Judgment :- 1. A disappointed husband, who soon after the marriage, wanted to sever the marriage tie and moved the court for that purpose by seeking a decree of nullity of marriage, having lost his case in the court below has filed this appeal. The marriage took place on 1121970 at Remadevi Mandiram at Trivandrum. The petitioner had visited the respondent's house earlier to see the girl he proposed to marry and it is his grievance that the girl shown to him then was not the respondent whom he subsequently married, but an younger girl. The suggestion is that it was the respondent's younger sister. He and his brother were particular about the horoscopes tallying before agreeing to the alliance and the horoscope supplied to the petitioner by the respondent's father tallied well according to the opinion expressed by an astrologer, Pw5. But it turned out later that the horoscope was not of the respondent, but of an younger girl possibly the younger sister. The marriage was conducted at Remadevi Mandiram as it appears that the respondent and her family were ardent disciples of Remadevi. The case of the petitioner is that the marriage was not conducted in any form recognised under the Hindu Law which governs the parties, the parties being Chettiars by caste. It is said that there was only exchange of garlands and tying of 'tali', and that would not be sufficient to create a valid matrimonial tie. After the marriage the bride was taken to the petitioner's house at Varkala and there was a reception in the evening of 112 1970, the date of the marriage. The nuptials had been, according to the petitioner, fixed for the next day, i.e. 12-2-1970 and it was only on that occasion that he could be in the bed chamber with his wife for the first time. He would say that he was shocked when the girl refused to permit him to touch her when they were together in the solitude of the bed-chamber on the nuptial night. Then it was disclosed by her that she was ardently in love with one of her colleagues in her office, one Unnikrishnan Nair, with whom she wanted to live and therefore she could not afford to love the petitioner. Then it was disclosed by her that she was ardently in love with one of her colleagues in her office, one Unnikrishnan Nair, with whom she wanted to live and therefore she could not afford to love the petitioner. The petitioner's case is that the parents of the respondent had also accompanied the respondent to the petitioner's house and on the evening of the 12th itself they were informed about the story told by the respondent. The attitude adopted by the respondent was said to be one of continued affection towards Unnikrishnan Nair and that was indicated by the letter she wrote to Remadevi Amma, marked as Ext. P6 in the case. By reason of such attitude of the respondent in which she persisted notwithstanding the advice of her parents, the parents had to take her back and they did so on 15 21970. Soon thereafter, on 18 21970 the petitioner moved the Subordinate Judge's Court, Trivandrum under the provisions of S.12(1) (a) (c) of the Hindu Marriage Act for annulling the marriage between him and the respondent. According to him the marriage was caused by fraud he being persuaded to consent to marry the respondent by the active fraud played by the respondent's parents in that they showed another girl as the girl he was to marry and they gave another horoscope as if it was the horoscope of the proposed girl. But for these and had the facts been known as what they have turned out to be, there would have been no likelihood of consent by the petitioner. There is a further ground that in the absence of formal ceremonies which are the requisites of a Hindu Marriage the marriage cannot be said to be complete or legal. 2. The respondent has a different story to tell. She was working as a Clerk in the Ex-servicemen's Wood Industries at Trivandrum and she was aged 35 at the time of marriage. The petitioner was then employed as a Block Development Officer at Sultanbattery, and was aged 39. The respondent had passed the S.S.L.C. and had also passed the Bhooshan examination in Hindi. One Unnikrishnan Nair was working in the same office where the respondent was working. They were residing near the Remadevi Mandiram, Trivandrum and they were visiting Remadevi Mandiram now and then. The respondent had passed the S.S.L.C. and had also passed the Bhooshan examination in Hindi. One Unnikrishnan Nair was working in the same office where the respondent was working. They were residing near the Remadevi Mandiram, Trivandrum and they were visiting Remadevi Mandiram now and then. The petitioner is said to have visited the respondent at her father's house, along with others including Pw8, and the wife and daughter of Pw8. The case of impersonation alleged by the petitioner is said to be false. It is also said that the horoscope sent was that of the respondent and not of anyone else and that the horoscope produced by the petitioner along with the petition was not the one which had been sent by the respondent's father to Pw8, but is said to be a fabricated one so as to make