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Rosaline Rajan Vs. S.M. Joseph Xavier Lourdarajan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberO.S.A. No. 146 of 1981
Judge
Reported inAIR1983Mad164
ActsDivorce Act, 1869 - Sections 19(1)
AppellantRosaline Rajan
RespondentS.M. Joseph Xavier Lourdarajan
Appellant AdvocateJohn Arthur K. Sridhar and ;S. Annamalai, Advs.
Respondent AdvocateAmmu Balachandar, Adv.
Cases ReferredJayaraj v. Seeniammal
Excerpt:
.....6. now, coming to the more important point, namely the alleged aversion of the wife for conjugal life, the evidence and the conduct of the parties clearly indicate that the husband's plea of impotency quod hune is acceptable. the wife was happy and content to live with her mother, sister and sister's daughter who were perhaps depending on her earnings. things appear to have gone on like this and both the spouses continued to live away from each other. of course, the ecclesiastical authorities tried their best through the parish priest to advise the wife, but it proved futile. she could have very well produced the original letters and disproved the contents of these letters. 11. learned counsel for the wife (appellant) argued that the best evidence has not been let in this case and that..........elder sister expressing satisfaction that they are trying to set up a home for the husband and wife at madras. the relevant portion of the letter is extracted by the learned judge and it is found from the tenor of it that the newly wedded couple were not living a marital life till then and it further reads that it is but right that they should be united, but for some reason or other, the parties did not live together.8. the husband (respondent) appears to have waited for a sufficiently long time making fervent appeals to his wife to come and live with him and lead a marital life. it is not necessary to discuss all the letters and a few of them are enough to show the bent of mind of the wife. ex. p-11 is a letter written by the husband to the wife on 31-7-1978, advising her that it.....
Judgment:

1. This appeal by the wife is directed against the order of annulment of marriage in a suit filed by the respondent (husband) on the ground that the wife is psychologically impotent and that the marriage was not consummated. The respondent husband stated in his petition that he married the appellant on 24-11-1976, but that the marriage has not been consummated on account of the wife's aversion towards sex. The appellant wife denied the same and contended that the marriage was consummated, that she lived with her husband for a very short period at Madras and that they are living apart on account of the fact that she is employed at Thanjavur and the husband at Madras. In particular, she denied the psychological impotency attributed to her.

2. The learned Judge has considered the evidence, oral and documentary, and found that, from the circumstantial evidence and the correspondence, the marriage could not have been consummated and that the appellant wife is averse to sexual life with the respondent husband, and consequently, annulled the marriage. Hence this appeal.

3. Under S. 19(1) of the Indian Divorce Act, under which the suit was filed by the husband, a decree for nullity can be passed on the ground that the other party was impotent both at the time of marriage and at the time of the institution of the suit. It its legal sense, impotency is an incapacity to consummate marriage and it may be physical or psychological. Therefore, a mental defect which precludes the consummation of marriage is as much a ground for annulment as a physical shortcoming. The mere absence of a physical or anatomical defect is not sufficient to render a marriage binding, and if it can be shown that sexual life is almost impossible to some mental apathy which is likely to be permanent, this court has to annul the marriage. Therefore, in cases like the present one where aversion or mental apathy is pleaded, the court will have to take a practical and a reasonable view of the evidence and free the case from all technical aspects as far as possible. However, it must always be proved that the alleged coldness or repugnance of the spouse existed at the time of the suit. The court has to draw its own inference from the circumstances of each case and on the conduct of parties. Therefore, it is clear that the burden of proof is heavy on the petitioner to prove this condition on the part of the other spouse, and normally, medical evidence is the best evidence in such cases and courts hesitate to pass a decree for nullity on the uncorroborated testimony of the plaintiff. These are the general principles governing S. 19(1) of the Indian Divorce Act and a Full Bench of this court in Jayaraj v. Seeniammal, : AIR1967Mad242 , has also affirmed the view that impotence may be physical or psychological and that the term `impotence' will have to be understood in the proper perspective. The Division Bench also held in the aforesaid case that courts have had no hesitation in declaring a marriage void, for instance, where there was an incurable psychological defect in the wife or for reason of biological immaturity, the marriage could not be consummate, Courts have also accepted the principle that there is such a thing as sexual potency in general, and also impotency with regard to a particular spouse, described in the text books as impotency quod hune.

