Madras High Court
Mr. Clement Carol vs Mrs. Jayanthi Maria Valentine on 4 April, 2012
Bench: K.Mohan Ram, R. Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.04.2012 C O R A M THE HONOURABLE MR.JUSTICE K.MOHAN RAM AND THE HONOURABLE MR.JUSTICE R. KARUPPIAH C.M.A.No.3507 of 2009 and Crl.R.C.Nos.1253 of 2009 & 1810 of 2011 and M.P.Nos.1 of 2009 and 1 of 2011 Mr. Clement Carol, Rep. By duly constituted Power of Attorney, Mr. P.Carol, S/o. Ponnaiah ... Appellant in CMA No.3507 of 2009 & Petitioner in Crl.R.C.No.1253 of 2009 & Respondent in Crl.R.C.No.1810 / 2011 -Vs.- Mrs. Jayanthi Maria Valentine, D/o. Mr. Jules Bernardine, W/o. Clement Carol ... Respondent in CMA No.3507 of 2009 & Respondent in Crl.R.C.No.1253 / 2009 & Petitioner in Crl.R.C.No.1810 of 2011 Prayer in CMA No.3507 of 2009:- Civil Miscellaneous Appeal filed under Section 19 of the Family Courts Act against the fair and decreetal order made in M.O.P.No.30 of 2008, dated 03.08.2009 by the Family Court, Puducherry. Prayer in Crl.R.C.Nos.1253 of 2009 & 1810 of 2011:- Criminal Revision Cases filed under Sections 397 and 401 of the Criminal Procedure Code against the order, dated 03.08.2009, made in M.C.No.38 of 2007 on the file of the Family Court, Puducherry. For Appellant in CMA No.3507 of 2009 & For Petitioner in Crl.R.C.No.1253 of 2009 & For Respondent in Crl.R.C.No.1810 of 2011 : Mrs. Chitra Sampath For Respondent in CMA No.3507 of 2009 & For Respondent in Crl.R.C.No.1253 of 2009 & For Petitioner in Crl.R.C.No.1810 of 2011 : Mr. FR. A.Xavier Arulraj - - - C O M M O N J U D G M E N T
K.Mohan Ram, J., The appellant in the above Civil Miscellaneous Appeal No.3507 of 2009 is the husband of the respondent.
2. The appellant initially filed IDOP No.140 of 2006 before the District Court, Cuddalore, against the respondent herein under Section 10 (1) (vii) and (x) and Section 19 of the Indian Divorce Act, 1869 seeking a decree of nullity of marriage between the parties, dated 22.08.2003, on the ground of impotency of the respondent at the time of marriage and at the time of institution of the said petition and alternatively sought for a decree dissolving the marriage between the appellant and the respondent on the ground of cruelty and on account of non-consummation of marriage due to wilful act of the respondent. The said petition was later transferred to the file of the Family Court at Puducherry and re-numbered as MOP No.30 of 2008.
3. The respondent / wife filed M.C.No.38 of 2007 before the Family Court, Puducherry, under Section 125 (a) of the Criminal Procedure Code seeking a monthly maintenance of Rs.50,000/- from the appellant.
4. After trial, the Family Court, Puducherry, by its common judgment and decree, dated 03.08.2009, dismissed MOP No.30 of 2008 and ordered M.C.No.38 of 2007 by directing the appellant herein to pay a sum of Rs.10,000/- as monthly maintenance to the respondent herein.
5. Being aggrieved by the same, the appellant has filed the above appeal against the judgment and decree passed in M.O.P.No.30 of 2008 and Crl.R.C.No.1253 of 2009 against the order passed in M.C.No.38 of 2007. Not being satisfied with the quantum of maintenance awarded by the Family Court, Puducherry, the respondent has filed Crl.R.C.No.1810 of 2011 seeking enhancement of maintenance.
6. The brief facts, which are necessary for the disposal of the above appeal and Criminal Revision Cases, are set out below:-
The appellant is the husband of the respondent. Their betrothal took place on 04.07.2002. The marriage between the appellant and the respondent was solemnised as per the Christian Rites and ceremonies on 22.08.2003 and the marriage was registered on 08.09.2003. As the appellant was employed at Dubai, he left for Dubai on 19.09.2003 leaving the respondent at Cuddalore. The respondent joined the appellant at Dubai in December 2003. The respondent left Dubai to India on 28.02.2004 and thereafter there was no cohabitation between them.
