Kerala High Court
Mrs. Usha Abraham vs Abraham Jacob on 3 September, 1987
Equivalent citations: AIR1988KER96, AIR 1988 KERALA 96, (1987) 2 KER LT 582, (1987) 6 REPORTS 380, (1988) 1 DMC 307, (1988) 1 HINDULR 12
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
JUDGMENT Balakrishnan, J.
1. This appeal arises out of an original petition filed in this Court by the respondent herein under Section 18 of the Divorce Act praying that his marriage with the appellant may be declared null and void under Section 19 of the Act, on the ground that the appellant was a lunatic or idiot at the time of marriage and that she was unable to give any valid consent for the marriage. It was also averred that the respondent's consent for the marriage had been fraudulently obtained. He also alleged that the appellant was impotent. On the basis of these averments the respondent prayed for a declaration of nullity of the marriage.
2. The respondent belongs to Murthomite Christian community and the appellant-wife is a Jacobite Christian. The marriage between the appellant and the respondent was solemnised on 29-8-1974 at the St. Thomas Mar Thoma Church at Niranam. It was an arranged marriage and the parties on either side had the usual exchange of visits before the marriage. The respondent and his parents visited the house of the appellant prior to the marriage and there was also the betrothal function.--The respondent would further contend that even on the date of the marriage he found symptoms of mental retardation in the appellant. He alleged that at the time of putting the signature in the church records after the marriage he saw and heard the appellant's sister prompting to the appellant the spelling of the latter's name. After the marriage the appellant and the respondent started residing in the house of the latter. According to the respondent, he was quite astonished and upset to know that the appellant could not write her name and he later discovered that the appellant was suffering from severe mental retardation. Then he thought of dissolution of the marriage. He approached some ecclesiastical heads for divorce', but they turned down the suggestion and told him that a Christian marriage was insoluble. In 1976 he left for Sharja and came to India only in the month of June, 1977, and stayed here till 15th July, 1977. It is alleged that as the time went on it became evident to the respondent that the appellant's condition was such that she was incapable of any improvement and the normal married life was quite impossible. Respondent alleged that the appellant is not merely dull intellectually, but deficient in intellect so as to be incapable of rational conduct expected of an adult woman. The respondent alleged that she does not know how to read or write and that she cannot tell the time by looking at the clock, nor does she know the value and use of money. According to the respondent the appellant is a lunatic or idiot within the meaning of Section 19 of the Divorce Act. The respondent has also alleged that he was not aware of the provisions of the Divorce Act and he came to know of the civil remedy from his cousin's husband and therefore he filed the petition in Sept. 1982.
3. The appellant contended before court that she was not suffering from any sort of insanity. She also denied the various allegations made in the petition. She contended that the marriage was preceded by usual house visits and after the marriage the respondent and the appellant were living as husband and wife and by 1976 the petitioner went for a job to Gulf Country. The petitioner had been sending letters and gifts to the appellant and he also filed a declaration before the Indian Embassy at Sharja to obtain a passport for the appellant. However, by 1980 the respondent snowed some estrangement which culminated in the ultimate filing of the petition for declaration of nullity of marriage.
4. Seven witnesses were examined on the side of the husband and the appellant and her mother were examined as RW 1 and RW 2 respectively. After the examination of RW 1 to 7 the learned single Judge was pleased to appoint a guardian for the appellant, RW 2, her mother, was appointed as guardian of the appellant. The guardian also filed counter-affidavit reiterating the same allegations found in the earlier counter-affidavit filed by the appellant. The appellant was given opportunity to recall the witnesses for further cross-examination.
5. The learned single Judge after elaborately considering the evidence on record held that the appellant herein was lunatic or idiot at the time of the marriage with the respondent and that she was incapable of giving consent for marriage understanding its objects and purpose. However, the contention of the respondent that the marriage was liable to be declared null and void for the reason that his consent for the marriage was obtained by fraud was negatived. So also the respondent's contention that the appellant was impotent was found against. The decision of the learned single Judge is reported in Abraham Jacob v. Usha K. Mamman 1984 Ker LJ 593 : (AIR 1985 NOC 217) (Incidentally we point out that various points for determination have not been correctly numbered in the original judgment and however the same is seen corrected in the report).
