JUDGMENT : Om Prakash Shukla, J. Prelude 1. This is an appeal filed under Section 28 of the Hindu Marriage Act, 1955 by the wife/appellant, challenging the judgment/ decree dated 31.07.2012 passed by the Principal Judge, Family Court, Faizabad in Original Suit No. 44 of 1997: Raj Kumar alias Golu vs. Smt. Kajal Kiran alias Guddi and another, filed by the husband/respondent under Section 12 (Voidable marriages) of the Hindu Marriage Act, 1955. 2. Vide judgment/decree dated 31.07.2012, the Principal Judge, Family Court, Faizabad, has allowed the Original Suit No. 44 of 1997 and has declared the marriage of the respondent/ husband with appellant/wife dated 26.04.1994 as void and ineffective. Factual Matrix 3. Shorn of unnecessary details, facts in brief, as borne out from the pleadings, are as under:- I. On 26.04.1995, the marriage of the appellant was solemnized with respondent. Gauna took place subsequently and thereafter appellant and respondent lived as husband and wife at Faizabad. One Shri Rajendra Prasad Gupta, resident of Mohalla Gillat Bazar, Varanasi, came to the respondent’s house on 28.04.1995 and told him as well as the respondent’s father and mother that prior to marriage of the respondent with the appellant, the appellant had married him on 17.05.1990 in accordance with Hindu rites and rituals. Shri Gupta told him (respondent) that subsequently, the appellant developed illicit relationship with another man and as such she was not ready to come back to him. Consequently, his marriage with the appellant was dissolved in accordance with mutual understanding for which written agreement was also entered between them on 16.08.1992, which bears signature of the appellant and her father, and, thumb impression of her mother. II. On verification, respondent found these facts to be correct. On being confronted, as per the respondent/plaintiff, the appellant/ defendant accepted these facts and also that they were concealed by her from the respondent/husband. This led to the filing of the Original Suit No. 256 of 1995 by the respondent under Section 12 of the Act, 1955 in the District Court on 11.07.1995. III. The case of the plaintiff was that the defendant has committed a fraud on him by concealing the factum of her earlier marriage and alleged divorce from him, which was a material fact/circumstance regarding her marital status, therefore, he is entitled to relief as prayed on the ground of Section 12 (1) (c) of the Act, 1955. III. The case of the plaintiff was that the defendant has committed a fraud on him by concealing the factum of her earlier marriage and alleged divorce from him, which was a material fact/circumstance regarding her marital status, therefore, he is entitled to relief as prayed on the ground of Section 12 (1) (c) of the Act, 1955. Defendant of the case denied these allegations and stated that these facts were disclosed to the plaintiff and his family members, who were well aware of the same, before marriage, but a cooked up story has been putforth only because the demand of dowry of the plaintiff etc. could not be met by the defendant and her family members. IV. In the said suit, the Judge (Small Causes Court), Faizabad passed an order of interim maintenance on 22/24.01.1996. This order was put to challenge by the plaintiff by filing Civil Revision No. 23 of 1996, wherein an interim order was passed by the District Judge, Faizabad, staying the order of trial Court dated 22/24.01.1996. Ultimately, the revision was allowed on 05.12.1997, with the prima facie observation that divorce of the defendant from the first husband Shri Gupta was not proved, therefore, prima facie, she does not appear to be the wife of revisionist/plaintiff. Thereafter, the Family Court was constituted at Faizabad and on the file being transferred to it, the suit was renumbered as Original Suit No. 44 of 1997. V. On the basis of the pleadings in the suit, the Family Court framed four issues as under :- VI. Parties led evidence before the trial Court on the issues framed. VII. In support of his case, respondent/husband recorded his own deposition as P.W.1 and also filed documents viz. (i) affidavit sworn by the respondent/husband (marked as paper no. 174 Ga 2); and (ii) affidavit sworn by one Brijesh Kumar Singh (marked as paper no. 175 Ga 2). VIII. Parties led evidence before the trial Court on the issues framed. VII. In support of his case, respondent/husband recorded his own deposition as P.W.1 and also filed documents viz. (i) affidavit sworn by the respondent/husband (marked as paper no. 174 Ga 2); and (ii) affidavit sworn by one Brijesh Kumar Singh (marked as paper no. 175 Ga 2). VIII. Apart from it, the respondent/husband had also filed other documentary evidences i.e. (i) vide List 6-Ga-1, a photocopy of documents pertaining to marriage of the appellant with Rajendra Kumar Gupta, a photocopy of the agreement of dissolution of marriage/divorce between the defendant/ appellant and Rajendra Kumar Gupta, a copy of Registry notice sent by Raj Kumar (respondent) dated 17.06.1995; (ii) vide