P.L.Shaju vs Anitha on 9 October, 2007

[Cites 16, Cited by 0]

Kerala High Court

P.L.Shaju vs Anitha on 9 October, 2007

The appellant is the petitioner in O.P.No.529 of 2003 on the files of the Family Court, Thrissur. He is the husband of the respondent herein. The above O.P. was filed under Sec.10(vii) and (x) of the Divorce Act, 1869 on the ground that the respondent has wilfully refused to consummate the marriage and the marriage has, therefore, not been consummated and the non-consummation of the marriage amounted to an act of cruelty to him also. Both parties are Roman Catholic in Christian Religion. Their marriage was solemnized on 19/1/2000 in accordance with the religious customary rites and ceremonies. At the time of marriage, the appellant was working in a construction company in Mat. Appeal No. 108 of 2008 -: 2 :- Sharjah. 28 days after the marriage, he returned to Sharjah for joining duty. Thereafter, he came back to India on leave on 11/4/2001 and returned to Sharjah on 1/7/2001. Again, he came on leave to India on 11/9/2002 and returned to Sharjah on 20/10/2002. Then, he again, came on leave to India on 9/4/2003 and this petition was filed on 11/6/2003. Though three years have been elapsed since the solemnization of the marriage and he came on leave twice and cohabited as husband and wife for a substantial period, the respondent had been wilfully refusing to consummate the marriage and thereby the consummation of the marriage between the appellant and the respondent did not take place. In order to avoid sexual relationship, the respondent adopted several techniques. The respondent used to make a cough that too in a peculiar way so as to make the appellant believe that she is unwell. Though he was ready to take her for treatment, the father of the respondent responded that she had been undergoing treatment of Dr. C.M. Peter of Chalakudy I.V.G.M. Hospital for the same. Though the appellant made several attempts to have a sexual intercourse with the respondent, she did not co-operate with the appellant and she didn't allow the appellant even to touch her private parts. She used to wriggle out of the clutches of the appellant when he was desirous of having sexual intercourse. In Mat. Appeal No. 108 of 2008 -: 3 :- order to avoid unpleasant situation, the appellant did not have sexual intercourse by force. The moods, behaviour and the act of the respondent very often were like that of a child or like a person having slight mental aberration. In an attempt to bring the respondent to the normal path of marital life, the appellant, when he was in Sharjah, used to write letters to the respondent cajoling and praising her. Though the Eparchial Tribunal, Irinjalakuda, on his application declared the marriage between the appellant and the respondent as null and void. The respondent was not prepared to a divorce under the Divorce Act by mutual consent. Since the refusal to consummate the marriage amounted to cruelty, he is entitled to get divorce on that ground also.

2. The respondent filed a counter statement denying all the allegations of wilful non-consummation and cruelty alleged to have been meted out by her to the appellant. According to her, the allegation that she refused to consummate the marriage and thereby the marriage has not been consummated are incorrect. She complained that the appellant had been suffering from imminent ejaculation and thereby effective intercourse has not been taken place. The intercourse was not successful and she felt that the appellant had been suffering from psychological problem. Both of them were underwent medical Mat. Appeal No. 108 of 2008 -: 4 :- examination by Psychiatrist Sri. Arun Kishore and he reported that the appellant is capable to have sexual intercourse; but he is suffering from some psychological problem only. He further denied the allegation that she always pretended illness so as to avoid sexual intercourse. After one year, when the appellant consulted with Dr. P.G. Antony, he advised him to take some medicine so as to have a perfect and successful intercourse. She was always willing and ready to have a sexual intercourse as and when he found desirous of the same. Further, she denied the allegation that she was suffering from some kind of mental disorder which reflected in her day-to-day routine life and behaviour. When they were examined by the doctors under the instruction of Eparchial Tribunal, they also reported that both of them are physically capable to unite together. When the respondent was examined by Dr. Sreelatha in October 2002, she also reported that the respondent is a normal woman capable enough to have sexual intercourse.

3. The Original Petition was tried jointly along with another O.P. No.829/2003 filed by the respondent for return on gold ornaments and money from the appellant and the evidence was adduced jointly.

4. In evidence, the appellant was examined as P.W.1 and another witness was examined as P.W.2. Exts.A1 to A13 were Mat. Appeal No. 108 of 2008 -: 5 :- also marked for him. The respondent was examined as R.W.1 and another two witnesses were examined as R.Ws.2 and 3. Exts.B1 to B6 were marked for the respondent. Ext.C1 Commission Report was marked as Court Exhibit. After considering the aforesaid evidence on record, the court below dismissed the petition by a common judgment on a finding that the marriage had been consummated. The judgment and decree passed by the court below dismissing the above Original Petition is under challenge in this appeal on various grounds.

