VALSA Vs. MOORE

JUDGEMENT

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

(2.) The material averments made by the petitioner which are germane for disposal, are as follows: Petitioner then a spinster of 22 years of age was married by respondent, a widower aged 42, on 12-6-1978 at the C.S.I. Immanuel Church, Ernakulam. From the date of their marriage till 17-12-1980 she lived with respondent as his wife. At the time of celebration of the marriage respondent was by reason of his impotency legally incompetent to enter into the contract of marriage. The marriage was fraudulently brought about without disclosing the fact that respondent was impotent. He is a well to do lawyer practising at Parappanangadi. He had three grown up children; two daughters and a son. He having lost his wife, mother of the children, was eager to marry again. Petitioner's father is an Ex-serviceman getting a meagre pension of Rs. 204/- per month. He has eight children: five daughters and three sons. Petitioner is the eldest among the children. Mr. N. V. Antony, a friend of the petitioner's father was approached by the sister of the respondent living at Fort Cochin and the offer was attractive in as much as it was made clear that no dowry need be paid nor any ornaments need be given. Petitioner's father and mother requested Mr. N. V. Antony to ascertain whether the respondent had undergone vasectomy as he had three children and all are fairly grown up. Her parents were assured that he has not undergone vasectomy. Even-after living with respondent with regular carnal copulation for nearly two years, petitioner did not conceive and ultimately he in a weak moment confided to her that he has undergone vasectomy. Petitioner had the natural desire to become a mother. Respondent having wilfully and fraudulently suppressed the fact of having undergone vasectomy to entrap petitioner, assured that he will get back potency by undergoing recanalisation operation at Vellore. On that assurance both went to the Medical College, Vellore and consulted an expert doctor. As the doctor was about to leave India, he fixed a later date for operation. The respondent on coming back home embraced the Penthocost denomination alongwith his children. Operation or treatment being opposed to his new faith, he became adamant that he would not undergo operation. Respondent was thus impotent at the time of marriage and he continues to be so even now. He began to behave cruelly towards the petitioner. He did not like her continuance as C.S.I. Jacobite Christian. On that account he began to manhandle her. Finding that she can no longer lead a happy married life and her dreams to become a mother frustrated, she sought asylum with her parents from 17-12-1980. Respondent is not maintaining her. O.P. 9467/86 moved by her for a declaration that the marriage between the parties is null and void happened to be dismissed on account of the filing of a joint statement. A petition was filed for reviewing that judgment as R.P.40/88. While disposing of that Review Petition this court observed:

(3.) Respondent filed a detailed counter affidavit. The averments made therein are as follows: The grounds justifying the passing of a decree declaring the marriage null and void have not been made out in the Original Petition. There is no allegation that respondent was incapable of entering into sexual intercourse either at the time of marriage or thereafter. The averment that the marriage was fraudulently brought about without disclosing the fact that respondent was impotent is base-less and hence denied. It is true that respondent has undergone vasectomy operation at the time when his first wife was seriously laid up with tuberculosis. Petitioner's parents approached him through Advocate Sri. P. M. Chandran for marriage with petitioner. Her father's friend Shri N.Y. Antony, in the presence of petitioner's father and 2 uncles had in fact asked Shri Chandran whether respondent had undergone vasectomy operation and Shri Chandran had clearly informed Shri N. V. Antony that the respondent had undergone vasectomy operation. Query about vasectomy operation struck slightly incongruous. The reason for the query became apparent soon after the marriage when she was showing great reluctance to sexual intercourse. When asked for the reason she revealed that she was suffering from rheumatic arthritic condition of the heart. She said it was dangerous for her to conceive. The query regarding vasectomy operation was really to re-assure that there is no chance for her getting pregnant. When both Allopathic and Ayurvedic system failed to give any relief to her ailments and they were advised that there is no cure for her condition they decided to follow the path of prayers and fasting. By following that path petitioner was substantially cured of her condition. On 4th April, 1980 she was completely cured in the prayer ministry of Brother D. G. Dinakaran and she testified to this fact from the platform of a great public gathering at Kannur. Under these circumstances she wanted to embrace the Penthocost faith. After the petitioner was cured on 4th April, 1980 question of respondent undergoing recanalisation was brought up. Both went to Vellore in October 1980. Doctor had asked to go to the hospital in September, 1981 for recanalisation. In the meanwhile she insisted on being taken back to her house. Thereafter her father did not allow the petitioner to join him for the reason that she might take adult Baptism. He had never manhandled her or behaved cruelly towards her. She is employed in Kariyappalli Coconut Products, and is getting a salary of not less than Rs. 600/-. The marriage between the parties is perfectly legal and valid. There was no suppression of material facts. Petition is only to be dismissed.