosmopolitan approach,
thought, particularly in urban area will not mind in case of marriage even
having knowledge of background of prior marriage or premarital affair with
other counter sex outside their caste and community. In case of former,
concealment of caste, community or background of prior marriage or premarital
affairs before or at the time of marriage is obviously extremely material and
it amounts to fraud in obtaining consent.
the case of Saswati Chattopadhyay v. Avik Chattopadhyay, (2011) 3 ICC 51, the
husband was not informed about the earlier marriage at the time of negotiation or
at the time of solemnization of the marriage. On inquiry, the husband came to
know that there had been previous marriage of the appellant with one Sudip and
it was also discovered that the earlier marriage was dissolved by consent. When
the matter reached to the Family Court, it came to the conclusion that there
has been suppression of the relevant fact with regard to the premarital status
of the appellant and such relevant fact goes to the root of the matrimonial
relationship. On an appeal, the Calcutta High court endorsed the view taken by the
trial court and observed that premarital status of a party is a material fact
which the other party must know before imparting consent for marriage. Pradeep Kumar Maheshwari v. Smt. Anita Agarwal, 2019 (2) AWC 1369.
In Bhaurao Dagdu Paralkar v. State of Maharashtra, (2005) 7 SCC 605, it was held as under:
“By fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage.
Fraud, as is well known, vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former, either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the misrepresentations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. DDA v. Bankmens Cooperative Group Housing Society Limited. (2017) 7 SCC 636.