5. We have heard Sri. Dilip J. Akkara, the learned counsel for the appellant and Sri. M.S. Narayanan, the learned counsel or the respondent.

6. The learned counsel for the appellant advanced arguments challenging the findings whereby the court below dismissed the Original Petition. He fervently attacked the finding that the marriage had been consummated. According to him, the said finding is contrary to the admissions in the pleadings of the respondent. The respondent, in her pleadings, made a complaint admitting imminent ejaculation of the appellant during the course of intercourse. That admission would amount to an approval of the appellant's case that the marriage has not been consummated so far. But the learned Family Court Judge failed to appreciate the said admission well Mat. Appeal No. 108 of 2008 -: 6 :- inferable from the pleadings in its correct perspective. The learned counsel further drew our attention to Exts.A3 and A4 medical reports and contends that the said reports obviously proved that the appellant is a physically and sexually quite normal man having capacity to have sexual intercourse. So, if consummation has not been taken place, the only inescapable conclusion is that the respondent has wilfully refused to consummate the marriage and thereby the marriage has not been consummated. It is also contended that the willful non- consummation of marriage amounts to cruelty to the other spouse. At last, the learned counsel contended that the marriage had been irretrievably broken and on that ground also the appellant is entitled to get divorce.

7. Per contra, the learned counsel for the respondent advanced arguments to justify the findings of the court below whereby the Original Petition was dismissed. The learned counsel drew our attention to the respondent's pleadings and contended that in the written statement she has emphatically denied the non-consummation due to his wilful refusal alleged by the appellant. It is true that she made an allegation of imminent ejaculation against the appellant. But the non- consummation alleged by the appellant and imminent ejaculation alleged by the respondent are entirely different and Mat. Appeal No. 108 of 2008 -: 7 :- distinct. The non-consummation cannot be presumed or inferred from the respondent's allegation of imminent ejaculation in view of her oral evidence. He further invited our attention to her oral evidence during the course of cross- examination and pointed out that she unequivocally deposed that the effective and successful intercourse had been effected thrice and emphatically denied the question suggesting that effective intercourse had never been taken place during the period of cohabitation. He pointed out that if the marriage had been consummated once, thereafter the ground for divorce under Sec.10(vii) of the Divorce Act cannot be made available for claiming divorce. Therefore, it was incumbent upon the appellant to prove that they have never been indulged in sexual intercourse whether it is successful or unsuccessful or whether it is perfect or imperfect. But Exts.A3 and A4 medical report and discharge report obviously indicate the evidence of previous sexual intercourse. The learned counsel further cited the decision in Shyam Sunder Kohli v. Sushma Kohli [2004 (3) KLT 820] and contended that the divorce cannot be allowed on the sole ground that the marriage has been broken irretrievably.

8. In view of the rival contentions raised at the Bar, the point to be considered is, whether the appellant had succeeded in proving that the respondent had wilfully refused to Mat. Appeal No. 108 of 2008 -: 8 :- consummate the marriage with him and as a result of that, the marriage has not been consummated?

9. The point raised above is a factual dispute. But before re-appreciating the evidence on record to decide the above point, we find that the statutory requirements to grant divorce on the ground of non-consummation of marriage under Sec.10

(vii) of the Divorce Act have to be analysed at first. What does the term 'consummation of marriage' employed under Sec.10

(vii) of the Divorce Act, 1869 mean and intend? The Divorce Act does not provide a definition for the same under Sec.3 of the interpretation Clause. So, it is apposite to consider the meaning given in various dictionaries as given below. In Black's Law Dictionary:

"Consummate. 1. To bring to completion; esp., to make (a marriage) complete by sexual intercourse. 2. To achieve; fulfil. 3. To perfect; carry to the highest degree."

In Oxford Advanced Learners Dictionary:

"Consummate- 1. to make a marriage or a relationship complete by having sex:

The marriage lasted only a week and was never consummated. 2. to make complete or perfect."

"Consummation. 1. the act of making a marriage or relationship complete by having sex. 2. the fact of making complete or perfect".

Mat. Appeal No. 108 of 2008 -: 9 :-

In Advanced Law Lexicon Dictionary:

"Consummation of marriage. The first post-marital act of sexual intercourse between a husband and wife. Under canon law, a refusal to consummate the marriage may be grounds for an annulment or for divorce. But this is not so at common law or under modern state law."

