AUGUSTINE Vs. KUNJAMMA KURIAKOSE

JUDGEMENT

(1.) The suit has been filed for pay a sum of Rs. 15,00,000/- as damages for the wrong done and for the fraud committed by the defendant's to the plaintiffs and for costs.

(2.) Plaint averments are as follows :The first plaintiff is the father of the second plaintiff. He states that the mother of the defendant had arranged for the marriage of her son with his daughter which was performed at Loyala College Chappel, Madras-31 on 18-8-96. The first plaintiff states that none of the elders who participated in the marriaged stated about the impotent and physical debility of the 2nd defendant; that the 2nd defendant was avoiding being in 2nd plaintiff's company; that the 2nd plaintiff thought that since it was an arranged marriage and till she gets to know the 2nd defendant, that things would change and their love and affection would blossom and automatically the mariage would be consummated. Even though days and months passed, the pattern of behaviour of the 2nd defendant did not change bit, instead he was trying to distance himself from the second plaintiff. The 2nd plaintiff did not want to reveal the behaviour of the 2nd defendant to her parents since they would get upset. It could never be accepted that the first defendant was not aware and could deny that the 2nd defendant was impotent before and at the time of the marriage. The plaintiffs have been duped by the defendants by arranging the marriage between the second plaintiff and second defendant. Nothing other than exemplary damages could compensate the plaintiffs for the untold misery caused to the plaintiffs. The second defendant who had filed the written statement in OMS. No. 46/97 had failed to testify to the same when he was called upon to give evidence before this Hon'ble Court. The learned single Judge while deciding the case after accepting that the 2nd defendant miserably failed to prove his claim made in his written statement that he is not impotent and does have a medical certificate to prove the same, has neither filed the said medical certificate nor did he examine himself or the Doctor who issued the said certificate. The learned single Judge dismissed the plaintiff's petition for nullity of her marriage with the defendant on the ground that the plaintiff has not fulfilled the ingredients of Section 19 of the Indian Divorce Act and also on the ground of collusion between the 2nd plaintiff and the 2nd defendant. The plaintiff had preferred an appeal in OSA. No. 50/99 and in the said OSA notice was issued to the defendant and after another opportunity being given to the defendants, a considered judgment was passed on all counts reversing the judgment of the learned single Judge on 3-3-99. The plaintiff relies upon the Judgment passed by the Learned single Judge and also the Division Bench Judgment which clinches the substance that is available to prove the fraud and collusion practised by the defendants in their evil design of destroying the 2nd plaintiff's life. A sum of Rs. 2 lakhs was given to the 2nd defendant after the marriage and now the said sum was refused to be returned and a civil suit had been filed before the City Civil Court being O. S. No. 4973/98, which sum was agreed to be paid, but deliberately not paid. a Lawyer's notice was issued to the defendants on 16-6-99 which was received by the defendants and they still try to maintain in futility that the second defendant is not impotent. Hence, the present suit for compensation.

(3.) In the written statement filed by the 2nd defendant it is contended that the defendant does not suffer from any physical debility and fit enough to consummate the marriage. The defendant has enough medical proof to show that he is physically fit to perform the sexual act. The non-consummation of the marriage was only due to the plaintiff weird phychological behaviour. It is false and mischievous to state that the elders in the family of the defendants were aware of any such thing and planned and cheated the plaintiff. The allegations have been made out in O. M. S. No. 46/97 for the purpose of getting divorse and for harassing the defendants and extracting money from them. The only reason that the defendant did not appear to give evidence because he was not instructed by his counsel to do so and he was under the bonafide impression that the written statement filed was enough. The defendant had examined himself through a well qualified Doctor and the said certificate will be filed in support of the defendants claim. The defendant was under the bona fide impression that since OMS. 50/99 was dismissed, the same findings would be upheld by the Appellate Court. The defendant denies the claim of Rs. 2 lakhs. The defendant issued reply notice dated 5-7-99 for the plaintiff's legal notice dated 16-6-99. The defendant states that it was his life shattered and not that of the 2nd plaintiff. Therefore, the suit may be dismissed with costs.