List-Ga-2, a copy of the certificate issued by Labour Inspector indicating the registration of shop dated 24.08.1981; (iii) vide List 32-Ga-2, an envelop of the marriage card of the plaintiff/ respondent and the defendant/appellant; (iv) vide List 176 Ga-1, 04 CDs (in seal cover) and 10 photographs; and (v) vide List 211-Ga-2, a copy of the order dated 22.10.2010 passed in Writ Petition No. 36 of 1998 by High Court of Judicature at Allahabad, Lucknow. IX. On the other hand, the appellant/wife recorded her own deposition as D.W.1 and also filed one documentary evidence viz. original document for dissolution of marriage dated 16.08.1991 (marked as List-36 Ga 1). X. The Family Court, after appraising the pleadings and evidence on record, decided issue no.1, as mentioned above, in affirmative in favour of the respondent/husband by recording a finding that there is no evidence either documentary or oral that prior to marriage of the appellant/defendant with the respondent/plaintiff, respondent had knowledge about earlier marriage of the appellant with Rajendra Kumar Gupta and the appellant/defendant has admitted the fact that earlier her marriage had been solemnized with Rajendra Kumar Gupta on 15.05.1990 and her marriage was thereafter dissolved as per local customs. XI. XI. So far as issue no.2, regarding illicit relationship of the appellant/wife is concerned, the Family Court has recorded a finding that though the respondent/husband had alleged that erstwhile husband of his wife (appellant) told him about her illicit relationship with some other person, but the respondent/husband did not produce the said Rajendra Kumar Gupta in the witness box, therefore, the respondent could not prove his allegation about illicit relationship of his wife and accordingly, issue no.2 was decided in the negative and in favour of appellant/defendant. XII. So far as issue no.3 with regard to allegation of the appellant/wife about demand of dowry by her husband and that on account of non-fulfillment of the demand of dowry, her husband had abandoned her, is concerned, the Family Court found that letters available on record and marked as 33Ga 1/1 and 33 Ga 1/2, which were admitted by the appellant as written by her, did not mention the demand of dowry, therefore, allegations of appellant with regard to demand of dowry by the husband from her were found to be unreliable, as such, issue no.3 was decided in the negative, against the appellant/ defendant on the ground that there is no evidence regarding demand of dowry. XIII. Based on its findings on the aforesaid three issues, the Family Court has proceeded to decide issue no.4 pertaining to relief and has opined that as the appellant/defendant has failed to prove that prior to her marriage with the respondent/plaintiff, she had disclosed to her husband/respondent about her earlier marriage with Rajendra Kumar Gupta and its dissolution, as such, issue no. 4 was decided in favour of the respondent/ husband. Consequently, the Family Court decreed the suit in favour of the respondent/husband and declared marriage of the appellant with the respondent void and ineffective by virtue of the impugned judgment/decree dated 31.07.2012. XIV. It is the aforesaid judgment/decree dated 31.07.2012, which has been challenged in the present appeal by the appellant/wife. Points of Determination 4. Based upon the pleadings, evidence on record and the impugned judgment passed by the Trial Court, the following points for determination arise before us in this appeal:- 1. XIV. It is the aforesaid judgment/decree dated 31.07.2012, which has been challenged in the present appeal by the appellant/wife. Points of Determination 4. Based upon the pleadings, evidence on record and the impugned judgment passed by the Trial Court, the following points for determination arise before us in this appeal:- 1. Whether the appellant-defendant has concealed the factum of her first marriage and alleged Divorce from the respondent-plaintiff, thereby committing a fraud as to a material fact/circumstance relating to her marital status, thereby entitling him to declaration under Section 12 (1) (c) of the Act, 1955 ? 2. Whether the Family court has erred on facts and law by passing the impugned judgment and decree by recording perverse and illegal findings? Discussion & Analysis 5. We have heard Smt. Bhavna Gupta and Shri Devraj Singh holding brief of Shri U.S. Sahai, learned Counsel representing the appellant/wife and Shri Vinod Kumar Srivastava holding brief of Shri Madan Gopal Mishra, learned Counsel representing the respondent and perused the records and the impugned judgment and decree. 