10. The meaning that can be gatherable from all the Dictionaries is one and same. So, it can be relied on to interpret the term 'consummation' in the absence of statutory definition. On an analysis of the meanings, we are of the opinion that the 'consummation' means the act of making marital relationship complete by having sex. Needless to say, the marital relationship would become complete by the first sexual intercourse itself i.e., consummation is confined to first intercourse only after the marriage. If that be so, after the first intercourse, in pursuance of marriage, the ground of non- consummation of marriage owing to wilful refusal of the spouse, under Sec.10(vii) of the Divorce Act, is not available to the other spouse to seek dissolution of the marriage. Even if the spouse has been wilfully refusing to have sexual intercourse after the first intercourse, the ground under Sec.10(vii) of the Divorce Act cannot be made available to the other spouse even though that may amount to cruelty which would come under Mat. Appeal No. 108 of 2008 -: 10 :- Sec.10(x) of the Divorce Act. Consummation comprises erection and ejaculation. Consummation would be complete by erection and ejaculation, whether ejaculation is imminent or not, after erection.

11. In the above analysis, let us consider the evidence on record in the instant case. The learned counsel for the appellant fervently contended that the averment in the pleadings of the respondent to the effect that the appellant has been suffering from imminent ejaculation and thereby the intercourse was not usually fully perfect would amount to admission of non-consummation and thereby he is entitled to get divorce on that ground. In view of the above submission, we have meticulously considered the pleadings and evidence of the respondent. It is true that in her pleadings, she contended that the appellant had been suffering from imminent ejaculation. But, at the same time, she emphatically contended that the averment in the petition that the marriage has not been consummated so far is incorrect. Further, in her oral evidence, she deposed that the intercourse was successful and perfect thrice. We have already held that the ground under Sec.10(vii) of the Divorce Act on the allegation of non-consummation of the marriage cannot be made available after the first intercourse and erection and ejaculation are sufficient to complete Mat. Appeal No. 108 of 2008 -: 11 :- consummation of marriage. Neither in the pleadings nor in the evidence both parties have no case that the erection or ejaculation has not been effected so far. Even though the respondent had been cross-examined at length into the minute aspects of sexual life, no question was put to her suggesting appellant's inability to have erection. Therefore, even if the pleadings of the respondent are taken at its face value, that would not amount to an admission of non-consummation of marriage.

12. The learned counsel further pointed out that non- consummation is a fact inferable from impotency. In the instant case, it is also inferable from the pleadings of the respondent that the appellant is an impotent man. If he is impotent, it can reasonably be presumed that the marriage has not been consummated so far. To fortify this argument, the learned counsel for the appellant cited the decision in Sheeba Daniel v. Alexander [1989 (1) KLT 405]. We have gone through the meaning of 'impotency'. 'Impotency' is also not defined in the Divorce Act. Here also we have to consider the dictionary meaning. In Black's Law Dictionary:

"Impotence. A man's inability to achieve an erection and therefore to have sexual intercourse. Because an impotent husband cannot consummate Mat. Appeal No. 108 of 2008 -: 12 :- a marriage, impotence has often been cited as a ground for annulment.--"

In Oxford Advanced Learners' Dictionary:

"Impotent. 1. x x x x x x

2. (of a man) unable to achieve an erection and therefore unable to have full sex".

13. Before considering the question, can non- consummation be presumed from impotency, the court must remember that mere non-consummation of marriage is not a ground for divorce under Sec.10(vii) of the Divorce Act. The non-consummation must have been the result of "wilful refusal" to consummate marriage. Here the word "wilful" assumes significance on this point. What does the adjective "wilful" mean and intend?

14. In Black's Law Dictionary, 6th Edition, at page 1599, 'wilful' is defined thus:

"Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.

Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification.

An act or omission is "willfully" done, if done voluntarily and intentionally and with the Mat. Appeal No. 108 of 2008 -: 13 :- specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law. It is a word of many meanings, with its construction often influenced by its context.

In civil actions, the word (willfully) often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal context it generally means an act done with bad purpose;

without justifiable excuse; stubbornly, obstinately, perversely."

15. In Sate of Orissa & Ors. v. Md. Illiyas (AIR 2006 SC 258, the Supreme Court held thus:

"At this juncture, it is desirable to consider the true import of the word 'wilful'. An act is said to be 'wilful' if it is intentional, conscious and deliberate."

