Peter vs Moly

K.A. Abdul Gafoor, J.—This is a petition filed u/s 18 of the Indian Divorce Act. Husband is the Petitioner. He seeks a decree declaring his marriage with the Respondent as null and void. Parties belong to Roman Catholics. They got married on 29th April 1990 at Elanjipra Church as per Christian rites. Thereafter, they lived together till 10th November 1990 when the Respondent''s father took the Respondent from the Petitioner''s house to her own house.

The ground urged in this petition is that Respondent was mentally ill at the time of marriage and she continues to be so, even now and this fact was suppressed from the Petitioner, and concealing this fact, consent of the Petitioner was obtained for marriage. Had the mental status of the Respondent been divulged, the Petitioner would not have given consent for the marriage. Thus, there was fraud. Petitioner also submitted that Respondent had told him that she had no menstruation at any time and even after marriage. She had Gynecological defect and she was unable to conceive, which is the primary aim of the marriage. The fact that the Respondent is unable to conceive had been withheld from the Petitioner before marriage and that also amounts to fraud, the Petitioner submits.

Though notice was served on the Respondent she did not appear and she remained absent during the trial of this case. Evidence in this case consists of P.Ws. 1 to 3 and Ext. A(1). P.W. 1 is the Petitioner himself. P.W. 2 a Psychiatrist, with whom the Petitioner had consulted taking the Respondent when the Respondent had shown symptoms of mental sickness after the marriage. P.W. 3 is the Petitioner''s brother who testifies unnatural behavior of the Respondent at the Petitioner''s house. Ext. A(1) is the prescription by P.W. 2.

Petitioner had deposed that "Even on the first day of the marriage I was told by the Respondent that she had been under the treatment of a Gynecologist in a Mission Hospital at Chalakkudy". It was also deposed by him that the Respondent had told him that doctors had advised that she was incapable of conceiving, and that the doctors had advised her not to have a married life in view of the Gynecological problem of inability to conceive. He has submitted that during the six months period that he lived with the Respondent, the Respondent did not menstruate even once. He submits that this inability of the Respondent had been suppressed from him. He also deposed that immediately after marriage the Respondent was behaving abnormally, she was in the habit of getting up suddenly from bed during night and going out of the bed room and sitting along dabbling her feet in the rain water and enjoying it. She even used to inflict injury on him by catching hold of his arm and squeezing his neck. When she was asked about this behavior, she used to say that she did not remember what she had done. He had talked about this behavior to her parents. Then they showed helplessness and said that it was God''s fate. Thus, the Petitioner realised that the Respondent was suffering from mental illness. Petitioner took her to P.W. 2 in a mental hospital at Trichur. He had prescribed certain medicines and the doctor advised that Respondent''s condition cannot be cured permanently and it was a chronic disease. Petitioner submits that the Respondent was not regular in her bathing habits. This mental state of affairs had never been told before marriage and had it been divulged, necessarily, the Petitioner would not have married her, the Petitioner deposes. Petitioner further submits that "my consent was obtained by playing fraud".

P.W. 2, the doctor deposed that "the disease which Molly was having is known as Hypomenia" with symptoms of sleeplessness, odd-behavior and aggressive tendency. He was unable to say whether the illness developed either before or after the marriage. He is of opinion that "it might have developed either before or after marriage". But he confirms that the illness is a recurring one and it requires continuous treatment and that when the Respondent was brought to him she was having sadistic tendency which will affect the marriage relationship and "will be dangerous to the husband".

P.W. 2 is a doctor having experience from 1972 onwards. He is qualified specially in Psychiatry. P.W. 3, elder brother of the Petitioner had deposed that "the fact that the Respondent was having mental illness was not disclosed by the Respondent or by her relatives to me". He submits that the Respondent rarely took bath and was not behaving normal with the members of the family. It is submitted that the Petitioner and Respondent were not having good relations, and she never obeyed the Petitioner and was in the habit of picking up quarrels.

Ext. P-1 is the prescription by P.W. 2. The first prescription was made on 17th October 1990, that is, within 6 months of the marriage.

