Madras High Court
Maria Alias Omini vs K. Ignatius Alias Ronnie on 30 April, 1999
Equivalent citations: AIR 2000 MADRAS 202, (2000) 2 MARRILJ 583 (2000) MATLR 393, (2000) MATLR 393
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu
JUDGMENT R. Jayasimha Babu, J.
1. This appeal by the wife is directed against the judgement of the learned single Judge of this Court who dismissed her application for annulment of her marriage.
2. In the petition, it had been alleged that she and the respondent were married on 18-8-96 as per Roman Catholic rites at Loyola Church in Nungambakkam and that Immediately after the marriage she was taken to the respondent's house, wherein she lived with the respondent. The respondent instead of acting like any normal husband had avoided having coitus with the petitioner, which gave rise the suspicion in the petitioner's mind regarding such very unusual behaviour on the part of the respondent. The petitioner has alleged that the respondent went to the extent of informing the petitioner that sex is not an immediate attraction, and avoided having intercourse with the petitioner. Such behaviour on the part of the petitioner continued for months together, and the marriage remained unconsummated despite the entereaties of the petitioner. The respondent did not engage in intercourse even though the petitioner lived with him for ten months. It was, therefore, alleged by her that the respondent suffered from serious sexual disability and had failed to fulfil a fundamental obligation of matrimony. It was alleged by her in paragraph 4 of the petition that the fundamental obligation of the respondent as the husband of the petitioner could not be fulfilled because of his disability of not being able to consummate the marriage by carnal copulation.
3. It has also been alleged by the petitioner that having become completely frustrated, she had to leave the matrimonial home and go back to her parents place after which she caused a legal notice to be issued. In response to that notice the respondent denied the allegations made against him, but he stated that he was not interested in living with the petitioner and that he needed some time to return the money which he had taken from the petitioner's parents at the time of the marriage. The personal effects of the petitioner were also returned after that exchange of notices.
4. The respondent/husband in his written statement did not deny the fact that the marriage had remained without being consummated, even though the parties had lived together as husband and wife for ten months under the same roof, and there was no impediment to the marriage being consummated while they so lived together. The fad that they were married in the Church was not disputed. In paragraph 4 of the written statement it was stated by the respondent that he had undergone medical examination which would show that the petitioner's allegations are not true.
5. After the written statement was filed the petitioner took out an application to direct the respondent to submit himself before a medical board for ascertaining as to whether the respondent is impotent or not and submit a report to the Court. In the counter affidavit filed by the respondent-husband to that application it was stated by him that he would rely on the medical report referred to in his written statement at the time of trial.
6. When the matter proceeded to trial, the wife examined herself and spoke to all the averments made in her petition. She also stated that she was prepared to present herself for medical examination to prove that she was perfectly alright and that she was not in any way preventing the consummation of the marriage. She was cross-examined by the counsel for the plaintiff. She denied the suggestion that she was responsible for the marriage not being consummated.
7. After the plaintiff had examined herself and when the turn came for the respondent to adduce evidence, the respondent chose not to adduce any evidence. He did not come to Court to give evidence in support of his statements in the written statement and denied to the petitioner the opportunity to cross-examine him. The medical certificate, to which he had referred to in the written statement, was never produced before the Court. He did not submit himself to medical examination, and did not call upon the petitioner to submit herself to medical examination.
8. The reasonable inference, having regard to this conduct of the respondent in the background of the pleading in the case and the evidence given by the wife is that the respondent was incapable of consummating the marriage, and that debility continued even when the matter was taken up for trial. Any man, who has no doubt about his potency, would not decline to submit himself to medical examination to establish that fact. Though the respondent had claimed that he bad been medically examined and he had a report, no such report was placed before the Court. He also unwilling to submit himself to medical examination. The wife offered to have himself medically examined. The respondent did not call upon her to undergo such examination. That would go to show that his allegation that she was responsible for the marriage not being consummated, was incorrect.