16. Relying on the above decision, the Division Bench of this Court has also taken the same view in Kuruvilla Varghese v. Sapnam Elizabeth (2007 (3) KLT 228). In view of the meaning given to "wilful", it is significant and pertinent to note that the adjective 'wilful' is seen intentionally prefixed before the word 'refusal' by the Legislature, with abundant care and caution. In our view, "in wilful refusal to consummate marriage", there is an element of deliberate and conscious application of mind not to consummate marriage despite his or her capacity to do otherwise. 1t follows that if the refusal is due to any disease or Mat. Appeal No. 108 of 2008 -: 14 :- physical inability, it cannot be held that the refusal is wilful one falling under Sec.10(vii) of the Divorce Act. But in the case of 'impotency', such an application of mind either wilful or otherwise is totally absent and 'impotency' is the result of a biological inability or deformity which incapacitated the spouse to have a successful or perfect intercourse.

17. On a combined analysis, we find that the wilful non- consummation of the marriage and impotency are different and distinct and they have to be considered on different perspective. One is not synonymous with the other. Moreover, one is neither inferable nor presumable from the other. Non- consummation is one of the grounds for dissolution of marriage, where as impotency is one of the grounds for nullity of marriage.

18. More importantly, one of the basic principles of civil law is that the plaintiff must plead and prove his case. He has to stand on his own legs of pleadings. Certainly, he can make use of the inconsistency in the pleadings of the defendant to get assurance of case pleaded by him. In the instant case, it is pertinent to note that appellant has no case that he is suffering from imminent ejaculation and thereby the marriage has not been consummated. If material facts constituting cause of action are not averred in the plaint, the suit must fail. In H. D. Mat. Appeal No. 108 of 2008 -: 15 :- Vashishta v. M/s. Glaxo Laboratories (I.) (P.) Ltd. , (AIR 1979 S.C. 134), no case can be decided on the grounds or facts outside the pleadings. (Trojan and Co., v. Nagappa - AIR 1953 S.C. 235). Plaintiff/petitioner cannot be permitted to take up a case which is wholly inconsistent with what was pleaded earlier (GS Mahalaxmi v. Shah Ranchhoddas - AIR 1970 S.C. 2025). Cardinal Rule of Law is that evidence is to be given only on plea properly raised in the pleadings and not in contradiction to earlier plea (Om Prabha Jain v. Abnash Chand - AIR 1968 S.C. 1083). A fact in issue cannot be presumed to be proved by interpreting the contentions in the written statement filed by the defendant alone. The burden of proof on the plaintiff is not so light or thin which could be presumable or inferable from the written statement. So, he cannot succeed merely on the reason that the respondent has put forward a counter allegation that the appellant has been suffering from imminent ejaculation.

19. In the instant case, in her pleadings, the respondent has no case that the appellant was unable to achieve erection and therefore had no sexual intercourse. Even if impotency is admitted by the respondent, the appellant cannot take benefit under the said contention as impotency is not a ground for dissolution of the marriage under Sec.10 of the Divorce Act, Mat. Appeal No. 108 of 2008 -: 16 :- though the same is a ground for nullity of marriage under Sec.18 of the Divorce Act. The decision cited by the learned counsel for the appellant would not render any assistance or aid to win this appeal, in view of the above analysis.

20. Next contention raised by the learned counsel for the appellant is that the court below went wrong by relying on Exts.A3 and A4 medical reports. Going by the impugned judgment, it could be seen that on the basis of the pleadings of both parties, they were referred to medical check up before the Medical Board and Ext.A3 is the report of the Medical Board after examining the parties. As per the medical report, no abnormality could be found on either party to prevent them from having sexual intercourse. Both are normal man and woman having sexual capability. The Gynecologist is of the opinion that there is nothing abnormal to prevent the respondent from having sexual intercourse. The Gynecologist further noticed old tear of the hymen at the anterior aspect at the right lower part of the hymen. It is unambiguously reported that there was evidence of previous intercourse. It is pertinent to note that either in the pleadings or in the evidence the appellant has no case that the respondent had previous intercourse before the marriage or she had indulged in sexual intercourse with any other man after the marriage. The Mat. Appeal No. 108 of 2008 -: 17 :- appellant has no case of material suppression of facts before the marriage. In the light of the medical evidence, we find that the court below can be fully justified in finding that the marriage has been consummated.

