Ajay Rao vs Tarabai

N. Kumar, J.

This is the husband''s appeal against the order passed by the Family Court at Davanagere, annulling the marriage by a decree of nullity on the ground that the marriage has not been consummated due to the impotence of the husband appellant herein.

For the purpose of convenience, the parties are referred to as they are referred to in the Family Court.

The petitioner Smt. Tarabai married the respondent Sri Ajay Rao on 8.6.2006 at Akkamahadevi Kalyana Mantapa, Davangere, as per the rites and customs prevailing in Hindu Maratha Community to which they belong to. The petitioner was hardly 16 years old and she was in 10th standard, whereas the respondent was aged more than 30 years at the time of their marriage. It is a specific case that her parents, relatives as well as the respondent forced the petitioner for this unfortunate marriage. The petitioner had no guts and courage or at-least choice of thinking about her matrimonial life because of her younger age. The family of the petitioner is very poor, but on the other hand the family of respondent is very rich having vast moveables as well as immoveable properties in Davangere city. They were also nearest relatives. After the marriage, the petitioner came to know that the respondent suffered fatal injuries in a motor vehicle accident and he lost his potentiality to be get children, his both legs and hands were fractured and also lost an eye. Suppressing these facts, the marriage was solemnized. According to the petitioner he has no ability to lift at least 5 Kgs. weight. The matrimonial home became hell to the petitioner and in her tender age she suffered mentally as well as physically. The marriage was not at all consummated since the male organ of the respondent is dysfunctional. Added to this the respondent is addicted to alcohol and always having tobacco products in his mouth. As petitioner came from a poor family having four younger sisters, fearing their future tolerated all types of cruelty, mental agony and frustration. The panchayat was also held to resolve the dispute, but in vain. The petitioner was also examined medically to rule out any hindrances for procreation, but the respondent was not ready to undergo any medical examination. All the inmates of the matrimonial home subjected her to oppression, she was like a slave in the said house. In the amid of suffering, the petitioner dodged her pale life till the year 2010. On 21.1.2010 while the petitioner was cleaning the house the bangles fell down and broken, for the simple reason she was subjected to utter cruelty, she was beaten mercilessly by mother-in-law, sister-in-law and also her husband and then they expelled her from matrimonial house. The petitioner with the help of passers by returned to her parental house. The inmates of matrimonial home were quarreling with the petitioner for silly reasons. The marriage between the petitioner at the first instance is void and later also the petitioner could not lead married life on account of physical inability of the respondent as well as cruelty to the petitioner by the husband, mother-in-law and sister-in-law. The petitioner was also blamed baselessly for not having children by her mother-in-law without knowing the defect in her son. The petitioner has been made as sacrificial lamb. The petitioner as well as her parents are victims of blind trust. The respondent, his mother and their family members have buried the life of the petitioner at her tender age. They have played cruel tricks on the life of the petitioner. The parents of the petitioner are poor. She has studied up to 10th standard only and she has no source of livelihood and in the lowest establishment she requires at least Rs. 20,000/- per month to lead respectful life to the status of her husband. Now she is under the mercy of her parents. The sisters of the petitioner are yet to be married and their marriage prospectus is also suffered.

The husband earlier filed M.C. No. 77/2011 for a decree of restitution of conjugal rights, but before its adjudication, he has withdrawn the petition as not pressed. The petitioner and the respondent are residing separately since more than two years and there are no chances of reunion. The marriage of the petitioner and the respondent has not at all consummated and as such it is a nullity of marriage in view of biological defect of her husband. Therefore, she filed a petition for dissolution of marriage on the ground of nullity and also sought permanent alimony of Rs. 20,00,000/- and also litigation expenses.

