A Vs. B

JUDGEMENT

(1.) This is a petition for nullity of marriage filed by the husband under S.18 of the Indian Divorce Act.

(2.) The parties belong to the Syrian Christian community. Their marriage was solemnised on 12.2.1995 at the St. Thomas Catholicate Aramana Church, Muvattupuzha. Admittedly, the parties resided together only for 15 days. On 27.2.1995, the respondent returned to her own house at Trichur. The allegations of the petitioner are that the respondent was and is a schizoprehenic, that she is physically under developed, and impotent, that these facts were suppressed from the petitioner before marriage and that therefore, the petitioner is entitled to a decree of nullity of marriage under S.19 of the Indian Divorce Act on the grounds of insanity and impotency of the respondent and fraud. It is also alleged in the petition that because of the respondent's mental and physical deficiencies, she also refused to have sexual intercourse with the petitioner and thereby failed to consummate the marriage. The averments contained in the petition are repudiated by the respondent. According to the respondent, she is absolutely normal, physically and mentally. Her further case is that she never refused to have sexual intercourse with the petitioner. On the contrary, it was the petitioner who refused to have normal sexual intercourse with her. According to the respondent, the petitioner refused to have normal sexual intercourse, with her, but compelled her to have only oral sex with him or in other words, to satisfy him by performing fellatio on him. The case of the respondent is that this deprivation of normal sexual intercourse coupled with the insistance for fellatio only amounts to physical and mental cruelty entitling her to a decree of divorce under S.10 of the Indian Divorce Act. The respondent has narrated certain instances of physical assault committed by the petitioner in support of her plea of cruelty. The respondent has filed a counter affidavit and it is in the counter affidavit that she has raised her plea for divorce on the ground of cruelty. The petitioner has filed a reply affidavit and the respondent has filed an additional counter affidavit. Based on the pleadings, the following issues were framed:

(3.) The evidence in the case consists of the oral testimony of the petitioner as PW. 1 and the respondent as RW. 1. At the outset, it has to be noted that the allegations of the petitioner that the respondent is insane and that this fact was suppressed from him by the parents of the respondent, that the respondent is physically under-developed and that she had refused to have sexual intercourse with him remain in the realm of mere allegations only without any scintilla or iota of evidence to support them. No inmate of the house of the petitioner has been examined to substantiate his version. No medical evidence has been adduced in this regard. No prescription of a doctor or other documentary evidence has been produced in support of the petitioner's case. In the counter affidavit the respondent has a specific case that she was examined by two named psychiatrists and a gynaecologist and they certified her to be perfectly normal. In the reply affidavit filed by the petitioner, he has a case that those certificates "might have been obtained by crooked means'. While in the box, it is significant to note that the petitioner had no case that the stand of the respondent regarding the examinations or the certificates are false or obtained by crooked methods. Further, the evidence of RW. 1 on these aspects were not even challenged in cross examination. Therefore, I find that there is no evidence to prove the alleged insanity or fraud and that issue Nos. 1, 2, 4 and 6 are found against the petitioner.