Karnataka High Court
Sri A Radhakrishnan vs Smt R Vanitha on 14 November, 2022
Bench: Alok Aradhe, S Vishwajith Shetty
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
M.F.A.No.6389/2014 (FC)
BETWEEN:
SRI A. RADHAKRISHNAN
AGED ABOUT 51 YEARS
S/O SRI N. ANNAMALAI
RESIDING AT NO. 7, 2ND CROSS
IYYANAR KOIL STREET
EZIL NAGAR NORTH
PUDUCHERRY - 605 003
NOW WORKING ALSO AT:
SRI A RADHAKRISHNAN
BRANCH MANAGER
INDIAN BANK, METTUPALAYAM
PUDUCHERY - 605 009. ...APPELLANT
(BY SRI B. MOHAN, ADV. A/W
SRI DEVARAJ C.H., ADV., FOR
SRI VIJAYA KUMAR V. ADV.)
AND:
SMT. R. VANITHA
AGED ABOUT 44 YEARS
D/O SRI V.T. RAJENDRAN
W/O SRI A. RADHAKRISHNAN
RESIDING AT "GANESH NILAYAM"
NO. 3/1, 2ND CROSS, NEHRU ROAD
KAMMANAHALLI
BANGALORE - 560 084. ...RESPONDENT
(BY SRI RAHUL CARIAPPA, ADV.)
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THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, PRAYING AGAINST THE JUDGMENT AND
DECREE DATED 18.08.2014 PASSED IN M.C. NO.2496/2010
ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, ALLOWING THE PETITION FILED U/S 12(1)(A)
AND 13(1)(IA) OF THE HINDU MARRIAGE ACT, FOR DECREE
OF NULLITY AND DIVORCE.
THIS APPEAL HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, VISHWAJITH
SHETTY J., DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal under Section 19(1) of the Family Courts Act is filed challenging the judgment and decree dated 18.08.2014 passed by the Principal Judge, Family Court, Bengaluru, in M.C.No.2496/2010, wherein the petition filed by the respondent-wife under Sections 12(1)(a) and 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') was allowed and the marriage of the appellant with the respondent was declared as nullity, and accordingly, the marriage was dissolved by a decree of divorce.
2. Heard the learned Counsel for the parties and also perused the material available on record.
3. Brief facts of the case as revealed from the records which would be necessary for the purpose of 3 disposal of this appeal are, the marriage of the appellant and the respondent was solemnized on 29.10.2001 at Mani Shadakshari Kalyana Mantap, No.307, Thimmaiah Road, Off. Queens Road, Bengaluru. At the time of marriage, the respondent was working in General Post Office at Bengaluru, while the appellant was working as a Clerk in Indian Bank, Neyveli Branch, Neyveli, Tamil Nadu.
4. After the marriage, nuptial ceremony was arranged at the residence of the respondent in Bengaluru, but the appellant had refused to cohabit with her on the ground that he was not well and was suffering from high fever. Immediately thereafter, the appellant had left to Neyveli and the respondent was left back in her parents house at Bengaluru, though initially it was agreed that she would be taken to Puducherry where the parents of the appellant were residing. After a great deal of persuasion, the parents of the respondent reluctantly took the respondent to Puducherry and the respondent stayed there from 01.11.2001 to 20.11.2001, but during the said period, the appellant allegedly stayed away from 4 the respondent throughout. While she was returning to Bengaluru from Puducherry, she was specifically instructed by her in-laws that she would be returning to Puducherry only after she obtains permanent transfer. Even when she stayed in Bengaluru thereafter, the appellant never visited her and the marriage remained unconsummated. Though the appellant had promised to the respondent that he would setup a marital house at Puducherry immediately after the marriage, no such arrangements were made.
5. In the meanwhile, the appellant was transferred to Cuddalore and after great persistence, the respondent got herself transferred to Puducherry in the year 2005. Since the appellant had failed to setup a house at Puducherry, though the appellant's parents were residing at Puducherry, the respondent was constrained to stay in a hostel accommodation at Puducherry and attend her office. In the meanwhile, in the year 2004, the appellant was transferred from Cuddalore to Punganur in Andhra Pradesh, and on 28.03.2004, the respondent along with her parents went to Punganur and met the appellant in 5 his bank. However, the appellant did not show any concern and his response was extremely poor. Though he had assured that he would be taking a transfer to Puducherry, he never made any efforts for the same. In the year 2007, the appellant was transferred from Punganur to Proddadur in Andhra Pradesh and the respondent again went to Proddadur and requested the appellant to set up a house at Proddadur for their residential purpose. However, the appellant stoutly refused to the same. It is under these circumstances, after informing her parents that her marriage was not consummated with the appellant, the respondent had filed a petition before the Family Court at Bengaluru seeking a decree declaring the marriage as nullity and also for dissolution of the marriage by a decree of divorce.
