Madras High Court
C.Rajamani vs Rathna Bai on 21 October, 2009
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2009 CORAM THE HON'BLE Ms. JUSTICE R.MALA O.M.S.No.50 of 1998 and A.No.5047 of 2008 C.Rajamani ... Petitioner vs. Rathna Bai ... Respondent Petition under Sections 18 and 22 of the Indian Divorce Act 1869 and order XXVII of original side Rules prays for a declaration of the marriage solemnized on 22.01.1981 at Roman Catholic Church Thalayavattai Kanniyakumar District as null and void on the ground the same is vitiated by fraud or in the alternative for judicial separation on the grounds of desertion coupled with cruelty and for other relief. For Petitioner : Mr. A.S.Nixon For Respondent : Mr. V.Suryanarayana Reddy JUDGMENT
This Petition has been filed for a declaration of the marriage solemnized on 22.01.1981 at Roman Catholic Church Thalayavattai Kanniyakumar District as null and void on the ground the same is vitiated by fraud or in the alternative for judicial separation on the grounds of desertion coupled with cruelty.
2. The averments in the petition is as follows:-
(i) The marriage between the petitioner and the respondent took place on 22.01.1981. The marriage was solemnized at Roman Catholic Church Thalayavattai at Kanniyakumar District. At the time of marriage 12 sovereigns of jewels were given along with a bank pass book with a deposit of Rs.10,000/- and the respondent is in custody of the jewels till he deserted the petitioner in the year 1995. The respondent did not mind for the welfare of the family and did not evince any interest in taking care of the petitioner. She behaved in such un-tolerable manner. She quarrelled with the petitioner for no fault on his part. She did not cook for a week or two. On another occasion, she blamed her fate for marrying the petitioner and scolded her parents for selecting the petitioner as her husband. She was atrocious and arrogant that quite often she used to go to her parents without any reason whatsoever and without the knowledge and consent of the petitioner and stay there for weeks. Sometime for months together. She also attempted to suicide by pouring kerosene on her and setting fire. The respondent made the matrimonial home a hell and the petitioner was put to great and serious mental agony by the indecent and improper behaviour of the respondent. Since the said occurrence took place, not ones in the blue moon, but as a matter of regular recurrences. The petitioner never changed his treatment and approach to the respondent and treated her as he was treating her earlier, with the sole expectation that she would correct herself and become a family woman of normal wisdom. The respondent was unable to give birth to a child due to her physical infirmity. The impossibility of the respondent to conceive a child did not play any part to diminish the love and affection of the petitioner towards the respondent. The petitioner used to console himself and pacify his near and dear who used to worry for the absence of a child. He took all efforts to get rid of the infirmity of the respondent and arrange for medical treatment. She was treated by the famous Gynecologists, Dr.Joseph and Dr.Kamala Selvaraj. All the best treatment resulted in vain and it was found that it was impossible for the respondent to give birth to a child. The petitioner has spent Rs.80,000/- as medical expenses. Yet the petitioner did not hate her not was there any fail in the love and affection he had to her. (ii) But the behaviour of the respondent intolerable causing mental agony and though she was not able to give him a child, he did not mind under the bonafide hope in course of time, she would mend herself and proceed in the normal path as other house wives. The petitioner had been to the native place in the first week of September 1995 in connection with the marriage of the daughter of his brother which was celebrated on 11.9.1995. The respondent refused to come to the village and did not attend the marriage of her in laws daughter. During the absence of the petitioner, the respondent deliberately and with ulterior motive got admitted herself in the hospital for no complaint whatsoever. She did not choose to send any message to the petitioner nor did she choose to get the consent of the petitioner. She got admitted in the G.G. Hospital, Chennai from 09.09.1995 onwards. The same came to be known to the petitioner from the hospital people that she was not having no specific complaints. On 27.09.1995, the respondent came to the house with a female child stating that the child was her child. The same was a terrible shock to the petitioner, who had been tolerating from the inception all the improper acts of the respondent and suffering. He repeatedly asserted that it was her child and she gave birth to the child . She also manipulated, forged and created certain documents in the Hospital and also outside the hospital to make it appear that she gave birth to a child. She also not able to answer the query and question in that regard. She admitted that she hired the child on paying money. As the truth come out to light she felt ashamed for attempting to defraud and cheat the petitioner. She refused to live with the petitioner since her foul play was found out on 29.9.1995 with her jewels , bags and packages and thereafter she never attempted to return nor did she care to return to the petitioner's house and render conjugal obligation. He had also taken steps for dropping the proceedings against the respondent. That apart continuous mental agony, suffering , harassment of the respondent affected his health very badly and he became a diabetic. So it is impossible for the petitioner to live with her as there is no scope for correcting and mending herself. That apart she deserted the petitioner without any reasonable cause or excuse and has been living in her parent's house with her parents for the past more than 2 3/4 years. Hence, he is constrained to file this petition and approached the Court for grant of divorce or in the alternative for judicial separation on the ground of desertion coupled with cruelty.
