RAJAN PHILIP Vs. OMANA RAJAN

JUDGEMENT

(1.) THE husband is the appellant in this appeal. THE respondent is his wife. THE parties are Christians. THE appellant filed O.P. No.13 of 1985 on the Original Side of this Court for a decree of nullity of the marriage between him and his wife under Sec.18 of the Indian Divorce Act, 1869 (in short the Act). It is the case of the appellant that their marriage took place on the 12th day of July, 1981 at Mar Aprem Church, Thottakad, Kottayam, Kerala State. At the time of marriage the appellant was aged about 29 years and the respondent was aged about 24 years. After the marriage, the respondent stayed with the appellant for ten days at Ernakulam, Kottayam and Madras and Bombay and even during the few days stay, the appellant found the respondent always mentally depressed and avoided physical contact. From Bombay, the respondent went to Kuwait on 22.7.1981 without the permission of the petitioner and she came back to Roorkela on 11.2.1982 alongwith her father and stayed for six days, once again adopting the same attitude. It is the specific case of the appellant that the respondent" always avoided physical contact and consummation of the marriage by cohabitation and that the respondent was not at all interested in 'sex". She went back Kuwait on 3.2.1982 without the consent of the appellant. After some time, the respondent returned to Bombay in or about November, 1982 from Kuwait and she was" staying with her parents. She then accompanied the appellant to Madras on 11.2.1983 with great reluctance and stayed with the appellant in his residence in Anna Nagar, Madras, once again avoiding physical contact and refusing cohabitation, as a result of which the marriage could not be consummated. THE respondent went back to Bombay in the first week of March, 1983, promising the appellant to return, but she did not do so. When the appellant wanted the respondent to be medically examined to ascertain the real cause, both the respondent and her parents got annoyed and began to abuse the appellant and his relations. THE respondent refused such medical check up. At the mediation of Rev.Fr. C.W. Philopose, the respondent came to the appellant's residence on 8.7.1983 and stayed for that night repeating the same attitude. On 9.7.1983, the respondent's father came in the morning and took her away with him and left for Bombay. THEreafter, the respondent did not meet the appellant and she has been staying with her parents only, It is the further case of the appellant that for less than two months the appellant and the respondent stayed together on different occasions and at different places.. THE respondent has never consummated the marriage by carnal copulation. THE respondent was incapable of consummation both at the time of marriage and at the institution of the suit.

(2.) THE respondent has filed a counter-affidavit, denying all the allegations. Though several allegations have been made against her by the appellant in regard to her attitude towards the life, she did not specifically deny the same in the written statement filed by her. THE written statement filed by the respondent is nothing but a vague denial of the allegations levelled against her. She remained absent and therefore she was set ex parte. Before the Family Court, the appellant has examined himself as P.W.I. His evidence is clear, cogent and convincing. In his evidence, he deposed that the respondent was always reluctant to have sexual intercourse with him right from the date of marriage. It is also seen from the cross examination that she refused to have sexual intercourse with the appellant. THErefore, she reminded impotent both on the date of the marriage as well as on the date of the filing of the petition. THE appellant also found her always mentally perturbed and agitated. She even refused to receive the notice sent by the appellant's lawyer. THE appellant has filed all the returned legal notices sent by him to the respondent along with the petition. To a specific question put by the Family Court, the appellant has categorically replied that the respondent has purposely refused to have sexual intercourse with him and she did not even allow him to have sexual intercourse with her, inspite of his repeated requests. She also refused to come for medical examination. THEre is no contra evidence. However, the Family Court by adopting curious reasons dismissed the petition on the ground that the refusal to have sexual intercourse at a particular point of time with the appellant/ husband cannot lead to an inference that the spouse was impotent. It is further pointed out in the order that the refusal might he due to variety of reasons. We are unable to appreciate the approach made by the Family Court in this regard. THE appellant has filed the petition under Sec.18 of the Act specifically mentioning the refusal by his wife to have sexual intercourse with him. That was the cause for filing the said petition. It has been clearly stated in the petition that both the spouses lived together at different places only for a period of less than two months from 12th July, 1981 during which period the appellant was not able to have sexual intercourse with the respondent on account of her refusal. THE appellant also deposed about the specific denial of the respondent to have sexual intercourse with him while he was examined himself as a witness. To the court's question also, he replied that the respondent had refused to come forward to have such intercourse with him. THErefore, in opinion of our, the appellant had made out a clear case for a decree for divorce under Sec.18 of the Act. As seen already the respondent has not chosen to appear before the Family Court. She has not even cared to send a reply to the legal notices issued by her husband through his lawyer. THErefore, this Court can very well draw adverse inference against the respondent- wife. Further, as pointed out by learned counsel for the appellant both the spouses lived together at different places only for a period of less than two years, during which there was no physical contact.

(3.) WE allow this appeal and grant a decree in favour of the appellant under Sec.18 of the Act. Post after six months to decree the nisi..