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Civil Miscellaneous No. 4408 of 1969, decided on 12th May 1970.

Ss. 8 & 19‑Dissolution of Christian marriage‑Transfer of petition to High Court‑Husband praying for dissolution of marriage on ground of his consent being obtained by fraud and misrepresentation inasmuch he believed her to be virgin at time of marriage but it was later found that she was pregnant at that time‑Petitioner himself pleading to have tried to bring her back when his wife had gone away‑No case of deception made out as to identity of wife‑Prima facie also no case of fraud or misrepresentation in obtaining petitioner's consent to marriage made out‑Case, held, not fit for transfer to High Court.

S. C. Manchanda on Law and Practice of Divorce, 1945 Edn., p. 229 ref.

J. V. Gardner for Petitioner.

Mian Nazir Akhtar for Respondents.

Date of hearing : 12th May 1970.

This is an application under section 8 of the Divorce Act (IV of 1869), praying that a petition for the dissolu tion of petitioner's marriage pending in the Court of the learned District Judge, Lahore, may be transferred to this Court. It is argued that since in the case a prayer has been made for getting a decree of nullity of marriage on the ground that the consent of the petitioner (husband) was obtained by fraud and misrepresentation, therefore, the case was such which could be tried only by the High Court under the last portion of section 19 of the Act hereinbefore mentioned. It is true that High Court alone has jurisdiction to make a nullity decree on the ground that the consent of the parties has been obtained by force or fraud. However, I have gone through a copy of the divorce petition which was shown to me by the learned counsel for the petitioner. The gravamen of that application is that the petitioner believed that respondent No. 1 (Rita Moody) was a virgin, but later on petitioner became certain that she was already pregnant at the time of the marriage. The petition avers that the consent which was given by the petitioner to the marriage on assumption that she was a virgin is a consent obtained by fraud and misre presentation. The following passage in the book, "The Law and Practice of Divorce" by S. C. Manchanda (1945 Edn.) at page 229 is very instructive for the purpose of the matter under consideration :‑

"If a person is capable of consenting and has consented, the law will not ask how the consent was induced. So where a contract of marriage has been knowingly entered into, no degree of deception can avail to set it aside, unless the party imposed upon has been deceived as to the person whom he was to have married. Similarly, error of quality is no ground for annulment and if a man marries a wife believing her to be chaste and pure but she turns out to be impure and pregnant, the marriage cannot thereby be rendered invalid. So, where a woman had concealed from her husband, at the time of the marrige, the fact that she was pregnant by another man, it was held not to be sufficient to render the marriage null and void. Nor is concealment of the fact, by the woman, that she is suffering from veneral disease, a ground for annulment."

The learned author has in the aforesaid discussion given examples of fraud which are actionable under the provision of section 19 hereinbefore quoted. He has mentioned, as for example, that where there is a mistake as to the identity of the person or mistake as to the nature of the ceremony, these may be grounds relevant to show that the consent was obtained by fraud. But errors as to fortune age or quality, are no grounds in that behalf. Another thing to be noticed in this context is that the petitioner has, at various places, in the petition before the learned District Judge, himself pleaded that he tried (when the wife had gone away), to bring her back to his house. This also very clearly shows that so far as the identity of the woman is concerned the petitioner was under no deception or misrepresentation. On the pleadings, as contained in the petition for divorce itself, since no case of fraud or misrepresentation in obtaining the consent of the petitioner to the marriage is made out, this is not a fit case for transfer to this Court. Learned counsel while pressing his prayer for transfer submitted that I should not examine at this stage whether the consent was obtained by fraud. I have not gone into that matter and all that I have done is to have examined the main petition or plaint to find out as to whether prima facie it is a case in which it can be said that the ground of fraud exists. Since the allegations made in the petition themselves fall short of the fraud, as contemplated in section 19, no case for transferring, as such, a suit to High Court is made out and it will be a sheer exercise in futility if the proceedings of such a nature are transferred to this Court. The petition for transfer is dismissed. There will be no order as to costs.

2. All what has been written above is only confined to the matter of transfer of the case to this Court. The learned District Judge will be free to examine the case on its own merits so far as dissolution of marriage on other grounds is claimed.

S. A. H. Petition dismissed.

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