The Respondent remained absent, in the Court and that means, the Respondent did not co-operate with the Court to find out the real aspect. The facts that, the Petitioner and the Respondent had only less than seven months married life and that the Respondent had been taken away from the Petitioner''s house by her father are proved before me. She has mental illness, that also had been proved by the doctor who treated her and also by Ext. A(1), the prescription. Petitioner also submitted that immediately after marriage, the Respondent had shown abnormal behavior. In the light of these evidence can it be concluded that the Respondent was mentally ill at the time of marriage and even now in which case alone the Petitioner will be entitled to a decree for nullity of marriage u/s 18. A Full Bench of this Court had occasion to consider a case, when a wife showed no inclination for sex immediately after marriage, whether this wife had such tendency even at the time of marriage to attract Section 18. The Full Bench held in Antony v. Fransisca 1988 (2) KLT 135 as follows:

She has no inclination or interest for sex and is not agreeable for having sexual intercourse with the Petitioner. In other words, the Respondent does not agree to have sexual intercourse not because of physical disability but because she abhors the concept of sex itself. Can the wife who does not permit intercourse on the ground that she is totally against intercourse, be regarded as impotent, though she does not have any physical problems for intercourse? We find answer to this question from the classic passage in "Rayden on Divorce"-14th Edn. at page 175, which we extract as follows:

Decisions under the corresponding provisions of the English Matrimonial Act have held that where woman is shown to have had intercourse with her husband after a reasonable time for consummation of the marriage and it appears that she has refused intercourse and resisted her husband''s attempts, the Court, if satisfied that the refusal was not due to mere obstinacy or caprice, may draw the inference that it arose from some incapacity proceeding from nervousness or hysteria or from an invisible repugnance to the act of consummation resulting in a paralysis of the will which was consistent only with incapacity.

We agree with this statement of law which has been followed with approval by the Special Bench of the Madras High Court in Jayaraj Anthony Vs. Mary Seeni Ammal, . Reason for impotency may be physical or mental. In this case refusal on the part of the Respondent to have sex with the Petitioner was not due to mere obstinacy or caprice but because she hates sex and believes that it is sinful. Though there is no physical obstacle for intercourse, she is mentally determined not to have sex. In other words, there is a paralysis of her will to have intercourse. This was her condition right from the date of marriage. We, therefore, hold that she was impotent both on the date of the marriage as also on the date of the suit. The marriage was, therefore, a nullity.

The Full Bench held in this case that the wife was impotent even at the time of marriage and continued to be so on the date of the suit. Here also the Petitioner submits that immediately after marriage, the Respondent showed abnormal behavior. Doctor also certifies that she had been mentally ill. There is no case that there was any ill-treatment towards Respondent in the Petitioner''s house so as to develop sudden mental ill-health. In such circumstances, following the view taken by the Full Bench as extracted above it has to be taken that the Respondent was mentally ill even on the date of marriage and at the time of filing this petition. The mental illness of the Respondent had not been disclosed to the Petitioner or his relatives before marriage. Thus it had been withheld from the Petitioner for obtaining consent for marriage. Petitioner submits that, after marriage, the Respondent did not menstruate even once. The Respondent was also not pregnant. The Petitioner has deposed that Respondent had told him that she had been under the treatment of a Gynaecologist and that her and her parents were advised that she could not have a married life. To procreate children is one among the holy aims of marriage. If this procreation is not possible, naturally, the very purpose of marriage is not served. If it had been disclosed to the Petitioner that the Respondent was unable to have a married life and to procreate children and that she had no menstruated at the time of marriage then the Petitioner would not have consented for the marriage. Withholding that information from the Petitioner to obtain consent for marriage amounts to fraud. Almost a similar question was examined by this Court in Valsa v. Moore 1991 (1) KLT 132, where the husband withheld the fact that he had undergone vasectomy and unable to procreate children and got consent of the wife to get married. This Court held that:

Petitioner had the craving to become a mother through her husband. But the sterility of the Respondent as a result of the vasectomy operation has gone to wither her ambition. Vasectomy operation which he had undergone was a material aspect which he should have revealed to the Petitioner. Such a material matter was kept concealed. The concealment of the fact by the Respondent has resulted in playing fraud against the Petitioner.

Almost the same facts about the other gender arise in this case. Here, sterility of the Respondent as a result of her inability to conceive had been concealed to the Petitioner and that concealment of the fact by the Respondent amounts to fraud.

In the above circumstances, I find that the Respondent had been mentally ill at the time of marriage and continued to be so even at the time of filing this petition, and that the Petitioner''s consent had been obtained by playing fraud on the Petitioner concealing the fact of mental ill-health of the Respondent and the further fact that the Respondent was unable to conceive. In the above circumstances, it is declared that the marriage took place on 29th April 1990 between the Petitioner and the Respondent is null and void. A decree is passed to that effect.

Original Petition is allowed. In this circumstance of the case, there will be no order as to costs.

*A reproduction from ILR (Kerala Series).