21. The above finding is further supported by the contents of Exts.B1 to B3 letters sent by the appellant to the respondent. Those letters are seen sent by him during the period of one year and six months beginning from 13/4/2002 to 27/10/2003. It is to be borne in mind that they cohabited together for three years only. Those letters obviously express deep love and affection between the spouses. None of those letters spells out any insinuation either expressly or impliedly indicating any kind of sexual dissatisfaction or apprehension. Per contra, it shows that they were nursing hopes and ambition to lead a good and satisfactory family life with children in future. Had the non-consummation of marriage owing to wilful refusal of the respondent been a genuine or true fact, certainly, such worries brewing in the mind of the appellant should have found a place in those letters sent during such a long period. We are inclined to think so considering the natural course of human conduct and behaviour, which we expect from an ordinary prudent man.

22. To fortify his arguments, the learned counsel cited the decisions in Sheeba Daniel v Alexander (1989 (1) KLT 405); Joy Mat. Appeal No. 108 of 2008 -: 18 :- v. Shilly (1995 (2) KLT 546); Kuruvilla Varghese v. Sapnam Elizabeth (2007 (3) KLT 228); Poulose v Mary [1996 (1) KLT 520 (FB)]; A v. B [1996 (1) KLT 275) and Naveen Kohli v. Neelu Kohli [AIR 2006 SC 1675].

23. Let us examine the above decisions cited by the learned counsel for the appellant. In the decisions in Joy v. Shilly (1995 (2) KLT 546); A v. B [1996 (1) KLT 275) and Poulose v Mary [1996 (1) KLT 520 (FB)], the Original Petitions were filed for declaration of nullity of marriage on the ground of impotency and the fact in issue was the alleged impotency of the spouse. We have already held that willfull non- consummation of marriage and impotency are different and distinct and those are matters to be considered on different perspective. Therefore, we find that these decisions are not applicable to the instant case.

24. We have meticulously considered the decision in Kuruvilla Varghese v. Sapnam Elizabeth [2007 (3) KLT 228]. The above decision was cited to show the interpretation given by this Court to the act of wilful refusal to consummate marriage. There, there was no medical evidence to prove the fact in issue. But we find that the said decision also will not fortify the appellant's argument in the instant case wherein the medical evidence would show that the respondent is normal and Mat. Appeal No. 108 of 2008 -: 19 :- fit to be consummated and she had clear indications of frequent sexual intercourse.

25. The learned counsel for the appellant further cited the decision in Naveen Kohli v. Neelu Kohli [AIR 2006 SC 1675] to fortify his argument that irretrievable breakdown of marriage is also a ground for dissolution of marriage. In this decision, we notice that after observing the difficulties of parties tide for ever to a marriage that in fact has ceased to exist, the Apex Court recommended to the Union of India to seriously consider bringing an amendment in the Hindu Marriage Act to incorporate irretrievable breakdown of marriage as a ground for divorce. Needless to say, the Supreme Court also admitted that the law existing today does not permit dissolution of marriage on the ground that marriage has been brokendown irretrievably.

26. At this juncture, we have to consider the decision cited by the learned counsel for the respondent in Vishnu Dutt Sharma v. Manju Sharma [2009 (1) KLT 940 (SC)]. The Apex Court has considered the question whether irretrievable breakdown of marriage is not a ground for divorce. While considering the above question, the Apex Court observed as follows:

"Irretrievable breakdown of marriage is not provided by the Legislature as a ground for granting divorce. The court Mat. Appeal No. 108 of 2008 -: 20 :- cannot add such a ground under Sec.13 of the Divorce Act as that would be amending the Act, which is a function of the Legislature."

Though such proposition was held in a case under the Hindu Marriage Act, the same proposition is applicable to the dissolution of marriage under the Divorce Act also. This is the view expressed by the Supreme Court in the decision in Shyam Sunder Kohli v. Sushma Kohli [2004 (3) KLT 820 (SC)] also. There, the Supreme Court further held that the court must not lightly dissolve a marriage on the ground of irretrievable breakdown of marriage.

27. In the light of the above decisions on the question whether irretrievable breakdown of marriage is a ground for dissolution of marriage, we are of the opinion that unless and until irretrievable breakdown of marriage is made a ground of divorce by way of amendment in the Divorce Act, the court cannot grand divorce on that ground alone.

28. In the light of the above discussions, we concur with the findings of the court below that the appellant has miserably failed to prove the fact in issue that the respondent has wilfully refused to consummate the marriage with him and as a result of which the marriage has not been consummated. There is no illegality or impropriety in any of the findings in the impugned Mat. Appeal No. 108 of 2008 -: 21 :- judgment and we do not find any perversity in the appreciation of evidence also.

Hence this Mat. Appeal is dismissed.

Sd/-

(V.K. MOHANAN, JUDGE) Sd/-

(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge

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