6. The finding of the learned single Judge is seriously challenged before us. The learned counsel for the appellant contended that the appellant was neither a lunatic nor idiot and this could be amply proved by the medical certificate, the evidence of PW 1 and RW 1 and the various letters sent by the respondent which were marked as Exts. B1 to B12(a).
7. The first question that would engage our attention is whether the finding of the learned single Judge that the appellant was an idiot or lunatic at the time of the marriage is correct or not. The term lunatic is not defined in the Indian Divorce Act. The Lunacy Act 4 of 1912 defines the term 'lunatic'. Section 3, Clause (5) of the Act defines a 'lunatic' as meaning an idiot or a person of unsound mind. The definition found in the Lunacy Act 4 of 1912 has been borrowed for the purpose of the Indian Divorce Act. (See Daniel v. Sarala ILR (1976) 2 Ker 357, For the purpose of determining whether the appellant was an idiot or not, she was subjected to medical examination by a Board. The report of the Medical Board has been marked in these proceedings as Ext. X-1. The Medical Board consisted on 3 senior doctors working in the Medical College, Trivandrura The Medical Board examined the appellant and the finding of the Board has been extracted in para 8 of the impugned judgment. The last two paras of the report read as follows: --
"She was seen again on 15-11-1983 by the Medical Board and the above findings were confirmed.
The board is of opinion that she is not a congenital idiot and that she does not suffer from lunacy. Her intelligence is below average, the intelligence quotient is 68. She is not congenitally impotent and there is no gynaecological anatomical defect."
The respondent filed objections challenging some of the findings of the Medical Board Strangely enough, the respondent instead of summoning any of the doctors who had examined the appellant to explain Ext. X-1 certificate, examined Shri Philip John, a qualified psychiatrist on the side of the respondent as P.W. 7. Shri Philip John explained that "all mental subnormalities are referable to the developmental stages of the brain. We include all such cases under idiocy. It is up to about six years in age that brain development takes place. Idiocy of varying degrees are all congenital exception cases of meningitis etc."
8. A question of this nature came up for consideration before a Division Bench of Allahabad High Court in Mt. Titli v. Alfred Robert Jones, AIR 1934 All 273. The Court held :
"We are not bound by the definition of an "idiot" as found in medical literature. We have to read the word "idiot" used in Section 19, Divorce-Act, as a word used in its ordinary significance."
The term "idiocy" has been explained by Prof. Modi in 'Modi's Medical Jurisprudence and Toxicology', 19th Edn. page 388 as follows :-
"Idiocy -- This is a congenital condition due to the defective development of the mental faculties. All grades of this condition exist from the helpless life of a mere vegetable organism to one which can be compared with the life of young children, as far as mental development is concerned. An idiot is wanting in memory and will-power, is devoid of emotions, has no initiative of any kind, is unable to fix attention on any subject and "is unable to guard himself against common physical dangers". He is usually quiet, gentle and timid, though he can be easily irritated. He cannot express himself by articulate language, but he may be able to make himself understood by certain signs, cries or sounds. In some cases he is able to recognise his relatives, and learn with great difficulty. He" is usually filthy in his habit and has no concern as to what he eats or drinks. He is very often depraved in morals, and is sometinles cruel to weaker children as well as animals.
There is always some bodily deformity or peculiarity, such as a small (microcephalic), large (macrocephalic, hydrocephalic) or mis-
shapen head, cleft or highly arched palate, irregularly set teeth, enlarged tonsils, adenoids, curved bones etc. Imbecility -- This is a minor form of idiocy, and may or may not be congenital...."
In Pariekh's Text Book of Medical Jurisprudence and Toxicology the term 'idiot' has been explained as follows :
"An idiot is a person in whose case there exists mental defectiveness of such degree that he is unable to guard himself against common physical dangers. He will burn himself at an open fire and be unable to negotiate stairs. The mental development never exceeds that of a normal child of three years of age and his I.Q. is less than 30. He will very often show physical abnormalities such as microcephaly together with a great variety of neurological signs. He cannot speak intelligibly and cannot be trained to any vpcation. His movements are purposeless and clumsy.
