REETA Vs. E PREM KUMAR

JUDGEMENT

(1.) The appellant has come forward with this Civil Miscellaneous Appeal against the order dated 18.10.2006 passed in I.D.O.P. No. 251 of 1997 on the file of Principal Family Judge, Family Court, Coimbatore. By the said order dated 18.10.2006, the Family Court dismissed the IDOP No. 251 of 1997 filed by the appellant herein for dissolution of the marriage solemnised between her and the respondent herein.

(2.) The case of the appellant is that she was a native of Kangeyam Town and her father retired as a Teacher. The respondent is a graduate and employed as a Clerk in Rajalakshmi Mills, Singanallur, Coimbatore. As per the wishes of the elders, the marriage between the appellant and the respondent was solemnised on 27.05.1996 at CSI Church, Kangeyam in accordance with rights and customs governing Indian Protestant Christians. At the time of marriage, the appellant was presented with 18 sovereigns of gold jewellery besides providing house hold articles worth Rs.15,000/-. After the marriage, the appellant and the respondent lived together at Varadharajapuram, Coimbatore in the house of the respondent along with the mother and brother of the respondent, as a joint family. The appellant and the respondent commenced their matrimonial life happily. While so, on 01.06.1996, within a week of the marriage, the respondent, without the knowledge of the appellant, got himself admitted as an in-patient in G.P. Hospital, Gandhipuram, Coimbatore and he was discharged on 05.06.1996. The appellant was not informed about the hospitalisation of the respondent and she was groping in the dark as to the whereabouts of the respondent. After several enquiry, the appellant came to know about the hospitalisation of the respondent in G.P. Hospital, Gandhipuram, Coimbatore. As the appellant was new to the area where the matrimonial home is situate, she could not even locate the hospital where the respondent was admitted and with great difficulty, she could locate the hospital by causing enquiries. Even though the appellant met the respondent in the hospital, she was not disclosed about the nature of illness or the treatment being given to the respondent. The appellant could not even get any information from the paramedical staff attached to the hospital. According to the appellant, the conduct of the respondent in getting hospitalised without the knowledge of the appellant is strange and mysterious by which the appellant was put to shock and mental stress. After discharge of the respondent, the appellant and the respondent lived together till August 1996. Even during this period, the appellant was not informed about the illness suffered by the respondent and the reason for his hospitalisation. It is the specific grievance of the appellant that the respondent avoided and evaded to share conjugal bliss with the appellant, as a result, even after three months of marriage, the marriage was not consummated. There was no physical contact or cohabitation between the appellant and the respondent. Even though the appellant was eager and anxious to have sexual intercourse with the respondent, the respondent was not ready to fulfil the sexual urges of the appellant. According to the appellant, the respondent has not only expressed his unwillingness to have physical relationship with the appellant but expressed his aversion to perform sexual intercourse with her. After a month of the marriage, the appellant came to know that the respondent was hospitalised for taking treatment for his sexual disability. Therefore, during the last week of August 1996, the appellant left the matrimonial home and stayed with her parents. From August 1996, the appellant is living with her parents and there is no cohabitation or consummation of the marriage solemnised between the appellant and the respondent. Above all, even during the stay of the appellant in the matrimonial home, the respondent treated the appellant cruelly, ill-treated her and physically assaulted her. The respondent also demanded dowry in the form of jewels, cash and a car from her parents and when the appellant refused to ask her parents, the respondent threatened to send back the appellant to her parents house. In fact, the respondent behaved rudely towards the appellant only to cover his inability to perform sexual intercourse with her. Therefore, due to such uncooperative and unkind behaviour of the respondent, the appellant was constrained to leave the matrimonial company of the respondent. According to the appellant, the respondent is impotent and unable to fulfil the sexual desires of the appellant. The respondent suffers from a total incapacity to perform sexual intercourse with her. The hopes and aspirations of the appellant to get conjugal bliss after the marriage has been shattered into pieces due to the conduct and inability of the respondent to perform sexual intercourse. As the appellant could not realise the fruits of the marriage, no useful purpose would be achieved if the matrimonial tie is kept alive. Therefore, the appellant sent a notice dated 07.06.1997 specifically contending that the respondent is impotent and not capable of performing sexual intercourse with the appellant and by virtue of the same, marriage solemnised between the appellant and the respondent has become a nullity and that the marriage has to be annulled. According to the appellant, inspite of the receipt of the notice dated 07.06.1997, the respondent did not send any reply notice and therefore, the appellant has filed the Indian Divorce Original Petition No. 251 of 1997 under Section 18, 19 (1) and 10 (1) (x) of The Divorce Act praying to annul the marriage solemnised between the appellant and the respondent on 27.05.1996 on the grounds of impotency.

(3.) Repudiating the averments in the Original Petition, the respondent has filed a counter affidavit before the Family Court contending inter alia that the parents of the appellant did not present her 18 sovereigns of gold ornaments and house hold articles worth Rs.15,000/- at the time of marriage, as contended by the appellant. It was further stated that at the time when the appellant left the matrimonial home during the last week of August 1996, she had taken with her all the belongings including the gold ornaments. According to the respondent, it is not correct to state that the respondent was admitted in the hospital on 01.06.1996 without the knowledge of the appellant. On the other hand, the respondent got admitted in the hospital with the knowledge of the appellant as the respondent had pain in his private part at the time of having sexual intercourse with the appellant. Therefore, after discussion with the appellant, the respondent got admitted in the hospital and during the course of such hospitalisation, the respondent underwent a minor surgery called as circumcision by which the overgrown upper skin in his private part was removed by a surgical procedure. Even during the course of hospitalisation of the respondent, the parents of the appellant also met the respondent in the hospital. Therefore, it cannot be gainsaid that the respondent was admitted in the hospital and taken treatment for his sexual inability. Further, soon after the marriage and after the discharge from the hospital, both the appellant and the respondent had sexual intercourse on several occasion. However, due to the ill-advise given by the parents of the appellant, the appellant left the matrimonial company of the respondent during the last week of August 1996. The respondent never demanded any dowry either in the form of cash or in kind, as alleged by the appellant. The respondent is earning substantially through his employment and therefore the question of demanding dowry and on refusal, the respondent harassed the appellant is without any basis. It was further stated that as the notice dated 07.06.1997 was sent by the appellant with false and untenable averments, he did not send any reply thereof. Above all, it was specifically stated that the respondent is not impotent, as alleged by the appellant and he is ready to subject himself to medical examination to prove his potency, if directed by the Court. The marriage was consummated and the desertion of the appellant from the matrimonial company of the respondent is voluntary and without any just or sufficient cause. The respondent is ready and willing to live with the appellant and therefore he prayed for dismissal of the Original Petition.