6. The main plank of the submissions made by the learned Counsel for the appellant/wife was that the only basis upon which the suit filed by the respondent-plaintiff was decreed is the statement of the respondent-plaintiff to the effect that the appellant had earlier married Rajendra Kumar Gupta but she did not disclose her marital status to the respondent-plaintiff prior to marriage and even thereafter, which were factually incorrect. It was contended by the learned Counsel for the appellant that prior to marriage of the appellant with the respondent, mother of the appellant/defendant gave full information regarding the first marriage of the appellant/ defendant as well as about dissolution of the said marriage by way of agreement dated 26.04.1995 and in order to satisfy themselves fully, the respondent/plaintiff and some of his relatives came to her house for seeing the appellant/defendant and thereafter they all met her family members and had stayed overnight and thereafter, on the next day, they had also made inquiries in the village and thereafter when they were fully satisfied, only then they had fixed the dates for tilak and marriage ceremony. Thus, his submission was that none of the grounds put forth by the respondent/plaintiff in the suit constitute a ground to declare the marriage of the appellant/defendant with the respondent/plaintiff as void and ineffective in terms of Section 12 (1) (c) of the Act, 1955 and even the suit filed by the respondent/plaintiff under Section 12 of the Act, 1955 is not maintainable since none of the pre-conditions were satisfied. 7. Replying to the aforesaid contentions raised by the appellant, learned Counsel for the respondent argued that the evidence led by the respondent/plaintiff clearly establishes that prior to her marriage with the respondent/plaintiff, the appellant/defendant had never informed him regarding her previous marriage with Rajendra Kumar Gupta nor their dissolution of marriage through agreement. Learned Counsel taking us through the deposition of the respondent/plaintiff and the documents placed in the suit as well as testimony of the respondent/plaintiff, has contended that respondent/plaintiff was extensively cross-examined but on the point of knowledge of the previous marriage of the appellant with Rajendra Kumar Gupta, respondent/plaintiff was not cross-examined nor any attempt was made on her behalf to cross-examine further during pendency of the plaint, which, according to him, itself proves the fact that prior to marriage, appellant had not informed the respondent about the factum of her previous marriage with Rajendra Kumar Gupta. Moreso, burden of proof lay on the appellant/defendant to prove the fact that she had informed about her previous marriage to the plaintiff. Thus, the findings recorded by the learned Family Court are just and proper. 8. To consider the rival arguments and in order to answer the aforesaid point for determination, it will be apposite to mention herein that Section 12 of the Act, 1955 speaks about voidable marriage, which reads as under :- “Section 12. Voidable Marriage.- (1) 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: (a). that the marriage has not been consummated owing to the impotence of the respondent; or (b). that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c). that the marriage has not been consummated owing to the impotence of the respondent; or (b). that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c). 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 obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d). that the respondent was at the time of the marriage pregnant by some person other than the petitioner.” 9. A specific averment has been made in various paragraph of the plaint especially para-7 regarding the appellant/defendant not having disclosed to the respondent/plaintiff about her marriage. In paragraph-6, plaintiff has pleaded that before her bidai, the respondent/plaintiff inquired from the appellant about the factum of previous marriage, whereupon she firstly denied it but when the document relating to dissolution of her first marriage was shown to her, then, she admitted it and also stated that the said fact was concealed from him (plaintiff) so that her marriage could be solemnized. 10. The defendants no. 1 to 3 in the suit that is the appellant/wife, her mother and father filed a joint written statement, wherein they admitted the factum of earlier marriage of the appellant with Rajendra Kumar Gupta but said Shri Gupta and his family members used to demand dowry, which could not be fulfilled, therefore, the marriage was dissolved on 16.08.1992. Most important, they have averred in para-18 that these facts were known to the respondent/plaintiff and his family members. They had inquired from villagers and only thereafter marriage was solemnized. 11. Since, the respondent/husband had premised the present petition before the learned Family Court on the basis of fraud played on him concerning the appellant’s previous marriage, it would be apt to understand the meaning and import of ‘fraud’ used in Section 12 (1) (c) of the Act, 1955. 12. The term “Fraud” in the context of Section 12(1)(c) of the Act, 1955 was interpreted by the Hon’ble Bombay High Court in the case of Raghunath Gopal Daftardar vs Vijaya Raghunatha Gopal Daftarda : 1971 SCC OnLine Bom 52. 