4. With these general principles, let us now consider the evidence on record. As already stated, the case of the husband is that the wife is psychologically impotent and also impotent quod hune. The husband also pleaded that the marriage has not been consummated and inasmuch as the wife has shown a consistent aversion to sexual life, the marriage has to be set aside as null and void. Of course, with reference to his plea that the marriage has not been consummated, it is a fact exclusively within the knowledge of the spouses and very little other evidence can be expected on this aspect in the very nature of things. The husband has sworn that the wife (appellant) has all along been leading a religious life in a Catholic Seminar for a number of years and that even on the very first night of the marriage, she begged of him not to have sexual relations, but to lead a life of celibacy despite the marriage. This has been stoutly denied by the appellant who has stated that they had sexual access for short periods during the period they lived together. The appellant has also examined R.W. 4, a Woman Medical practitioner, who has given a certificate and also evidence to the effect that the appellant is not a virgin and that she is fit for marital act. This aspect is not very material for deciding the precise question before us, namely, that the wife psychologically impotent and that she is impotent quod hune.

5. As the learned Judge rightly pointed out, it is futile to expect direct evidence on the controversy whether the wife is averse to sexual union or not and therefore this has to be inferred from the circumstantial evidence and the conduct of parties. The parties herein are Roman Catholic Christians and they were married at Thanjavur on 24-11-1976. The husband (respondent herein), aged 29 years, is employed in Best and Crompton Co, at Madras drawing a decent salary and is also said to be studying M.B.A. The appellant wife aged 28 years is working in the P.W.D. Office at Thanjavur. Both are employed in different places and admittedly, they lived together only for a very short period till this petition for annulment was filed in Sept. 1979. In other words they were living away from each other for most of the time and, as admitted in para 3 of the memorandum of grounds of appeal, 'the appellant wife was lured into coming to Madras temporarily only for a few days'. That apart, even the admitted evidence is that the wife came to Madras where the husband is residing only for two short spells of few days and then went to back to Thanjavur. It is also gathered from the evidence that the husband asked his wife to get a transfer to Madras and even arranged for one, but the wife went away from Madras after getting a retransfer to Thanjavur. The evidence is that the wife went away from Madras, when the husband was away at Calcutta on his job. These facts are not seriously disputed.

6. Now, coming to the more important point, namely the alleged aversion of the wife for conjugal life, the evidence and the conduct of the parties clearly indicate that the husband's plea of impotency quod hune is acceptable. We may refer to a few letters that passed between the parties which conclude the matter one way or the other. Ex. R-8 is a letter dated 19-8-1976 by the wife to the husband three months prior to their marriage on 24-11-1976. In this letter the wife has stated that she was not in any way responsible for the proposal of the marriage made by the husband (respondent) and that she had all along been living a life free from temptation and desires. It is further stated thus-(Matter in vernacular omitted here. Ex.) These words speak for themselves and the frame of the wife's mind even prior to the marriage was not quite conducive for a sexual or a conjugal life.

7. Despite this, they got married somehow, and the marriage took place at Thanjavur at the cost of the bride and her people. Within a few days thereafter, the husband had to come back to his place of work at Madras on account of exigencies of service and months rolled on without their meeting. The wife was happy and content to live with her mother, sister and sister's daughter who were perhaps depending on her earnings. Therefore, the wife never showed any interest in coming to Madras to live with her husband. Things appear to have gone on like this and both the spouses continued to live away from each other. In Feb., 197, the father of the husband wrote a letter Ex. R-16 on 6-2-1977, to the appellant's elder sister expressing satisfaction that they are trying to set up a home for the husband and wife at Madras. The relevant portion of the letter is extracted by the learned Judge and it is found from the tenor of it that the newly wedded couple were not living a marital life till then and it further reads that it is but right that they should be united, but for some reason or other, the parties did not live together.