3. The gist and essence in the counter affidavit filed by the respondent is as follows:
(i) This Court has no territorial jurisdiction . Hence, prayed for dismissal of this petition.
(ii) At the time of marriage 35 sovereigns of jewels, Rs.40,000/- cash and Rs.10,000/- Bank deposit were given as dowry. As per the custom prevailing in Kanyakumari District the marriage expenses at the residence of the petitioner and respondent would be met by respective parties. Apart from that enough household articles, utensils and other items were presented at the time of marriage. The respondent had behaved like a dutiful wife and also co-operated with the petitioner with kindness and affection. The averment in paragraph 4 and 5 of the petition is false, baseless and imaginary. Unfortunately, the respondent is not able to bear the child to the petitioner. This is not the fault of the respondent. So far no Doctor has given any opinion that this respondent cannot bear a child. Unfortunately, the petitioner had no patience which had created so much for the respondent. The petitioner had always hated this respondent for the reason that she had not bear a child. It is false to contend that the petitioner has spent Rs.80,000/- towards medical expenses. Per contra, the parents of the respondent alone has given the medical expenses of the petitioner and the respondent. The petitioner had admitted the respondent in G.G. Hospital on 09.09.1994 for IVF test. The petitioner has left Madras without informing the respondent. He wantonly admitted her in the hospital and left to attend the marriage of his brother's daughter. The averment that on 27.9.95, this respondent came to the house with a female child is absolutely false. It is also false to contend that the respondent has manipulated certain documents in the hospital. It is also false to say that at the time of marriage the petitioner was informed that the respondent had passed the degree. It was informed that the respondent has not passed a degree course. The story of the child is to all imaginary. The respondent has not taken her jewels or any other belongings from the house of the petitioner so far. The jewels, dress and other household articles of the respondent are still with the petitioner. The petitioner has resigned the job in Hindustan Motors at Thiruvallur with oblique motive. The petitioner was sent away the respondent with a sole object of having a second marriage. Ultimately, the petitioner had married one Mrs. Selin, daughter of Ponnumani who got a female baby also. The petitioner had taken this respondent to the native place in July 1996 and thereafter he did not turn up because of the second marriage. The petitioner had deserted the respondent .
(iii) So, the respondent alone with her mother came to Madras on 13.10.1996 and thereafter only they came to know that the petitioner had shifted his residence to No.20, Periyar Ist Cross Street, Padi. Probably, after the second marriage he did not want to stay in the said house. The respondent has given a complaint to the Koratur Police Station. The police has not taken any action. The respondent submits that Plot No.20, Periyar Ist Cross Street was purchased out of the cash given by the parents of this respondent. The Bank deposit of this respondent of Rs.10,000/- was also utilised for the purpose of purchase of the plot. She is unemployed. He had let out the residence at No.20, Periyar, Ist Cross Street, Padi for huge rents and enjoying the benefits along with his second wife. Hence, prayed for the dismissal of this application.
4. After hearing the arguments on both sides, counsel and perused the materials available on records. The following issues were framed for trial:
1. Whether the plaintiff is entitled to dissolution of marriage on the ground of desertion and cruelty?
2. Whether the plaintiff is entitled to the alternative relief of judicial separation on the ground of desertion coupled with cruelty?
3. To what other reliefs the plaintiff is entitled?"
5. The additional issues was framed as to whether the plaintiff is entitled to declare that the marriage solemnised on 22.1.1981 between the petitioner and the respondent is null and void on the ground that the same is vitiated by fraud.
6, Additional Issue : On the side of the petitioner P.W.1 was examined and Exs.P1 to P11 were marked. On the respondent side, R.W.1 was examined and Exs.R.1 to R16 were marked.
7. During the pendency of the trial, the respondent/wife has preferred this application 1542 of 2008 for claiming monthly maintenance of Rs.10,000/- from the date of filing of O.M.S.No.50 of 1990 and claiming Rs.20,000/- being the litigation expenses. At present, the respondent is owning house and commercial property worth of Rs.1.5 Crore at Srinivasa Nagar, Padi, Chennai-50 (4 Commercial & Industrial shops, 6 houses) and about Rs.25 lakhs worth of house building and lands at Nadikavoo near Nagerkoil and also doing real estate and money lending business and is getting monthly income not less than Rs.40,000/-
8. It is an admitted fact that arranged marriage has been solemnized between the petitioner and the respondent at Roman Catholic Church, Thalayavattai Kanniyakumar District on 22.1.1981. Even though the plaintiff has filed this suit under Section 21 of the Indian Divorce Act, 1869 for declaration of marriage between the petitioner and respondent as null and void on the ground the same is vitiated by fraud or in the alternative for judicial separation on the grounds of desertion coupled with cruelty.
