Kerala High Court
Abdul Sukkur.K.M vs K.P.Raashida on 6 July, 2013
Author: A.M.Shaffique
Bench: A.M.Shaffique, K.Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
TUESDAY, THE 14TH DAY OF MARCH 2017/23RD PHALGUNA, 1938
Mat.Appeal.No. 644 of 2013 ()
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AGAINST THE ORDER/JUDGMENT IN OP 896/2011 of FAMILY COURT, KANNUR
DATED 06-07-2013
APPELLANT/RESPONDENT:
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ABDUL SUKKUR.K.M.,
S/O. MOOSA HAJI,
AGED 36 YEARS, KALANGOT HOUSE, CHALA,
P.O. THOTTADA, KANNUR - 670 007.
BY ADVS.SRI.M.RAMESH CHANDER (SR.)
SRI.ANEESH JOSEPH
SMT.DENNIS VARGHESE
RESPONDENT:
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K.P.RAASHIDA, D/O.IBRAHIM MUSALIYAR,
AGED 30 YEARS, RABIA MANZIL, KOYYOD P.O.
CHELORA AMSOM, KANNUR TALUK - 670 621.
R-1 BY ADV. SRI.K.R.AVINASH (KUNNATH)
R1 BY ADV. SRI.ABDUL RAOOF PALLIPATH
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 14-
03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.M.SHAFFIQUE, J
&
K.RAMAKRISHNAN, J
* * * * * * * * * * * * * *
Mat.Appeal No.644 of 2013
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Dated this the 14th day of March 2017
J U D G M E N T
Shaffique, J This appeal has been filed by the respondent in O.P.No.896/2011 challenging the judgment dated 06/07/2013 by which a petition filed by the wife for dissolution of Muslim Marriages Act has been allowed on the ground of impotency.
2. The short facts involved in the original petition would disclose that the marriage between the appellant and the respondent took place on 27/02/2011 as per Islamic rites.
3. The main allegation raised by the respondent was that the petitioner was impotent and the marriage was not consummated. It is also contended that he had committed cruelty and therefore the marriage is required to be dissolved. The appellant denied the aforesaid allegations and stated that they have lived together for four months whereas the respondent was not interested in living with him. According to the appellant, the respondent's version was that she got married only at the Mat.Appeal No.644/2013 2 insistence of her father. Evidence was adduced before the Family Court and the respondent was examined as PW1. Documents were marked as Exts.A1 and A2. Appellant was examined as RW1. The Family Court found that the contentions regarding impotency was proved. The Family Court, relied upon the evidence of PW1, who stated that the couple had gone to Dhanalaxmi hospital and had consulted a Doctor, Dr.Jubiriath, a Gynecologist. The Doctor had subjected the respondent to potency test and found that she is having capacity for sexual relationship. The appellant was also directed to undergo such tests. During the pendency of the original petition, an application was filed by the respondent in order to have the appellant medically examined to find out whether he was impotent or not. But the appellant did not undergo the said test. Accordingly, an adverse inference was drawn by the Court below and it was found that the appellant was impotent and divorce was granted in terms of Section 2(v) of the Dissolution of Muslim Marriages Act. In regard to cruelty also, the Family Court, on the basis of the evidence given by PW1, observed that there is no consummation of marriage and the appellant was incapable of having sexual Mat.Appeal No.644/2013 3 relationship at the time of marriage and concealment of such fact amounts to cruelty which was also found in favour of the respondent. Accordingly, the original petition was allowed.
4. Learned counsel for the appellant contended that there was no material to indicate that the appellant was impotent and the evidence adduced in the case does not indicate that any cruelty had been meted out against the respondent by the appellant.
5. On the other hand, learned counsel for the respondent submits that the fact that the appellant did not undergo potency test, by itself, indicates that he is suffering from impotency and therefore the Family Court was justified in granting a divorce on that ground. He also supported the view taken by the Family Court as far as cruelty is concerned. Learned counsel for the appellant further relied upon the evidence of PW1 to indicate that she, in her evidence, had admitted the fact that the appellant had married earlier and he had a child, which itself would show that he was not impotent. Learned counsel for the respondent, however, placed reliance upon the evidence of PW1 who admitted the fact that he was examined by Dr.Damodaran for potency test, Mat.Appeal No.644/2013 4 but no documents had been produced.
6. Having heard the learned counsel on either side and having perused the records, we are of the view that when a case of impotency is alleged, it is for the respondent to prove the said fact. In this case, in order to prove the said fact, the respondent had taken steps before the Court to medically examine the appellant through a medical board. But, it is also on record that the appellant did not participate in the said proceedings. He did not give his blood sample to the Medical Board nor did he appear before the Court for proper examination. This, by itself, would create an impression that he was avoiding medical examination, by which, an adverse inference can as well be drawn by the Court. Further, as rightly pointed out by the learned counsel for the respondent, even according to RW1, he was tested for potency by one Dr.Damodaran. If so, its result ought to have been produced before the Court in order to substantiate his contentions.
7. Viewed in the aforesaid angle, it is rather clear that the respondent had proved the allegation made by her as far as impotency is concerned. Further, as rightly pointed out by the Family Court, the fact that he was impotent was not brought to Mat.Appeal No.644/2013 5 the notice of the respondent at the time of marriage and not co- operating for consummation of marriage clearly amounts to an instance of cruelty which is also found against the appellant. We do not find any reason to interfere with the said findings.
Since no ground made out to interfere with the judgment by exercising appellate jurisdiction, the Mat.Appeal is dismissed.
(sd/-) (A.M.SHAFFIQUE, JUDGE) (Sd/-) (K.RAMAKRISHNAN, JUDGE) jsr