6. In the said proceedings, the appellant had filed detailed objections denying the petition averments and contended that the marriage was not consummated for the reason the respondent was not cooperating for cohabitation since she had some gynecology problems. 6 He contended that the respondent had refused to take any treatment for her gynecology problems though he had insisted for the same on many occasions. He also contended that he was potent and he was ready and willing to undergo any test to prove his potency.
7. During the course of trial before the Family Court, the respondent was examined as PW-1 and she got marked as many as 14 documents as Exs.P-1 to P-
14. The appellant had got examined himself as RW-1 and two documents were marked in support of his case as Exs.R-1 & R-2. The learned Judge of the Family Court, thereafter, vide the impugned judgment and decree allowed the petition and declared that the marriage that was solemnized between the parties was a nullity and accordingly dissolved the same by a decree of divorce. Being aggrieved by the same, the husband has preferred this appeal.
8. Learned Counsel for the appellant submits that the respondent has not proved the allegations made by her against the appellant. He submits that there is no medical evidence to show that the appellant was 7 impotent and in the absence of the same, the Family Court was not justified in arriving at the conclusion that the appellant was impotent, and therefore, the marriage was not consummated. He submits that the petition is filed after a period of nine years from the date of marriage and for the first time after nine years, the allegation of impotency is made against the appellant. He also submits that though the appellant had specifically contended in his pleading as well as in his deposition that he was ready and willing to undergo any medical test to disprove the allegation of impotency, the respondent had not made any application before the court requesting the appellant to undergo any such medical test. He also submits that the documents at Exs.R-1 & R-2 would prima facie show that the appellant was potent and unless the same is disproved, the Family Court could not have declared the marriage as nullity on the ground that the same was not consummated that the appellant was impotent. In support of his contentions, he has relied upon the judgment of the Hon'ble Supreme Court in the case of SHARDA VS DHARMPAL - (2003)4 SCC 493. 8
9. Per contra, learned Counsel for the respondent submits that the medical documents at Exs.R-1 & R-2 are concocted documents. The said documents do not show the medical tests undergone by the appellant. He also refers to the cross-examination of the respondent and submits that the appellant's sister was admittedly working in the institution from where the said documents are issued and the appellant has admitted that he does not know the doctor who had examined him, which would prima facie disclose that the said documents are created documents. He submits that unless the doctor who has issued the certificate or who has medically examined the appellant is examined before the Court, no reliance can be placed on the said documents. He submits that the respondent was medically examined through a gynecologist on the application made by her before the Family Court, for which the appellant had not objected and the medical report would go to show that her condition was normal. He submits that the fact that the appellant throughout remained away from the respondent and never made any attempts to join her and lead a normal life would also establish that he was not 9 interested in cohabitation. He submits that the fact the marriage was not consummated is undisputed and the medical evidence would go to show that the respondent was normal, and therefore, the only inference that can be drawn is that the appellant was impotent, and therefore, the marriage was not consummated.
10. In reply, learned Counsel for the appellant submitted that the appellant had never stated that the respondent had any gynecology problems and it is she who had refused to cohabit with the appellant on the ground that she had gynecology problems. He, therefore, submits that the medical report which shows that the respondent is normal and she had no gynecology problems will not have any bearing on the case.
11. The undisputed facts of the case are, the marriage between the parties was solemnized on 29.10.2001 and the said marriage remained unconsummated. The respondent has approached the Family Court seeking for a decree declaring the marriage as nullity and had also sought to dissolve the said marriage by a decree of divorce contending that the 10 appellant was impotent, and therefore, the marriage had remained unconsummated. The appellant though admitted that the marriage was not consummated, has taken a defence that the marriage was not consummated since the respondent did not cooperate for cohabitation on the ground that she had some gynecology problems. In order to substantiate her case, the respondent had examined herself as PW-1 and also got marked the documents at Exs.P-1 to P-14. In her pleadings as well as her deposition, she has stated that immediately after the marriage though nuptial ceremony arrangement was made in their house at Bengaluru, the appellant had not cohabitated with her citing the ground of his ill-health and thereafter he had returned to Naiveli where he was working. She has also stated that they never lived together thereafter at any point of time and though she got transferred to Puducherry where the parents of the appellant were staying, the appellant did not make any efforts to get transfer to Puducherry and on the other hand, he got transferred to different places other than Puducherry. She has also stated that while at Puducherry she was constrained to take shelter in a Girls Hostel 11 though the parents of the appellant were staying at Puducherry. She has also stated that though she had made repeated requests with the appellant to setup a house for the purpose of leading of marital life, he had not responded to the same and the material on record would go to show that throughout he was maintaining distance from the respondent. Nothing is elicited in her cross-examination to disbelieve her contentions.