7. The case of the appellant, as pleaded in the MOP, is as follows:-
At the time of betrothal and marriage, the respondent was given 16 sovereigns of jewels and the marriage was an arranged marriage. After marriage and before the appellant left for Dubai, on 19.09.2003, the marriage was not consummated due to the respondent's unwillingness and abnormal attitude towards the normal sexual activities. Even when the appellant and the respondent were living together at Dubai, the activities of the respondents were strange and abnormal and the appellant was mentally tortured by the respondent by several activities. Even at Dubai, the marriage was not consummated, since the respondent did not have the physical capacity and mental attitude to have the sexual intercourse. It later transpired that she was having physical disability for having sexual intercourse. The appellant learnt that the respondent had to undergo some surgical procedure at a hospital at Puducherry. Till the date of filing of the petition, the marriage was not consummated due to the respondent's impotency and physical incapacity. The respondent herself admitted that she has not attained puberty and that matter was suppressed at the time of marriage.
8. It is the further case of the appellant that the respondent never prepared food and only ordered food from the hotels when she was at Dubai. Everyday the respondent tortured the appellant by making unnecessary and suspicious questioning about him. She was making false accusations against the appellant to the neighbours. When the appellant took the respondent for picnic, there also the respondent tortured and lowered his repudiation among his friends and colleagues and because of that he even made an attempt to commit suicide, but the timely counselling by the parents and friends averted such an event. It is no longer possible to live with an apprehension that her presence would cause mental harm and physiological injury to him. In such circumstances, to give a quietus to the marital life, the appellant issued a legal notice, dated 13.06.2006 to the respondent calling upon her to bring an end to the marriage by consent, but the respondent sent a reply notice running to several pages containing many allegations, which are false, rubbish and contained many sexually explicit matters which cannot be uttered by any modest lady. The appellant was shocked to go through the reply notice which shattered all hopes for any kind of reconciliation with her. The very reply notice is a piece of evidence and the document is sufficient to cause mental cruelty, torture and unbearable pain to any human being. All the false allegations in the reply notice are made only to suppress her bodily and mental sickness for her inability to have sexual intercourse and her inability to consummate the marriage.
9. The respondent contented the petition, by filing a lengthy and detailed counter statement, inter-alia contending as follows:-
The petition is not maintainable. The allegation that the marriage was not consummated due to the respondent's unwillingness and abnormal attitude towards normal sexual activities is denied. From day one of the marriage, the appellant did not show any interest in marital and sexual life. The appellant was not affectionate towards the respondent. The appellant is an angry man, used to find fault often and he is sensitive in nature. On the first night itself the appellant was silent and showed no interest in sex. The appellant hardly wished to have sex with the respondent. During the entire period of ten days, when they were together in India, the appellant showed no interest in sex. The appellant is a powerless person to fulfill the respondent's sexual desires because of pre-mature ejaculation. The appellant had habitual drinking and other bad habits including masturbation. Whenever the respondent approached the appellant for sexual intercourse the respondent was not able to perform fully due to pre-mature ejaculation. The appellant is suffering from sexual dysfunction. The appellant attained pre-penetration ejaculation also on several occasions. The appellant had not taken steps to rectify his sexual dysfunction by taking nutritious food, psychological treatment, yoga and medical treatment. As the respondent knows that sex is only a part of the life, she had not taken the matter seriously and co-operated with the appellant and acted as a dutiful wife.
10. The appellant is a habitual masturbator and masturbated even in front of the respondent often, when she was with him at Puducherry and Dubai. Her request to him to stop this habit and to have normal sexual relationship went in vain. The appellant told her that he likes masturbation and fellatio. Being a lady from pious orthodox Christian family she does not know the meaning of fellatio. The appellant switched on his computer and showed pornography sites forcibly including videos containing oral sex i.e., fellatio. After that, the appellant put his hands in the head of the respondent and forced the respondent for oral sex. She had no other alternative except to comply with the demand of the appellant. Because of the said unnatural act, the respondent felt discomfort and difficulty and she was not able to eat and even drink water. Sometimes, suffocation was caused and she had vomited. When the neighbours and relatives of the appellant and the respondent questioned as to why she has not become pregnant, the parents of the appellant were not able to digest the same and accepts their son's defect, the appellant sent a legal notice falsely accusing that the respondent is impotent and not fit for sexual life and the marriage had not been consummated and false allegations have been levelled against the respondent as if she had committed various acts of cruelty. The respondent's hopes that the appellant's sexual dysfunction will be cured if proper treatment is given. When the appellant left for Dubai after marriage and while the respondent was staying with her in-laws, she was subjected to cruelty on all possible ways. She was not permitted to communicate with the appellant. The respondent's mobile was snatched from her. Only after repeated requests the appellant sent a Visit VISA valid for sixty days to the respondent. The allegation that the respondent never cooked food for the appellant and the food was ordered from the Hotel and that she carried false tales and made false allegations against the appellant to the neighbours are all totally false. While at Dubai, the respondent was taken to a remote desert at UAE where people were nudely dancing, drinking, smoking and doing all nasty things. She was compelled to take liquor but she refused to take. The appellant took lot of alcohol and hobnobbed with his girl friends, which ultimately resulted in vomiting and allergy. The appellant told her that she was her guest, the marriage will not continue, everything is finished, they will split soon, the wavelength of both the parties are different and are not matching. The appellant told her that she is a dust under his feet and also used filthy words.