9. Section 18 and 19 of the Indian Divorce Act is as follows:
18. Petition for decree of nullity- Any husband or wife may present a petition to the District praying that his or her marriage may be declared null and void.
Objects and Reasons- Clause 14- This clause seeks to amend section 18 of the Act relating to petition for decree of nullity. The omission of the words" or to the High Court" as proposed in this clause is consequential to the amendment proposed in section 10.
19. Ground of decree.- Such decree may be made on any of the following grounds:-
(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(2) that the parties was are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the District Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud."
10. But It is contented by the learned counsel for the petitioner that during the trial only he came to know that the respondent/wife has played fraud and obtained consent for marriage since she has not attained puberty. She is not capable of performing conjugality. Hence, she has wantonly suppressed the same and marriage has been performed and fraud has been played by this respondent. Hence the marriage is vitiated by fraud. It is pertinent to note that it is the duty of the petitioner to plead the fraud and prove the same. It is appropriate to incorporate Order VI Rule 4 of CPC. It is as follows:
"Particulars to be given where necessary- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars with dates and items (if necessary) shall be stated in the pleading"
11. It is pertinent to note that the petitioner has not averred anything about the fraud alleged to be committed by this respondent/wife for obtaining consent from this petitioner. He has merely amended the prayer column. It is pertinent to note that the petition to amend the plaint has been filed which has been dismissed. Against that he has preferred an appeal in that only amendment has been allowed. On that basis the amendment has been carried out. Even for that he has not pleaded. As per Order 6 Rule 4 of CPC fraud is to be pleaded by the person and proved by the person who pleaded. But the petitioner has not pleaded.
12. In the above said circumstances, the arguments advanced by the learned counsel for the petitioner that the marriage between the petitioner and respondent as null and void on the ground the same is vitiated by fraud is unacceptable one.
13. Learned counsel for the respondent has raised a plea that this Court has no jurisdiction to entertain this suit. At this juncture, the learned counsel for the petitioner would rely upon the decisions reported in AIR 1978 KARNATAKA 69 (A.JAYARAJ V. M. FLORENCE) wherein it is held as follows:
"So far as the decree of nullity of marriage on the ground of force or fraud is concerned, the same can be obtained only by presenting a petition to the High Court which has a residuary jurisdiction to deal with a petition for dissolution of marriage on the ground that consent of either party was obtained by force or fraud. Thus, the District Court has no jurisdiction to entertain a petition for declaration of nullity of marriage on the ground that the consent of either party to the marriage was obtained by force or fraud.
(i) The counsel has also relied on the decision of AIR 1982 ORISSA 37 (RANJUK RANJAN DAS V. PRANATI KUMARI) wherein it is held as follows:
"In so far as the dissolution of marriage and nullity of marriage on the specific grounds stated in S.19 are concerned both the District Court and the High Court have concurrent jurisdiction and when the case is one for declaration of nullity of marriage on the ground of force or fraud the exclusive jurisdiction of the High Court is saved"
(ii) Further he relied on the decision reported in AIR 1993 BOMBAY 61 wherein it is held that "Both District Court and High Court have concurrent jurisdiction"
While considering the above citation the District Court and High Court have a concurrent jurisdiction to entertain this suit for dissolution of marriage and annulment of marriage. Hence, the argument advanced by the learned respondent counsel that this Court has no jurisdiction does not merit acceptance.
14. Learned counsel for the respondent would contend that the application has been filed belatedly stating that the respondent/wife is concealing something and prayed fraud and obtained consent for the marriage. So the marriage itself is void. The marriage has taken place on 22.1.1981. He filed application in 1998. Therefore there is a delay. The learned counsel appearing for the petitioner has relied upon the decision reported in 1(2001) DMC 640 (SC) (D.BALAKRISHNAN V.PAVALAMANI) and urged that in the matrimonial matter there is no limitation and "annulment of marriage: Non-consummation of marriage due to impotency: petition filed 10 years after marriage:petition cannot be held barred by limitation".
15. It is true in matrimonial matter, there is no limitation. But however, this citation is not applicable to the facts of the case because the marriage has been consummated that admittedly the petitioner/P.W.1 himself has taken the respondent/wife to hospital and took treatment to begot child. As per the documents filed by him and oral testimony of both the parties P.W.1 and R.W.1 corroborated the same. In the above said circumstances the above citation is not applicable.
