Tuesday, 31 May 2022

Asha Qureshi vs Afaq Qureshi

 Asha Qureshi v. Afaq Qureshi

By: Robin Pandey                                                                                                          Date: 25/February/2022

[Note: This case is a manifest example of bad or incomplete drafting of pleadings on behalf of the wife. So she lost the case]

(Concealment of material fact, i.e., earlier marriage amounts to fraud)

Facts:

The Parties were married on 23.1.1990. They lived as husband and wife for a peri10d of about one year. Subsequently the relations between the parties became strained and they started living separately. The husband filed a petition seeking a decree of nullity and a declaration of their marriage as null and void. It was averred by the husband that after the marriage, he came to know that the wife was already married to one Motilal, who had died prior to the marriage between the parties. This fact of her previous marriage was suppressed by the wife, while he agreed to marry her believing that she was a Virgin. It was averred by the husband that the wife by suppressing from him the aforesaid fact has exercised fraud on him. It was submitted that the trial court was justified in holding that consent of the husband for marriage was obtained by the wife by exercising fraud.


Wife's Contention: Both the parties to the marriage were known to each one and a long time prior to the marriage and the husband was fully aware that there was married earlier and her first husband had died and she is a widow. It was, therefore, submitted that there was no suppression of any material tact so as Constitute exercise of fraud by the wife.

Legal Issue:

 Whether the wife suppressed the material fact. i.e., her earlier marriage and whether the suppression as above would amount to fraud

High Court's Observations

During cross-examination, the husband has admitted that he was known to the appellant/wife for about 5-6 years prior to the marriage. He further stated that on enquiry from the wife as to why she was not married despite her advanced age he had told the husband that as there was no responsible person in her family, e could not get married earlier. He denied suggestion in his cross-examination that he was aware about the earlier marriage of the appellant when he married ha. As against this statement, the wife has admitted that she was married earlier before she married the respondent. She, however, further, states that about 8 years bas when she befriended him, she had told him that she was married and that she was a widow from her childhood.

It is, however, noticed that her statement is not supported by her pleadings wife in her written statement nowhere specifically averred that she had intimated the husband about her marriage. In her written statement, she had vaguely asserted that the present husband was aware that she was a widow. However, she did not plead that she herself informed him about her earlier marriage prior to marriage with him. It may also be noticed that she had earlier stated that he came to know from her neighbours that she was a widow and then making an improvement has later stated that she herself informed the respondent about the above fact. This later statement of the wife is not supported by her pleadings and does not appear to be reliable. The pleadings of the wife are vague. No particulars of date, time and period when the disclosure was allegedly made by her, have been mentioned in the written statement. In fact, there is no specific pleading that she herself intimated the respondent about her earlier marriage. Thus, the statement of the husband that before their marriage, the wife never told him about her earlier marriage deserves to be accepted in preference to the wife's statement that she did make such a disclosure. 

It is clear that the wife/appellant was married before and was a widow at the time of her marriage with the respondent, was a material fact. It was not disclosed by the wife to her husband. The suppression of material fact would amount to exercise of fraud. In view of Section 17(4) of the Contract Act, to constitute fraud f it is not essential that there should be any misrepresentation by express words. it is sufficient if it appears that the party deceiving knowingly induced the defendant to enter into a contract by leading him to believe that which the party deceiving knew to be false. It also appears from the facts and circumstances of the case that it was the obligation and duty of the appellant/wife to have intimated and apprised the respondent about her earlier marriage. She has failed to do so.

Decision:

 It is clear that suppression and active concealment of the fact of her earlier marriage and she being a widow would amount to material misrepresentation. The husband has stated that had he known that the appellant was married from before, he would not have entered into wedlock with her. Thus, he is entitled to a decree of nullity. 


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