12. Though the initial burden to establish that the appellant was impotent was on the respondent, having regard to the facts and circumstances of the case, even though she had not produced any material to establish that he was impotent, from the conduct of the appellant and other relevant material available on record, an adverse inference can be drawn that he was evading the respondent and he had not cooperated for cohabitation or he had no willingness for cohabitation. He had not setup a marital house ever since the marriage and had not lived with the respondent and the efforts made by the respondent to convince the appellant to setup a marital house were also in vain.
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13. Though the appellant has produced Exs.R-1 & R-2 so as to establish the potency, no reliance can be placed on the said documents since the author who has issued the said documents has not been examined before the court. From the perusal of the said documents, it is also seen that there is no mention as to the particulars of the medical test that was undergone by the appellant. The appellant during his cross-examination has admitted that he is not aware of the tests that he had undergone nor was he aware of the doctor's name who had examined him. He has also admitted that his sister A.Bhuvaneshwari was a employee of the institution which had issued Exs.R-1 & R-2.
14. Though the appellant has contended that it was the respondent who was avoiding cohabitation on the ground that she had some gynecology problems and it was not his contention that she had some gynecology problems, the perusal of the pleadings as well as the cross-examination of the appellant would go to show that a specific contention was taken by the appellant that the respondent was suffering with some gynecology 13 problems, and therefore, the marriage had not consummated. It is under these circumstances, the respondent had filed an application before the Family Court for her medical examination and the said application was not objected to by the appellant, and accordingly, the Family Court had directed the respondent to undergo medical test and the report submitted by the doctor which is available on record would clearly go to show that the respondent was normal and she had no gynecology problems. Since the appellant had produced medical records as per Exs.R-1 & R-2 to establish his potency, no fault can be found on the part of the respondent in not insisting him to undergo any medical test.
15. Though the marriage had taken place in the year 2001 till the filing of the petition in the year 2010, admittedly, the marriage was not consummated. Having regard to the aforesaid material available on record, the only inference the court can draw is that the appellant was not cooperating for cohabitation and it is therefore the marriage was not consummated. Under the 14 circumstances, in the present case, even though the respondent has failed to produce any material before the Family Court in order to substantiate that the appellant was impotent, it cannot be said that the Family Court was completely wrong in recording a finding that the marriage was not consummated because the appellant was not interested in cohabitation. It has also come on record that even on the day of nuptial immediately after the marriage, the appellant had not cooperated for cohabitation citing health grounds. The respondent has made efforts to live with the appellant by setting up a marital house, but it is the appellant who did not cooperate for the same, and therefore, no error can be found in the judgment of learned Judge of the Family Court that the respondent had substantiated the allegation made by her against the appellant.
16. In Sharda's case supra, the Hon'ble Supreme Court was considering a case wherein the petition seeking divorce was filed on the ground of unsoundness of mind of the wife and though an application was filed by the husband to direct medical examination of the wife, 15 she had refused for the same and it is under these circumstances, the Hon'ble Supreme Court had held that an adverse inference can be drawn against her. The said judgment cannot be made applicable to the facts of the present case. In the present case, the appellant had raised a contention that the marriage was not consummated because the respondent was suffering from some gynecology problems. To disprove the same, the respondent had got herself examined by a doctor and the doctor's report which is available on record would go to show that the respondent had no such gynecology problems and she was normal. On the other hand, though the appellant had produced Exs.R-1 & R-2 to establish his potency, for the reasons aforesaid, a prima facie doubt arises with regard to the genuineness of the said documents.
17. The respondent being a lady had not initially informed to her parents that the marriage was not consummated and she had made efforts to live with the appellant under a common roof. But all such efforts did not find any positive response from the appellant. On the 16 other hand, the appellant was throughout avoiding her and he never made any effort to seek transfer to a place where the respondent was working. Even after the respondent took transfer to Puducherry, the appellant did not join her even at Puducherry though his parents were residing in Puducherry. It is not in dispute that the respondent was staying in a hostel accommodation in Puducherry and this itself would be sufficient to show that the appellant did not have any intention or willingness to cohabit with the respondent. Merely for the reason that the respondent had not revealed about the impotency of the appellant to her parents within a reasonable period and she has revealed the same just before the filing of the petition, that itself cannot be a factor to disbelieve her version, more so having regard to the conduct of the appellant and other material available on record.
18. The parties are staying separately for the last nearly 13 years and the material on record would go to show that the relationship between the parties is also strained to the extent that it would not be able to 17 reconcile and live together. The efforts made by this Court for reconciliation has also failed. From the material on record, it is also seen that the parties do not have respect or faith on each other.
19. The Hon'ble Apex Court in the case of SAMAR GHOSH VS. JAYA GHOSH - (2007)4 SCC 511 has observed that 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 that tie, the law in such cases, doe 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.
20. Under the circumstances, we do not find any good ground to interfere with the judgment and decree passed by the Family Court allowing the petition filed by the respondent-wife under Sections 12(1)(a) and 13(1)(ia) of the Act and declaring the marriage between the parties as nullity and accordingly, dissolving the 18 marriage by a decree of divorce. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE KK