JAYARAJ ANTONY Vs. MARY SEENIAMMAL

JUDGEMENT

(1.) THIS is a reference made by the learned District Judge of Triunveli under Section 18 of the Indian Divorce Act (4 of 1869) in a petition by the husband (Jayaraj anthony) for a declaration of nullity in respect of the marriage between him and his wife (mary Seeniammal) on the substantive ground that the wire (respondent)declined all access to the husband subsequent to the marriage, refused to consummate the marriage, and hence must be regarded as "important" both at the time of the marriage and at the time of the proceeding. The learned District judge accepted the evidence for the plaintiff and granted a decree in the usual form, subject to our confirmation.

(2.) UNDER Section 19 (1) of Act 4 of 1869, one of the grounds on which the petition for a decree of nullity, in respect of a marriage, could be successfully maintained is that the respondent was impotent at the time of the marriage, and at the time of the institution of the suit. This is what the husband alleged, and we have got to see whether there is evidence which the court can accept in proof of this averment, which is the foundation of the petition for nullity.

(3.) WHEN the matter came up before us at the first hearing, we were so dissatisfied with the state of the record that we instructed the learned counsel appearing amicus curiae for the wife (respondent) to get into touch with her and to obtain instruction including the instruction whether she would be willing to submit herself to a medical examination. The learned counsel appearing as amicus cruise reports that he has been unable to get into touch with the respondent, and that she has declined service of a letter sent trough registered post of her address. The respondent (wife) never appeared before the learned District Judge of tirunelveli, and did not in any way meet the main allegation. As fat as the petitioner (husband) is concerned, the record, as we stated earlier, is sadly inadequate and imperfect. All that is clear from the record, including the letters filed, is that the marriage was actually never consummated. The husband as P. W. 1 states that during the time that the wife stayed with him "she refused sexual intercourse and began to quarrel with me". She seems to have stayed with her husband over some period, but she never allowed cohabitation, according to P. W. That is corroborated, in the circumstantial sense, by the father P. W. 3, concerning what the son (plaintiff) told him. One Amirthammal (P. W. 4) also gives evidence, and it is extremely vague. The wife is supposed to have told P. W. 4, that she had no charm for matrimonial living and the President of the Panchayat (P. W. 5) states that the wife told him categorically that she had no taste for marriage, and should be permitted to follow her own course in life. We might add that, apparently, she was inclined to a religious life.