1. This is a reference made under Section 17 of the Indian Divorce Act 1869 (Act IV of 1869) by the District Judge of Cuttack-Dhenkanal, for confirmation of his judgment annulling the marriage of the petitioner with the respondent.
2. The parties are Christians by faith and are governed by the Indian Divorce Act. The petitioner Arun Kumar Patra is a present resident of Cuttack, and the respondent comes from a family of Jamshedpur. It is not disputed that they were on the 17th April, 1959, married at Jamshedpur. At that time the age of the petitioner was about 25 years while that of the respondent was about 22 years. Hardly after marriage they had lived together in Cuttack for about three weeks that the present dispute began between the parties. The grievance made by the petitioner is that the respondent is impotent in relation to him and suffered from malformation in her physique and sex organ rendering marital relationship impossible It is not denied that there was never any consummation of the marriage and whenever the petitioner tried to have sexual intercourse with the respondent she shrieked and fainted. The explanation given by her is that whenever there was any advance or overture made by the petitioner she used to develop burning sensation in her genitals and therefore, that it was not possible for her to have any sexual intercourse. It was in these circumstances that the present petition under Section 18 of the Indian Divorce Act was filed by the petitioner (husband) for the dissolution of the marriage.
3. The respondent at no stage has contested the claim of the petitioner. On the contrary she has welcomed the decree for nullity on the plea that she has a positive hatred and disgust against the petitioner and can have no marital relationship with him.
4. Originally the case at the trial was heard by the then. District Judge of Cuttack, Mr. G.R. Rao. He by his judgment dated the 22nd June 1960 held that :
'This is a fit case for declaring the marriage null and void, subject to confirmation by the Hon. High Court. '
But when the matter came up for confirmation, this Court came to the conclusion that the District. Judge in coming to the aforesaid finding, did not pay proper consideration to the point of possible collusion between the parties as in law in a case like this it should have been done. Accordingly, this Court after framing some additional issues remanded the case to the trial Court for fresh hearing, after giving full opportunities to both parties to adduce all available evidence in the case.
5. On remand therefore, there was further fresh evidence recorded at the trial. Unfortunately, the respondent--despite notice to her--did not put in appearance and refused even to submit herself for medical examination as prayed for by the petitioner--with the result that the hearing of the case was taken up ex parte. There were in all four witnesses examined on behalf of the petitioner besides himself. P. W. 2 is his brother-in-law, P. W. 3 is his father, P. W. 4 is one of his friends and P. W. 5 is his mother. All of them have uniformly and consistently supported the case of the petitioner. Their evidence as found by the trial Court also, firmly establishes that the petitioner has all along been anxious and eager to have the respondent back as his wife but the respondent despite all efforts made by the relations of the petitioner more particularly P. W. 2 has flatly refused to have any relationship with the petitioner or to live with him as his wife. In these circumstances the learned District Judge, we think has rightly came to the conclusion that 'there is no collusion between the parties in filing this suit.' Further, the evidence on the record also leaves no doubt that the respondent is impotent visa-vis the petitioner. Accordingly the petition filed by the present petitioner has again been allowed by the learned District Judge and the marriage, as prayed for therein, has been declared null and void and we think rightly. Therefore, we see no reason to differ with the order passed by the trial Court.
6. Accordingly, the reference is accepted and the order of the District Judge of Cuttack dated the 10th October 1963 is confirmed. But in the circumstance's of the case there will be no order for costs.
7. I agree.