8. The husband (respondent) appears to have waited for a sufficiently long time making fervent appeals to his wife to come and live with him and lead a marital life. It is not necessary to discuss all the letters and a few of them are enough to show the bent of mind of the wife. Ex. P-11 is a letter written by the husband to the wife on 31-7-1978, advising her that it was the social duty on the part of the wife to keep company with the husband and that they should live together. He even stated therein that his earnings are enough to support both of them and that there was no necessity for her to be in employment. It is further noticed therefrom that the wife had not even cared to reply, and in spite of it, he was writing to her on account of the urge to lead a marital life. It was all a one way traffic. Ex. P-12 is another letter of the husband dated 3-8-1978 complaining that the wife was totally indifferent to him and that she did not even want to have a transfer to Madras. these two letters evoked a very short curt and cold reply from the wife under Ex. P-13 wherein she had not even reciprocated his sentiments, but made casual enquiries about him. The husband did not leave the matter there. He again entreated and begged his wife in his letter Ex. P-14. dated 7-8-1978, expressing that he was suffering mentally and physically on account of her living away from him and that he could not bear the torture of separation. In this letter he made a fervent appeal to the wife to come and live a marital life with him and that he had not touched her till then.

9. There was no response and after waiting for sometime the husband approached the Rt. Rev. Bishop of Thanjavur by his letter Ex. P-4 dated 17-10-1978, disclosing or confessing so to say, what all happened and his agony over the wooden attitude of his wife. This letter Ex. P-4, written to the Rt. Rev. Bishop of Thanjavur was one year prior to the filing of this petition for nullity and in this letter the husband has stated that though 20 months have elapsed, his marriage has not been consummated and that his wife had not even understood the husband-and-wife relationship and that she abhors the marital act. He has practically set forth the essence of his case in this letter Ex. P-4, and prayed to the Rt. Hon. Bishop for annulment of his marriage. Of course, the ecclesiastical authorities tried their best through the Parish Priest to advise the wife, but it proved futile. Rt. Rev. Father Sundaram, Bishop of Thanjavur, wrote a letter to the husband on 18-12-1978, expressing surprise at his wife not having come to Madras to join him in spite of his advice. The Rt. Rev. Bishop even stated thus: 'When people do not co-operate with us , what can we do?' The husband was then directed to contact the Parish Priest of the Cathedral, and since nothing came out of it the husband even stated in Ex. P-10 letter dated 14-12-1978 to the Rt. Rev. Bishop that he has to seek justice elsewhere, since the Church authorities were unable to persuade the wife to come and live with him. Even after this letter Ex. P-10, the husband waited for about eight months and filed the suit as a last resort. The learned Judge took into consideration the correspondence and the conduct of parties and came to the conclusion that the wife never showed any desire or interest in coming and living with her husband despite the intervention of several people including the Rt. Rev. Bishop of Thanjavur.

10. Even prior to the filing of the suit in the month of August 1979, the husband wrote letters of which Exs. R-17, r-18, R-19 and R-20 are copies making appeals to the wife to come and live with him. The receipt of these letters is not denied, though the wife pretended in the witness box that these letters are not the true copies of the liters received by her. She could have very well produced the original letters and disproved the contents of these letters. The learned Judge has extracted the evidence of the witness in detail and has taken into consideration the background and finally came to the conclusion that the husband's case of psychological impotence or impotence quod hune is acceptable.

11. Learned counsel for the wife (appellant) argued that the best evidence has not been let in this case and that no expert medical evidence was let in on the side of the husband who pleads psychological impotency on the part of his wife. This argument does not appeal to us having regard to the facts of the case before us. The temperament of the wife is eloquent, and her conduct and letters show that she was throughout rigid and cold towards her conduct and letters show that she was throughout rigid and cold towards her husband. Medical evidence in such circumstances will not conclude the matter in cases of psychological impotence and it is well known that witnesses may lie but circumstances will not. It is worth repeating that this is not a case of physical impotency on the part of the wife but mental, and the husband has proved as best as he can, from cogent circumstances that wife was averse to lead a marital life with hi. As already stated, the medical evidence that she is not a virgin is neither here nor there and the physical condition of the woman is not material. This is a case of refusal to consummate which clearly comes directly under psychological level.

12. The result of our discussion is that, in the facts and circumstances of the case taken as a whole it is proved that she (appellant wife) has no mental frame of mind for sexual life. She appears to be a moody and a melancholic woman even though she got married at a late age of 28 years. She never showed any interest or liking for sexual relations with her husband. Therefore, we have no reason whatsoever to disagree with the conclusion of the learned Judge. Consequently, this appeal is dismissed. No costs.

13. Appeal dismissed.


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