11. Eventhough the respondent lived with the appellant amicably and positively with great expectations, the appellant did not initiate any move for sexual relationship, but when the respondent approached the appellant for sexual relationship, it resulted in usual premature ejaculation. From January 2004 onwards, the appellant began to use the respondent for oral sex. Though the respondent requested the appellant to extend the period of her VISA, the appellant did not take any steps, though the appellant was eligible to apply for Family VISA. Instead of obtaining Family VISA, the appellant sent back the respondent to India on 1st February 2004. The appellant told her that as the time is not auspicious the Astrologer has advised them to live apart for sometime. When she returned to India, she directly went to Cuddalore to her in-laws place, but her in-laws did not permit her to enter the matrimonial home stating that there is risk if she lives there, according to the Astrologer, and she was forced to go to her parent's place. The appellant did not pay a single pie to the respondent towards her basic necessities. On 28th August 2004, the appellant arrived to India without informing the respondent. The efforts taken by the respondent to reunite with the appellant failed and within five days the appellant left India to Dubai. The appellant's parents adamantly refused to accept the respondent into their family but ill-treated her and demanded dowry, namely, car, jewels, immovable properties to accept her into the family. When the same was informed to the appellant, he advised her to comply with the demands. On coming to know about the fact that the appellant had arrived to India, the respondent went to matrimonial home on 13.06.2006 with her luggage accompanied with her mother and aunt, but she was not allowed to enter into the matrimonial home. On 14.08.2008 the appellant and the respondent had a meeting at the residence of one Lalitha and at that time he informed about the issuance of the lawyer's notice, but however told her that he will take a good decision in favour of the respondent to resume cohabitation.
12. The allegation of non-consummation of marriage is denied. The respondent has no defect, she is perfect, she has attained puberty and she is physically and mentally fit to have sexual intercourse with the appellant and there is no necessity for the respondent to undergo any surgical procedure as alleged by the appellant. If really the respondent had not attained puberty and she was physically unfit for sexual relationship, the appellant could have taken immediate steps to dissolve the marriage and need not have waited for more than three years. The respondent had attained puberty at the age of 13 and she is regularly having her menstrual cycle and her reproductive organs are normal and she is fit for normal sexual relationship and to bear a child. The respondent expressed her willingness to undergo medical examination before any medical Board to prove her fitness and potency for sex. On the aforesaid pleadings, the respondent sought for dismissal of the OP.
13. In M.C.No.38 of 2007 the respondent, after repeating the averments contained in her counter statement, had stated that the appellant is employed in a multi national company at Dubai and earning Dhs.7000 and he had failed to send any money for her maintenance, though he is drawing Dhs.7000. The respondent is jobless and depends upon her aged parents for her maintenance. Though she was employed as a teacher before marriage, after marriage at the request of the appellant, she quit the job and she is unable to maintain her. The appellant has refused to take her back to the matrimonial home and has made false allegations against her and therefore the appellant is liable to pay a monthly maintenance of Rs.50,000/- to her.
14. The said claim for maintenance was contested by the appellant by refuting all her allegations in detail, but he had repeated some of the allegations contained in the Divorce OP. It was contended by the appellant that the respondent is a Post Graduate with M.Sc., M.Phil., degree and was working as a teacher even at the time of marriage and has stated that he learns that the respondent is employed and is reportedly earning a sum of Rs.10,000/- a month. The allegation that he is earning Rs.1 lakh per month is denied, but he is receiving only Dhs.7000 and after all his expenses, he is not able to make any savings. There is no legal obligation to pay maintenance to the respondent. The respondent is having sufficient means to maintain herself. The appellant has to take care of his elderly parents from and out of the meagre savings and his salary. There is no ground for making a claim of Rs.50,000/- per month as maintenance.
15. Before the Family Court, a joint trial was conducted and the evidence was recorded in M.C.No.38 of 2007 and the respondent herein was examined as P.W.1 and she examined one lady Doctor as P.W.2 and Exs.P-1 to P-14 were marked. On the side of the appellant, he was examined as R.W.1 and Exs.R-1 to R-5 series were marked. On a consideration of the evidence adduced before it, the Family Court, as stated supra, dismissed the O.P. for divorce and allowed M.C.No.38 of 2007 and directed the appellant to pay a sum of Rs.10,000/- as monthly maintenance to the respondent herein and aggrieved by that, the parties are before this Court.
