Wife's petition to annul her marriage on the ground of the husband's impotency was dismissed by the Family Court. The High Court drew an adverse inference from her refusal to undergo a court-ordered medical examination and her failure to mark the husband's potency report, accepted evidence of her alleged remarriage despite absent pleadings, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 15.02.2018
Pronounced on : 20-04-2018
CORAM: THE HONOURABLE MR. JUSTICE R. SUBBIAH and THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
Civil Miscellaneous Appeal No. 963 of 2007 --Reeta ... Appellant/Petitioner Versus E. Prem Kumar ` ... Respondent/Respondent Appeal filed under Section 19 of The Family Courts Act against the Order and decree dated 18.10.2006 passed in I.D.O.P. No. 251 of 1997 on the file of Family Court Judge, Coimbatore. For Appellant : Mrs. Chitra Sampath, Senior Advocate for Mr. T.S. Baskaran For Respondent : Mr. S. Sundaresan for Ms. R. Sonia Glory JUDGMENT R. Subbiah, J
The appellant has come forward with this Civil Miscellaneous Appeal against the order dated 18.10.2006 passed in I.D.O.P. No. 251 of 1997 on the file of Principal Family Judge, Family Court, Coimbatore. By the said order dated 18.10.2006, the Family Court dismissed the IDOP No. 251 of 1997 filed by the appellant herein for dissolution of the marriage solemnised between her and the respondent herein.
presented with 18 sovereigns of gold jewellery besides providing house hold articles worth Rs.15,000/-. After the marriage, the appellant and the respondent lived together at Varadharajapuram, Coimbatore in the house of the respondent along with the mother and brother of the respondent, as a joint family. The appellant and the respondent commenced their matrimonial life happily. While so, on 01.06.1996, within a week of the marriage, the respondent, without the knowledge of the appellant, got himself admitted as an in-patient in G.P. Hospital, Gandhipuram, Coimbatore and he was discharged on 05.06.1996. The appellant was not informed about the hospitalisation of the respondent and she was groping in the dark as to the whereabouts of the respondent. After several enquiry, the appellant came to know about the hospitalisation of the respondent in G.P. Hospital, Gandhipuram, Coimbatore. As the appellant was new to the area where the matrimonial home is situate, she could not even locate the hospital where the respondent was admitted and with great difficulty, she could locate the hospital by causing enquiries. Even though the appellant met the respondent in the hospital, she was not disclosed about the nature of illness or the treatment being given to the respondent. The appellant could not even get any information from the paramedical staff attached to the hospital. According to the appellant, the conduct of the respondent in getting hospitalised without the knowledge of the appellant is strange and mysterious by which the appellant was put to shock and mental stress. After discharge of the respondent, the appellant and the respondent lived together till August 1996. Even during this period, the appellant was not informed about the illness suffered by the respondent and the reason for his hospitalisation. It is the specific grievance of the appellant that the respondent avoided and evaded to share conjugal bliss with the appellant, as a result, even after three months of marriage, the marriage was not consummated. There was no physical contact or cohabitation between the appellant and the respondent. Even though the appellant was eager and anxious to have sexual intercourse with the respondent, the respondent was not ready to fulfil the sexual urges of the appellant. According to the appellant, the respondent has not only expressed his unwillingness to have physical relationship with the appellant but expressed his aversion to perform sexual intercourse with her. After a month of the marriage, the appellant came to know that the respondent was hospitalised for taking treatment for his sexual disability. Therefore, during the last week of August 1996, the appellant left the matrimonial home and stayed with her parents. From August 1996, the appellant is living with her parents and there is no cohabitation or consummation of the marriage solemnised between the appellant and the respondent. Above all, even during the stay of the appellant in the matrimonial home, the respondent treated the appellant cruelly, ill-treated her and physically
assaulted her. The respondent also demanded dowry in the form of jewels, cash and a car from her parents and when the appellant refused to ask her parents, the respondent threatened to send back the appellant to her parents house. In fact, the respondent behaved rudely towards the appellant only to cover his inability to perform sexual intercourse with her. Therefore, due to such uncooperative and unkind behaviour of the respondent, the appellant was constrained to leave the matrimonial company of the respondent. According to the appellant, the respondent is impotent and unable to fulfil the sexual desires of the appellant. The respondent suffers from a total incapacity to perform sexual intercourse with her. The hopes and aspirations of the appellant to get conjugal bliss after the marriage has been shattered into pieces due to the conduct and inability of the respondent to perform sexual intercourse. As the appellant could not realise the fruits of the marriage, no useful purpose would be achieved if the matrimonial tie is kept alive. Therefore, the appellant sent a notice dated 07.06.1997 specifically contending that the respondent is impotent and not capable of performing sexual intercourse with the appellant and by virtue of the same, marriage solemnised between the appellant and the respondent has become a nullity and that the marriage has to be annulled. According to the appellant, inspite of the receipt of the notice dated 07.06.1997, the respondent did not send any reply notice and therefore, the appellant has filed the Indian Divorce Original Petition No. 251 of 1997 under Section 18, 19 (1) and 10 (1) (x) of The Divorce Act praying to annul the marriage solemnised between the appellant and the respondent on 27.05.1996 on the grounds of impotency.
