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Coral Indira Gonsalves, Falsely Called Iswariah Vs. Joseph Prabhakar Iswariah - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberO.M.S. No. 5 of 1952
Judge
Reported inAIR1953Mad858; (1953)IMLJ591
ActsEvidence Act, 1872 - Sections 45; Divorce Act, 1869 - Sections 16, 19 and 19(1); Specific Relief Act, 1877 - Sections 42
AppellantCoral Indira Gonsalves, Falsely Called Iswariah
RespondentJoseph Prabhakar Iswariah
Appellant AdvocateK. Narasimha Iyer, Adv.
Respondent AdvocateAlvares, Adv. of Pais, Lobo and Alvares
Cases ReferredGrace Isabel Stuedman v. Anneley Eliardo Baresford
Excerpt:
.....act, 1869 and section 42 of specific relief act, 1877 - defendant impotent and unable to have sexual intercourse with plaintiff - petitioner sworn that she remained virgin - naturally she does not want her life to be blasted by being tied up to this impotent man - petitioner wants decree for nullity - held, petitioner entitled to decree of nullity of marriage. - - still, she went on living with him for seven months, to see whether he would ever recover his potency and be able to have sexual intercourse with her, for it sometimes happens, according to popular belief, that a man is impotent and unable to have sexual intercourse at a particular time, but becomes, after some time, able to have sexual intercourse, either by prayer and god's grace, or by the restorative processes of..........iswariah a nullity, on the ground of his impotency and continuing and total inability to have sexual intercourse with her, at first the respondent opposed the petition vigorously, alleging that he was not impotent. both the petitioner and the respondent are protestant indian christians.2. the following issues were framed:1. is the defendant impotent and unable to have sexual intercourse with the plaintiff, as alleged? 2. to what relief, if any, is the plaintiff entitled? 3. before the matter came on for final hearing and disposal, the respondent, iswariah, wanted this court to have him examined by a competent doctor for finding out whether he was really impotent and totally unable to have sexual intercourse. ultimately, lt. col. krishnamoorthi, no. 2 boag road, t. nagar, was.....
Judgment:

Panchapakesa Ayyar, J.

1. This is a petition by one Coral Indira Gonsalves, aged 23, for declaring her marriage with Joseph Prabhakar Iswariah a nullity, on the ground of his impotency and continuing and total inability to have sexual intercourse with her, At first the respondent opposed the petition vigorously, alleging that he was not impotent. Both the petitioner and the respondent are Protestant Indian Christians.

2. The following issues were framed:

1. Is the defendant impotent and unable to have sexual intercourse with the plaintiff, as alleged?

2. To what relief, if any, is the plaintiff entitled?

3. Before the matter came on for final hearing and disposal, the respondent, Iswariah, wanted this Court to have him examined by a competent doctor for finding out whether he was really impotent and totally unable to have sexual intercourse. Ultimately, Lt. Col. Krishnamoorthi, No. 2 Boag Road, T. Nagar, was appointed by Court as the doctor for examining him carefully and giving a certificate about his potency or impotency, and ability or inability to have sexual intercourse. This doctor, after examining him, gave a certificate as follows:

'I have carefully examined Sri Joseph Prabhakar Iswariah on two separate occasions. I am of the opinion that Sri Joseph Prabhakar Iswariah is potent and that he is capable of the act of sexual intercourse.'

This certificate was granted on 21-10-1952. This petition had been filed on 27-2-1952. So, even if the certificate was proved to be correct (it was not), it will not prove potency before 21-10-1952. Mr. Narasimha Iyer, for the petitioner, persisted in contesting the potency of the respondent, even on 21-10-1952, and strongly relied on the letters of the respondent written to the petitioner, including a letter, Ex. P. 2, wherein the respondent had written to his wife, the petitioner, that he was physically quite unfit to give her any sexual satisfaction, and that she could get such satisfaction by having sexual intercourse with other men, provided that she did not ask him to support any children born out of these extra-marital relationships, and that he hoped that she would go back to him, as he was giving her enough compensation for the sexual satisfaction he was unable to give her, himself. Though the respondent at first contested the genuineness of this letter, and wanted permission to have a photograph of it taken and a hand-writing expert appointed to determine whether he had really written and signed such a letter, he finally gave up that idea, and, on 20-1-1953, his counsel intimated to Court that 'the defence was not intended to be pressed.' So, the suit was posted to today for the petitioner's examination to prove her case.

4-5. The petitioner examined herself as P. W. 1 today. (His Lordship went through her evidence and proceeded):

6. As already stated, the respondent has finally remained 'ex parte'. His counsel has informed this Court that he is not going to press his defence.