16. Heard the learned counsel on either side.
17. Learned counsel for the appellant made the following submissions:-
The respondent, in her evidence, had admitted that there is no consummation of marriage between the appellant and the respondent though she had pleaded that it was due to incapacity of the appellant alone. The Court below ought not to have relied upon the evidence of the Doctor-P.W.2 certifying that the respondent is fit for marital life. P.W.2-Doctor had not treated the respondent on earlier occasions when she had problems with regard to her power of reproduction, but had certified her as on the date of examination which was long after the dispute arose. The respondent had not attained puberty at the time of marriage and was not fit for conjugal relationship and had to undergo treatment and operations to set right her defect, which defect was never informed to the appellant and that vitiated the consent given by the appellant for marriage rendering the marriage as void. The Court below ought to have drawn an adverse inference for the non production of the medical records from the Clunie Hospital, which had operated on the respondent and about which P.W.2 had also testified. The evidence of P.W.2 should have been rejected as she had certified the fitness of the respondent without even looking at the earlier hospital records. When the allegations made by the respondent against the appellant in the pleadings had not been established that itself is sufficient to grant a decree for divorce. The obscene, vulgar and unimaginable filthy allegations made against the appellant by the respondent in her reply notice itself will amount to causing mental cruelty to the appellant and on that ground itself the divorce ought to have been granted. Presently the appellant is getting only Dhs.5000 as salary at Dubai which is equivalent to Indian Rupee 55,000/- and after meeting out his expenses towards the rental, payment of car loan, towards the food, etc., the appellant is unable to save anything and besides that he had to take care of his aged parents and therefore, the sum of Rs.10,000/- awarded as monthly maintenance is on the higher side.
18. Countering the said submissions, the learned counsel for the respondent made the following submissions:-
When it is the specific case of the appellant that the marriage had not been consummated since the respondent had not attained puberty and she was both physically and mentally unfit for sexual relationship, the burden is on the appellant to prove the same, but such a burden has not been discharged by him, whereas the respondent, by examining P.W.2-Doctor, and by marking Exs.P-13 and P-14 has amply proved that she is physically fit to have sexual relationship with the appellant and her reproductive organs are normal and she is fit to bear a child. Even in the petition, the respondent had expressed her willingness to undergo medical examination by a Medical Board to prove her physical fitness to have sexual intercourse, whereas the appellant had not expressed his willingness to undergo medical examination and had not adduced any medical evidence to show that his sexual functions are normal and that he is not suffering from sexual dysfunction and he is fit to fulfil the respondent's sexual desires and he is not suffering from pre-mature ejaculation. The allegations of cruelty have not been established by acceptable evidence. No other witness has been examined to corroborate the evidence of R.W.1. If really the respondent had not attained puberty and she was not both physically and mentally fit to have sexual relationship this would have come to the knowledge of the appellant when the appellant and the respondent were living together for ten days in the matrimonial home in India and the appellant would have definitely informed the same to his parents as well as to the parents of the respondent. Even otherwise, if the said alleged defects of the respondent had come to the knowledge of the appellant while they were together at Dubai, the same would have been brought to the notice of the parents of both and if such allegations are really true then the appellant would not have waited for nearly three years to initiate proceedings seeking divorce. The manner and the details regarding the appellant indulging in oral sex said to have been had by the respondent with the appellant is set out in the reply notice-Ex.P-8 and in the counter statement and in the evidence by the respondent and the same would show that unless the respondent had been forced to have oral sex by the appellant, the respondent would not be in a position to state so both in the petition and in her evidence. No woman would make such allegations against her husband unless such things had actually happened. When it is the specific stand of the respondent that at her instance several times both of them tried to have sex but due to premature ejaculation and sexual dysfunction of the appellant, the appellant could not satisfied the sexual desires of the respondent, the appellant ought to have subjected himself to medical examination and proved that he is potent and is not suffering from any sexual dysfunction. The mere allegations made by the respondent against the appellant in the reply notice and in the counter statement will not amount to mental cruelty. The Family Court has considered the entire evidence on record and has rightly dismissed the petition for divorce. The sum of Rs.10,000/- awarded as monthly maintenance to the respondent is too meagre considering the cost of living. It is not in dispute that the respondent is jobless though she is qualified to get a job, therefore, the learned counsel submitted that in these days of high cost of living, a minimum sum of Rs.20,000/- is required for the respondent to maintain her. The parents of the appellant are getting family pension and they are having a car and a house and they are not in need of any monetary help from the appellant. In support of the said contentions, the learned counsel for the respondent relied upon the following decisions:-
(i) 2007 (1) CTC 198 (Sivasubramanian, R. v. S.Krishnaveni);
(ii) 2007 (1) CTC 367 (Lakshmi Priya v. K.V.Krishnamurthy);
(iii) 2007 (2) CTC 26 (Suriyakumari, D. v. R.Srikanth); and
(iv) 2007 (3) CTC 464 (Samar Ghosh v. Jaya Ghosh).