surgical procedure. Even during the course of hospitalisation of the respondent, the parents of the appellant also met the respondent in the hospital. Therefore, it cannot be gainsaid that the respondent was admitted in the hospital and taken treatment for his sexual inability. Further, soon after the marriage and after the discharge from the hospital, both the appellant and the respondent had sexual intercourse on several occasion. However, due to the ill-advise given by the parents of the appellant, the appellant left the matrimonial company of the respondent during the last week of August 1996. The respondent never demanded any dowry either in the form of cash or in kind, as alleged by the appellant. The respondent is earning substantially through his employment and therefore the question of demanding dowry and on refusal, the respondent harassed the appellant is without any basis. It was further stated that as the notice dated 07.06.1997 was sent by the appellant with false and untenable averments, he did not send any reply thereof. Above all, it was specifically stated that the respondent is not impotent, as alleged by the appellant and he is ready to subject himself to medical examination to prove his potency, if directed by the Court. The marriage was consummated and the desertion of the appellant from the matrimonial company of the respondent is voluntary and without any just or sufficient cause. The respondent is ready and willing to live with the appellant and therefore he prayed for dismissal of the Original Petition.
she was not disclosed about the reason for which the appellant was admitted in the hospital. The efforts made by the appellant to ascertain the cause of hospitalisation of the respondent with the paramedical staff attached to the hospital went in vain. Thus, the respondent was admitted in the hospital without the knowledge of the newly wedded wife/appellant thereby she was subjected to acute mental agony and trauma. Further, from the date of marriage, the respondent avoided the company of the appellant and refused to perform sexual intercourse with her, with the result, the marriage was not consummated. Even after discharge from the hospital, the respondent never had sexual intercourse with the appellant inspite of the appellant expressing her anxiety and the need to consummate the marriage. According to the learned Senior counsel for the appellant, the non-consummation of the marriage would amount to cruelty and on that ground, the appellant is entitled to a decree of divorce.
was virgin or not. The Family Court allowed both the applications. Thereafter, respondent had undergone medical test and a report thereof was issued. Since the report was not relevant for the purpose of adjudication of this case, the appellant did not mark the report before the Family Court. According to the learned Senior counsel for the appellant, at the time of marriage the respondent was impotent and therefore, the medical report obtained during the pendency of the matrimonial proceedings is not relevant and hence, it was not marked. In this context, the learned Senior counsel for the appellant relied on Section 19 (1) of The Divorce Act wherein it is stated “that the respondent was impotent at the time of the marriage and at the time of the institution of the suit” and contended that impotency of the respondent at the time of marriage or at the time of institution of the Original Petition alone is relevant and the subsequent report as regards the potency of the respondent is immaterial. In such circumstance, the appellant did not mark the report issued to the respondent as regards his potency and such report has no significance to this case. The Family Court, without considering the above facts has erroneously dismissed the Original Petition filed by the appellant for dissolution of the marriage on the ground that the appellant has failed to prove the impotency of the respondent by not filing the medical report issued in his favour.
