USHA ABRAHAM Vs. ABRAHAM JACOB

JUDGEMENT

(1.) This appeal arises out of an original petition filed in this Court by the respondent herein under S.18 of the Divorce Act praying that his marriage with the appellant may be declared null and void under S.19 of the Act, on the ground that the appellant was a lunatic or idiot at the time of marriage and that she was unable to give any valid consent for the marriage. It was also averred that the respondent's consent for the marriage had been fraudulently obtained. He also alleged that the appellant was impotent. On the basis of these averments the respondent prayed for a declaration of nullity of the marriage.

(2.) The respondent belongs to Marthomite Christian community and the appellant-wife is a Jacobite Christian. The marriage between the appellant and the respondent was solemnised on 29-8-1974 at the St. Thomas Mar Thoma Church at Niranam. It was an arranged marriage and the parties on either side had the usual exchange of visits before the marriage. The respondent and his parents visited the house of the appellant prior to the marriage and there was also the betrothal function. The respondent would further contend that even on the date of the marriage he found symptoms of mental retardation in the appellant. He alleged that at the time of putting the signature in the church records after the marriage he saw and heard the appellant's sister prompting to the appellant the spelling of the latter's name. After the marriage the appellant and the respondent started residing in the house of the latter. According to the respondent, he was quite astonished and upset to know that the appellant could not write her name and he later discovered that the appellant was suffering from severe mental retardation. Then he thought of dissolution of the marriage. He approached some ecclesiastical heads for divorce, but they turned down the suggestion and told him that a Christian marriage was insoluble. In 1976 he left for Sharja and came to India only in the month of June, 1977, and stayed here till 15th July, 1977. It is alleged that as the time went on it became evident to the respondent that the appellant's condition was such that she was incapable of any improvement and the normal married life was quite impossible. Respondent alleged that the appellant is not merely dull intellectually, but deficient in intellect so as to be incapable of rational conduct expected of an adult woman. The respondent alleged that she does not know how to read or write and that she cannot tell the time by looking at the clock, nor does she know the value and use of money. According to the respondent the appellant is a lunatic or idiot within the meaning of S.19 of the Divorce Act. The respondent has also alleged that he was not aware of the provisions of the Divorce Act and he came to know of the civil remedy from his cousin's husband and therefore he filed the petition in Sept. 1982.

(3.) The appellant contended before court that she was not suffering from any sort of insanity. She also denied the various allegations made in the petition. She contended that the marriage was preceded by usual house visits and after the marriage the respondent and the appellant were living as husband and wife and by 1976 the petitioner went for a job to Gulf Country. The petitioner had been sending letters and gifts to the appellant and he also filed a declaration before the Indian Embassy at Sharja to obtain a passport for the appellant. However, by 1980 the respondent showed some estrangement which culminated in the ultimate filing of the petition for declaration of nullity of marriage.