19. We have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.
20. The appellant, who is the husband of the respondent, has sought for a decree of nullity of marriage on the ground of impotency of the respondent at the time of marriage and also at the time of filing the petition and alternatively for dissolution of marriage on the ground of wilful refusal for consummation of marriage and also causing mental cruelty to the appellant.
21. According to the appellant, the marriage between him and the respondent was solemnised as per Christian Rites on 22.08.2003 and the same was registered on 08.09.2003; the appellant left for Dubai, where he is employed, on 19.09.2003 leaving the respondent at Cuddalore. According to the appellant, the marriage was not consummated due to the respondent's unwillingness and abnormal attitude towards the normal sexual activities; the respondent joined with her husband / appellant at Dubai in December 2003 and thereafter on 28.02.2004 the respondent left Dubai to India as the period of VISA expired and thereafter there is no cohabitation between them. It is also the case of the appellant that even while they were together at Dubai, the marriage was not consummated since the respondent did not have physical capacity and sexual attitude towards the appellant to have sexual intercourse; the respondent herself had admitted that she has not attained puberty and that matter was suppressed at the time of marriage. It is the further case of the appellant that he learnt that the respondent had to undergo a surgical procedure at a Hospital at Puducherry and the marriage was not consummated due to the respondent's impotency and physical incapability; on the aforesaid ground, the decree for nullity of marriage is sought for.
22. It is the further case of the appellant that the respondent behaved strangely and rudely towards the appellant at Dubai; she never prepared food and ordered food from Hotels; everyday the respondent tortured the appellant by making unnecessary and suspicious questioning about him; she made false accusations against the appellant to the neighbours; when the respondent was taken for a picnic with other friends, she behaved improperly and caused embarrassment to the appellant and lowered his reputation among his friends and colleagues and because of that he even made an attempt to commit suicide but the time counselling of the parents and friends averted such an event. According to the appellant, it is no longer possible to live with the respondent with an apprehension that her presence would cause mental harm and physiological injury to him; in such circumstances, the appellant issued Ex.P-8-legal notice to the respondent setting out the aforesaid facts with a view to put an end to the marital tie and for that a reply was sent by the respondent running into several pages and containing many allegations which were false, rubbish and contain many sexually explicit matters which cannot be uttered by any modest lady; the allegations contained in the reply notice itself would amount to causing mental cruelty; the refusal to have sexual intercourse with the appellant caused mental cruelty to the appellant; on the aforesaid allegations, the appellant has sought for divorce on the ground that the respondent had caused mental cruelty to him.
23. Whereas the respondent had categorically denied all the aforesaid allegations in her counter statement as well as in her evidence point-by-point.
24. When all the allegations made by the appellant against the respondent had been specifically denied by the respondent, the burden is on the appellant to prove the allegations made by him, therefore, it has to be seen as to whether the appellant had proved the allegations made against the respondent by adducing acceptable evidence.
25. In the decision reported in 2007 (1) CTC 367 (referred to supra) a Division Bench of this Court has laid down that the burden lies on the husband who seeks relief from the Court on certain grounds to establish such grounds. The Division Bench has held that the burden lies on the party who affirms the fact and not on the party who denies it. The very same Division Bench in the decision reported in 2007 (1) CTC 198 (referred to supra) has reiterated the aforesaid legal position. In the decision reported in 2007 (3) CTC 464 (referred to supra) a Full Bench of the Hon 'ble Apex Court has enumerated some instances of human behaviour which may be relevant in dealing with the case of 'mental cruelty', in paragraph 102 of the decision, which reads as follows:-
102. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may each such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever the tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
26. In the light of the aforesaid legal principles the evidence adduced in this case has to be considered to find out whether the appellant has proved his case.
27. The allegations put forth by the appellant in his petition have been reiterated in his chief examination as R.W.1; the appellant has deposed that the reason for the respondent to return back to India from Dubai was to undergo a surgery to make herself fit to be a woman and the said fact came to his knowledge only when the mother of the respondent informed him; he has deposed that there was no sexual intercourse between him and the respondent; the respondent is not fit both physically and mentally to have sexual intercourse and the marriage has not been consummated and that was the reason why the respondent was not affectionate towards him; the fact that the respondent had not attained puberty was not informed to him and his family members; he has further deposed that the allegations contained in the reply notice sent by the respondent are totally false and the allegation by the respondent that he is suffering from sexual dysfunction, pre-mature ejaculation and he is watching pornographic sites in the internet and he is indulging in masturbation etc., are all false; the allegation that the respondent was forced to indulge in oral sex is also totally false and he has only deposed that only to hide her physical and mental incapacity to indulge in sexual relationship with the appellant, false allegations have been levelled against him; the allegation that his parents demanded jewels, car, motor cycle, etc., as dowry are false.