After service of notice, the respondent entered appearance. Matter was referred to conciliation, when the conciliation failed, the respondent came forward to take back his wife and to live with her, but the petitioner herself has refused and is not willing to live with her husband, as such the conciliation was failed. In the objection statement filed, he has denied all the allegations made by his wife in the petition, however he admits the marriage. According to the respondent, the petitioner happens to be the grand-daughter of the elder sister of the respondent. On the date of the marriage, she has failed in S.S.L.C. examination. According to his knowledge, she has completed 18 years of age as represented by his mother. The parents of the petitioner forced the mother of the respondent to accept the petitioner as her daughter-in-law. Considering the relationship, the mother of the respondent agreed to take the petitioner in marriage to the respondent. Accordingly, the marriage was performed and she had completed 18 years on the date of marriage. He admits that he was aged about 30 years at the time of marriage. His father passed away when he was aged about 9 years. His father did not possess any valuable moveable and immoveable properties. At that stage, his mother was very young. The maternal grand father got the firewood business established to the respondent''s mother who was a widow. Accordingly, the mother of the respondent is carrying on firewood business and income of the said business is the only source of the mother and the respondent and two more brothers. The respondent is assisting his mother in running that firewood business. He admits that he met with an accident in the year 2003 in which his left hand and right leg were fractured and no other major injuries to other parts of the body as alleged by the petitioner has occurred. As a result of the road traffic accident prior to the marriage, he has not become either disabled person or suffered any medical fitness touching his potentiality to get children after the marriage. The petitioner is working as a nurse since last one and a half years and she is earning. She has no basis to say that the marriage is not at all consummated and the respondent is impotent. The allegations of cruelty meted out to her were denied.

Respondent admitted his filing of earlier petition for restitution of conjugal rights. After conciliation, hoping that the petitioner may join him to lead marital life, he got the petition dismissed. It is the petitioner who left the matrimonial home without any just reason or cause and made the respondent to live separately from his mother in the month of January 2010. He is unable to provide maintenance as well as permanent alimony sought by his wife.

On the aforesaid pleadings, the trial Court framed the following three issues for consideration:

"i) Whether the petitioner proves that her marriage with the respondent has not been consummated owing to the impotence of the respondent and it is voidable marriage and to be declared so as required under Section 12(1)(a) of the Hindu Marriage Act, 1955 as alleged?

ii) Whether the petitioner is entitle for permanent alimony from the respondent? If so to what amount?

iii) What order?"

The petitioner in order to substantiate her claim examined herself as PW1 and two witnesses as PWs. 2 and 3 and produced 27 documents which were marked as Exs. P1 to P27. The respondent was examined as RW1 and his mother was examined as RW2 and produced four documents which were marked as EXs.R1 to R4. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held the petitioner has proved that her marriage with the respondent has not been consummated owing to the impotence of the respondent is voidable and accordingly, the Trial Court granted a declaration declaring the marriage is a nullity. It also held that the petitioner wife is entitled to permanent alimony of Rs. 5,000/- per month. Accordingly, the petition was allowed. Aggrieved by the said order, the husband is before this Court.

The learned counsel for the appellant assailing the impugned order contends, after the marriage the petitioner and respondent lived together under a common roof for nearly four years. This petition was filed in the year 2012, after six years of the marriage on the ground that the marriage is not consummated, is not maintainable. There is no medical evidence adduced by the petitioner to substantiate her claim that her husband is impotent. Therefore, he contends the finding recorded by the trial Court is not on the basis of medical evidence and therefore it requires to be set aside.

Insofar as the award of maintenance at the rate of Rs. 5,000/- per month is concerned, he contends the respondent is not employed, he has no earning, the properties in respect of which documents and title deeds are produced go to show that none of them standing in the name of the respondent herein. Under these circumstances, the award of permanent alimony at the rate of Rs. 5,000/- per month is without any basis and requires to be set aside.