out the case that there was fraud in the conduct of the respondent. According to her the petitioner had many occasions to see her at close quarters at and after the marriage. The marriage ceremony took some time whereat the petitioner and the respondent were together, the respondent was garlanded by the petitioner and later he tied the 'tali'. Thereafter the respondent was taken to the petitioner's house in a car where there was a reception which lasted till later in the night and thereafter they were together in the bed-chamber in the night of 1121970 itself on which occasion the marriage was consummated. The case of the petitioner that nuptials were arranged on 12 2-1970 is denied. It is also said that the respondent never told the petitioner about any affection towards Unnikrishnan Nair. On the other hand what happened was that the petitioner suspected her association with Unnikrishnan Nair and therefore she is said to have been questioned as to whether Unnikrishnan Nair had sent any greetings for the marriage. When she said that there was one and it was innocent enough, the attitude of the petitioner changed and that was the start of the trouble between them. According to her her parents did not accompany her to the petitioner's house. But when the father came over to the petitioner's house to take back the girls who had accompanied the respondent to the petitioner's house on the previous day, the respondent complained to him of the illtreatment by the husband. But the father pacified her. According to her her parents did not accompany her to the petitioner's house. But when the father came over to the petitioner's house to take back the girls who had accompanied the respondent to the petitioner's house on the previous day, the respondent complained to him of the illtreatment by the husband. But the father pacified her. On the night of 12-2-1970 the respondent's mother along with the respondent's brother came to the petitioner's house. The mother also spoke to the petitioner to persuade him to believe that she was innocent. But the petitioner insisted that the marriage tie had to be severed. Thereupon the respondent's father was brought and the parents were wrongfully confined in that house. The respondent was forced to write a letter to Remadevi admitting that she was in love with another man and that she did not like to continue the marriage with her husband. A divorce deed is also stated to have been executed under such compulsion. On 15-2-1970 the parents of the respondent left the house of the petitioner with the respondent. 3. The plea that the marriage was not validly conducted was not accepted by the court below. It was also found that there was no question of any impersonation. The court found that there was no consummation of the marriage between the petitioner and the respondent. What happened, according to the finding of the court below, was that the respondent admitted to her husband about her affection to Unnikrishnan Nair and resisted the consummation of the marriage. But this, the court found, was not sufficient to hold that the marriage tie should be annulled. It could not be said, according to the court below, that there was misrepresentation with regard to the horoscope in that the horoscope of another girl was sent to the petitioner's brother-in-law instead of the horoscope of the respondent. The plea of impotency was also found against. The result was that the petition stood dismissed. 4. We are not impressed with the plea of impotency reiterated in this court. The respondent lived with the petitioner only for four nights, and assuming that there was no consummation of the marriage during this time, it could not have been due to any impotency on the part of the wife. It will not be possible to say so on the evidence on record. The respondent lived with the petitioner only for four nights, and assuming that there was no consummation of the marriage during this time, it could not have been due to any impotency on the part of the wife. It will not be possible to say so on the evidence on record. There is no attempt at adducing any independent evidence to prove the impotency of the wife, but it is left to the court to infer that the wife would have been impotent because she did not agree to the consummation of the marriage.. The case of the wife, as we have indicated, is that the marriage was, in fact, consummated. Even the petitioner's case is not that she was unwilling for consummating such marriage because she was impotent. The court below has found, and according to us, rightly that the possible cause of estrangement was the disclosure by the wife to the husband that she was in love with Unnikrishan Nair, her colleague. It is possible she resisted her husband making love to her. If she did so, it is more consistent with the theory of deflection of her affection than sexual indifference towards her husband. Therefore the plea of impotency must fail. 5. The plea that all the formalities of a Hindu valid marriage were not undergone by the parties at Remadevi Mandiram is again not of much substance. The very fact that