28. As far as the allegation of mental cruelty is concerned, the appellant, as R.W.1, has deposed that the respondent was not affectionate towards him and she had not cooked food; she failed to discharge her duty as a wife in the bed; she started suspecting him and made false allegations to the neighbours; the non-consummation of the marriage itself has caused great mental agony and cruelty and further the false and filthy allegations made against him in the reply notice itself will amount to cruelty.
29. But to corroborate the aforesaid evidence, the appellant has not examined any other witness and he has also not adduced any medical evidence to show that he is not having any sexual dysfunction.
30. On the other hand, the respondent even in her reply notice, dated 21.07.2006, has point-by-point denied all the allegations made by the appellant both in her reply notice, counter statement and evidence; she has stated that she attained puberty at the age of 13 and she is regularly menstruating and her reproductive organs are normal; she is fit for marital life and she has also stated that she is having a Doctor Certificate with U.Sonography findings to prove on her side; in her reply notice, counter statement and oral evidence, the respondent, as P.W.1, had not only denied all the allegations made against her by the appellant, but has specifically stated that the appellant did not initiate any move for sexual intercourse but when the respondent initiated herself to have sexual intercourse with the appellant the appellant reluctantly had sexual relationship with her, but, as usual, there was pre-mature ejaculation and he was not in a position to fulfil the sexual desire of the respondent; she has also deposed about the appellant compelling her to have oral sex and she had to reluctantly agree for the same and because of such unnatural acts, she had suffered a lot, she had vomited and she was not able to take even food; she has also spoken to about her request to the appellant to undergo some medical treatment and the refusal of the appellant to undergo medical checkup and treatment; she has categorically stated that even now she is ready to live with the appellant; she has deposed about the harassment and dowry demand made by the parents of the appellant; she has also stated that the appellant had suppressed the sexual dysfunction at the time of marriage and he has made false allegation that the respondent is impotent and by making such false allegation she has been put to great mental shock, mental agony and frustration; she had been treated cruelly by the appellant and his parents; the appellant has not taken care to sent any money for her maintenance; she has further deposed that it is only the appellant and his parents who have treated her with cruelty.
31. It is pertinent to point out that during the cross examination of P.W.1 it has not been suggested by the appellant that she had not attained puberty and she has no interest to have sexual relationship with the appellant. Regarding the allegations of cruelty levelled against the respondent by the appellant no suggestion have been put to her. Further, no suggestion has been put to her suggesting that there was no demand for jewellery, car, etc.,
32. P.W.2-Doctor-Shanthi Michael had deposed that she had examined the respondent and she has issued Ex.P-14 -Certificate certifying that the respondent is physically fit to have sexual intercourse; through her Ex.P-13-Scan also has been marked; she has deposed that the medical records relating to the examination of the respondent in 2004 are available at Clunie Hospital; she has deposed that she does not remember whether any vaginal expansion surgery was done to the respondent in 2004.
33. It is pertinent to point out that no suggestion has been put to P.W.2 disputing the correctness and veracity of Exs.P-13 and P-14. It has not even been suggested to the Doctor that the respondent had not attained puberty and she is not fit for sexual intercourse; in Ex.P-13 it is stated that both ovaries are normal in size, shape and echo pattern and both adnexiae appears normal; the sonography report shows that in Ex.P-13 against column final impression it has been stated "normal U.Sonography study of pelvis"; in Ex.P-14, P.W.2 has certified that the respondent had attained menarche at the age of 13 and she is regularly menstruating and on scanning her reproductive organs are normal and she is fit for normal martial relationship.
34. Except the oral evidence of R.W.1 / the appellant, there is no other corroborative evidence to prove that the respondent had not attained puberty and she is not physically and mentally fit to have sexual intercourse. Though in his cross examination the appellant had stated that five months after the marriage he had informed the parents of the appellant about the non-attainment of puberty by the respondent, he has neither pleaded nor deposed like that in his chief examination and he has also not stated so in his legal notice-Ex.P-8. In his cross-examination, he has further stated as if he wanted the respondent to come for medical check up, but she refused to come but such a pleading has not been made in the petition.
