Kerala High Court
Indu vs Latheesh K.P on 19 April, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939
Mat.Appeal.No. 408 of 2011 ( )
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AGAINST THE JUDGMENT & DECREE IN OP 345/2008 of FAMILY COURT, KANNUR
DATED 19-04-2011
APPELLANT/RESPONDENT:
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INDU,D/O.MOHANAN,
AGED 25 YEARS,GURU KRIPA, C.K.PURAM,, CHALAD,
P.O.CHALAD, KANNUR-14
BY ADV. SRI.GRASHIOUS KURIAKOSE
RESPONDENT/PETITIONER:
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LATHEESH K.P.,S/O.K.P.CHANDRAN,
AGED 34 YEARS, OTTAPURAYIL HOUSE,, P.O.CHIRAKKAL,
PANANKAVU,KANNUR - 11
R1 BY ADV. SRI.K.N.ABHILASH
R1 BY ADV. SMT.R.LEELA
R1 BY ADV. SRI.SUNIL NAIR PALAKKAT
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
25/07/2017, THE COURT ON 17-10-2017, DELIVERED THE FOLLOWING:
A.M.SHAFFIQUE, J
&
ANU SIVARAMAN, J
* * * * * * * * * * * * * *
Mat.Appeal.No.408 of 2011
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Dated this the 17th day of October 2017
J U D G M E N T
Shaffique, J This appeal is filed by the respondent/wife in O.P.No.345/2008 challenging the judgment dated 19/04/2011 by which the Family Court declared the marriage between the parties as null and void under Section 12 (i) (a) of the Hindu Marriage Act.
2. The parties got married on 12/07/2007 as per the Hindu rites and customs. In the original petition, the respondent herein, had given a brief description about the behaviour of the appellant during the first, second and third day of marriage. It is stated that she was behaving in a manner which was not conducive of a bride and he found it very strange. She narrated him about the gold ornaments on the first day of marriage. When the respondent asked her to keep the gold ornaments in the almirah, suddenly her mood changed and thereafter she did not speak anything to him. She even stated that she never intended to marry and she agreed to the marriage only at the influence of Mat.Appeal No.408/2011 2 her relatives. She even prevented him from having any sexual activities with her. On the 2nd day of marriage, when there was a reception, she narrated to him the entire story of her life since her childhood. But, on that day also, she did not permit any sexual activity. On the 3rd day of their marriage, she abused his mother and attempted to assault her. The respondent contacted the appellant's father and informed him about her unusual behaviour. The appellant even stated to her father that she does not intend to reside with the respondent. According to the respondent, the appellant was acting as if she was suffering from some sort of mental illness. She even threatened to commit suicide. During the month of August 2007, she went to her paternal home along with her sister Mini. During the 1st week of September 2007, she returned to the matrimonial home. On 10/09/2007, at 10 a.m, she turned violent and destroyed some household articles. She even walked inside the house without wearing any dress. Father and brother of the appellant came to the house of the respondent to pacify her. But, she was very adamant. Later, they decided to have a psychiatric consultation for the appellant. The father of the appellant stated that the appellant was under the treatment Mat.Appeal No.408/2011 3 of Dr.Murali Gopi of AKG hospital for the last two years. Later, it was understood that she was suffering from mental disorder and was being treated by Psychiatrists. The appellant was taken to Dr.E.D.Joseph, who found that she was suffering from mental illness and advised for inpatient treatment for a period not less than one month. She was taken to NIMHANS Hospital, Bangalore and was an in-patient for a period from 21/12/2007 to 08/01/2008. The opinion of the Doctor was that the appellant was suffering from bipolar mood disorder. According to the respondent, the appellant is still suffering from mental disorder and she is residing in her parental home from 21/10/2007. According to him, even at the time of marriage, she was not capable of having any sexual relationship and the marriage was not consummated due to her physical infirmities. It is also alleged that consent for marriage was obtained by fraud and hence the marriage should be declared as null and void.
3. Counter statement was filed by the appellant denying the allegations. According to her, the respondent has no physical capacity for sexual intercourse or he is suffering from physical disability or impotency. She, however, admitted that she was Mat.Appeal No.408/2011 4 taken to NIMHANS hospital, Bangalore following some depression subsequent to the breakdown of the marital relationship. She also admitted that the marriage has not been consummated. Before the Family Court, petitioner/husband was examined as AW1 and the respondent/wife was examined as RW1. Ext.X1 medical report was marked as Court exhibit.
4. The Family Court, after considering the materials placed on record and the oral evidence of the parties, observed that the marriage has not been consummated and when there is a specific allegation by the respondent/husband that non- consummation of marriage between the parties was due to the impotency of the appellant/wife, the burden lies on her to prove that she is not impotent. But no medical evidence was produced to prove her physical condition. Further, it was found that in the light of Ext.X1 report, it is clear that the parties cannot lead a normal life. In the light of the aforesaid factual situation, it was found that the marriage between the parties had not been consummated on account of impotency of the appellant. With reference to the other contention regarding misrepresentation and fraud in entering into the marriage, the Family Court found Mat.Appeal No.408/2011 5 that, in the absence of any evidence to prove that the appellant was suffering from any mental disorder prior to the marriage, no such finding can be entered into.
