ABRAHAM JACOB Vs. USHA K. MAMMAN

JUDGEMENT

(1.) THIS is a petition under S.18 of the Indian Divorce Act 1869(hereinafter referred to as the Act ),by the husband for a declaration of nullity of marriage between himself and the respondent on grounds 1 and 3 of S.19 of the Act,namely that the respondent was impotent at the time of marriage and at the time of the institution of the proceedings and that she was a lunatic or idiot at the time of marriage.It is also alleged that since the respondent is a lunatic or idiot she is incapable of giving consent the condition of the respondent was not disclosed to the petitioner by the respondent 's parents and the petitioner 's consent was obtained by fraud practised on him.Thus according to the petitioner the marriage was without consent of the parties thereto.

(2.) THE petitioner belongs to the Marthomite Christian community,while the respondent is a Jacobite Christian.The petitioner 's house is at Niranam,thirteen kilometers away from Thiruvalla,where the respondent has her parental home.The marriage between them was solemnised on 29 -8 -1974 at the St.Thomas Mar Thoma Church at Niranam.The proposal for marriage was brought to the petitioner 's parents who were made to believe that the respondent belongs to a respectable family and is a proper match for the petitioner,who at that time was working at Quilon managing a fishing boat belonging to his brother inlaw,examined in this case as P.W.5.After exchange of visits between the members of the families the proposal was settled.The respondent was seen at her house by the petitioner and his parents.They took her to be normal.It is on that faith the marriage took place on 29 -8 -1974.The petitioner noticed that the respondent had to be prompted by her sister spelling out her name to sign the marriage register.It was later realised that the respondent was mentally retarded and is a lunatic or idiot within the meaning of the Indian Divorce Act.She was aged 18 years at the time of marriage and was studying in the 8th standard.The petitioner at the first instance thought that it was due to shyness and the changed pattern of family circumstances that the respondent was behaving in an abnormal manner.However as time passed it became clear to him that the respondent was deficient in her mental and intellectual equipment and required constant supervision.She was found incapable of normal married life.The petitioner further alleges that the respondent was impotent at the time of marriage and continued to be so even at the time of institution of this petition.The petitioner was so depressed in mind that he left his home in March,1976 for UAE where he got a job.Thereafter he had visited his house in June 1977,December 1979,July 1981 and August 1981.The petitioner was not aware of the remedy available under the Indian Divorce Act,until a few days before the filing of an earlier O.P.No.3594 of 1982 in May,1982.That petition was withdrawn for some technical defect with liberty to file a fresh petition and this original petition was filed on 22 -9 -1982 for the relief of declaration of nullity of marriage between the petitioner and the respondent on the aforesaid grounds.The petitioner had filed C.M.P.No.20522 of 1982 for the appointment of a guardian for the respondent.

(3.) ON behalf of the petitioner PWs 1 to 7 were examined.On his petition C.M.P.No.20072 of 1983 this Court by order dated 20 -10 -1983 directed the Principal Medical College,Trivandrum to have the respondent examined by an expert or experts and to send a report to this Court as to whether she is a congenital idiot or a lunatic and whether she is of such a mental condition that she is incapable of discharging normal marital obligations.The requisition further directed that the respondent will be examined also to see if she is congenially impotent and continues to be so.The report received from the Principal,Medical College,on examination of the respondent by a team of experts,is marked in these proceedings as Ext.XI The respondent was examined as R.W.1 and Exts.B1 to B13 were marked for the respondent.The application for the appointment of a guardian for the respondent was opposed contending that she is perfectly normal in her mental condition and there is no need for the appointment of a guardian for her.