P V GOPALKRISHNAN Vs. KANAKSHA GOPALKRISHNAN

JUDGEMENT

(1.) The appellant (original petitioner) the husband, and the respondent (the original respondent) were married on 20th June, 1976. The appellant and the respondent were both Hindus and were about 36 and 27 years of age respectively at the time of marriage. Due to certain unfortunate circumstances, the husband was driven to file a petition for nullity within a short time which he did on or about 30th November, 1976.

(2.) The petition proceeds to make the following allegations. The marriage had not been consummated owing to the impotency of the respondent. On the very first night the respondent refused to have sexual intercourse saying that for one year she would not have sexual intercourse with the appellant. The respondent appeared to be very much upset at the approach of the appellant to consummate the marriage and was averse to any sexual act. It was decided by the petitioner and his elders to take the respondent on a pilgrimage so that there might be a change in her mentality and outlook by the blessing of God. Even during pilgrimage the matter did not improve. Soon after return from pilgrimage on 29-7-1976 the respondents father had come to the petitioners house and the petitioner complained to her father about the behaviour of the respondent. Father ignored the complaint. The respondents attitude continued. Then followed a medical check up on 27-8-1976, by Dr. Bhatia when it was discovered by the petitioner that the respondent was suffering from second degree prolapse of the uterus. This was indicative of non-virginity. Taking into consideration the medical report and the odd behaviour of the respondent and the surrounding circumstances, the petitioner had reasons to suspect that the respondent wanted to conceal facts from the petitioner and that was one of the main reasons why she was refusing to have sexual intercourse with the petitioner and have the marriage consummated. It was clear from the conduct of the respondent and that of her parents that fraud was committed and that the marriage had been brought about by fraud and misrepresentation. The respondent and her parents had suppressed material facts about sexual lapse and defect. The petitioners consent to the marriage was obtained by fraud and misrepresentation as to the material fact or circumstances concerning the respondent. In any event, the respondent was important at relevant time and there was non-consummation by reason thereof. The petitioner prayed for annulment of the marriage under section 12(1)(a) and (c). In the written statement the respondent denied that marriage was not consummated or that she refused to consummate the marriage or was averse to sexual act or that she was impotent at any time. It is alleged that she was taken to Dr. Bhatia on 27th August, 1976 but the respondent did not understand the result of the said examination. It is denied that the respondent suffered from sexual defects before her marriage and it is averred that neither she nor her parents were aware of any defect at any time before or after the marriage.

(3.) Mr. Nesari for the appellant has taken me through the evidence and the judgment and contended that the learned trial Judge has not correctly appraised the evidence and on the balance ought to have accepted the evidence of the petitioner and Dr. Bhatia and rejected the evidence of the respondent as unreliable and that of Dr. Pancholi as not very reliable on certain aspects of the matter in view of contradictions and that if the evidence of petitioner and Dr. Bhatia is accepted, the grounds for nullity stand proved.