the petition is one for nullity of the marriage indicates that according to the petitioner there has been a marriage which had to be nullified. The tying of 'tali' and garlanding are spoken to. Both the parties, the bride and the bridegroom, had arrived at the Remadevi Mandiram in the usual fashion of parties attending a marriage function and there is nothing to indicate that the ceremonies conducted at Remadevi Mandiram were in any way different from the ceremonies at any Hindu marriages, We are not inclined to presume, without anything more, that all the formalities of the marriage would not have been observed, unless there is reliable evidence to the contrary. Of course, we should caution here the dangers of challenge to marriages held in temples and other places without observances of the requirements of a valid marriage under the personal law governing the parties. Such marriages to-day are of common occurrence. Of course, we should caution here the dangers of challenge to marriages held in temples and other places without observances of the requirements of a valid marriage under the personal law governing the parties. Such marriages to-day are of common occurrence. Such marriages have the acceptance of society and whatever might be the textual requirements society has come to regard such solemnization as valid marriages. In fact a time has come when a good section of many communities feel that the formalities of the requirements of the marriage ceremonies should be simplified and against the injunctions of the personal law parties practise such simplification. These marriages face dauger of being successfully challenged in courts of law, for, when the matter comes to a court the question would be whether the requirements of a valid marriage have been satisfied in the light of the personal law governing the parties. It would be safe and prudent for persons who enter into such alliances to get the marriages registered in accordance with the law under the law relating to registration of civil marriages. 6. The question that remains to be considered is whether the marriage could be annulled by a decree of nullity on the ground that the consent of the petitioner was obtained by force and fraud. If it was. these being grounds recognised under S.12 (i) (c) of the Hindu Marriage Act, the marriage can be annulled by the Court. In support of the plea of fraud, reliance is placed upon (a) the plea of impersonation practised on the petitioner at the time when he went to the respondent's house to see the respondent and (b) the plea that the horoscope which was not of the respondent was given to the petitioner to induce him to enter into the marriage alliance. The respondent was a working girl and normally it would not be possible to assume without anything more that an attempt was made to present her sister in her place when the petitioner went to the respondent's house. The conduct of the petitioner is not such as to promote this plea. The marriage was held in public and it is too much to believe that the petitioner would not have looked at the bride at the marriage ceremony. The conduct of the petitioner is not such as to promote this plea. The marriage was held in public and it is too much to believe that the petitioner would not have looked at the bride at the marriage ceremony. He was travelling with her all the way from Trivandrum to Varkalai soon after the marriage in the car and to think that yet he did not look at his wife and had not recognised that it was a girl different from that shown to him is too tall a story to believe. There was a reception in the evening and normally one would expect the husband and wife to be together accepting greetings from those who attend such reception. Even then, according to the petitioner, he did not see his wife properly so as to realise the fact of impersonation. Atleast in the bridal chamber when he was close to his bride and when he was making advances to her he would have realised that she was different from the girl he saw. If he realised that and that was objectionable, one finds no sense in his admitted case that his repeated attempts to consummate the marriage did not succeed. We are in agreement with the court below that the story of impersonation is an afterthought probably because there was some material as we would presently show to indicate that in giving the horoscope of the respondent to the petitioner's brother-in-law an " attempt was made to show the age of the respondent as less than what it was. That circumstance is sought to be made use of to advance the plea of impersonation. 