Minimol Joseph vs Jose Poonoly

P.V. Narayanan Nambiar, J.—The petitioner and respondent are Roman Catholics professing the Christian religion. They were married on 29.6.1987 in accordance with the custom of the community at St. Mary''s Parish Church, Chowara. After the marriage, they lived together in the house of the respondent. The petitioner would allege that even on the first night of the marriage, the respondent was drunk. She alleges that he was in the regular habit of consuming alcohol. Physical and mental torture at the hands of the respondent is also alleged by her. According to her, though they lived together for five years, during the whole period the respondent did not show any interest in marital sex. No attempt was made by him to consummate the marriage. He did not develop any attachment towards the petitioner either physically or mentally and all her attempts to have physical relationship with him were resisted and rendered abortive by the respondent. He showed total reluctance when the petitioner made an attempt at copulation. This, according to the petitioner, is due to the fact that the respondent was suffering from impotency.

It is also alleged in the original petition that the respondent was mentally ill even before the marriage and subsequent to that. He was undergoing treatment from various mental hospitals.

The petitioner alleges fraud on the part of the respondent which resulted in her giving consent to the marriage. It was represented to her and members of her family that the respondent was a Post Graduate and hails from an aristocrate family having wide connections with well-known men. It was also represented that he was the Marketing Manager of a big Company and in addition to that, he was doing large scale business for the Life Insurance Corporation of India and his monthly income exceeds Rs. 10,000/-. But, it was later understood by the petitioner that those representations were incorrect and that the respondent was only a Matriculate and he has no serious job. According to her, she is entitled for a decree of nullity of marriage on the ground of fraud as the respondent was impotent at the time of marriage and at the time of institution of the proceedings. He was a lunatic at the time of marriage and her consent was obtained by fraud.

The respondent filed a counter affidavit in which all the allegations contained in the original petition are denied. He also added that in view of the withdrawal of O.P. No. 22 of 1993 filed by the petitioner before the Family Court, Ernakulam, the present application is not maintainable. Allegations regarding insanity and impotency are denied by him. Likewise the allegation that the consent of the petitioner was obtained by practising fraud was also denied by him. According to him, no representation was made to the effect that he was a Post Graduate and an Executive of a big Company. Likewise, the averment in the original petition that he treated the petitioner with physical and mental cruelty also is denied by him. He prays for dismissal of the application.

The evidence consists of the depositions of the petitioner who was examined as PW1 and one of her relations who was examined as PW 2. Exts. A1 to A4 were marked. The respondent was examined in-chief, but he had not tendered himself for cross-examination. Before leaving the Court, he did not even sign his deposition taken down by the Court while he was examined in-chief. So, his evidence can be eschewed from consideration.

What remains is only the evidence of PWs.1 and 2. On going through their evidence, it is clear that the respondent represented to the petitioner that he was a Post Graduate and was working as Marketing Manager in a Tarplin Company in Tamil Nadu. PW 1 deposed that it was also represented to her before marriage that the respondent never used to drink. But, ultimately both the representations were proved to be untrue. According to her, if she had been appraised of the real situation before the marriage, she would not have consented to the marriage. She would add that her consent was obtained by fraud. Her evidence also shows that the respondent never had sexual intercourse with her though they lived together for about five years. He did not express any desire for that. The attempts made by the petitioner to have sexual connection with the respondent were all foiled due to his non-co-operation and resistance. This, according to her, is as a result of his impotency. The fact that the respondent was impotent was also suppressed from her. She produced Exts. A3 and A4 certificates from the Alphonsa Hospital which would show that the respondent was suffering from some kind of mental illness. Had she known that the respondent was mentally ill, she would not have consented to the marriage. Other acts of physical and mental cruelty are also narrated by her. Though she was cross-examined by Counsel for the respondent, nothing was brought out in cross-examination which will lead to the conclusion that what has been deposed by the petitioner is untrue. PW 2 also gave credence to the evidence of PW 1. On going through the evidence of PWs 1 and 2, I am inclined to hold that they are witnesses whose evidence can be believed.

As already stated, the evidence of PWs 1 and 2 remains uncontroverted. The unsigned deposition of the respondent in-chief which was not tested by cross-examination cannot be accepted as evidence. So the only evidence is that of PWs 1 and 2 alone which I am inclined to place reliance on.

On going through the evidence tendered by PWs 1 and 2, it is clear that the consent of the petitioner was obtained by fraud. It is also clear that the respondent was impotent at the time of marriage and at the time of institution of the suit. Though medical evidence is lacking regarding the impotency of the respondent, there is ample oral evidence in the case to come to such a conclusion. On going through the evidence, it is clear that the marriage was not consummated and the respondent was not showing interest to have sexual connection with the petitioner. From her deposition, it is also clear that though she made attempts to have sexual union with the respondent, those were resisted by him. It is in evidence that they lived together for five years and never had the respondent made an attempt to have sexual connection with the petitioner. From these facts alone, it can be concluded that the respondent was impotent. A husband who is capable of sexual intercourse will not refrain from doing so for five years since marriage. From this, the only irresistible conclusion that could be drawn is that the respondent was impotent and was not capable of having sexual intercourse with his wife.

Though an attempt was made by the petitioner to depict the respondent as a lunatic, evidence is lacking to come to such a conclusion. Exts. A3 and A4 are certificates produced by the petitioner, but the contents of the documents are not proved by examination of the person who issued them.

In the absence of such an evidence, I am not inclined to hold that the respondent was a lunatic at the time of the marriage.

So, to conclude, it is proved beyond doubt, that the consent of the petitioner was obtained by fraud and that the respondent was impotent at the time of marriage and at the time of institution of this proceedings. So, the petitioner is entitled to get a decree that her marriage with the respondent is null and void.

The Original Petition is allowed. The marriage between the petitioner and the respondent is declared to be null and void.