16. Learned counsel for the petitioner relied upon the following decision in support of his contention that the marriage between the petitioner and respondent as null and void:
" 1 (1991) DMC 576 (Valsa Vs. Moore) "12.The contentions raised by the respondent regarding the rheumatic arthritis of the heart of the petitioner is not supported by any evidence. Exts. R3 to R5 do not support the same. Ext.R5 shows that Ayurvedic Physician prescribed 'Sukumara Ghrutham' to the petitioner. The medicine even according to CPW-I is one to have easy conception. The respondent took the petitioner to Ayurvedic Physician and got 'Sukumara Ghrutham' prescribed. According to him 'Sukumara Ghrutham' is prescribed for easy conception because she did not conceive. From this it is evident that even at the time when the petitioner was taken to the Ayurvedic Physician, she was not told about the vasectomy operation underwent by the respondent. By that operation he become sterile. Thereafter, I fail to understand why he got 'Sukumara Ghrutham' administered to her for easy conception. This action of the respondent goes a long way to establish the case of the petitioner that fraud was played by him in getting the consent of the petitioner. That fraud was continued to be played even after the marriage. So, I have no hesitation in holding that the marriage between the parties has to be declared as nullity on the ground that the consent of the petitioner was obtained by respondent by playing fraud."
II (1998) DMC 357 (DB) (Bindu Sharma Vs. Ram Prakash Sharma "10. From the evidence of the parties and in the facts and circumstances of the case, it is established that respondent No.1 had made false statements to the petitioner that he was employed on monthly salary of Rs.1,700/- in the Sugar Factory and he induced the petitioner to give assent for marriage on the basis that mis-representation and, therefore, the petition for annulment of marriage has to be decreed."
AIR 1992 KERALA 176 (P.J. Moore Vs. Valsa "One of the sublime objects of married life is to have offsprings. This is not merely a traditional view, but an established truth which transcends ages and has universal acceptance. Motherhood is one of the cravings of a normal woman. No authority need be cited to support this philosophy. Parties enter into marriage alliance on the assumption that they would become father and mother in due course of time. If a person became incapable of procreation through act of man such as a surgery, he is under a basic duty to disclose that fact to the other party who wishes to join him in the wed-lock. Non-disclosure of this vital information which goes to the root of the married life amounts to fraud in matrimonial relationship. Consent, given by one spouse without knowledge of this basic defect in the other spouse, stands vitiated and tainted. It is open to the affected spouse to petition that his or her consent was wangled by fraud."
2001 (1) Civ.C.R. 826 (Mad) D.Balakrishnan Vs. Pavalamani "10. In the light of the medical evidence as seen from C.Ws.1 and 2 and Exs. C.1 and C.2 it is proved beyond doubt that the appellant/husband is impotent. We have already stated that in the petition the wife has claimed for nullity of marriage or in the alternative for divorce on the ground of non-consummation of marriage. The learned Family Court Judge in para 15 after holding that, inasmuch as the marriage was celebrated on 10.06.1982 and the wife has filed the present petition for divorce only on 11.07.1992, i.e., 10 years after the marriage, came to a conclusion that nullity of marriage cannot be awarded as it is barred by the provisions of the Act. After saying so, inasmuch as she had proved her case that the marriage is not consummated and as per expert evidence she continued to be virgin and her husband is impotent, granted a decree for divorce."
AIR 1982 ORISSA 37 Ranjuk Ranjan Das VS. Smt.Pranati Kumari Behera "In so far as dissolution of marriage and nullity of marriage on the specific grounds stated in S.19 are concerned both the District Court and the High Court have concurrent jurisdiction and when the case is one for declaration of nullity of marriage on the ground of force or fraud the exclusive jurisdiction of the High Court is saved."
Per contra the learned counsel for the respondent would rely upon the following decisions:
A.I.R.1937 Privy Council 146 Bharat Dharma Syndicate, Ltd., vs. Harish Chandra Where a litigant prefers the charges of fraud or other improper conduct against the other party, the tribunal, which is called upon to decide such issues should compel that litigant to place on record precise and specific details of these charges. Cases of such type will be much simplified if this Practice is strictly observed and insisted upon by the Court, even if no objection is taken on behalf of the parties who are interested in disproving the accusations.
..... Before parting with this case their Lordships desire to call attention to the great difficulty which is occasioned both to persons charged with fraud or other improper conduct, and to the Tribunals which are called upon to decide such issues, if the litigant who prefers the charges is not compelled to place on record precise and specific details of those charges. In the present case the petitioner ought not to have been allowed to proceed with his petition and seek to prove fraud, unless and until he had, upon such terms as the Court thought fit to impose, amended his petition by including therein full particulars of the allegations which he intended to prove. Such cases as the present will be much simplified if this practice is strictly observed and insisted upon by the Court, even if, as in the present case, no objection is taken on behalf of the parties who are interested in disproving the accusations.
I(2007) DMC 878 (DB) E.G.Ravi v. Jayashree
10. With respect to the alleged ground of impotency, C.W.1 Dr.Kuppulaxmi, who examined the respondent wife, has deposed that the respondent was physically fit for marital obligations. C.W.1 issued Ex. C-1 stating that the respondent was subjected to sexual relationship. C.W.2, a psychiatrist, examined the respondent and found that the respondent was a normal woman and fit for the marital life. The medical testimony being the evidence of experts would not leave the Court from the obligation of satisfying itself on the point in issue beyond reasonable doubt and the relevance of a medical evidence, therefore, cannot be disputed. [vide:sharda v. Dharmpal, III (2003) SLT 1= I(2003) DMC 627(SC)=(2003) 4 SCC 493. In this view of the matter, we are of the view that the petition has to file on the ground of impotency also. Probably, as observed by the Family Court, the respondent wife might not have matured enough at the time of marriage to perform her part of marital obligations, but that by itself would not be a ground for the petitioner husband to seek nullity of marriage."