An imbecile is a person in whose case there exists a mental defect which, though not amounting to idiocy, is yet so pronounced that he is not capable of managing himself or his own affairs, or in the case of children, of being taught to do so. His mental age ranges from that of a normal child of three years to that of one of six or at most seven years and his I.Q. is between 30-50. He may show physical abnormalities similar to that of an idiot. His speech is slow and articulation often poor. However, he. shows purposeful behaviour and can often be trained to do simple work under supervision.
The moron or feeble minded person, is one in whose case there exists mental defect which, though not amounting to imbecility, is yet so pronounced that he requires care, supervision and control for his own protection or for the protection of others or, in the case of children, the defect is such that they are permanently incapable by reason of such defectiveness of receiving proper benefit in an ordinary school. His mental age is that of a normal child aged about six to eleven and his I.Q. is between 50-70". (Pages 557-58).
In this case the memory quotient of the appellant is 56 and the I.Q. is 68. In the Text Book on Preventive and Social Medicine by J.E. Park, 3rd Edn. the same sort of classification is made on the basis of level of intelligence as follows :
"Levels of Intelligence I. Q. Range Idiot ..0 - 24 Imbecile .. 25 - 49 Moron .. 50 - 69 Border line ..70 - 79 Low Normal ..80 - 89 Normal ..90 - 109 Superior ..110 - 119 Very Superior ..120 - 139 Near Genius ..140 and over".
In Modi's Medical Jurisprudence and Toxicology 20th Edn. at page 393 it has been stated as follows :
"The 1968 January International classification published by W.H.O. describes five levels viz., borderline (I.Q. from 84 to 70), mild (I.Q. from 69 to 55), moderate (I.Q. from 54 to 40), severe (I.Q. from 39 to 25), profound (I.Q. from 24 and below). The-same classification is used in U.S.A. In India we still follow the Mental Deficiency Act, 1927, England, which recognised the three categories, viz., (i) idiocy, (ii) imbecility and (iii) feeble-mindedness described above."
9. In 'Abnormal Psychology and Modern Life', James C. Coleman gives some explanation regarding mental retardation. He has classified the person who has I.Q. 52 to 68 as person of mild mental retardation. The nature of their behaviour pattern has been described at page 506 as follows :
"1. Mild mental retardation (I.Q. 52-68). As shown in the table on page 507, this group constitutes by far the largest number of those labelled mentally retarded. Persons in this group are considered "educable", and their intellectual levels as adults are comparable to that of the average 8 to 11 year old child. Their social adjustment often approximates that of the adolescent, although they tend to lack the normal adolescent's imagination, inventiveness, and judgment. Ordinarily they do not show signs of brain pathology or other physical anomalies. Often they require some measure of supervision due to limited ability to for see the consequences of their actions.
With early diagnosis, parental assistance, and special educational programs, the great majority can adjust socially, master simple academic and occupational skills, and become self-supporting citizens".
9A. P. W. 7 Dr. Philip John while giving evidence regarding the mental retardation of the appellant stated that the classification based on the I.Q. is no longer in use and in the cross-examination he added that every form of mental retardation is a form of idiocy. The relevant consideration in this case is whether the mental disability of the appellant was of such a nature that she was unable to know the nature and consequences of her acts. Feeble minded persons are persons of dull intellect in whose cases mental infirmity is not of such a grave mental disorder as to make them incapable of knowing the nature and consequences of their acts or, in other words, persons who can understand marriage as well as the consequences of a marriage tie cannot be considered as lunatic or idiot. The term idiot or lunatic indicates a total loss of reason.
