Madras High Court
S. John Dhanadurai vs J. Marry Suganthi on 20 August, 1993
Equivalent citations: AIR1994MAD81, AIR 1994 MADRAS 81, (1994) 1 HINDULR 544 (1994) MARRILJ 279, (1994) MARRILJ 279
Author: M. Srinivasan
Bench: M. Srinivasan
ORDER Venkataswami, J.
1. The husband is the petitioner. He filed I.D.O.P, No. 149 of 1989 on the file of the Court of the District Judge, Tirunelveli under Ss. 18 and 19 of the Indian Divorce Act for a decree declaring the marriage between himself and the respondent as null and void.
2. In the petition, the petitioner has stated that the marriage between himself and the respondent took place on 5-6-1989 according to Christian rites. On the night of the marriage, they spent the first night at Spic Motel, a posh hotel at Tuticorin. The petitioner describes what happened subsequently in the petition. In substance, the petitioner states that though they lived for nine days together, there was no sexual intercourse and the marriage was not consummated. The petitioner specifically states that the respondent was impotent at the time of the marriage and at the time of the presentation of the petition on account of depressive psychosis. It is the case of the petitioner that when the respondent lived with the petitioner, she persistently refused to have sexual intercourse with the petitioner. The petitioner further states that all the efforts of the petitioner to win the love of the respondent and consummate the marriage were in vain. It is seen that the parents of the respondent also had taken some steps to rectify the defects in the respondent. Under these circumstances, the petitioner moved the Court, as stated above, for the decree of nullity of marriage.
3. Though notice was served on the respondent, she has chosen to remain ex parte.
4. The petitioner examined himself as PW 1 and in his evidence, he has substantiated the allegations made in the petition. He has also marked Exhibits A.1 to A. 5.
5. The Court belo.v, on consideration of the pleadings and evidence, found that the respondent was avoiding to have sexual intercourse with the petitioner on account of impotency. On that ground, a decree of nullity, as prayed for, was granted, subject (o confirmation by this Court.
6. We have also perused the pleadings, evidence and the judgment of the Court below. From the evidence given, the ground of impotency has to be inferred, inasmuch as the respondent remained ex parte. As pointed out earlier, from the letters written by the father of the respondent and the brother-in-law of the respondent, namely, Exhibils A. 4 and A. 5, it is possible to infer that there was something wrong with the petitioner. In , George Swamidoss Joseph v. Sundari Edward, this Court has observed as follows:
"The facts set out by him show that throughout the married period there has been no sexual intercourse and that the wife has resisted all attempted and that the refusal arises from incapacity caused by nervousness or hysteria; or from an invincible repugnance to the act of consummation resulting in the paralysis of the will. The husband has proved that he has made repeated and considerate approaches and that the wife refused to allow a complete consummation owing to some uncontrollable physical reaction. In these circumstances the petitioner must be held to have proved his case viz., the respondent's impotency at time of marriage and institution of suit quoad the petitioner : Wilson v. Wilson(2)."
7. In , Jean Emeline Thavamani v. Joseph Taylor, a Full Bench of this Court has observed as follows (at page 158):
"If the circumstances warrant it, from a refusal to consummate the marriage, inference of impotency can be drawn."
8. We have already pointed out that though the respondent lived with the petitioner for nine days, she consistently refused to consummate the marriage. Therefore, there is no difficulty in holding that the Court below was right in coming to the conclusion that the respondent, in the facts and circum-stances of the case, was impotent and the decree granted as prayed for nullity is in order and, therefore, we confirm the same. No costs.
9. Order accordingly.