Johnson.M vs Nithyadas.J on 5 July, 2024

[Cites 3, Cited by 0]

Kerala High Court

Johnson.M vs Nithyadas.J on 5 July, 2024

This appeal is preferred by the husband, who is the respondent in the Original Petition, against the judgment dated 30.10.2023 in O.P.(Divorce) No.19 of 2019 of the Family Court, Kollam. The wife filed the original petition under Section 19(1) of the Divorce Act, 1869 (Act 4 of 1869) along with Section 7 of the Family Courts Act, 1984 (Act 66 of 1984) to nullify the marriage.

2. The short facts of the case revealed from the Original Petition are as under:

The marriage between the parties was solemnized on 21.05.2018 at St. George Syrian Catholic Church, Thrikkovilvattom.

It is stated that at the time of the betrothal ceremony, the appellant and his parents were given an amount of Rs.2 lakh. At the time of the marriage, she adorned 20 sovereigns of gold ornaments. After the marriage, they lived together at the matrimonial home for about ten days. The respondent observed that the appellant's behavior towards her was unusual. The appellant tried to keep aloof from her despite her attempts to be close to him. The appellant did not exhibit any characteristics of a newly wedded groom. Whenever she Mat.Appeal No.329 of 2024 3 approached him, he kept himself engaged on the mobile phone, giving the impression that he was conversing with someone else. It is also alleged that whenever she approached him with utmost love and care, he tried to conceal something from her. After three days of marriage, she went to the matrimonial home and stayed there for ten days. Her attempts to convince him of the need for a child for their future life and her attempts to have physical relations failed on three occasions: 26.05.2018, 27.05.2018, and 02.06.2018. At a certain point, the husband divulged to the wife his inability to have a successful sexual relationship. He then stated that he married her as an experimental measure due to compulsion from his parents. It is further stated that even thereafter, the husband persuaded her to continue the marital relationship for the sake of society. This put an end to their marital life, and they lived together only until 02.06.2018. It is also stated that during their matrimonial life between 21.05.2018 and 03.06.2018, there were no instances of a successful sexual relationship.

3. The husband countered the contentions by challenging the maintainability and the allegations raised in the petition. He stated that he lived with his wife in her house for three days but denied that he had disclosed that he was suffering from Mat.Appeal No.329 of 2024 4 any incapacity. According to him, it was the respondent who was evading a physical relationship on the premise she was not mentally prepared for the same. She stated that due to work pressure, she is not in a position to have sexual relationships. It was at her request that she was allowed to remain with her parents while he went to his workplace. He stated that with the intention of having a good marital life, he resigned from his job in his native place and secured a job in Ernakulam. He worked there for 1½ years until his return to Chennai. He further stated that he was under the impression that the marriage between them was her first marriage. The fact that the wife had previously married one Mr. Sheen, a native of Maruthadi, was concealed from him. It is also alleged that at the time of their marriage, her first marriage was still in existence and was only dissolved by the order of the Family Court, Chavara in O.P.No.875 of 2017. He asserted that his wife had committed fraud with an ulterior motive for financial gain. The repeated requests of the appellant for the respondent to join him in Chennai were ignored. It is further alleged that the respondent blamed him for having only a Diploma in Engineering with a frugal salary. It is also stated in the objection that the wife intended to rejoin her former husband as she had received gold and money from him during their marital life. Mat.Appeal No.329 of 2024 5

4. The respondent entered the box and tendered evidence as PW1 and Ext.A1 was marked. The appellant herein was examined as RW1 along with RW2, the Vicar of the St.George Church, Mayilakad, and marked Ext.B1. Ext.X1 was also marked.

5. The Family Court noted that the claim for divorce was on the ground that the appellant was impotent The court noted the couple lived together for only 13 days, during which the appellant behaved unusually and avoided physical intimacy, spending time on his mobile phone. Attempts at physical relations on 26.05.2018, 27.05.2018, and 02.06.2018 had failed. The Family Court also noted the admission of the appellant during cross examination that "വിജയകരമായി ഒരിക്കലും ഞങ്ങൾ ലൈംഗീക ബന്ധത്തിൽ ഏർപ്പെട്ടിട്ടില്ല ". The contention of the appellant that it was the wife who had evaded from sexual relationship was also noted. The Family Court after evaluating the contention of the appellant that he had no physical incapacity, went on to hold that no material evidence was adduced to support his assertion. It was also held that there is no reason to doubt the version of the wife with regard to three failed attempts at intercourse. The court noted that though in an ideal case, medical evidence ought to have been adduced, the oral testimony of the wife and the admissions and surrounding facts could be sufficient if Mat.Appeal No.329 of 2024 6 credible. The Family Court concluded that the appellant did not have the capacity to consummate the marriage and was impotent.