12. The term “Fraud” in the context of Section 12(1)(c) of the Act, 1955 was interpreted by the Hon’ble Bombay High Court in the case of Raghunath Gopal Daftardar vs Vijaya Raghunatha Gopal Daftarda : 1971 SCC OnLine Bom 52. It culled out a distinction between the term “fraud? as appearing in Section 17 as appearing in Section 17 of the Indian Contract Act, 1872 and in Section 12 of Act, 1955 by observing that marriage under Hindu Law is treated as a ‘Sanskara’ or a sacrament and not a mere civil contract. The term “fraud” as used in the Act, 1955 is not a “fraud” in any general way and that every misrepresentation or concealment would not be fraudulent. If the consent given by parties is a real consent to the solemnization of marriage, then the same cannot be circumvented by alleging fraud. Similarly, in the case of Harbhajan Singh vs Shrimati Brij Balab : 1963 SCC OnLine Punj 139, it was observed that ‘fraud’ as a ground for annulment of marriage under the Hindu law is limited to those cases where the consent for marriage was obtained by some deception. Thus, under the Hindu Law, not every misrepresentation or concealment of a fact shall amount to “fraud” as envisaged under Section 12(1)(c) for annulment of a marriage. The fraud must be material as to the nature of ceremony or to any material fact or circumstance concerning the respondent and thus, at this point it is pertinent to consider what would tantamount to a material fact. The meaning of “material fact” or “circumstance concerning the respondent” is difficult to define with certainty. However, it would be reasonable to say that fact or circumstance which is of such a nature that it would be material or relevant to the consent for marriage would be a material fact or circumstance in terms of Section 12 (1) (c) of the Act, 1955. A fact, which if disclosed, would result in either of the parties not consenting to the marriage, would be a material fact. Such a material fact must be in respect of the person or the character of the person. 13. A fact, which if disclosed, would result in either of the parties not consenting to the marriage, would be a material fact. Such a material fact must be in respect of the person or the character of the person. 13. A bare perusal of Section 12 of the Act, 1955 reveals that any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity inter alia on the ground, if, (i) the consent of the petitioner is obtained by “force” or by “fraud”; (ii) such “force” or “fraud” must be as to the “nature of the ceremony” or as to “any material fact or circumstance” concerning the respondent. 14. To prove his case, apart from the evidence led by respondent/plaintiff as P.W.1, he has also filed documents viz. (i). affidavit sworn by the respondent/husband (marked as paper no. 174 Ga 2); and (ii) affidavit sworn by one Brijesh Kumar Singh (marked as paper no. 175 Ga 2). Apart from it, the respondent/husband has also filed other documentary evidences i.e. (i) vide List 6-Ga-1, a photocopy of documents pertaining to marriage of the appellant with Rajendra Kumar Gupta, a photocopy of the agreement of dissolution of marriage/divorce between the defendant/ appellant and Rajendra Kumar Gupta, a copy of Registry notice sent by Raj Kumar (respondent) dated 17.06.1995; (ii) vide List-Ga-2, a copy of the certificate issued by Labour Inspector indicating the registration of shop dated 24.08.1981; (iii) vide List 32-Ga-2, an envelop of the marriage card of the plaintiff/ respondent and the defendant/appellant; (iv). vide List 176 Ga-1, 04 CDs (in seal cover) and 10 photographs; and (v) vide List 211-Ga-2, a copy of the order dated 22.10.2010 passed in Writ Petition No. 36 of 1998 by High Court of Judicature at Allahabad, Lucknow. 15. In his lengthy statement, respondent/plaintiff (P.W.1) has explained all the details including the fact that how the appellant/defendant and her family members played fraud against him (P.W.1) and solemnized his marriage with the appellant. In his deposition, he (P.W.1) has stated that prior to his marriage with the appellant, he had no knowledge about previous marriage of the appellant with Rajendra Kumar Gupta nor anyone informed him in this regard. He came to know about it only on 28.04.1995. In his deposition, he (P.W.1) has stated that prior to his marriage with the appellant, he had no knowledge about previous marriage of the appellant with Rajendra Kumar Gupta nor anyone informed him in this regard. He came to know about it only on 28.04.1995. P.W.1 was extensively cross-examined by the appellant/defendant, however, on the point of having knowledge of previous marriage with Rajendra Kumar Gupta prior to his marriage with the appellant, P.W.1 was not cross-examined. The deposition of P.W.1 on this point has not been dislodged in his cross-examination by the appellant/ defendant. 16. As it is the appellant/defendant who had asserted that they had disclosed the previous marriage, therefore, the burden lay on her to prove this assertion. 