9.Regarding non-consummation of marriage, what happened within the four walls with closed doors is known only to the petitioner husband and the respondent wife. Though it is contended on behalf of the petitioner husband that the respondent had not submitted herself to the marital relationship and on the ground of non-consummation of marriage, the petition is to be allowed, as already noticed, the petitioner husband in his cross-examination has admitted that he did not inform any body of the sexual aversion of the respondent wife whereas the respondent wife has categorically stated that the marriage got consummated on the date of marriage itself. That apart, Ex.C-1 certificate shows that the respondent was subjected to sexual relationship. Therefore, it cannot be stated that the petitioner husband has proved that the marriage was not consummated. "
17. Considering the above citations along with the evidence on record, it is true that the respondent/wife has not played fraud upon the petitioner for obtaining consent for marriage. To the contrary, the marriage is an arranged one. Before the marriage, in December 1980, P.W.1 had gone to Madurai where R.W.1 was working and after seeing this bride both liked each other and betrothal has been conducted. Then only the marriage has been performed. The only ground of fraud mentioned by this P.W.1 is that the respondent is not able to begot child and urged that she has not attained puberty and she had wantonly suppressed the fact. Therefore the marriage is void.
18. While considering the arguments of both the counsel except for the evidences of P.W.1 and R.W.1, no other evidence is available.
19. While considering the doctor's medical prescription and other report it is shown, the respondent has attained puberty and menstruation cycle is regular. Sometimes it was irregular and sometimes induced by way of medicines. If really she has not attained puberty she will not be fit for marital life. If she is really not attained puberty she will not be treated by the doctors for begotting child. P.W.1 himself admitted that he has taken his wife to doctor since she has not begotten child. She was treated by Dr. Joseph and that report has been marked as Ex.P2. In that it is stated that Laproscopy was done on 22.10.83. More over since she was admitted in GG Hospital, treatment has been given in that report viz., Ex.R.15, it was stated menarche moderate and menses irregular. So it is clearly proved that since she has attained puberty and then only the doctors have given treatment in the fertility research centre for IVF test. So considering the same since she has attained puberty poly cystic ovary is not amount to impotency.
20. In the above said circumstances, I am of the view that the arguments advanced by the learned counsel for the petitioner that she is impotent and that she has not attained puberty but she has obtained consent concealing the fact does not hold good. Therefore, I am of the opinion that the so far declaration that marriage is null and void is not acceptable. In the above said circumstances, the plaintiff has miserably failed to prove that the respondent wife is not attained puberty before his marriage and obtained consent from this petitioner for marriage concealing the fact that she has not attained puberty. So, there is no fraud on the side of the respondent for obtaining consent for marriage. So the marriage is not vitiated as per the provisions of Sections 18 and 19 of Divorce Act. So, the Additional Issue No.1 is answered against this petitioner and in favour of this respondent.
21. Issue Nos.1 and 2 : The learned counsel for the petitioner would contend that even if the court comes to a conclusion that marriage is null and void, at this juncture, the petitioner is entitled for a decree of divorce on the ground of desertion and cruelty. He relied upon a decision reported in Ramish Francis Toppo v. Violet Francis Toppo, AIR 1989 Calcutta 128, in which it is held as follows:
"...But under S.45 of the Act the proceedings thereunder are regulated by the Civil P.C. Whereunder the Court is always entitled to grant a lesser or other relief if the materials on record justify such grant...."
The learned counsel also relied upon a decision reported in S.M.Ispahani and another v. Harrington House School by its Hon. Secretary, No.21, Dr.Thirumurthy Nagar Main Road, Nungambakkam, Madras-34, 2000(I) CTC 634 and submits that in the absence of proper pleading, the Court has a power to decree which would be warranted by facts established by records even if there is no pleading to that effect. In that decision, it is held as follows:
"12. In Madavan v. Kannammalam, 1989 (1) MLJ 136 : 1992 (2) LW 274 Srinivasan, J. as the Learned Judge then was has stated the principle as follows:
"The principle that it is not open to a plaintiff to abandon his own case and claim relief on the basis of the defendant's case can be invoked only in cases where the plaintiff having failed to prove the case with which he approached the court seeks to rely on the pleading of the defendant to secure a relief and not to cases where the plaintiff prays for relief on the basis of facts established by the record in the case though they are at variance with his pleading. .... It cannot be disputed that courts of law h ave the power to grant decrees which would be warranted by the facts of the case when such facts have been established by indisputable records even if they were not exactly pleaded by the parties."
