Kerala High Court
Thomas Cherian Alias Saji vs Nisha Thomas on 25 June, 1992
Equivalent citations: AIR1993KER19, AIR 1993 KERALA 19, 1992 (3) CURCC 55, 1992 (2) KER LJ 113, 1992 (11) SPJ 612, (1992) 2 KER LT 113, ILR(KER) 1992 (2) KER 745, (1992) 2 HINDULR 255, (1992) 2 KER LJ 100, (1997) 2 MARRILJ 217, (1992) MATLR 423, (1992) 2 DMC 366
Author: M. Jagannadha Rao
Bench: M. Jagannadha Rao
JUDGMENT Jagannadha Rao, C.J.
1. This is a reference under Section 20 of the Indian Divorce Act. The petition was filed by one Thomas Cherian alias Saji, who is the husband of the respondent, Mrs. Nisha Thomas. At the time when the petition was filed in the District Court by the husband on 25-9-1989 he was living at Kaloor in Cochin, while the respondent, his wife, was living in Switzerland.
2. The petitioner and the respondent were married on 10-9-1987 in India. Subsequently, they went to Kumarakom near Kottayam where it is said that the respondent persistently resisted sexual relationship. It is further alleged that even thereafter the respondent did not permit sexual intercourse. It is stated that the respondent used to speak very fervently of her love to Mr. Ottino, whom she told was her intimate friend. Subsequently, the respondent left for Switzerland on 20-9-1987 leaving the petitioner at Kaloor. It is the case of the petitioner that when she left for Switzerland, she promised that she would secure a job for the petitioner. As nothing happened thereafter, the petitioner himself went to Switzerland on 1-2-1988 and stayed there with the respondent for 21 days. It is stated that even there the respondent was sleeping in a separate bedroom, and did not permit any sexual advances. The petitioner then slated various acts of the respondent which made the petitioner to believe that she was impotent. The petitioner returned to India on 24-2-1988, and thereafter filed the present petition.
3. In the District Court, notice was issued to the respondent-wife. The respondent entered appearance through counsel, but did not file any objection. She remained ex parte on 15-6-1990. Thereafter the petitioner adduced evidence as PW I, and there was no evidence for the respondent. The learned District Judge came to the conclusion that the petitioner had made out a case that the respondent was impotent. A decree for nullity was passed on 22-6-1990 under Section 19 of the Act, subject to confirmation by this Court under Section 20. After the reference was made to this Court, as stated above, notice was issued to the respondent, and to the petitioner. The petitioner is appearing through Shri T. J. Thomas, Advocate and the respondent through Shri K. P. Sreekumar, Advocate.
4. When the matter thus came up for confirmation, learned counsel for the respondent placed before us a certified copy of a decree passed in O. P. No. 5870 of 1989 by a learned single Judge of this Court on 13-7-1990 in which at the instance of the respondent (who was the petitioner in the O.P.) a decree of nullity was passed against the petitioner. In that O. P. notice was issued to the petitioner-husband. The judgment of this Court in the above said O. P. shows that in spite of several opportunities, the petitioner did not come forward to tender evidence. Though the petitioner was represented by counsel, the petitioner and his counsel were absent on 28-6-1990, when the O. P. came up before the learned single Judge. The matter was adjourned to 13-7-1990, and even on that day, the petitioner and his counsel were absent. He remained ex parte in the High Court because, by that date, the District Court had passed a decree of nullity in his favour though subject to confirmation. The learned single Judge then stated that having regard to the evidence given before him by the respondent (petitioner in the said O. P.) he was satisfied that the husband (respondent in the said O. P.) was impotent. He therefore granted a decree for nullity on 13-7-1990. Claim for compensation was however dismissed.
5. It is contended for the respondent-wife before us by her learned counsel that inasmuch as the High Court in exercise of its jurisdiction under the Indian Divorce Act has already passed a decree for nullity in O. P. No. 5870 of 1989 dated 13-7-1990, on the ground that the petitioner-husband was impotent, this Court cannot proceed with this reference made by the District Court in the O.P. filed by the husband. It is argued that inasmuch as there is already a declaration of nullity by the High Court in the application filed by the wife, there is no question of the District Court's decree dated 22-6-1990, even if it was anterior to 13-7-1990, being confirmed at this juncture.
6. We have considered the question as the procedure to be followed in such a situation carefully. We found that a more or less similar situation arose in a case decided by the Punjab High Court in P. Dass v. Mrs. Nischinta Das, AIR 1954 Punj 93. That was a case which arose under the Divorce Act, and related to dissolution of marriage under Section 17 of the Act. In that case a decree for dissolution of marriage was passed by the District Judge at Delhi on an application filed by the husband on 16-6-1950, subject to confirmation by the High Court under Section 17 of the Divorce Act. When the matter came up before the High Court, it was brought to their Lordships' notice that the Bombay High Court in a suit for divorce filed by the wife had passed a decree on 12-12-1949 in favour of the wife dissolving the marriage, and that the appeal filed before the Division Bench against the said order was also dismissed. It was further shown that subsequently the said decree was made absolute. The Full Bench of the Punjab High Court observed as follows (at page 94):
"After the Letters Patent Appeal of Lt. Col. Dass was dismissed the decree was made absolute by Tendulkar, J. on the 18th April, 1952. The decree in Bombay having been made absolute, there is no subsisting marriage between the parties to the proceedings before us which have therefore become infructuous. We would therefore not confirm the decree and dismiss the petition.
In the result, there will be no decree for dissolution passed by the Delhi Court as those proceedings have become infrucutous and the petition is dismissed, but the parties will bear their own costs."
We are of the view that the above said judgment of the Punjab High Court is very close in point to the present case, except for the difference that, that case related to dissolution whereas the case before us relates to nullity of marriage. Therefore, once the High Court has granted a decree of nullity on 13-7-1990 in O. P. No. 5870 of 1989, there is no question of the marriage being again declared a nullity by confirming the decree passed by the learned District Judge in the application filed by the husband. It is true that the decree passed by the learned District Judge in the petition filed by the husband was on 22-6-1990, and was prior to the decision of the High Court in the application filed by the wife. But the decree passed by the District Court was subject to confirmation by this Court. In the meantime, the wife had obtained a decree for nullity, after issuing notice to the petitioner, and the petitioner had remained ex parte in those proceedings. We are therefore, of the view that there is no marriage which requires to be declared nullity in the reference before us, inasmuch as such a declaration has already been granted in the wife's case. There need not be a further declaration in this reference. We therefore declare this reference application as having become infructuous. The O. P. filed by the husband is accordingly dismissed.