7. Pw8, the brother-in-law of the petitioner is an Advocate practising at Attingal and it is said that he had asked the respondent's father to send him the horoscope of the respondent to Alleppey at his wife's house which he was proposing to visit. He would say that the horoscope was received by him there, he showed it to an astrologer, pw. 5, along with the horoscope of the petitioner, and obtained the expert advice of Pw5 that the horoscopes tally quite well and therefore the marriage could go through. He would say that the horoscope was received by him there, he showed it to an astrologer, pw. 5, along with the horoscope of the petitioner, and obtained the expert advice of Pw5 that the horoscopes tally quite well and therefore the marriage could go through. According to the petitioner he was one who believed implicitly that the marriage alliance would augur well for the future if the horoscopes tallied and it is on the faith of the genuineness of the horoscope that he entered into the marriage tie. But, according to him, it really turned out later that the horoscope was not of the girl but of an younger girl and therefore the consent for the marriage must be deemed to have been obtained by practising fraud on the petitioner. According to Pw8, Ext. P2 was the horoscope sent by the respondent's father along with the covering letter, Ext. P3. Ext. P4 is the cover in which it was so sent. That Ext. P3 is the covering letter is not disputed. But the suggestion is that Ext. P2 is not the horoscope sent by the respondent's father. The date of birth of the respondent is shown in Ext. P2 as 24th Meenam 1116 M.E. Even the respondent admits that this is incorrect. Her date of birth as seen from Ext. P7, the S. S. L. C. Book and also admitted by the respondent is 2 81110. Pw8 speaks to having received the horoscope, and having gone to Pw5. Pw5 corroborates this. According to him Ext. P2 was shown to him and thereupon he gave his written opinion, Ext. PI, to Pw8 on 25121969. The respondent's father has not been examined. Ext. P3 is admitted to be the covering letter. On a perusal of Exts. P2 and P3 it would appear that both are written in the same ink and written in the same type of paper. It is possible to say that both are written by the same person. On the date of the marriage there was no scope for any misunderstanding and there could not have been any anticipation of dissolution of the marriage. Matters were precipitated on 15 -2 1970 when admittedly the respondent was taken to the petitioner' house. The petition was filed in court on 18-2-1970. Along with the petition Exts. P1 to P4 have been produced. Matters were precipitated on 15 -2 1970 when admittedly the respondent was taken to the petitioner' house. The petition was filed in court on 18-2-1970. Along with the petition Exts. P1 to P4 have been produced. It is too much to think that in that short period a false horoscope was got up, that was taken to Pw5 at Alleppey, his opinion was obtained and that was filed along with the petition. We are inclined to agree with the court below that the horoscope which the respondent's father sent to the petitioner's brother-in-law was the horoscope of an younger girl or was a fictitious horoscope. His daughter was 35 years old and possibly he might have reported that she was younger. If so, to suit his statement he had necessarily to show a date of birth which would not disclose her real age. It is possible that this is the motive behind sending such a horoscope and it might not be that he wanted to send a horoscope which was such as would tally with the petitioner's horoscope. But the fact remains that it is on the strength of the horoscope which the petitioner believed to be that of the respondent while really it was not, that the marriage was agreed to. Could it be said that the marriage is vitiated by fraud within the meaning of S.12(1)(c) of the Hindu marriage Act? 8. It is not every misrepresentation, act of active concealment and deceit that may fall within the scope of S.12(1)(c) of the Act. Fraud must be material in the matter of the consent. Could it be said that the consent obtained on the basis of a false horoscope is a consent obtained by fraud? 9. A good section of the people in this country believe in astrology. It is accepted by some as a science. This is so with many in the fold of the Hindu religion and instances are not wanting where even outside the Hindu fold many have faith in astrology. Among those who have faith in it those who do not consider it as a science, treat it as a part of the mystic and the religious. The faith of some is so ardent that they would refuse to act in any good cause except at times sanctioned by astrologers as fit for such action. Among those who have faith in it those who do not consider it as a science, treat it as a part of the mystic and the religious. The faith of some is so ardent that they would refuse to act in any good cause except at times sanctioned by astrologers as fit for such action. Atleast a section of the Hindu community believe that marriages should be conducted only if the horoscopes of the bride and the bridegroom tally. It is the stars in which the bride and the bridegroom are born that mainly determine whether they can be joined together in matrimony. Quite often it happens that though the bride and the bride's people may like the bridegroom and his family and the alliance is found to be desirable, they are reluctant in agreeing to the alliance when it is reported by an astrologer in whom they have confidence that the horoscopes do not tally, for, to the believers this is important, since it determines the longevity of the couple, the love and affection between the spouses, the possibility of progeny, the prosperity in future life and other matters which are equally important to both the spouses. Therefore there is some force in the plea that had the petitioner been aware that the respondent's horoscope was not what was represented to be, he would not have entered into the matrimonial tie. Though this we find is the real situation in this case, the further question is whether S.12(1)(c) of the Hindu Marriage Act is attracted to these facts. 