JOY Vs. SHILLY

JUDGEMENT

(1.) Husband is the petitioner. He seeks a declaration that the marriage between him and the respondent is null and void on the ground that the respondent was impotent at the time of marriage and at the time of institution of the proceedings; that the respondent was a lunatic at the time of marriage and consent of the petitioner for the marriage was obtained by fraud.

(2.) Parties to the marriage are Christians governed by the Indian Divorce Act, 1869 (for short 'the Act'). The marriage was celebrated on 26-12-1988 at St. Sebastian's Catholic Church, Kottappady. It is alleged in the Original Petition that a representation was made by the respondent and her parents that she (the respondent) was having physical and mental health and she has passed the Pre degree examination. It is believing this representation that the petitioner consented to the marriage with the respondent. At the time of marriage and immediately thereafter, respondent has shown serious symptoms of psychotic disorders. After the marriage, both of them lived together for a few days in the respondent's house. She was exhibiting signs of mental disorder. She failed to perform her marital obligations. The mental disorder made her sexually impotent and cohabitation never took place between the petitioner and the respondent. Thereafter, respondent and the petitioner left for the petitioner's house at Kottappady where they lived together for a few days. Respondent was showing symptoms of very serious mental disorder. On 9-1-1989 she attempted to commit suicide. On 20-3-1989, respondent was taken to Nair's Hospital, Ernakulam for mental disorder and she had undergone treatment as an inpatient there for about 60 days during intermittent periods. She was an inpatient from 20-3-1989 to 23-3-1989 and thereafter from 10-4-1989 to 16-5-1989. She told the petitioner that she never wanted to marry and she was forced to do so by her parents. Though on subsequent occasions also the petitioner tried to consummate the marriage, it was not successful. All attempts made by him to have sexual intercourse with the respondent did not materialise due to the impotency (rigidity) of the respondent.

(3.) Petitioner, on 13-6-1989, moved the Eparchial Tribunal for declaration of the marriage between himself and the respondent as null and void. A decree was granted by the Tribunal which was affirmed by the Appellate Tribunal. Subsequently, the petitioner filed the present Original Petition as he was advised that despite the decree of the Eparchial Tribunal, a decree of the Court is necessary for declaring the marriage null and void. (See: George Sebastian v. Molly Joseph - 1994 (2) KLT 387 FB). Thus, this application is filed under S.19(1) and (3) of the Act seeking for declaration of the marriage between the petitioner and respondent null and void.