35. As pointed out above, it has not even been suggested to P.W.1 that she has not attained puberty and she has no interest to have sex. Whereas it is the consistent case of the respondent throughout both in the reply notice, counter statement and in her evidence that she had attained puberty and she is having normal menstruation cycles and she is fit to give birth to a child. The said stand of the respondent is corroborated by P.W.2-the Doctor, who have examined her. Exs.P-13 and P-14 show that the respondent is fit to have sexual relationship and she has attained puberty and her reproductive organs are normal and she is fit for normal marital relationship. The appellant has not questioned the correctness and veracity of Exs.P-13 and P-14 and it has not even been suggested to P.W.2 that false certificate has been issued and the respondent has not attained puberty. Therefore, the undisputed testimony of P.W.2 fully corroborates the version of the respondent. Hence the non production of Hospital records is not fatal to the respondent's case. Therefore, it is proved by oral and medical evidence that the respondent had attained puberty, she is regularly menstruating, she is fit for marital relationship and she is not impotent. Therefore, the prayer for decree of nullity of marriage on the ground that the respondent is impotent cannot be granted. The findings of the Court below on this aspect is correct and the same is confirmed.
36. The next issue that has to be considered is as to whether the marriage had been consummated or not.
37. While it is the case of the appellant that the marriage has not been consummated due to physical and mental incapacity of the respondent, it is the case of the respondent that the appellant had not shown any interest to have sexual relationship with her. It is the specific case of the respondent throughout that the appellant is having sexual dysfunction like premature ejaculation and pre-penetration ejaculation. The case of the appellant that the respondent is physically and mentally unfit and incapacitated from having sexual relationship is disproved by the evidence of the Doctor-P.W.2. When the Doctor has certified that the respondent has attained puberty at the age of 13 and she is having regular menstruation and she is fit for normal marital relationship and her reproductive organs are normal and when the respondent is fit for normal sexual relationship as stated by P.W.2, no acceptable reason has been stated by the appellant as to why the marriage was not consummated.
38. In his cross-examination, R.W.1 has stated as if he came to know that the respondent had not attained puberty after five months of the marriage and the same was informed to her parents, but no such plea has been raised in the petition. If really the appellant had come to know as stated by him that the respondent had not attained puberty, he would not have waited for more than 2= years to approach the Court seeking nullity of marriage or divorce. When the respondent in her counter statement itself had stated that she is ready to undergo any medical examination, the appellant had not stated his readiness to undergo medical examination and the appellant has also not adduced any medical evidence to show that he is not suffering from any sexual dysfunction and he is fit to have normal sexual relationship. When it is the specific case of the respondent that the appellant is suffering from sexual dysfunction like premature ejaculation and pre-penetration ejaculation, it is incumbent on the part of the appellant to have disproved the same by subjecting himself to medical examination and by producing medical evidence. In the absence of such medical evidence we have to accept the evidence of the respondent.
39. It is probable that the appellant is not having mental strength to admit this defect and go for medical treatment. Pre-mature ejaculation or pre-penetration ejaculation can be cured by proper medical treatment and in fact P.W.1 has stated in her evidence that she wanted the appellant to go for consultation with a Doctor and have medical treatment, but the appellant had not agreed for the same. Now that, by medical evidence, it has been proved that the respondent is fit for normal sexual relationship and if the appellant undergoes medical test and treatment as alleged, his sexual dysfunction can be rectified and both the parties can lead a normal and happy marital life provided the appellant is willing. The respondent has expressed her willingness to reunite with the appellant.
40. According to the respondent, at her instance, both of them had sexual intercourse but due to premature ejaculation the appellant could not fully satisfy the sexual desire of the respondent. Therefore, in our considered view, it cannot be said that there was no sexual intercourse between the appellant and the respondent at all. Even otherwise, the inability of the appellant to fully consummate the marriage cannot be put against the respondent by making false allegations that the respondent is unfit for sexual relationship and therefore, the divorce sought for on the ground of non-consummation of marriage also cannot be granted. The Court below is right in coming to such a conclusion.
41. As far as the allegations of cruelty levelled against the respondent is concerned, all the allegations of cruelty have been denied by the respondent in her chief examination, but, as pointed out above, no cross-examination has been made on that aspect and no suggestion has been put to her regarding the alleged cruelty and it has also not been suggested to her that she made any false allegations to the neighbours or she behaved inappropriately when she was taken for a picnic, etc., Therefore, when it has not at all been suggested to P.W.1 that her acts and conduct caused mental cruelty to the appellant, it cannot be said that the allegations of cruelty made by the appellant have been established. Further, except the oral evidence of R.W.1 there is no other evidence to show that the respondent treated the appellant with cruelty. Therefore, on the ground of cruelty also, the appellant is not entitled to get a decree for divorce.
42. As laid down by the Apex Court in the decision reported in 2007 (3) CTC 464 (referred to supra) this is not a case where it could be said that it would not be possible for the appellant to live with each other. In that decision, it has been laid down that any unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty, but, in this case, the said ground has not been made out. Therefore, we do not find any reason whatsoever to interfere with the judgment and decree passed by the Family Court, Puducherry.