6. We have heard Sri. Haridas V.N. for the appellant, Sri. B. Dipu Sachdev for the respondent.

7. Sri. Haridas, the learned counsel appearing for the petitioner, urged that the respondent has failed to provide specific details of the alleged incapacity. The Family Court also failed to appreciate that the burden of proving impotence is purely on the wife. The counsel contended that it is unfair to place such a slur on the husband without sufficient evidence. The Court failed to appreciate that the respondent may have avoided sexual intercourse due to work pressure and withdrew from attempts at physical relations. The counsel also argued that the appellant's admission of "we never successfully engaged in sexual intercourse" does not necessarily indicate his incapacity, as it could be due to issues from either or both parties. The Family Court shifted the burden of proving physical capacity to the appellant without ordering a medical examination, despite requests from the appellant through his counsel.

8. The learned counsel appearing for the respondent vehemently opposed the contentions, asserting that the appellant's Mat.Appeal No.329 of 2024 7 incapacity led the respondent to remain at her own residence. The appellant showed clear neglect by not displaying love or affection towards the respondent, and avoiding her on the pretext of phone calls. The attempts to consummate the marriage on 26.05.2018, 27.05.2018, and 02.06.2018 all failed. The marriage was solemnized on 21.05.2018, and the continued physical incapacity of the husband prevented the parties from enjoying a happy married life.

9. Having considered the submissions advanced and perused the entire records, we find that the wife alleges impotency on her husband and asserts that all efforts to consummate the marriage have failed. The husband, on the other hand, does not deny that the marriage has not been consummated. He contends that it is due to his wife's work pressure. He also alleges that she intends to rejoin her former husband. There is no doubt that the marriage has irretrievably broken.

10. Mary Kurian v. Joseph1, this Court had occasion to hold as follows:

"The burden of proving the plea of impotency on the part of the husband is on the wife. Normally a mere averment by her that the husband is impotent may not be sufficient to find such impotency. Impotency is defined in "The Text Book of Medical Jurisprudence and Toxicology" by Modi as "physical 1 1980 KLT 530 Mat.Appeal No.329 of 2024 8 incapacity of accomplishing the sexual act." Sterility means "inability for procreation of children," and this is different from impotency. The mere absence of a desire for sexual intercourse any not by itself amount to impotency. Absence of such desire may be temporary and the attitude of the person may be a passing phase and may be due to age or other similar factors or may be due to psychical influence. It has been noticed that temporary absence of a desire for sexual intercourse may be due to fear, anxiety, guilty sense, timidity and the like and sometimes due to sexual overindulgence. But where the complaint arises from a spouse that his or her partner has not been responsive in the matter of sexual relations not for a day or an occasion but during a fairly reasonable period one must assume want of desire and intention on the part of the unresponsive spouse to consummate the marriage. This may be due to incapacity of such spouse. Apart from medical evidence the other evidence in such a case could normally be that of the husband or wife, as the case may be, who has failed to receive sexual attention from his or her partner.

11. As held by this Court, the spouse who alleges impotency would bear the burden of proving the other spouse's impotence. Simply claiming impotence is insufficient; it must be demonstrated as a physical incapacity to engage in sexual intercourse, as defined medically. Impotence differs from sterility, which is the inability to procreate. A temporary lack of sexual desire is not necessarily impotence and may be caused by various factors like anxiety or age. However, if a spouse consistently fails to engage in sexual relations over a reasonable period, this may indicate a lack of desire or Mat.Appeal No.329 of 2024 9 incapacity to consummate the marriage. Both medical evidence and the testimony of the aggrieved spouse are relevant in such cases.

12. We have no doubt that the evidence presented by the wife was compelling and she was able to convincingly prove the husband's sexual incompetence. The serious and persistent allegations leveled against each other by the spouses clearly indicate that the marital relationship has broken down irretrievably. In view of the gravity and credibility of the evidence tendered by the wife, together with the clear signs of an irreparable marital rift, we find no reason to interfere with the well-considered findings of the Family Court. We confirm the thorough evaluation of facts and circumstances by the Family Court and hold that no interference is warranted.

The appeal fails and it is dismissed.

SD/-

RAJA VIJAYARAGHAVAN, V. JUDGE SD/-

P.M. MANOJ JUDGE das

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Kerala High Court