7. Now, I shall give my findings on the issues, on the uncontradicted evidence of the petitioner, and the exhibits.

Issue 1: On the evidence on record, I have absolutely no hesitation in holding that the respondent is totally impotent and unable to have sexual intercourse with the petitioner, till today, as alleged. There is the categorical statement of the petitioner, as P. W. 1, to the effect that, even though she embraced and kissed him repeatedly almost every night for nearly seven months, and invited him to have sexual intercourse with her, he was unable to have sexual intercourse with her, and confessed to her that he was impotent, and even showed his defective genitals in corroboration of his statement, and that she was also convinced, by seeing his defective penis, totally incapable of erection, that he was really impotent. Still, she went on living with him for seven months, to see whether he would ever recover his potency and be able to have sexual intercourse with her, for it sometimes happens, according to popular belief, that a man is impotent and unable to have sexual intercourse at a particular time, but becomes, after some time, able to have sexual intercourse, either by prayer and God's grace, or by the restorative processes of nature or by taking some vitality-restoring food or medicine like 'Siddha Kalpa', 'Makara-dhwaja' or 'Chyavana Pras' or 'Royal Yakuti', or 'Karunkurangu Lehyam' claiming, (rightly or wrongly), to be able to achieve it, or some western medicines corresponding to these Indian medicines and making the same claims. Anyway, it is clear that the petitioner gave the respondent ample opportunities for recovering his potency and ability to have sexual intercourse with her, by sleeping with him night after night for 7 months and trying her best by kissing and embracing him repeatedly, to induce him to have sexual intercourse with her. What is more, the letter, Ex. P. 2, by making the obscene offer to her, giving her freedom to have sexual intercourse with other man, provided she did not claim maintenance for the bastard children born by such extra-marital relations, corroborates the other evidence and conclusively proves that the respondent is totally impotent and knew that he was impotent. We need not bother about Lt. Col. Krishnamoorthy's certificate that, in his opinion, the respondent was able on 21-10-1952 to have sexual intercourse, and was potent, that day. Certificates, like these, do not prove themselves. They must be 'strictly proved' by the doctor who issues them. He has to state what tests he carried out to arrive at his conclusion and must stand cross-examination and convince the Court that his conclusion about the potency is correct. Here, not even an attempt has been made to examine him, the respondent, having given up his defence, obviously because it was hopeless.

8. Of course, it is the law that mere impotency at the time of marriage will not do for getting a decree for nullity, if the respondent in question became potent by the time of the filing of the petition. I shall go further and hold that it is enough if the person becomes 'potent before the petition is disposed of', by restorative processes of nature, or by taking vitality-restoring medicines and injections, or through prayer and God's grace, the old-world remedy for what the modern world has to offer in substitution of nature's processes. I am stretching the period up to 'the final disposal of the petition', advisedly, because I think that the Courts in this country will be very unwilling to dissolve any Christian marriage (all such marriages being held to be sacred) and grant a decree for nullity, if it is proved, even on the day of the final hearing, that the respondent, alleged to be impotent, has become potent, either by prayer and God's grace, or by natural processes, or by medicinal or dietetic treatment. So, I am not restricting the period of proof of potency to 'the date of the presentation of the petition.' In divorce and nullity cases, separating married persons for ever, that is the least the Courts can be expected to do. The Christian maxim 'Let not man separate those whom God has joined' cannot be unfortunately literally noted on by the Courts today, owing to change in the law. But Courts, none the less, keep that maxim in view before they separate married persons for ever, and will not extend the law to make dissolution easier. But, in this case, till this day, when the petition has come up for final hearing and disposal, I am satisfied that neither prayer nor nature nor diet nor medicine has made the respondent, who was impotent at the marriage, potent and able to have sexual intercourse.

9. It is also clear to me that it is not a mere case of the respondent's being impotent 'regarding the petitioner alone', as happens in some cases, where the peculiar personality of the man or woman in question makes the other spouse frigid and impotent, by psychological and physiological inhibitions. I am satisfied that this is a clear case where the respondent is impotent as regards 'all women', and not merely regarding this petitioner. His letter, Ex. P. 2, reinforces this conclusion, as no man, however degraded in morals, who has got even one per cent, chance of being able to have sexual intercourse with his wife even once in his lifetime, will write such a letter, and make such an offer, one of the most degrading offers which any husband can ever make to his wife.

10. The petitioner has sworn that she has remained a virgin till now. Naturally she does not want her life to be blasted by being tied up to this impotent man, and wants a decree for nullity, and I am satisfied that she is entitled to it.

11. Issue 2: In view of my finding on issue 1, and the total absence of any collusion, the petitioner is entitled to a decree for nullity. Mr, Narasimha Iyer, for the petitioner, rightly urges that in a petition for nullity, there is no need to pass a decree 'nisi', to be made absolute after six months, and that the correct procedure is to pass at once a plain, simple and absolute decree of nullity and dissolution, as would be passed in a suit for a declaration of nullity of a marriage between non-Christian persons under Section 42 of the Specific Relief Act. He cited the ruling in -- 'Grace Isabel Stuedman v. Anneley Eliardo Baresford deCourey Wheeler', : AIR1945Cal75 , in support of this proposition. I agree, and grant the petitioner, Coral Indira Gonsalves, an absolute decree declaring her marriage with the respondent a nullity. Of course, there are no children, and no claim for maintenance, or costs, is put forth. So, no orders are required either for the maintenance of the petitioner or for children, or regarding any other collateral matter.

12. In the circumstances, all the parties willbear their own costs.


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