Kerala High Court
Ramya Chandran vs Sanju Mohan on 1 March, 2021
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque, Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE DR.KAUSER EDAPPAGATH
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
Mat.Appeal.No.754 OF 2017
AGAINST THE JUDGMENT IN O.P.No.1713/2014 DATED 09.11.2016
OF FAMILY COURT, THRISSUR
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APPELLANT/S:
RAMYA CHANDRAN, AGED 31 YEARS,
D/O.PREMACHANDRAN, PREM NIVAS,
NEELESWARAM P.O, NEELESWARAM,
HOSDURG TALUK, KASARAGOD DISTRICT.
BY ADV. SRI.K.P.HARISH
RESPONDENT/S:
SANJU MOHAN, AGED 40 YEARS,
S/O.JAYAMOHAN, PALLATH, MANJARI,
KOORKKANCHERY, THRISSUR DISTRICT-680007.
BY ADV.SRI.C.CHANDRASEKHARAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal.No.754/2017 2
JUDGMENT
Dated this the 1st day of March 2021 A.Muhamed Mustaque, J.
This appeal arises from the dismissal of a petition for divorce. The appellant-wife was the petitioner before the Family Court. The respondent- husband was the respondent before the Family Court. The marriage was solemnized on 12.09.2010 at Sree Maheswara Temple, Koorkkanchery, Thrissur. The love affair between the parties led to the marriage. The appellant- wife is a Homeopathic Doctor by profession. The respondent-husband is an engineer by profession possessing B.Tech degree.
2. The petition for divorce was filed on the ground of cruelty. It is averred in the petition that the respondent-husband suffers from tranverse myelitis. According to the appellant-wife, on account of this disease, the husband has same difficulty in achieving erection and having physical intimacy with her. Though it is pleaded by her in the petition that this disease has adversely affected their marital relationship, she narrated the same in evidence while she was mounted in box. According to her, there was no satisfactory sexual life on account of the disease Mat.Appeal.No.754/2017 3 with the respondent-husband. According to the appellant-wife, suppression of the disease also amounts to cruelty.
3. The respondent-husband admitted about this disease. According to him, he was undergoing treatment at the age of 19 and was cured of that illness and he was having normal sexual life with the appellant-wife.
4. The Family Court, after the evaluation of the evidence, found that the parties were leading in a joyful life as evident from the photographs produced before the Family Court. It was further observed that if such a problem existed with the respondent-husband, the appellant-wife could not have remained with him till April, 2014.
5. Any disease which would materially affect the marital life, certainly, would amount to cruelty if that was suppressed prior to the marriage. Admittedly, before the marriage itself, the respondent suffered from such disease. According to him, after the treatment, he recovered from such disease. However, the respondent has not chosen to produce any document to show that he has recovered Mat.Appeal.No.754/2017 4 from such illness. Having admitted the illness as above, it is the bounden duty of the respondent to produce the medical records to show that he has recovered from such disease before the marriage. In the absence of any such records, the case put forward by the appellant-wife is more probable as the respondent-husband himself has admitted about such illness.
6. Then the next question is whether this itself amounts to cruelty or not. The medical opinion is available in internet, expert view of the Mayo Clinic, a reputed clinic in US, refer the following complications related to the aforesaid illness:
Complications:
People with transverse myelitis usually experience only one episode. However, complications often linger, including the following:
•Pain, one of the most common debilitating long-term complications of the disorder. •Stiffness, tightness or painful spasms in your muscles (muscle spasticity). This is most common in the buttocks and legs.
•Partial or total paralysis of your arms, legs or both. This may persist after the first symptoms.
•Sexual dysfunction, a common complication of transverse myelitis. Men may experience difficulty achieving an erection or reaching orgasm. Women may have difficulty reaching orgasm. (emphasis supplied).Mat.Appeal.No.754/2017 5
•Depression or anxiety, which is common in those with long-term complications because of the significant changes in lifestyle, the stress of chronic pain or disability, and the impact of sexual dysfunction on relationships.
6. The appellant-wife is a Homeopathic Doctor.
The complications as above cannot be ruled out in such circumstances unless the respondent is able to demonstrate himself through medical evidence as he has undergone treatment and recovered from such illness. The respondent also failed to produce the evidence to prove that it has not affected sexual functions. The initial burden is on the appellant- wife to prove that the respondent suffers from such illness. Once that is discharged, the burden is on the respondent to prove that he has recovered from the illness and it has not affected his sexual functions.
7. In such circumstances, we are of the view that the appellant has successfully discharged her burden in proving the illness of the respondent. The only irresistible conclusion that can be drawn in the absence of any rebutting evidence is that the illness as above had affected the marital relationship. The appellant has no case that the respondent has disclosed about such illness with her prior to the marriage. The physical inability of the Mat.Appeal.No.754/2017 6 husband in performing the marital obligation would amount to cruelty if the same was not disclosed prior to the marriage to the wife.
8. In the light of the discussions as above, we are of the view that a decree of divorce has to be granted to the appellant-wife. Accordingly, we allow this appeal. The impugned order is set aside. The marriage between the appellant and the respondent solemnized on 12.9.2010 is dissolved by a decree of divorce. The parties are directed to suffer their respective costs.
All pending interlocutory applications, if any, are closed.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
KAUSER EDAPPAGATH JUDGE ln