the subsistence of the marriage between the respondent and the appellant and that is the reason why the evidence of RW2 cannot be relied on, because he deposed before the Family Court only under threat and coercion and his evidence was not voluntary. According to the learned Senior counsel for the appellant, the respondent is not a member of the Church where RW2 is performing the duties as a Priest and therefore, RW2 is not entitled to depose before the Family Court for the respondent. Similarly, RW3, who is working as Sanitary Supervisor has merely produced the birth certificate of a child by name Evangaline Jenitha, which was marked as EX.R7. But in the said Certificate produced by RW3 namely Ex.R7, the name of the mother was indicated as V. Reeta. On the contrary, the name of the appellant is C. Reeta, Daughter of Chandrasamy. Similarly, RW4 examined on behalf of the respondent has deposed in her evidence that she could not remember as to whether she attended on the delivery of the child of the appellant. Therefore, according to the learned Senior counsel appearing for the appellant, the evidence of RW2 to 4 relied on by the Family Court is legally not sustainable and based on their evidence, the Family Court ought not to have dismissed the original petition filed by the appellant for dissolution of the marriage. In any event, according to the learned Senior counsel appearing for the appellant, the deposition of RW2 to 4 does not prove the alleged marriage between the appellant and one Vijayakumar during the pendency of the Original Petition and therefore, the Family Court ought not to have relied on their evidence.
marriage conducted between the appellant and one Vijayakumar. However, there is no explanation forthcoming as to why the respondent did not furnish the said details at the time of filing his counter. Therefore, according to the learned Senior counsel appearing for the appellant, only to harass the appellant, the respondent has examined RW2 to 4 as an afterthought. In this context, the learned Senior counsel appearing for the appellant relied on the decision of the Honourable Supreme Court in the case of (Vijaykumar Ramachandra Bhate vs. Neela Vijaykumar Bhate) reported in (2003) 6 Supreme Court Cases 334 to contend that indulging in character assassination of the appellant during the pendency of divorce proceedings would amount to cruelty.
respondent would contend that the marriage between the appellant and the respondent was solemnised on 27.05.1996. After the marriage, the respondent had sexual intercourse with the appellant and at that time, he felt pain in his private parts. Therefore, with the knowledge of the appellant, he got himself admitted in the hospital and underwent a minor surgical procedure called Circumcision. The respondent did not take any treatment for his sexual inability as alleged by the appellant. The respondent did not suppress his ailment to the appellant as alleged by her and in fact her parents met the respondent in the hospital while he was taking treatment. Further, after discharge from the hospital, the respondent had sexual intercourse with the appellant and therefore, according to the learned counsel for the respondent, it cannot be said that the marriage was not consummated. In such circumstances, according to the learned counsel for the respondent, the desertion of the appellant from the matrimonial home is without any just and sufficient cause.
by the appellant, there was no whisper as regards the cruelty or harassment caused to her. When the appellant did not prove the averments made in the Original Petition, the Family Court rightly dismissed the Original Petition filed by the appellant and such an order passed by the Court below need not be interfered with by this Court. The learned counsel for the respondent therefore prayed for dismissal of the appeal.
appellant and the averment that the marriage was not consummated is an utter false. It was also contended by the respondent that even during the pendency of the Original Petition, he subjected himself to medical examination and the Doctors who examined him had given a clean chit with respect to his ability to perform sexual intercourse. On the other hand, inspite of a direction issued by the Family Court, the appellant did not subject herself to medical examination to prove that she remains a virgin even after her marriage with the respondent. While so, the foundation on which the Original Petition has been filed by the respondent had fallen to ground. The Family Court, taking note of the above facts, has rightly refused to grant a decree of divorce.
perform sexual intercourse with her, it is for her to prove the same. In this case, in the first instance, the appellant did not file the medical report dated 18.05.2004 given by the Medical Officer in favour of the respondent. On the other hand, the appellant did not subject herself to any medical examination inspite of the direction of the Family Court. Even though it was contended by the learned Senior counsel for the appellant that the report dated 18.05.2004 has no significance or relevance to this case and therefore it was not marked by the appellant, we are unable to appreciate such submission of the learned Senior counsel for the appellant. The Original Petition was filed by the appellant for dissolution of the marriage on the ground of impotency of the respondent and to prove the same, the medical report dated 18.05.2004 is very much essential and the appellant ought to have marked the same as a document. When such a document has not been marked by the appellant, an adverse inference has to be drawn against her and it has to be held that the appellant has failed to prove the averments made by her in the Original Petition.