9. The learned trial Judge, has misdirected himself completely in holding that there was no allegation of impotency in the petition. As already noticed by us, paragraph 4 of the petition categorically and in the most unambiguous terms sets out the averments to the effect that it is because of the debility of the respondent the marriage had not been consummated. The serious sexual debility of the respondent has also been referred to in paragraph 3 of the petition. The learned trial judge also misdirected himself in not adverting to the conduct of the respondent in not producing the medical certificate, of which, he claimed to be in possession and his unwillingness to submit himself to medical examination and further his failure to adduce any evidence and in not examining himself thereby denying to the petitioner the opportunity to cross-examine him. The only reasonable inference from the facts proved in the case and the conduct of the parties is that the husband was incapable of consummating the marriage.
10. The learned trial judge also fell into error in holding that there was any collusion between the parties. The husband had contested the matter and had filed written statement denying the allegations. He contested the application by which his examination by a medical board was sought. The wile when she gave evidence in support of her petition was cross-examined by the counsel for the respondent. All these certainly do not indicate any collusion.
11. Section 12 of the Indian Divorce Act casts an obligation on the Court to satisfy itself so far as it reasonably can, in proceedings for the dissolution of the marriage, not only as to the facts alleged, but also whether or not the petitioner had been in any manner accessory to or conniving at the going through of the said form of marriage or the adultery, or has condoned the same, and shall also enquire into any counter charge which may be made against the petitioner. Section 13 of the Act provides that in case of a petition for dissolution, if the Court is satisfied inter alia that the petition is presented, or prosecuted in collusion with the other respondents then the Court shall dismiss the petition. Sections 12 and 13 of the Act are attracted only to proceedings under Section 10 of the Act, which deals with dissolution of marriage.
12. Section 10 of the Act further deals with the right of the husband to seek dissolution on the ground that the wife has since solemnisation of the marriage, been guilty of adultery. The grounds on which the wife may seek dissolution as set out in Section 10 of the Act are, that the husband has been guilty or incestuous adultery or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or of adultery with desertion, without reasonable excuse, for two years or upwards. The petition filed by the petitioner, appellant in this appeal was not one under Section 10 of the Act, but was a petition filed under Section 18 and 19 of the Act. Section 18 of the Act entitles any husband or wife to present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void. The grounds on which such a decree for nullity can be made are set out in Section 19 of the Act. Of the four grounds enumerated therein, the first is the ground that the respondent was impotent at the time of the marriage and at the time of the institution of the suit. The other grounds are that the parties are within the prohibited degrees of consanguinity, that either party was a lunatic or idiot at the time of the marriage or 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.
13. It is thus seen that the grounds for dissolution set out in Section 10 of the Act, are altogether different from the grounds of which a decree of nullity of marriage can be sought Under Section 18 of the Act. The prohibition against collusive proceedings set out in Section 13 of the Act and the duty of the Court to satisfy itself of the absence of collusion regarding the form of marriage, or the adultery or condonation thereof, referred to in Section 12 of the Act is not attracted to a proceeding for declaring the marriage as null and void under Section 18 of the Act. The learned trial Judge has failed to notice the distinction between the two proceedings and has misled himself in holding that the relief could be denied to the petitioner on the ground of collusion. That findings of the learned Trial Judge, as we have already observed is not a sustainable finding, as there has been in fact to collusion.
14. Collusion defined in the shorter Oxford English Dictionary as "Secret agreement or understanding for purpose of trickery or fraud -- underhand scheming or working with another deceit, fraud, trickery." A shared desire for divorce, or the readiness of one of the spouses to consent to the grant of the divorce desired by the other spouse does not necessarily result in collusion. It is only in cases where the parties resort to underhand scheming or trickery to achieve the commonly desired goal can it be said that there is collusion. When the facts necessary for claiming the relief have been shown to genuinely exist, the conduct of other party in acknowldeging the existence of those facts docs not result in collusion. Relief cannot be denied when the facts entitling the petitioner to relief have been shown to the Court to genuinely exist. The real does not become unreal because the other party to the marriage honourably acknowledge the reality. Collusion occurs when what is not true is sought to be pleaded as true by the spouses with intent to mislead the Court into granting a relief to which the parties would not be entitled if the true facts had been revealed to the Court. Even assuming that respondent herein was also desirous of the marriage being declared null and void that desire, having regard to the facts proved in this case, does not show collusion. Consent by itself does not amount to collusion.
15. We, therefore, allow the appeal set aside the judgment and decree of the learned trial judge and declare the marriage that was solemnised between the petitioner and the respondent on 18-8-1996 as null and void. Parties to bear their respective costs.