JAYEE MANOHARI ALIAS RANI Vs. J MOHANKUMAR

JUDGEMENT

(1.) THE Appellant herein is the wife of the respondent. THE parties are Indian Christians and they got married at Gobichettipalayam on 9.2.1984. Admittedly, they lived together only for a short duration. THE respondent husband instituted I.D.O.P. No. 116 of 1985, in the District Court, Erode against the appellant under S. 32 of the Indian Divorce Act for restitution of conjugal rights alleging that the wife without informing him went away to her parent's house and she did not return in spite of the issuance of Ex. A.1. notice on 20.2.1985. THE present appellant resisted that application contending that she lived with the respondent herein only for about three months. By reason of his impotency and malformation of genital organ the respondent is legally incompetent to enter into the contract of marriage. THE marriage between them is null and void. Because of inferiority complex the husband illtreated her both physically and mentally. THE respondent did fingering in her private parts and acted beastly. He scolded her in filthy language and beat her severely. He even attempted to throw her into a well.

(2.) THE wife also filed I.D.O.P. No. 14 of 1986 under S. 18 of the Indian Divorce Act to declare the marriage between them as null and void on the ground that the respondent is impotent.

(3.) THE trial court also relied on the failure of the appellant to undergo medical examination to prove her virginity in holding that the husband was not impotent. THEre is no dispute that the marriage is not yet consummated. THE respondent nowhere expressly admits either in his pleadings or in evidence that he ever had sexual intercourse with his wife. So this factor that the respondent was not willing to subject herself to medical examination cannot be a ground for holding that the marriage has been consummated. A woman's hymen may be ruptured from a vareity of causes, though she may in truth be a virgin and a woman would not run the risk of an adverse inference and a possible blot on her if the hymen was found ruptured. THE failure to produce that negative evidence should not therefore have weighed with the trial judge.