LAWS(KER)-1980-12-40

MARIAMMA Vs. KURIEN

Decided On December 18, 1980
MARIAMMA Appellant
V/S
KURIEN Respondents

JUDGEMENT

(1.) This is a petition under S.18 read with S.19 of the Indian Divorce Act, 1869 by a wife for a declaration that her marriage with the respondent is null and void.

(2.) The parties are Jacobite Christians and they were married according to the rites of the community on 20th January, 1974 at the St. George's Syrian Church in Kallumkathara, Kottayam. Ext. P-2 is the 'Desakkuri' issued by the Parish Priest in connection with the marriage. From the date of the marriage till 24th January, 1974 the petitioner and the respondent lived in the house of the petitioner's parents at Mavelikkara. From 24th January, 1974 to the 2nd week of February, 1974 the petitioner lived in the respondent's house at Kottayam with his parents, while the respondent was at Ernakulam. About this time the petitioner who held a degree in M. Com. got employment in the Transformers and Electricals Kerala Ltd., Angamali and from the 3rd week of February, 1974 till the 2nd week of July, 1974 she lived in the S. N. V. Sadanam, Alwaye. Thereafter she lived with the respondent in his house in Cochin till 28th August, 1978.

(3.) The petitioner's case is that during all these years they were living together the respondent never had sexual intercourse with her, that the marriage was not consummated and that this was due to his impotency. Her advances to the respondent were repulsed by him under one protest and or another and this the petitioner attributes to his sexual impotency. She made frequent requests to the respondent to undergo medical examination and treatment, if necessary but he refused these requests also. The petitioner states that this reluctance of the respondent was because his impotency was incurable. The petitioner's hopes of a happy family life with children were shattered and she felt that consummation of the marriage and the procreation of children by the respondent were impossible. In answer to the requests made by the petitioner through others the respondent indicated his willingness to dissolve the marriage. He did not ultimately agree to it possibly because he was anxious to have at his disposal the petitioner's salary also. Whatever inclinations the respondent might have had to end the union, were foiled by the respondent's elder brother and father by quoting the biblical maxim "what God then has joined let not man put as under." Ultimately on 28th August, 1978 the petitioner left the respondent for her parent's home at Mavelikkara. Thereafter they have not lived together. As there was no prospect of the marriage being dissolved otherwise, the petitioner issued a notice of which Ext. P-1 is a copy to the respondent on 29th September, 1978 stating that if the marriage was not dissolved by executing a deed of separation proceedings for declaration of nullity of the marriage would be instituted in a court of law. The respondent did not respond to this notice. Thereafter on 16th November, 1979 the petitioner filed this petition. [At the time of the petition she was staying in Cochin after she got employed as a postgraduate teacher (Commerce) in the Central School].