43. As far as the maintenance awarded by the Family Court at Rs.10,000/- per month to the respondent is concerned, it has to be pointed out that admittedly the respondent, though a post graduate with M.Sc., M.Phil degree, is presently un-employed and she is entirely depending upon her parents for her maintenance. Though according to the respondent, the appellant is earning a sum of Rs.1,00,000/- as salary per month at Dubai, the same has not been proved by acceptable evidence. Whereas Ex.R-2 salary certificate of the appellant for the month of January 2008 shows that his net salary was Dhs.7000 which is equivalent to Indian Rupee 77,000/-, but Ex.R-4 dated 06.05.2009 shows that there was lay off by the employer due to recession and Ex.R-3, which is the salary slip for the month of June 2009, shows that the appellant was continuing in service of his former employer Muqlah Advertising, Dubai, UAE, but as per Ex.R-3 his monthly salary has been reduced from Dhs.7000 to Dhs.5000, which is equivalent to Indian Rupee 55,000/- and the same has been taken into consideration by the Family Court, while fixing the maintenance payable to the respondent.
44. It is the case of the respondent that the parents of the appellant are getting pension, they own a car and a house and therefore they need no support from the appellant. Whereas it is the case of the appellant that after meeting his personal expenses at Dubai, he had to support his parents and therefore he is not in a position to pay any maintenance to the respondent. Further, it is the case of the appellant that since the respondent is a post graduate and a M.Phil degree holder, she can get employment, but it is not his case that the respondent is employed.
45. Once it is admitted that the respondent is not employed, it is the duty of the appellant as a husband to maintain her. It is pertinent to point out that in the cross-examination of P.W.1 it has been elicited from the respondent that the parents of the appellant are Government pensioners and the appellant, as R.W.1, in his evidence has admitted that both his parents are receiving pension. It is not in dispute that the parents of the appellants own a house and therefore, the parents of the appellant are not depending upon the appellant for their maintenance, but therefore the contention of the learned counsel for the appellant that the sum of Rs.10,000/- awarded as maintenance to the respondent is on the higher side cannot be coutenanced. Similarly the contention of the learned counsel for the respondent that the sum of Rs.10,000/- awarded as maintenance is on the lower side also cannot be countenanced.
46. As stated supra, the present monthly salary of the appellant is only Dhs.5000 equivalent to Indian Rupees 55,000/-. The appellant has to pay rent for accommodation, meet the transportation expenses, meet his other expenses towards food, etc., Though his parents may not depend upon him for their maintenance, as a son the appellant has to take care of them by spending some money on them. Therefore, he may not be in a position to pay more than Rs.10,000/- per month to the respondent. Therefore, we are of the considered view that the sum of Rs.10,000/- awarded as maintenance to the respondent by the Family Court is reasonable and we do not find any reason, whatsoever, to interfere with the order of the Family Court passed in M.C.No.38 of 2007.
47. For the aforesaid reasons, the above Civil Miscellaneous Appeal and the Criminal Revision Cases stand dismissed. However there will be no order as to costs.
48. The memo, dated 13.02.2012, filed by Mrs. Chithra Sampath, learned counsel for the appellant, stating that a demand draft for a sum of Rs.5,60,000/- drawn in favour of the respondent has been handed over to the learned counsel for the respondent towards the arrears of maintenance, is recorded. The appellant shall continue to pay the sum of Rs.10,000/- ordered as maintenance to the respondent, without any default.
(K.M.J.,) (R.K.J.,) 04.04.2012 Index : Yes / No Web : Yes / No srk K.MOHAN RAM, J., AND R.KARUPPIAH, J., srk To 1. Family Court, Puducherry Pre-Delivery common Judgment in C.M.A.No.3507 of 2009 and Crl.R.C.Nos.1253 of 2009 & 1810 of 2011 and M.P.Nos.1 of 2009 and 1 of 2011 .04.2012 Pre-Delivery common Judgment in C.M.A.No.3507 of 2009 and Crl.R.C.Nos.1253 of 2009 & 1810 of 2011 and M.P.Nos.1 of 2009 and 1 of 2011 To The Hon 'ble Mr. Justice K.Mohan Ram and The Hon 'ble Mr. Justice R.Karuppiah Most Respectively submitted: S.Ramkumar srk / pa Justice K.Mohan Ram .04.2012 for consideration and approval Pre-Delivery Judgment in C.M.A.No.3507 of 2009 and Crl.R.C.Nos.1253 of 2009 & 1810 of 2011 and M.P.Nos.1 of 2009 and 1 of 2011 Justice K.Mohan Ram To The Hon 'ble Mr. Justice R.Karuppiah