22. It is well settled principle of law that the Court has empowered to grant lessor relief on the basis of pleading and evidence before the court to meet out the ends of justice to the parties to the litigation. But keeping it that in mind, while considering the evidence and pleading, the petitioner/plaintiff has filed a suit for dissolution of marriage on the ground of desertion and cruelty and alternatively for judicial separation. After P.W.1 was examined, he has amended the prayer for decree of nullity of marriage stating that the respondent is impotent, not attained puberty and she is not capable of begot child. Hence the marriage is void.
23. The learned counsel for the petitioner would focus mainly upon the argument that RW.1 wife is so far not conceived as she is having poly cystic ovary and she also underwent a surgery. At this juncture, the learned counsel appearing for the respondent would contend that the Medical Report filed by the petitioner has not been an admissible evidence, since the author of the document was not before the Court. He also relied upon the decision reported in Municipal Corporation of City of Ahmedabad, v. Gandhi Shantilal Girdharlal and another, AIR 1961 Gujarat 196 and Bommidala Poornaish v. The Union of India, AIR 1967 Andhra Pradesh 338.
24. It is true that if the Court wants to rely upon the opinion of the expert, the expert/author of the document to be examined. Because he would be subjected to cross-examination by the other side. Here he has not examined anyone of the doctors to prove the opinion. At this juncture, the learned counsel for the petitioner would contend that most of the documents are only a prescription and discharge report. To prove that, he has given proper treatment for his wife and given a treatment from 1981 to till she left the matrimonial home in 1995 due to his affection towards his wife. But she is not able to begot child as she is having follicies and the same was mentioned in the Medical Report as follows:
"In PCOS, these follicles remain immature, never growing to full development or ovulating to produce an egg capable of being fertilised. For the woman, this means that she rarely ovulates (releases an egg) and so is less fertile. In addition, she does not have regular periods and may go for many weeks without a period. Other features of the condition are excess weight and excess body hair."
It is true that she has not give birth to a child. So, the decision relied upon by the learned counsel for the petitioner in Jagannath Mudali v. Nirupama Behera, 2009(1) Civ.C.R.37 (Ori.) that a wife who is not fit to have sex or beget child would be a very just and reasonable ground on the part of a husband to refuse to live with wife on such ground, the marriage of the parties declared null and void. In that decision, it is held as follows:
"Marriage under the Hindu Law is not a pure religious ceremony. A wife who is not fit to have sex or beget child would be a very just and reasonable ground on the part of a husband to refuse to live with wife on such ground either under the Hindu Law, Mohammedan Law or as a matter of fact any other law. Here is the case where the appellant-husband is forced or compelled to live a life of celibacy while staying with the respondent-wife who is unable to have sexual relationship with him..."
But here after marriage she has taken treatment from Dr.Joseph and Dr.Kamala Selvaraj for having begot child. In such circumstances, the marriage has been consummated. Therefore, the decision relied upon by the learned counsel for the petitioner that she is not fit to have sex or begot child would be an unacceptable one. He also relied upon the decision reported in Geeta Devi Vs. Harish Kumar @ Purshottam and others, II (1996) DMC 551 in which it is held as follows:
"She also admitted that she did not mensurate till marriage. No treatment was done. She did not disclose this fact to her parents. She never tried to know as to why there was no mensuration. She admitted that she knew what was vagina, uterus. She, however, did not know what is cervix. The statements of other witnesses examined by either party cannot help in determining the fact as to whether the lady had female organs or not. Only the husband and lady can depose about it. The question as to who is to be believed can be determined with reference to the medical evidence on record. Before dealing with the medical evidence, I may mention that if it was a fact that the lady was subjected to sexual intercourse, as stated by her, she could have obtained a medical report in this regard and the Doctor would have given an opinion that she was used to sexual intercourse but no effort whatsoever was made on her behalf. There is nothing on record to show that she ever tried to obtain such an evidence. An adverse presumption can, therefore, be made against her."
In this case both the petitioner and the respondent are living together as husband and wife and she has taken treatment for begot child. Therefore, the above stand is not applicable.
25. Now the learned counsel mainly focussing upon his argument to the effect that the respondent was subjected to cruelty since she has not begot child and she has stolen a child from the G.G. Hospital stating that as if she given birth to a child and she created a document which is marked as Ex.P.1 as if Dr.Kamala Selvaraj has sent a letter to her in respect of her pregnancy. All these documents have concocted one. At this juncture, he relied upon two decisions reported in Kalaimani and another v. Chinnapaiyan @ Perumal Gounder, (2005) 1 MLJ 54 and T.P.Mani and another vs. Krishnan, 2007-3-L.W.196. In Kalaimani and another v. Chinnapaiyan @ Perumal Gounder, (2005) 1 MLJ 54, it is held as follows:
"In addition to the modes of proving the handwriting as provided by Sections 45 and 47 of the Indian Evidence Act, Sec.73 of the Act provides another mode by direct comparison of the disputed signatures or written or finger impression with one, which is admittedly genuine or proved to be so. Section 73 of the Indian Evidence Act enables the Court using its own eyes to compare the disputed signatures with the admitted signatures."
and in T.P.Mani and another vs. Krishnan, 2007-3-L.W.196, it is held as follows:
"The learned Trial Judge has correctly come to the conclusion that it is always open to the court by invoking the powers under Section 73 of the Indian Evidence Act, to compare the signature of the defendants in the disputed document dated 16.12.1997 and the admitted signature available in the court.