The undisputed facts which are borne out from the record is the petitioner and respondent are relatives. Their marriage was performed on 8.6.2006 at Akkamahadevi Kalyana Mantapa, Davangere, as per their rites and customs prevailing in Hindu Maratha community. The evidence on record shows, as the petitioner is coming from a poor family, the respondent themselves made the entire marriage expenses. The petitioner was a student of S.S.L.C, she had failed in the examination. She is none other than the granddaughter of the respondent''s elder sister. The petitioner contends she was 16 years old and the respondent contends that she was 18 years old, but he admits that he was 30 years old at the time of marriage. It is also on record, in the year 2003 he met with an accident and suffered four fractures. The evidence on record shows that he is addicted to liquor and continuously chewing the tobacco. It also admitted that they lived together for four long years. It is also on record, it is the petitioner who was medically examined and as per the report she is capable of procreating a child, but the respondent did not chose to get medically examined. It is a specific case of the petitioner, after the marriage there is no consummation, there was no sexual intercourse, the male organ of the respondent is damaged because of the accident. The reason why probably the petitioner did not chose to examine any doctor to speak about the condition of the respondent is, they could not forced him to undergo medical examination. But in the instant case, we have a categorical admission by way of cross-examination. When the evidence is recorded in camera, a suggestion is made to the effect that as the petitioner did not volunteer to have sexual intercourse with her husband, the husband has not had any intercourse. So, the case of the petitioner that the marriage is not consummated is admitted by the respondent. Whatever may be the reason for such non-consummation, the fact that the marriage is not consummated, is established from the evidence on record. Parties are being relatives, respondent is coming from a rich family. When he has chosen to marry a young girl of 16 or 18 years, lived together for nearly four long years and if he contends he could not have any intercourse with his wife, certainly the wife not volunteer to have sex, cannot be accepted as a valid ground for non-consummation of marriage. The cat is out of the bat. The learned Judge on the basis of the evidence on record rightly held, the respondent is impotent, there was no consummation of marriage and therefore the petitioner is entitled to annulling the marriage by a decree of nullity and has accordingly decreed the petition.

The facts speak for themselves. As rightly pointed out by the learned Judge, the petitioner is coming from a poor family, she has got four sisters to be married. The petitioner''s father is a mason and mother is working as a coolie. As compared to that, the respondent''s mother is running a firewood shop. The documents produced disclosed number of properties are purchased in her name and registered sale deed in the year 2003-2009. Some properties are purchased in the name of the respondent''s brother. Two items of the properties are also standing in the name of respondent and his brother. They are financially well placed. It is a case where because of the close relationship, the girl who was hardly aged about 16 years, was married to a man who was aged about 30 years, met with an accident and suffered physical disability, resulted in his impotency. Because she was 16 years old, coming from a poor family and being close relatives, probably the petitioner did not have the courage. After the marriage, she has suffered cruelty and harassment at the hands of her mother-in-law and husband for more than 4 years, probably when she started asserting from the evidence on record, it is pointed out that she is assaulted by the respondent, his mother and brothers have insulted her and she was forced to vacate the house. Thereafter, she started living with her parents. Under these circumstances, the finding of the Court below that the marriage is not consummated is supported by acceptable legal evidence on record and do not call for any interference. Hence, we do not see any merit in this appeal insofar as the decree of nullity is concerned.

Insofar as the award of maintenance is concerned, the petitioner wanted permanent alimony of Rs. 20,00,000/-, so that she can live without any further reference to her husband and family members. In order to substantiate her claim, she has produced several sale deeds showing the properties standing in the name of the respondent''s mother, brother and also in the name of the respondent. These properties are nothing but vacant sites which are not yielding any income and therefore the court below was of the view that the award of any lumpsum amount as claimed by the petitioner or otherwise would cause great hardship to the respondent in the facts of the case. Therefore, instead of awarding lumpsum compensation as permanent alimony, a sum of Rs. 5,000/- per month is awarded as alimony.

The argument is, the respondent has not employed, he is living with his mother, he is working with the mother and he has no income. In fact, the finding of fact recorded on every day of hearing, the respondent was attending the Court with the mother. The evidence on record shows, after the death of the respondent''s father at an young age, his mother became a widow. It is to eke out livelihood, her father started a fuel shop. Both the sons are worked in the said fuel shop. They constituted a joint family and therefore all the family members are in this business and it is from the income of these business, the properties are acquired. Therefore, it is immaterial in whose name the properties stand. As long as the properties stand in the name of the members of the joint family and the consideration for the acquisition has flown either from the joint family or joint family business, all of them are entitled to equal share in the said property and therefore it cannot be said that the respondent is a person without means. Hence award of permanent alimony of Rs. 5,000/- per month is just and proper. Therefore, we do not see any justification to interfere with the award awarding permanent alimony of Rs. 5,000/-per month.

For the aforesaid reasons, we do not see any merit in this appeal. Accordingly, appeal is dismissed.