10. The important question that arises for consideration is whether the appellant herein was incapable of knowing the nature and consequences of the marriage alleged to have been entered into with the respondent The learned single Judge based on the oral evidence of R. W. 1, found that she could not understand the object and purpose of the marriage. At page 8 of the deposition, she deposed that she went to the Church as directed by her parents and that she did not know as to how much time the priest took to conduct the ceremony and she further deposed that at the time of ceremonies she did not understand the object and purpose of the ceremonies. However, the subsequent conduct of R.W. 1 would amply prove that she knew the nature and purpose of the marriage. She knew that she was given in marriage to the respondent and that she would be taken to the house of the respondent. She also deposed that in her own understanding she knew the object and purpose of the marriage without being told by anybody else. The subsequent conduct of the appellant as revealed from the various letters sent by the respondent would amply prove that she knew fully welt the object and purpose of the marriage. A question of this nature has been dealt with in detail in Mt. Titli v. Alfred Robert Jones, AIR 1934 All 273. The Court held :
"A marriage is no doubt described as a civil contract, but it is far from being in the nature of an ordinary contract. A contract, which is induced by fraud or force or coercion or misrepresentation, is voidable at the instance of the party whose consent has been obtained by such influence and is not void in itself : see Section 19, Contract Act. In the case of marriage it is either void or good. It would be impossible to talk of a marriage as "voidable" at the option of one of the parties while it should be binding on the other party. The observation to be found in the well-known-case of Moss v. Moss (1897 P. 263) are very pertinent on the point.
Persons differ from one another in the degree of intelligence possessed by them. It would be a dire calamity if i t could be said as a matter of law that marriage, entered into by a person who is neither a lunatic nor an idiot, is void, simply because one of the parties lacks in intelligence although he is able to understand the nature of the bonds of matrimony into which he is entering. As observed by Hannan P. in Durham v. Durham, (1885) 10 PD 80, the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend."
In Daniel v. Saraia, ILR (1976) 2 Ker 357 this Court relying on the decision in Mt. Titli's case held :
"It cannot be said that every degree of unsoundness of mind effects the capacity to give consent to a marriage. Unlike the understanding required for the execution of a testament or even the execution of a conveyance the degree of comprehension required for giving consent to a marital union is less. That is because the contract of marriage is a simple one, one that does not require a high degree of comprehension to understand its implications. Marriage is an engagement between a man and woman who agree to live together and love one another as husband and wife to the exclusion of all others. The mind of the parties consenting to a marriage must be able to comprehend the significance of promises made and vows taken at the marriage. But in the normal course a person has the capacity to understand what the relationship of a husband and wife is and if he or she gives consent to enter into the matrimonial tie understanding the obligations arising therefrom, the consent would be valid."
Kartik Chandra v. Manjurani, AIR 1973 Cal 545 followed Mt. Titli's case (ILR (1976) 2 Ker 357) and held that "lunacy" must be taken in its ordinary significance. The decision in Muniswar Datt v. Indra Kumari, AIR 1963 Punj 449 also considered the question in detail and held :
"It is, therefore, not every form or degree of insanity or lunacy that invalidates a marriage. The mental deragement must be such as to adversely affect the capacity to solemnise marriage. The test applied is that a "person should have the capacity to understand the nature of contract of marriage and the duties and responsibilities entailed by it. It is not possible to define in more precise terms the extent or the degree of mental capacity. Broadly, the mental incapacity to enter into marriage should approximate to mental capacity which disables a person from entering into contracts generally. A view has also been expressed that marriage depends to a great extent on sentiment, attachment and affection which persons with weaker intellects may also feel and the discernment or soundness of judgment while contracting marriage is of lesser degree than in the case of an ordinary contract. It will suffice to say that persons solemnising marriage must possess a mental capacity sufficient to understand the nature of marital obligations and willingness to shoulder them. Complete want or entire dethronement of reason is not the test for the validity of a marriage. On the other extreme, a mere weakness of intellect will not justify annulment. Ability to understand the nature of marital union and the probable consequences is an acceptable test for determining validity of marriage".
In Halsbury's Laws of England (3rd Edn.) at page 813 paragraph 1324 while dealing with the validity of marriage it has been stated thus :
"Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary, even though it may be necessary to presume the grant of a special licence."