the respondent if it is proved he is not impotent. It was deposed by the appellant that she is not prepared to live with the respondent. To a further question as to whether the appellant is prepared to prove her virginity as she alleges that the marriage was not consummated, she deposed that she is not ready and willing to undergo such a test to prove her virginity. Therefore, it is evident that except the oral testimony of the appellant, there is no medical evidence made available to show that the respondent is impotent. In a case of this nature, the mere assertion or averments are not sufficient to hold that one of the spouse is impotent or virgin and the medical evidence alone would prove the physical ability or inability of one of the spouses. In the absence of such medical evidence forthcoming, we are of the view that the appellant failed to prove the impotency of the respondent and hence, Section 19 (1) of The Indian Divorce Act cannot be made applicable to this case.
filed thereof by the respondent are not trustworthy and they cannot be relied on to conclude that the respondent had married another person during the pendency of the Original Petition. It is further stated that the respondent has examined Rws 2 to 4 without any pleadings to substantiate the same in the reply statement filed by him, while so, the Family Court ought not to have relied on the deposition of RW2 to 4 and the documents filed through them.
RW4. Dr. Malliga, RW4, in her evidence has deposed that she is not sure as to whether she had looked after the maternity delivery of the appellant or not. In any event, the respondent need not prove the adulterous living of the respondent in the Petition filed by the appellant for dissolution of the marriage on the ground of impotency, however, he examined RW2 to 4 before the Family Court and substantiated the same. In such circumstances, it cannot be said that the deposition of RW2 to 4 and the documents marked through them are inadmissible in evidence in the absence of any pleadings to that effect. When the respondent makes some allegations as regards the adulterous living of the appellant, he is duty bound to prove the same, even in the absence of any averments in the counter statement filed before the Family Court. When the averments raised by the respondent has been proved before the Court below in a manner known to law, the same can be taken note of by the Family Court to arrive at a just decision. In this context, useful reference can be made to the decision of the Honourable Supreme Court in the case of (K. Srinivas vs. K. Sunita) reported in (2014) 16 Supreme Court Cases 34, which was relied on by the learned Senior counsel for the appellant, wherein, in identical case, the Honourable Supreme Court held that the respondent-wife in her cross-examination has admitted that she did not mention all the incidents on which her complaint is predicated in her statement under Section 161 of Cr.P.C and therefore the criminal complaint given by the respondent is an after-thought. In Para Nos. 5 to 7 of this decision, it was held as follows:6. Another argument which has been articulated on behalf of the learned counsel for the respondent is that the filing of the criminal complaint has not been pleaded in the petition itself. As we see it, the criminal complaint was filed by the wife after filing of the husband's divorce petition, and being subsequent events could have been looked into by the Court. In any event, both the parties were fully aware of this facet of cruelty which was allegedly suffered by the husband. When evidence was led, as also when arguments were addressed, objection had not been raised on behalf of the respondent wife that this aspect of cruelty was beyond the pleadings. We are, therefore, not impressed by this argument raised on her behalf.
Sd/-
Assistant Registrar(CS III)
//True Copy//
Sub Assistant Registrar
To
1.The Family Judge
Family Court
Coimbatore.
2.The Section Officer,
VR Section, High Court,
Madras.[2 copies]
+1cc to M/S.R.Sonia Glory, Advocate Sr.29843 +2cc to Mr.T.S.Baskaran, Advocate Sr.29341
CMA No. 963 of 2007 sj[co] srg 18/05/2018
3 issues framed by the court
Whether the appellant proved the respondent was impotent at the time of the marriage and institution of the petition so as to annul the marriage under Section 19(1) of the Divorce Act.
Whether the respondent's alleged non-consummation, dowry demand and unsubstantiated adultery allegations amounted to matrimonial cruelty.
Whether evidence of the appellant's alleged remarriage could be relied on despite the absence of pleadings supporting it.
Colour shows how this judgement treated each authority
Vijaykumar Ramachandra Bhate vs. Neela Vijaykumar BhateReferred¶9
(Vijaykumar Ramachandra Bhate vs. Neela Vijaykumar Bhate) reported in (2003) 6 Supreme Court Cases 334
V Bhagat vs. D. Bhagat (Mrs)Referred¶10
(V Bhagat vs. D. Bhagat (Mrs) reported in (1994) 1 Supreme Court Cases 337
K. Srinivas vs. K. SunitaApplied¶25
(K. Srinivas vs. K. Sunita) reported in (2014) 16 Supreme Court Cases 34
4 provisions across 2 enactments
Reeta
E. Prem Kumar
R. Subbiah
P.D. Audikesavalu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