In such circumstances, it is premature for the petitioners who have filed the application for sending the documents for experts opinion. It is for the Trial Court at the time of trial, to compare the signature in the disputed document Ex.A.1 along with the admitted signatures of the defendants and come to a conclusion, as per Section 73."
As per Section 73 of the Indian Evidence Act, the Court has every power to compare the writing of signature. There is no quarrel over the proposition laid down and especially, this document Ex.P.1 will not help to the case of the petitioner.
26. The learned counsel would contend that the petitioner has stolen a female baby from the G.G. Hospital stating that as if she has given birth to a child and this fact has been denied by R.W.1. Per contra, R.W.1 in her evidence stated that since her husband wants to adopt a child and a lady staff working at G.G. Hospital is having a female child, wants to hand over the same to her and she brought the child to her home and after seeing the child, the petitioner refused to take the child in adoption since the child was dark and female. It is stated in her cross-examination as follows:
"... The petitioner used to tell we have to adopt a child. A lady who was working in the G.G.Hospital who had a female child asked me to take the child. After seeing the female child, the petitioner told the female child was black and he refused to take child and he told it is better if it was a male child...."
Therefore, she denied the averement made by the petitioner. So the story narrated by the petitioner that the respondent has stolen a female baby from the G.G. Hospital is unacceptable one.
27. The learned counsel for the respondent would contend that she has given a complaint against her husband/the petitioner herein and others. She has also made character assassination against him which defame his reputation before the society. Consequently, he lost reputation in the society and it amounts to cruelty. He also relied upon the decision reported in G.V.N.Kameswara Rao Vs. G.J.Billi, (2002) 2 Supreme Court Cases 296, it which it is held as follows:
""Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the social status, educational level of the parties, the society they move in the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
28. At this juncture, while perusing the evidence of P.W.1, it is seen that the petitioner has denied the suggestion that he attempted to evict the respondent and driven her away from the portion by engaging goondas on 7.7.2004. It is not correct to say that the respondent has given complaint to the police, but no action was taken in this regard. It is stated as follows in the evidence of P.W.1 :
"I deny the suggestion that I attempted to evict the respondent and drive her away from her portion by engaging goondas on 07.07.2004. It is not correct to state that the respondent had given complaint to police but no action was taken in this regard. I deny the suggestion that my maid had removed 12 sovereign chain and 10 silk saris from the portion of the respondent. I do not know whether the respondent had filed criminal O.P.No.25090 of 2004 and the direction was given by this Hon'ble Court to the concern police. I do not know whether police took action only after the respondent filed contempt petition."
At this juncture, it is pertinent to note that he is gone to the extent of saying that he is having three children through one Selin. He has deposed as follows:
"I have two daughters Sowmya, Ramya and one son by name Stalin Raja. All the three children are studying in Vellammal School. The above children were born through one maid by name Celen who was looking after all the house hold duties after respondent left the matrimonial house."
It shows that the petitioner is having illicit intimacy with one Selin. Hence he has driven out his wife from the matrimonial house.
29. At this juncture, it is appropriate on the part of the court to consider the evidence of R.W.1. R.W.1 in his evidence has made allegation of character assassination against this petitioner. In his cross-examination, she has stated that she has given a complaint against the petitioner stating that he had some illicit intimacy with one Mini, daughter of a teacher. In that complaint, she has also stated that the petitioner had illicit intimacy with one Dasammal and also having illicit intimacy with one Selin and he had such intimacy after sending her to her native place and he subsequently married her. That complaint has been marked as Ex.R.7. It is true that she has also filed a Criminal Original Petition Ex.R.8 seeking direction against the respondent to provide necessary protection for her peaceful living in the house. It is true that the cruelty includes mental as well as physical cruelty. It depends upon each and every person who met out in a matrimonial matter. The cruelty will be weighed on the facts and circumstances of each case.
30. Considering the situation that since the respondent was driven out from the matrimonial home and the petitioner is having illicit intimacy with one Selin and given birth of three children and when she returned back, she was driven out from the house where she was put up, she filed Criminal Original Petition seeking direction not to harass by the respondent. Considering the fact that merely giving a police complaint would not amount to mental cruelty, the respondent has driven out from the matrimonial home and since the petitioner had an illegal intimacy with a maid and given birth of three children and now he wants to recognize the status of that maid Selin, he has come forward with this divorce petition. In the above said circumstances, I am of the opinion that the arguments advanced by the learned counsel for the petitioner that the petitioner was subjected to mental cruelty is an unacceptable one and it is not a ground for divorce.