11. The law on the point deducible from various decisions can be summarised as follows. The marriage is a civil contract as well as a religious sacrament. The voluntary consent of both parties is necessary for a valid marriage. The contract of marriage is simple and it does not require high degree off intelligence to comprehend. The test is whether a person in question was capable of understanding the nature of the contract, or whether his mental condition was such that he was incapable of understanding it. In order to ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves responsibilities normally attaching to marriage. The parties to the marriage must be able to comprehend the significance of the promise and vows that flow from such transaction. There is a strong presumption that such consent has been given. The burden of proof on party attempting to impeach a marriage on the ground of want of consent is heavier than in the case of impeaching a commercial contract. The petitioner must show that because of the mental disorder the other spouse was unable to know the nature and consequences of his/her acts. A mere weakness of intellect, mild mental retardation or phychic inability will hot justify an annulment of marriage.
12. The evidence adduced by the parties in this case is to be appreciated in the light of the law enunciated in various decisions. In the petition several allegations have been made against the appellant It is true that the evidence in this case clearly indicates that the appellant suffers some sort of mental retardation. Even Ext X-1 report would show that her intelligence quotient was below average and she experienced some difficulty in adding or subtracting single digits. However, she was capable of managing her household affairs and routine work. She was able to recall the date of her marriage and other details of personal importance. In the petition it has been alleged that she is an idiot and lunatic and that she did not know to read or write and that she was impotent The evidence adduced in this case would clearly establish that many of the allegations given in the petition are completely false. For instance, the respondent alleged that she is illiterate. This is clearly belied by her evidence. During her examination she was asked to read a portion in the Bible and it has been recorded in the deposition that she read Bible. One of the letters written by the appellant also was produced and the same is marked as Ext. B1. For Ext. Bl the explanation of the respondent is that appellant wrote the letter as dictated by the respondent. Of course in her evidence she deposed that she took some time to write the post script in Ext. B1. However, the fact that she wrote the post script in Ext B1 is not denied by the respondent In the series of letters sent by the respondent it has been stated that he received various replies sent by the appellant The contents of these letters would further prove that the appellant knew how to read and write. It would also prove that the appellant and the respondent were on affectionate terms after the marriage and that they were leading a husband and wife relationship. The respondent was sending series of letters to the appellant and she was also sending replies to these letters. The contents of these letters give an insight into the relationship between the parties. We quote some instances. In Ext. B2 dt. 6-4-1976 he addresses the appellant in affectionate terms :
( Editor: The vernacular matter printed hereunder has been omitted).
(My little girl, I don't know the time when this letter is being written.......Since I left you I have not properly slept.) In Ext. B2 he further laments for the absence of his wife. In Ext B3 it has been written:
[Matter in vernacular hence omitted --
Ed] (Several days have passed since I got your letters. What is the matter. Is it that you did not send a reply. I have been craving to see my beloved. If you had been near I could have come and seen you. Everybody say that you should be sent for learning typewriting. What should I say. Trust your father and mother are doing well).
Exts. B4(a) and B4(b) are the two photographs sent by the respondent to the appellant. Ext B6 letter dt. 16-11-1976 clearly shows that the appellant was able to manage her affairs and that the respondent had been sending money. It may be noted that one of the serious allegations against the appellant is that she does not know the value of money and she was not able to get the balance of Rs. 10 when 1.20 rupees was paid as bus fare. These allegations are basically untrue can be seen from Ext, B6 letter. It reads :
"Dear my own Usha.
