P J MOORE Vs. VALSA

JUDGEMENT

(1.) A widower, father of three children, married again, but the wife after twelve years of married life sought to have the marriage annulled on the ground that her consent was obtained by fraud. Learned Single Judge declared the marriage null and void. The fraud alleged is this: Before the second marriage, appellant (husband) had undergone vasectomy, but he did not disclose it to the respondent (wife). As she did not conceive for thirty months, she was anxious to know the reason. Appellant then divulged to her that he had under gone vasectomy before marriage. But he pacified her that he would undergo re-canalisation. However, he later changed his mind and declined to undergo re-canalisation. His excuse for this volte-face is that such a course is repugnant to Pentecostal faith to which he has subscribed on becoming a member of Assemblies of Church of God.

(2.) Though appellant contended that respondent was told about his vasectomy during marriage negotiation stage itself, learned single Judge found, on evidence, that it was not disclosed to her earlier. Further contention of the appellant that she too did not want to bear children as she had rheumatic heart conditions, was found against by the learned single Judge. We are not persuaded to disturb those findings on fact arrived at by the learned single Judge on appreciation of evidence, despite the efforts made by the learned counsel for the appellant to interfere with those findings. He therefore focussed on the legal question whether non disclosure of the said fact would amount to fraud as understood in S.19 of the Indian Divorce Act, 18% (for short 'the Act').

(3.) Sri. P. K. Balasubramanyan, learned counsel for the appellant, developed his arguments thus: S.19 of the Act which recognises jurisdiction of the High Court to make a decree on the ground that consent was obtained by fraud is to be strictly interpreted; the concept of fraud envisaged in the section is narrower than the word "fraud" defined in S.17 of the Contract Act; mere concealment of a fact, unless it relates to the identity of a spouse or the ceremony to be undergone, does not amount to fraud; hence non disclosure of information regarding vasectomy is not fraud of such a nature as to vitiate the consent for marriage.