31. The learned counsel for the petitioner also relied upon a decision reported in Dr.Gopal Ramanathan vs. Jayashree, 2008-3-L.W.864 since the above said decision deals with difference of opinion between both the parties. But here as per the decision reported in Supreme Court merely because the marriage is irrefutable protection, had been the petitioner is not entitled for divorce. Because, the plaintiff/respondent has not begot child and as he had an illegal intimacy with one Selin and given birth to three children, he wanted to lead a happy successful life, he driven out his wife and now he is living with Selin and three children and sought for divorce. So, I am of the opinion that mere irrefutable protection arising out of marriage is not a reason for divorce as per the rulings of the Apex Court.
32. Another ground raised by the petitioner is that he is entitled for divorce on the ground of desertion. While considering the evidence of R.W.1, it is stated that she was driven out by the petitioner to her native place and then he is living with Selin and three children. When she returned back, he was not permitted by the petitioner to enter into the matrimonial home and she is living in a separate house owned by the petitioner herein and he is taking steps to drive her out. While dissolution is defined in Section 10, but there must be an animus on the part of the person deserting house to dissolve the marriage. Section 10 is extracted here under :
"10. Grounds for dissolution of marriage : (1) Any marriage solemnized whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent :
i.has committed adultery; or ii.has ceased to be Christian by conversion to another religion; or iii.has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or iv.has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or v.has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or vi.has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or vii.has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or viii.has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after passing of the decree against the respondent, or ix.has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or x.has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
2. A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality."
Here there is no evidence before this Court to show that the respondent has deserted the petitioner with an animus to dissolve the marriage, severe the marital tie, she left the matrimonial home and residing out of the matrimonial home. Per contra, the petitioner has himself driven out his wife from the matrimonial home and not permitted after she returned from her native place. She has not permitted to enter the matrimonial home and he sought for divorce on the ground of desertion. The wrong doer cannot seek remedy for his own wrong.
33. In the original petition, he sought for the following reliefs:
a. For dissolution of the marriage between the petitioner and the respondent on the grounds of desertion and cruelty or in the alternative for judicial separation on the ground of desertion coupled with cruelty :
b. For cost of suit and c. For such or other orders as this Hon'ble Court may deem fit and proper under the circumstances of the case.
After amendment, the 1st relief was amended as follows:
*a. Declare the marriage solemnized on 22.1.1981 at Roman Catholic Church Thalayavattai, Kanniyakumari District as null and void on the ground the same is vitiated by fraud* or in the alternative for judicial separation on the grounds of desertion coupled with cruelty;
The relief sought for by the petitioner originally as to whether he is entitled for dissolution of marriage on the ground of desertion and cruelty has been amended by the petitioner to declare the marriage as null and void and alternative relief of judicial separation. So I am of the opinion that the petitioner is not entitled for judicial separation on the ground of desertion also.
34. Even though the petitioner/plaintiff has filed an application for dissolution of marriage on the ground of desertion and cruelty, after amendment he has not prayed for dissolution of marriage on the ground of desertion and cruelty. In the above said circumstances, he is not entitled for the relief of divorce on the ground of desertion and cruelty. The Additional Issue Nos.1 and 2 are answered accordingly.
35. It is pertinent to note that both the petitioner and the respondent have brought to my knowledge that an application in A.No.5047 of 2008 is pending for awarding maintenance during the pendency of the suit. It is true that the respondent wife is residing at the house belonging to the petitioner/husband. He is doing real estate business and as per his evidence, he is owning four residential portions and three shops in his house at Srinivasa Nagar at Padi and there is a small house plot in the same Srinivasa Nagar. He also owned 38 cents of land in Thiruninravoor and Door No.18, Srinivasa Nagar is also belonging to him. In such circumstances, it is the case of the respondent that he is doing Real Estate Business after he has got voluntary retirement from the Madras Motor Company near Tiruvallur. So, considering the financial status of the respondent, since the respondent wife is residing in the petitioner's house, she is entitled for maintenance only for food, cloth and medical expenses. As per law, she is entitled to reside in her husband' property/petitioner's property and even to-day, she is residing in the house of the petitioner. So, she is entitled for residence till her life time in the property of the petitioner. Apart from that, considering the financial status of the petitioner, the respondent is entitled for Rs.5,000/- per month towards maintenance from the petitioner from the date of the petition.
36. In fine, the suit is dismissed and the respondent-wife is entitled for maintenance of Rs.5,000/- per month from the petitioner from the date of the petition. She is also entitled for the right of residence in the petitioner's property till her life time. No cost.
kua/tsi