Legal Advice

Concealment of unchastity of wife

Question: My wife had a bodily relation with a boy before the marriage, she admitted this fact to me. I doubt that she is emotionally attached to him. However, he did not try to contact after the marriage. If it seems that she is not faithful with me then can I repudiate this marriage on the ground of pre-marital affair or unchastity before marriage?

Advise

If a girl is a virgin at the time of marriage is said to be chaste, if she indulged in sexual intercourse before marriage is known as unchaste. Concealment of unchastity of wife at the solemnization of marriage (pre-nuptial unchastity) is not a ground for annulment of marriage. Postnuptial unchastity constitutes adultery and it is a valid ground for divorce.

Chastity is a mere personal quality and its non-existence at the time of marriage does not amount to the absence of an essential condition of the marriage relation. Prenuptial unchastity does not necessarily prevent the wife to be faithful after the marriage.

As a general rule that prenuptial unchastity of the wife though unknown to the husband at the time of the marriage is not a ground for a decree of nullity. Nor is express misrepresentation by a woman as to her chastity of itself ground for the avoidance of the marriage, though, of course, it may be taken into consideration together with other circumstances indicative of fraud.

In Harbhajan Singh v. Smt. Brij Ballab, (1964) 66 Pun LR 204; Held that consent obtained by fraud at the stage when the parties consented to solemnise the marriage cannot vitiate the marriage and it is only the consent, vitiated due to fraud, obtained at the time of solemnisation of the marriage, that is recognised for its annulment under Section 12 of the Hindu Marriage Act.

After the amendment in section 12 of the Hindu Marriage Act by the Marriage Law (Amendment) Act 1976, the scope of word fraud is limited to these purposes:

  • The nature of the ceremony or
  • Any material fact or circumstance concerning the respondent

In Rani Bala Debnath v. R. K. Debnath [1973 Cal WIN 751] it is held by the Calcutta High Court that concealment of unchastity of wife at the time of marriage does not amount to fraud under the meaning of section 12 HMA.

Fraud is defined under section 17 of the Indian Contract Act, but this definition does not apply in matrimonial causes because marriage between Hindus is no contract. Act of fraud committed at the time of solemnization of marriage shall be considered by the court in the petition of nullity of marriage.

If the consent of parties to the marriage is obtained by fraud towards the ceremony of marriage or material facts of the respondent it would constitute a ground for annulment of marriage.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Family Law | Marriage

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