Impact of Fraud
If the filing spouse is able to prove fraud, the family court may be more sympathetic to the filing spouse and give her a larger share of property if state law allows him to consider the misconduct as part of property division . Financial fraud is particularly relevant to decisions about property division and spousal support. However, some countries do not allow judges to consider misconduct or fault when making property decisions. Talk to the best divorce lawyers in India to file a divorce petition.
Laws Relating to Contested Divorce
Section 12 of The Hindu Marriage Act , speaks about voidable marriages which says 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:?
- That the marriage has not been consummated owing to the impotence of the respondent
- That the marriage is in contravention of the condition specified in clause (ii) of section 5
- 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 (2 of 1978), the consent of such guardian was " as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.
- That the respondent was at the time of the marriage pregnant by some person other than the petitioner.
Non-disclosure of age and factum of having major children by husband at the time of marriage amounts to fraud and suppression of material facts having bearing on marriage. Courts have held that the marriage found on fraud are a very inception to its nullity. (Sunder Lal Soni v. Smt. Namita Jain, AIR 2006 MP 51).
Misrepresentation as to the age of the bridegroom made to the mother who acted as an agent and the daughter consented to the marriage believing the statement to be true. It was held that the consent was vitiated by fraud. (Babui Panmate v. Ram Agya Singh, AIR 1968 Pat 190).
Anath Nath De V. Lajjabati Devi, also, the case was under the Hindu Marriage Act, 1955 , and S. Datta, who delivered the judgment, has observed at page 779 that the marriage according to Hindu law not being a contract, the consent at the stage of negotiations though obtained by fraud cannot affect the validity of the marriage . It is true that in that case no fraud was alleged at the time of the solemnization of the marriage and, therefore, the petitioner could not be granted any relief. But at the same time, the case was decided on the footing that even under the Hindu Marriage Act, the marriage is a sacrament and not a civil contract. My attention is also drawn to the provisions of Section 19 of the Indian Divorce Act, 1869. That section, so far as it is relevant here, reads thus:
"A person who freely consents to a solemnization of the marriage with the other party in accordance with customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot raise an objection to the validity of the marriage on the ground of any fraudulent representation or concealment. The test to be applied is whether there was any real consent to the solemnization of the marriage." A good divorce lawyer in India can help you file a divorce petition on the grounds of fraud in India.
It would thus be seen that the word "fraud" used in Section 12(1)(C) of the Hindu MarriageAct does not speak of fraud in any general way, nor does it mean every misrepresentation or concealment which may be fraudulent. If the consent given by the parties is a real consent to the solemnization of the marriage, the same cannot be avoided on the ground of fraud. The marriage, therefore, solemnized under the Hindu Marriage Act cannot be avoided by showing that the petitioner was induced to marry the respondent by fraudulent statements relating to her health.
Legistify connects you with the best lawyers in India and top Chartered Accountants in India with simple telephonic conversation or email. Call us at 011-33138123 or send us an email at firstname.lastname@example.org to get started.