ALLAHABAD HIGH COURT | Sudhir Agarwal & Rajeev Misra, JJ. Delivered on : September 13, 2019
Evidence Law – No amount of evidence can be looked into until and unless a fact has been pleaded. [Para 31]
Issues
1. Whether plaintiff duly pleaded that marriage of parties was got solemnized by playing fraud and burden to plead and prove the same was upon plaintiff ?
2. Whether non disclosure by parents of appellant that she was having hearing deficiency and used a hearing aid either before marriage or at time of marriage, is a ground on which a decree of nullity of marriage, can be passed.
Hindu Marriage Act 1955 – Section 12 – Voidable Marriages – Fraud – Burden was upon plaintiff himself to plead and prove the element of fraud in solemnization of marriage of parties. Plaintiff has to stand on his own legs and he cannot derive benefit from weakness in the defence of defendant. [Para 32]
The Code of Criminal Procedure, 1973 – Section 125 – The Hindu Marriage Act, 1955 – Section 24 – Maintenance pendente lite and expenses of proceedings.
Held:- There is no prohibition contained in section 24 of Act 1955 whereunder maintenance can be denied on account of an order of maintenance already passed under section 125 Cr.P.C. To the contrary, it is provided that maintenance awarded under section 125 Cr.P.C. shall be adjusted in the amount of maintenance awarded under section 24 of Act 1955. [Para 39]
The Civil Procedure Code, 1908 – Order VI Rule 4 – Particulars to be given where necessary – Manner in which pleadings are to be made where fraud is alleged.
Held:- Even though plaint is completely silent regarding manner in which fraud was played, Court below has proceeded to consider this issue. It has completely lost sight of the fact that no amount of evidence can be looked into until and unless a fact has been pleaded. Once the factum regarding fraud having been played in settlement of marriage, was sought to be relied upon by plaintiff, it was incumbent upon him to categorically plead as to how marriage came to be finalized between parties and by whom by giving 15 exact date and specific particulars. The absence of material facts in this regard by plaintiff in plaint clearly establish that plaintiff did not approach Court below with clean hands. [Para 31]
The Contract Act, 1872 – Sections 19 and 20 – Voidability of agreements without free consent – Agreement void where both parties are under mistake as to matter of fact.
Held:- When an agreement is enforceable at law, it becomes a contract. Based on validity, there are several types of contract, i.e. valid contract, void contract, illegal contract, etc. Void contract and voidable contract are quite commonly misconstrued, but they are different. Void contract, implied a contract which lacks enforceability by law, whereas voidable contract, alludes to a contract wherein one party has the right to enforce or rescind the contract, i.e. the party has to right to put the contract to end. [Para 21]
Differences between Void and Voidable Contract
| Void Contract | Voidable Contract |
| The type of contract which cannot be enforceable is known as void contract. | The contract in which one of the two parties has the option to enforce or rescind it, is known as voidable contract. |
| Section 2 (j) of the Indian Contract Act, 1872. | Section 2 (I) of the Indian Contract Act, 1872 |
| The Contract is valid, but subsequently becomes invalid due to some reasons. | The contract is valid, until the party whose consent is not free, does not revokes it. |
| Subsequent illegality or impossibility of any act which is to be performed in the future. | If the consent of the parties is not independent. |
| No right in favour of parties to the contract which is void | Yes, but only to the aggrieved party. |
| Not given by any party to another party for the non-performance, but any benefit received by any party must be restored back. | Damages can be claimed by the aggrieved party. |
Thus a void contract may be defined as a contract which is not enforceable in the Court of law. At the time of formation of the contract, the contract is valid as it fulfils all the necessary conditions required to constitute a valid contract, i.e. free consent, capacity, consideration, a lawful object, etc. but due to a subsequent change in any law or impossibility of an act, which are beyond the imagination and control of the parties to the contract, the contract cannot be performed, and hence, it becomes void. Further, no party cannot sue the other party for the nonperformance of such contract.
Voidable contract on the other hand is a contract which can be enforceable only at the option of one of two parties to the contract. In this type of contract, one party is legally authorized to make a decision to perform or not to perform his part. The aggrieved party is independent to choose the action. The right may arise because the consent of the concerned party is influenced by coercion, undue influence, fraud or misrepresentation, etc. The contract becomes valid until aggrieved party does not cancel it. Moreover, the party aggrieved has the right to claim damages from the other party
Connected with
F.A. No. 40 of 2011 Counsel for Appellant :- Rakesh Pandey, Vishnu Pratap Pandey Counsel for Respondent :- Ghanshyam Dwivedi, M.S. Pipersania
F.A. No. 107 of 2016 Appellant :- Shailendra Kumar Respondent :- Prachi Counsel for Appellant :- G. S. Dwivedi Counsel for Respondent :- Rakesh Pande
F.A. No. 157 of 2016 Appellant :- Dr Prachi Sharma Respondent :- Dr Shailendra Kumar Counsel for Appellant :- Tej Prakash Mishra,Tej Prakash Counsel for Respondent :- G.S. Dwivedi
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