5. The learned counsel for the appellant strenuously argued that there is no evidence to prove that she was incapable of having any sexual relationship, as alleged. The learned counsel placed reliance on the judgment of the Apex Court in Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari [AIR 1970 Supreme Court 137] to contend that there is no scientific formula to decide on impotency of a female. It is submitted that when there is an allegation of mental disorder, prior to the marriage, and subsequent to the marriage, the only ground that could be taken is under Section 12(i)(c) of the Hindu Marriage Act. The Family Court, after having come to a finding that such a ground is not available to the petitioner/respondent herein, it was absolutely wrong on the part of the Family Court to have cast a burden on the appellant to prove that she was capable of having sexual intercourse.
6. On the other hand, learned counsel for the respondent supported the judgment of the Family Court. It is argued that Mat.Appeal No.408/2011 6 absence of consummation of marriage is an admitted fact and it is also admitted that the appellant was treated at NIMHANS, Bangalore. Further, her allegation was that the respondent was not in a position to have proper sexual relationship whereas she was having the capacity to have sexual relationship. When the respondent himself had been subjected to medical examination as per the directions issued by the Family Court and the report of the medical board clearly indicated that he was potent enough to have a proper marital life, in the absence of any evidence from the side of the appellant to prove otherwise, presumption could be raised against her capacity for leading a normal married life which has been done by the Family Court.
7. Ext.X1 is the medical report of the respondent. He was examined by a team of Doctors as per the directions issued by the Family Court. After examining him, the Board was of the view that there was nothing to suggest that the respondent cannot lead a normal marital life. Once this evidence had come on record, definitely it was for the appellant to prove that she was capable of having sexual intercourse. She did not subject herself to any examination by a medical board. It was Under such Mat.Appeal No.408/2011 7 circumstances, that the Family Court had thrown the burden of proof on the appellant to prove her ability for normal sexual intercourse, which we do not find erroneous in any manner.
8. Further, evidence of AW1 clearly narrates the manner in which the marital life has proceeded and that there was no consummation of marriage. Appellant also admits that she had suffered some mental ailment. But, according to her, it was only after marriage. However, she admits the fact that there was no consummation of marriage. They could not have any sexual relationship since the respondent was not capable for the same.
9. The Apex Court in Yuvraj Digvijay Singh (supra) was considering the question as to whether a marriage could be dissolved under Section 12(i)(a) on account of impotency of the spouse at the time of marriage. It is held that the person who seeks for nullity of marriage has to establish the ground. That was a case in which both the parties were examined by Doctors. In that case, the District Court, on evidence, found that the husband failed to prove that the wife was impotent and accordingly, the application was rejected. On appeal before the High Court, it was observed that though it had not been proved Mat.Appeal No.408/2011 8 that the husband was impotent, on the material issue regarding impotency of the wife, there are various factors and circumstances throwing serious doubt on the allegations made by the appellant. It was held that the husband could not establish that non-consummation of marriage was due to the impotency of the wife. The Apex Court did not interfere with the judgment of the High Court on the ground that the husband has not established that the respondent was impotent at the time of marriage and continued to be so until the institution of the proceedings.
10. But, we have to analyse the evidence based on the available materials. As already stated, Ext.X1 proves the ability of the husband to lead a normal marital life. The wife did not subject herself to any medical examination. Oral testimony of AW1 clearly narrates various incidents and her reluctance to have any sort of sexual activities. It is, taking into account all these facts, that the nature of evidence has to be appreciated. In Yuvraj Digvijay Singh (supra), the appellant and the respondent had been examined by the Doctors and their evidence was very much available. It was, based on the said evidence, Mat.Appeal No.408/2011 9 that it was found that the wife did not show an indication of any impotence. Judgment in G v. G [(1924) AC 349] has been referred to in the said case. That was also a case filed by the husband against his wife seeking for a decree of nullity of marriage on the ground of impotency. It was established that the husband was potent and had made frequent attempts to consummate the marriage, but he could not succeed due to the resistance of the wife. The wife was examined before a medical board, declared not to suffer from any structural incapacity. It was held by the House of Lords that the conclusion can be drawn on the basis of evidence that the wife's refusal was on account of an invincible repugnance to the act of consummation and, as such, the husband was entitled for a decree of nullity.
11. Another judgment referred was G v G [1912 P 173]. In that case also, it was found that the marriage was not consummated. Both sides charged each other as responsible for non-consummation of marriage. The Court held that, without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Court, therefore, annulled Mat.Appeal No.408/2011 10 the marriage for the reason that it was satisfied that "quoad hunc et quoad hunc, these people cannot consummate the marriage". However, the Apex Court did not rely upon the said judgment since two Courts found that in order to accept the plea of the appellant, there is no evidence to show that the respondent/wife resisted husband's attempts to consummate the marriage. In the case on hand, we are of the view that the judgments in [(1924) AC 349] and [1912 P 173] squarely apply to the facts of the case.
12. In the light of the aforesaid facts, if the Family Court rendered a finding in favour of the respondent/husband, we do not think that any error has been committed, to take a different view. No grounds have been made out to interfere with the judgment of the Family Court.
Accordingly, this appeal is dismissed.
(sd/-) (A.M.SHAFFIQUE, JUDGE) (sd/-) (ANU SIVARAMAN, JUDGE) jsr True Copy P.S to Judge