MATHURAM AUGUSTINE Vs. VIJAYARANI

JUDGEMENT

(1.) This reference arises out of the judgment of the learned District Judge, Tirunelveli who decreed the suit for declaring the marriage of the plaintiff with the defendant as null and void under Section 18 of the Indian Divorce Act. The short facts are as follows. The spouses are Christians. The plaintiff married the defendant on 27-5-1976 at the, CM. S. Church at Nazareth, Tiruchendur taluk,, and the marriage is evidenced by Ex. A-I. The plaintiff appeared to have tried his best to have sexual intercourse with the defendant which she refused consistently from the date of marriage. The burden of the song seems to be that in spite of persuasions, ever since the date of marriage, the marriage could not be consummated as the defendant never agreed to have sexual Intercourse with him. The plaintiff effected a change of place, of residence and took the, defendant to Sholinghur and treated her in the expectation that there would be a change in the attitude of the defendant. Even such attempts were of no avail. According to the plaintiff, the defendant has left him to live with her parents to live at Nazareth. The defendant did not appear in the court below. The plaintiff therefore alleges physical Impotency to the defendant and that she is incapable of having sexual intercourse with him both at the time of the suit and at the time of the marriage and Prayed for a declaration that the marriage between him and the defendant is null and void.

(2.) The defendant, in the first instance, filed a written statement admitting the marriage. She admitted that she refused to have sexual intercourse with the plaintiff during the first night, but would say that it was not due to any Impotency on her part, but because the overtures made by the plaintiff were violent and as she was tired she refused to have sexual intercourse with him She denied that she was sexually impotent. She further stated that there were many letters which passed between her and the plaintiff and that she did not send a reply to the notice sent by the plaintiff before the action. In the end, however, she denied that she is physically impotent. -In the actual proceedings, she remained ex parte.

(3.) During the course of the trial, an interlocutory application was filed by the plaintiff for a direction from the court to have the defendant examined medically about her physical condition and for a report whether she was capable of having sexual intercourse. The learned District Judge examined the spouses in court, the defendant, though expressed her willingness for a divorce she was not for an examination of her physical body by medical, experts and stated that she was not willing to submit herself to such medical examination by a doctor. Thereafter she did not examine herself