10. There is no case that the petitioner's consent was obtained by force, but the case is that it was obtained by fraud. 11. The term 'fraud' is not defined in the Hindu Marriage Act. Fraud cannot be taken to mean the same as what is indicated by the definition of that term in S.17 of the Indian Contract Act. 10. There is no case that the petitioner's consent was obtained by force, but the case is that it was obtained by fraud. 11. The term 'fraud' is not defined in the Hindu Marriage Act. Fraud cannot be taken to mean the same as what is indicated by the definition of that term in S.17 of the Indian Contract Act. The relevant part of S.12 of the Hindu Marriage Act reads: "Any marriage solemnized shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely (c)' that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under S.5, the consent of such guardian was obtained by force or fraud." If any marriage solemnized may be annulled on the ground that the'consent' was obtained by fraud the consent must have been to such solemnization. Normally parties agree upon the marriage proposal prior to the solemnization ceremony. There would be proposal and acceptance and it is after such acceptance that the parties agree upon a date and time for the marriage ceremony. Therefore even prior to the solemnization there is a stage at which consent is given by one party to the other. May be there is fraudulent misrepresentation at that stage. That may be with regard to the status of the party, educational qualifications, financial situation, state of health, or even virginity. But at the time when solemnization takes place pursuant to such consent there is no question of any misrepresentation on any of the above grounds. There could be fraud or there could be force in the matter of solemnization, independent of these matters. To these cases S.12 (1) (c) will be attracted but not to a case where though there is no fraud or force in the solemnization of the marriage there is fraud or misrepresentation for obtaining consent to the proposal for the marriage. 12. The view as taken by us here is supported by the views of several High Courts in India. The High Court of Calcutta in the decision in Anath Nath v. Lajjabati Devi (AIR. 1959 Cal. 778) said at paras 12 and 13 thus: "12. 12. The view as taken by us here is supported by the views of several High Courts in India. The High Court of Calcutta in the decision in Anath Nath v. Lajjabati Devi (AIR. 1959 Cal. 778) said at paras 12 and 13 thus: "12. The question of consent of the parties to the marriage arise at two stages; firstly at the time when the parties consent to solemnize the marriage and secondly at the time when the marriage itself is solemnized. 13. The marriage according to Hindu Law not being a contract, the consent at the first stage though obtained by fraud cannot affect the validity of the marriage. The consent at the time of the solemnization is the material consent. It is well settled that the consent at the time of solemnization of marriage though a marriage is a sacrament according to the Hindus, if obtained by fraud, affects the validity of the marriage." The same view has been taken by the Punjab High Court in Harbhajan Singh v. Smt. Brij Balab (AIR. 1964 Punj. 359). Pandit J. said in that case thus: "The word 'fraud' as a ground for the annulment of the marriage under the Hindu Law is limited only to those cases where the consent of the petitioner at the solemnization of the marriage was obtained by some sort of deception. For example, take a case where A was given to understand that he was being married to B and, in fact, he was married to C. Again, where the marriage of the petitioner was solemnized when he or she, as the case may be, was under the influence of liquor. In case of a marriage under the Hindu Law, 'fraud' is not used in a general way and on every misrepresentation or concealment, the marriage cannot be dissolved. If the term 'fraud' is to be interpreted according to the definition given in the Indian Contract Act, then it would become impossible to maintain the sanctity of the marriage. All sorts of misrepresentations will bo alleged by the petitioners in order to break the marriage tie. This, obviously could not be the intention of the Legislature. If the term 'fraud' is to be interpreted according to the definition given in the Indian Contract Act, then it would become impossible to maintain the sanctity of the marriage. All sorts of misrepresentations will bo alleged by the petitioners in order to break the marriage