17. The appellant/defendant was examined as D.W.1, wherein she admitted her marriage with Rajendra Kumar Gupta in the year 1990. She has stated that after marriage, she went along with Rajendra to his house at Varanasi and lived therein for two days along with him. She came back to her parents’ house from the house of Rajendra after two days of the marriage and did not go back. She admitted the document/agreement relating to dissolution of marriage, however she has stated that these facts have been disclosed to the respondent and his family members prior to marriage and the agreement dissolving the marriage as per local customs had been given by her brother, who had arranged her marriage. She has also stated that she has disclosed the fact in detail when asked by respondent. She has also stated that no divorce had taken place with Rajendra Kumar Gupta through Court. She had not lived with Raj Kumar (respondent) since 1995. 18. However, appellant did not produce her brother who could have proved as to whether he had handed over the agreement dated 16.08.1992 to respondent or his family members prior to marriage of his sister, if so, when. She has also not produced her father and mother for examination. Moreover, in cross-examination of P.W.1, no specific question or suggestion was given on her behalf that he had prior knowledge of appellant’s first marriage or that the appellant and his family members had informed him about it. A cursory suggestion appears to have been given towards end of cross-examination that no fraud has been committed with him, but this is not sufficient. 19. A cursory suggestion appears to have been given towards end of cross-examination that no fraud has been committed with him, but this is not sufficient. 19. From the aforesaid testimonies of P.W.1 and D.W.1, two facts are clear; firstly the factum of previous marriage of the appellant was not in the knowledge of the respondent/plaintiff prior to his marriage nor anyone informed him or his family members in this regard; secondly, the factum of previous marriage of the appellant for the first time came to the notice of the respondent when previous husband of respondent, namely, Rajendra Kumar Gupta, came to the house of the plaintiff on 28.04.1995. Further, appellant has failed to prove her assertion that the factum of previous marriage was disclosed to the respondent/plaintiff and his family members and only thereafter marriage of the appellant was solemnized with the respondent. She has failed to discharge her burden in this regard. No evidence has been led on behalf of the appellant nor appellant has produced her mother or brother or father in the witness box to prove the said fact, though, it was she who asserted that her mother had informed the respondent/plaintiff regarding the first marriage with Rajendra Kumar Gupta. Having not done so, the learned Family Court has rightly drawn an adverse inference of the same. On this count, we hold that the appellant has failed to prove that prior to her marriage with the respondent/plaintiff, her mother or her family member or she herself informed the factum of previous marriage with Rajendra Kumar Gupta to the respondent. 20. In the facts of the present case, it is decipherable that the factum of previous marriage of the appellant with Rajendra Kumar Gupta was a material fact concerning the wife (respondent) relating to her marital status, which was never disclosed to the husband (plaintiff), as such, the consent of the respondent for marriage with the appellant was obtained by fraud and deceipt thereby attracting Section 12 (1) (c) of the Act, 1955, therefore, he is entitled to a declaration as granted by the Family Court. Point No. 1 is answered accordingly. 21. There is another aspect of the matter. The appellant/defendant has not been able to prove that there was any custom in her caste or locality for dissolution of marriage by a written agreement. No evidence has been led by her in this regard. Point No. 1 is answered accordingly. 21. There is another aspect of the matter. The appellant/defendant has not been able to prove that there was any custom in her caste or locality for dissolution of marriage by a written agreement. No evidence has been led by her in this regard. She admits to her first marriage. There is no decree of divorce by any Court pertaining to her first marriage. If this reasoning is taken further, then, it will lead to the conclusion that the alleged second marriage apart from being violative of Section 12 (1) (c) is also a nullity during subsistence of the first marriage in view of Section 5 (i) of the Act, 1955, but we do not proceed on this line as the suit was under Section 12 of the Act, 1955 and not Section 11. 22. The trial Court has considered all the evidence to which we have made a reference and has correctly arrived at its finding with regard to issues no. 1, 2, 3 and 4 and has rightly declared the marriage of the respondent/plaintiff with appellant/ defendant as null and void. There is no perversity in the judgment of the trial Court. The point no.2 for determination referred earlier is answered accordingly. 23. The appeal is dismissed. No order as to costs.