[Matter in vernacular hence omitted --Ed] (My effort at translation is as follows: 1 have been receiving all your letters. All things' are going on smoothiy. I believe that God will help to join us here together. You can spend the amount I sent as you like. You need not deposit it in Bank. You can purchase any article you like and use as you like. Hope father is doing well. You must purchase a bottle of whisky for him by paying Rs. 15/-. Trust you will remember me in your prayer. In Ext. B7 dt. 23-8-1977 he says that he had been receiving letters from her and that he was passing his days with difficulty. In Ext. B8 dt. 3-3-1978 he further says that he had taken steps to get a passport for Usha. Ext. B9 letter dt. 8-5-1979 is also written in very intimate terms and he conveyed that he got his promotion success in life because of the prayers of the appellant. He also craves for seeing the appellant. Ext. B10 letter dt. 2-5-1976 has been written in the most intimate terms. In the first paragraph of the letter he consoles his wife that she need not worry about the want of children and he wrote that she would beget 4 children. This letter also clearly gives an indication of the mutual relationship between the appellant and the respondent
13. The contention of the respondent that the marriage was not consummated is clearly belied by the contents of these letters. The respondent gave an explanation for these letters that he had been writing these letters at the request of the mother of the appellant to instil confidence and to improve the mental faculties and the intelligence of the appellant and according to the respondent he had been writing these letters with the fervent hope that the appellant would attain intelligence and would be able to be a dutiful wife when he would come from Gulf Country. The explanation of the respondent cannot be believed for a moment. If these letters were intended to be read over to the appellant by her mother, they would not have been in the most sensuous and intimate terms as disclosed in the letters. Some of the passages quoted above would show that the respondent had been getting letters from the appellant and from time to time he had given instruction to his wife regarding all household affairs. In the teeth of all these letters the respondent had the temerity to tell the court that the marriage was not consummated and he wrote all these letters only to please his wife.
14. The respondent in the petition had not stated that he had a sexual inter course with the appellant. But at the time of evidence he deposed that after the marriage he attempted to have sexual inter course with his wife and the latter refused and he forcibly had the sexual act and after that he felt that he had raped a girl of 8 or 11 years. It is important to note that the respondent married the appellant in the year 1974 and the respondent admits that he had sexual intercourse with the appellant even in the month of Dec. 1979. Of course delay in bringing a petition under Section 19 of the Divorce Act is not a bar by itself. But it is relevant when considering want of proof i.e. such conduct on the part of the respondent as to estop him from remedy. When the respondent made a serious allegation in the petition that the appellant was impotent or frigid he should have given full details regarding the mutual relationship they had after the marriage. The respondent failed to give all the details, but at the same time gave startling revelation of the so-called rape at the time of evidence. This would only indicate the extent to which he would give exaggerating statements against the appellant.
15. The various other evidence adduced on the side of the respondent by the witnesses are clearly exaggerated. The appellant's sister-in-law had gone to the extent of saying that the appellant was unable to carry on her day to day affairs in life. The respondent himself has deposed that she was not even able to put her signature in the marriage register and she affixed her signature because of the help of her elder sister. It may be noted that the appellant signed all the pages in the deposition. The evidence given by RW 1 shows that she was capable of understanding the ordinary matters in life. She could recollect the date of the marriage. She has given all details regarding the affairs in her own house as well as in the house of the respondent. She used to go for shopping and used to do work, such as sweeping, washing vessels etc; She knew how to prepare food and has successfully withstood the searching cross-examination of the respondent's counsel, The appellant had studied up to 8th standard.
16. We are not unmindful of some of the atterances made by the appellant in her cases examination. She deposed that she did not know who was Christ. She also deposed that the cows were delivering calves since they were being fed with straw. All these answers only indicate that the appellant is slightly feeble minded and only confirms the finding in Ext. X-l report. However, feeblemindedness, of the appellant is not of such a nature that she was unable to know the nature and consequences of her acts. As staled in the various ecisions quoted above the contract of marriage is a simple one and it does not require a comprehension of high degree to understand its implications. Marriage is an engagement-between man and woman to agree to live together and love one another as husband and wife to the exclusion of all others, and from the evidence, adduced in this case it is clear that the appellant knew the object and purpose of marriage when she entered in to the marriage. In this case Junary oridiocy of the appellant is not proved and it is also not proved that the appellant was incapable of understanding the true nature and consequences of the act when she entered into marriage.