tie. This, obviously could not be the intention of the Legislature. The fact that the respondent was of bad character before the solemnization of the marriage cannot be a ground for the annulment of the marriage, because there is a specific clause (d) of this very section dealing with this matter. Under that, if the respondent was pregnant by some person other than the petitioner at the time of the marriage then this can afford a ground for the annulment of the same. It means that the Legislature did not intent that the past conduct of the respondent, except what is mentioned in clause (d), should become a ground for the dissolution of the marriage." Malvankar J. of the High Court of Bombay in Raghunath v. Vijaya (AIR. 1972 Born. 132) considered this question in rather elaborate detail and at Para.12 the learned judge said: "It would thus be seen that the word 'fraud' used in S.12 (1) (c) of the Hindu Marriage Act 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." 13. A different view has been expressed by the High Court of Patna in Babui Panmato v. Ram Agya Sing (AIR. 1968 Patna 190). It is evident that the definition of 'fraud' in the Contract Act has been adopted by the learned judge and the learned judge seems to have supported his view on the basis of the absence of the words 'at the time of the marriage' under S.12 (1) (c). According to the learned judge if the intention was to limit the plea of fraud to the solemnization the Legislature could have used the words 'at the time of the marriage' to indicate that it is only such that would vitiate the marriage. According to the learned judge if the intention was to limit the plea of fraud to the solemnization the Legislature could have used the words 'at the time of the marriage' to indicate that it is only such that would vitiate the marriage. We do riot think this is necessary or that its absence justifies the reading of the term 'fraud' in the manner it has been done by the judge of the Patna High Court. 14. Mulla, in Principles of Hindu Law, 14th Edition, deals with this aspect at page 739 thus: "Fraud:-It is essential to note that the section does not speak of fraud in any general way or of every misrepresentation or concealment which may be fraudulent but fraud whereby the consent of the petitioner was obtained to the solemnization of the marriage. If there was actual consent to the solemnization of the marriage with the respondent the marriage cannot be annulled on the ground of fraud. In matrimonial law when fraud is spoken of as a ground for avoiding a marriage, it does not include such fraud as induces a consent but is limited to such fraud as procures the appearance without the reality of consent. This distinction is clearly brought out by the case where it was held that concealment by a woman from her husband at the time of her marriage of the fact that she was then pregnant by another man was no ground for avoiding the marriage on the plea that that consent was obtained by fraud (d). It will be noticed that the Legislature has in view of this expressly provided in clause (d) that in such a case the marriage may be annulled if the petitioner was at the time of the marriage ignorant of that fact. In another case which seems to illustrate the rule it was held that concealment of the fact that the wife had been a naikin by profession and even in the keeping of more than one person prior to the marriage was not fraud if there was consent to the marriage (e). In another case which seems to illustrate the rule it was held that concealment of the fact that the wife had been a naikin by profession and even in the keeping of more than one person prior to the marriage was not fraud if there was consent to the marriage (e). 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. Thus for instance a marriage cannot be avoided by showing that the petitioner was induced to marry the respondent by fraudulent statements relating to family or fortune or caste or religion or age or character of the respondent (ei). The test is that there should be real consent to solemnization of marriage and consent to marry the particular person. Where, however, there is no real consent, as for instance where a party is kept under the impression that what is being performed is only a betrothal (f) or there is deception as to the identity of the other party, that would be fraud which affords a ground for annulment of the marriage under the rule laid down in this clause." 15. The position therefore is that even if there was misrepresentation at the time when consent was obtained from one party to the marriage by the other party, if the solemnization is not vitiated by any fraud or force, there is no scope for seeking annulment of the marriage. Therefore even if the act of substitution of horoscope of another girl amounts to fraud on the part of the girl or her parents, that may not be sufficient in this case to hold that the marriage should be annulled. Therefore it follows that the appellant here should fail. In the result, the appeal is dismissed. Parties are directed to suffer costs in the appeal. Dismissed.