Karnataka High Court
Mr Edwin Sudhakar S/O Late James Abraham vs Smt Asha Latha W/O Edwin Sudhakar on 27 January, 2014
Bench: K.L.Manjunath, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 27TH DAY OF JANUARY, 2014
PRESENT
THE HON'BLE MR JUSTICE K L MANJUNATH
AND
THE HON'BLE MR JUSTICE RAVI MALIMATH
Miscellaneous First Appeal No. 5566 of 2011 (IDA-DB)
BETWEEN:
MR EDWIN SUDHAKAR
S/O LATE JAMES ABRAHAM
AGED ABOUT 43 YEARS,
R/AT OIL MILL ROAD,
TUMKUR - 571 202 ... APPELLANT
[By Sri D R Anandeeswara, Adv.]
AND:
SMT ASHA LATHA
W/O EDWIN SUDHAKAR
D/O LATE L VARADARAJ,
AGED ABOUT 46 YEARS,
R/AT CHRISTIAN STREET,
TUMKUR - 571 202 ... RESPONDENT
[By Sri K R Ramesh, Adv.]
THIS APPEAL IS FILED UNDER SECTION 55 OF THE DIVORCE
ACT, AGAINST THE JUDGMENT AND DECREE DATED 18.04.2011
PASSED IN M.C. NO. 5/2009 ON THE FILE OF II ADDITIONAL
DISTRICT & SESSIONS JUDGE, TUMKUR, DISMISSING THE
PETITION FILED U/S 10 OF THE INDIAN DIVORCE ACT FOR
DISSOLUTION OF MARRIAGE AND ETC.,
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THIS APPEAL COMING ON FOR HEARING, THIS DAY,
MANJUNATH, J., DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the dismissal of the petition filed by the appellant under Section 10 of Indian Divorce Act, 1869, for dissolution of the marriage solemnized between the appellant and the respondent on 18-5-2001, in terms of order dated 18-4-2011, passed by the II Additional District & Sessions Judge, Tumkur in MC No 5 of 2009, the present appeal is filed.
2. Before hearing the appeal, an attempt was made by this court to settle the dispute amicably between the parties. As the attempt made by this court has ended in vain, we have heard this appeal on merits.
3. Facts of the case are that: The parties are Christians and their marriage was solemnized under the Special Marriages Act, 1954, registered before the sub-registrar, Tumkur on 18-5-2001. The husband is working as library assistant and the wife is working as office assistant at 3 Bishop Sargent school, B H Road, Tumkur. The respondent was insisting the appellant to marry him and the appellant was not willing to marry her. By force and under threat of town police, Tumkur, the marriage was solemnized. The marriage has not been consummated. Both parties lived together only for a week. The marriage was not consummated on account of the non-cooperation of the respondent. Later the husband left the home and residing separately. The request of the appellant to get her back has ended in vain. In addition to that, she used to abuse him in foul language in streets and before the general public. She used to tease him in the school where both are working, in the presence of colleagues and teachers. Therefore, he filed the petition for divorce.
4. Before filing the present petition, the husband had filed a petition under Section 27 of the Special Marriages Act, 1954 in MC No 35 of 2013. After service of summons in the said case, the respondent-wife contested the case. Since there was chance of reunion, he withdraw the 4 petition, and later the present petition was filed. It was contended in MC No 35 of 2003 by the respondent that the appellant herein is an impotent and he has to undergo a medical test to prove that he is capable of performing his marital obligations. Therefore, the husband filed the petition for grant of a decree of divorce.
5. The respondent wife contested the matter. She admitted her relationship with the appellant. She denied the allegation made by the appellant that the marriage was not consummated on account of her non-cooperation. She also denied that she has abused her husband in open street, before the general public and their colleagues. She admits that MC No 35 of 2003 was contested by her. She also contended that the appellant is an impotent.
6. The trial court, after hearing the parties, dismissed the petition, on the ground that the appellant has failed to prove the ground of cruelty. Therefore, the present appeal.
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7. The main contention of the appellant is that the respondent has filed an application under Order XXVI Rule 10(A) CPC for appointment of a medical expert to test the potency of the appellant and therefore the trial court was required to grant a decree of divorce, since the marriage is not consummated, even if it is held that the marriage is not consummated on account of the impotency of the appellant. Therefore, he requests the court to allow the appeal.
8. Learned counsel for the respondent-wife submits that even now the respondent is willing to join the appellant and requests the court to dismiss the appeal.
9. Having heard the counsel for both parties, the only point that is to be considered by us is as to whether the appellant is entitled for a decree of divorce?
10. Without going into the rival contentions, we are of the view that though the marriage is solemnized between the 6 parties on 18-5-2001 and they have not lived together as husband and wife. It is admitted by both parties that the marriage is not consummated. The appellants contends that the marriage was not consummated on account of the conduct of the respondent and the respondent contends it is because of the impotency of the appellant-husband. The respondent-wife had also filed an application seeking appointment of an expert in the medical field to test the potency of the husband. When the respondent contends that the appellant is impotent, her contention that she is still willing to live with the appellant cannot be believed. She is now aged 50 years and the appellant is three years younger than the wife. When they are unable to live together as husband and wife for more than 13 years and when the marriage is not consummated, at this length of time, if the case for divorce is not considered, it would amount to harassment to both parties. Considering that the marriage is not consummated, either on account of the impotency of the appellant or on account of the non- 7 cooperation of the respondent, and that the marriage is irretrievably broken, we are of the view that ends of justice would be met if the marriage is dissolved.
11. Appellant and the respondent are drawing equal salary and both are working in the same institution. In view of the same, the respondent-wife is also not entitled for any permanent alimony.
12. In the result, this appeal is allowed and the order passed by II Additional District & Sessions Judge, Tumkur dated 18-4-2011 in MC No 5 of 2009 is hereby set aside. The petition filed by the appellant is allowed and the marriage between the parties solemnized on 18-5-2001 is hereby dissolved.
Sd/-
JUDGE Sd/-
JUDGE *pjk