17. The learned counsel for the respondent contended that the appellant and her parents suppressed the mental disability of the appellant and thereby practised fraud on the respondent and therefore this Court should have declared the marriage as null and void as per the proviso to Sub-section (4) of Section 19 of the Divorce Act, The learned single-Judge followed the decision reponed in Daniel v. Sarala ILR (1976) 2 Ker 357 which is to the following effect :
"..........I do not think this is a ground available for the petitioner in a petition under Section 19 of the Indian Divorce Act. That is not made a ground for nullifying a marriage. The provision in Section 19 that nothing in that section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud only saves the existing rights, if any, to move the High Court for that purpose. There is no jurisdiction for this Court to. pass a decree of nullity of marriage on the ground that consent of either party was obtained by force or fraud. If it is a right available to a party under the general law to invalidate a marriage, the remedy lies in ordinary proceedings before the Civil Court wherein such actions are to be instituted."
18. The learned counsel for the appellant brought to our notice the Full Bench (Special Bench) decision reported in I.A. Jayaraj v. I. M. Florence AIR 1978 Kant 69. Malimath J. as he then was, speaking for the Bench held :
"So far as the decree of nullity of marriage on the ground of force or fraud is concerned, the same can be obtained only by presenting a petition to the High Court which has a residuary jurisdiction to deal with a petition for dissolution of marriage on the ground that consent of either party was obtained by force or fraud. Thus, the District Court has no jurisdiction to entertain a petition for declaration of nullity of marriage on the ground that the consent of either party to the marriage was obtained by force or fraud".
Ihe Karnataka Full Bench followed the decision in T. Saroja David v. Christie Francis AIR 1966 Andh Pra 178. The same view has been taken by a Full Bench (Special Bench) of the Orissa High Court in Ranjuk Ranjan Das v. Pranati Kumari Behera (1982) 1 DMC 374 : (AIR 1982 Orissa 37).
19. On a plain reading of the proviso to Section 19(4) we are also of the view that the High Court alone has got jurisdiction to declare a marriage null and void on the ground that the consent of either party was obtained by for re or fraud and the proper forum for filing such a petition is High Court. We hold the decision in Daniel v. Safara ILR (1976) 2 Ker 357 does not lay down the correct law on this aspect.
20. The Counsel for the respondent contended that the law relating to marriage has become archaic and the Supreme Court has expressed dissatisfaction over the present law and stated that the personal law relating to judicial separation, divorce and nullity of marriage requires complete reform. The Supreme Court also expressed the view that irretrievable breakdown of marriage should be a ground of divorce in all cases [See Ms. Jordan Diengdeh v. S. S. Chopra AIR 1985 SC 935].
21. This is not a case where the appellant was in any way at default. The respondent lawfully married the appellant and continued the marital relationship for a pretty long period and when he had a changed circumstance he wanted to shirk of from his responsibility and decided to marry another woman. The counsel for the respondent also brought to our notice that the respondent after the filing of this appeal married another woman and this being a subsequent event having some importance over the subject matter of the appeal, should be taken into consideration while taking a decision on this appeal. Whether the respondent was justified in contracting a second marriage during the pendency of this appeal in view of Section 57 of the Indian Divorce Act is not a matter very much relevant in this appeal.
22. On a careful analysis of the entire evidence on record we are unable to hold that the appellant was a 'lunatic' or 'idiot' at the time of marriage. The evidence would only prove at the most that she was suffering from mild mental retardation and was only a feeble minded person. It is not proved that the mental retardation of the appellant was of such a nature that she was an idiot and was unable to know the nature and consequences of her acts. It is very clear that the appellant was able to manage herself all her affairs in h er own simple way and she would be able to cope with the obligations of marital life. Even if on some occasions she needed better instruction or advice, she was able to look after herself and her affairs all alone and was not even seriously subnormal as it was sought to be suggested. The marriage between the appellant and the respondent is perfectly valid in the eye of law.
23. Therefore, we set aside the judgment and decree of the learned single Judge and hold that the marriage between the appellant and the respondent is not liable to be declared null and void under Section 19 of the Divorce Act. The petition filed by the respondent husband is be dismissed and the appeal is allowed with costs throughout.
24. After the pronouncement of judgment learned counsel for the respondent prayed for a declaration that this case is a fit one for appeal to the Supreme Court. We are not satisfied that this is a fit case for appeal to the Supreme Court. The declaration sought for under Section 56 of the Indian Divorce Act is refused.