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Augustine and anr. Vs. Kunjamma Kuriakose and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberC.S. No. 790 of 1999
Judge
Reported inAIR2001Mad480
ActsDivorce Act, 1869 - Sections 19
AppellantAugustine and anr.
RespondentKunjamma Kuriakose and anr.
Appellant AdvocateR. David, Adv. for Kurian and Associates
Respondent AdvocateN.A. Kareem, Adv.
DispositionSuit decreed
Excerpt:
family - dissolution of marriage - section 19 of divorce act, 1869 - suit filed to pay sum of rs. 1500000 as damages for wrong done and for fraud committed by defendants to plaintiffs - marriage of parties null and void - husband was incapable of consummating marriage - defendants had thorough knowledge of impotency of second defendant have suppressed it - no evidentiary value can be attached to medical certificate - defendants responsible for causing mental agony to plaintiffs - plaintiffs able to prove fraud and deception played on them - suit decreed fixing damages at rs. one lakh only payable by defendants with interest at 12% per annum from date of plaint till payment. - m. chockalingam, j. 1. the suit has been filed for pay a sum of rs. 15,00,000/- as damages for the wrong done and for the fraud committed by the defendant's to the plaintiffs and for costs. 2. plaint averments are as follows : the first plaintiff is the father of the second plaintiff. he states that the mother of the defendant had arranged for the marriage of her son with his daughter which was per-formed at loyala college chappel, madras-31 on 18-8-96. the first plaintiff states that none of the elders who participated in the marriaged stated about the impotent and physical debility of the 2nd defendant; that the 2nd defendant was avoiding being in 2nd -plaintiffs company; that the 2nd plaintiff thought that since it was an arranged marriage and till she gets to know the 2nd defendant,.....
Judgment:

M. Chockalingam, J.

1. The suit has been filed for pay a sum of Rs. 15,00,000/- as damages for the wrong done and for the fraud committed by the defendant's to the plaintiffs and for costs.

2. Plaint averments are as follows :

The first plaintiff is the father of the second plaintiff. He states that the mother of the defendant had arranged for the marriage of her son with his daughter which was per-formed at Loyala College Chappel, Madras-31 on 18-8-96. The first plaintiff states that none of the elders who participated in the marriaged stated about the impotent and physical debility of the 2nd defendant; that the 2nd defendant was avoiding being in 2nd -plaintiffs company; that the 2nd plaintiff thought that since it was an arranged marriage and till she gets to know the 2nd defendant, that things would change and their love and affection would blossom and automatically the mariage would be consummated. Even though days and months passed, the pattern of behaviour of the 2nd defendant did not change bit, instead he was trying to distance himself from the second plaintiff. The 2nd plaintiff did not want to reveal the behaviour of the 2nd defendant to her parents since they would get upset. It could never be accepted that the first defendant was not aware and could deny that the 2nd defendant was impotent before and at the time of the marriage. The plaintiffs have been duped by the defendants by arranging the marriage between the second plaintiff and second defendant. Nothing other than exemplary damages could compensate the plaintiffs for the untold misery caused to the plaintiffs. The second defendant who had filed the written statement in OMS. No. 46/97 had failed to testify to the same when he was called upon to give evidence before this Hon'ble Court. The learned single Judge while deciding the case after accepting that the 2nd defendant miserably failed to prove his claim made in his written statement that he is not impotent and does have a medical certificate to prove the same, has neither filed the said medical certificate nor did he examine himself or the Doctor who issued the said certificate. The learned single Judge dismissed the plaintiffs petition for nullity of her marriage with the defendant on the ground that the plaintiff has not fulfilled the ingredients of Section 19 of the Indian Divorce Act and also on the ground of collusion between the 2nd plaintiff and the 2nd defendant. The plaintiff had preferred an appeal in OSA. No. 50/99 and in the said OSA notice was issued to the defendant and after another opportunity being given to the defendants, a considered judgment was passed on all counts reversing the judgment of the learned single Judge on 3-3-99. The plaintiff relies upon the Judgment passed by the Learned single Judge and also the Division Bench Judgment which clinches the substance that is available to prove the fraud and collusion practised by the defendants in their evil design of destroying the 2nd plaintiffs life. A sum of Rs. 2 lakhs was given to the 2nd defendant after the marriage and now the said sum was refused to be returned and a civil suit had been filed before the City Civil Court being O. S. No. 4973/98, which sum was agreed to be paid, but deliberately not paid a Lawyer's notice was issued to the defendants on 16-6-99 which was received by the defendants and they still try to maintain in futility that the second defendant is not impotent. Hence, the present suit for compensation.

3. In the written statement filed by the 2nd defendant it is contended that the defendant does not suffer from any physical debility and fit enough to consummate the marriage. The defendant has enough medical proof to show that he is physically fit to perform the sexual act. The non-consummation of the marriage was only due to the plaintiff weird phychological behaviour. It is false and mischievous to state that the elders in the family of the defendants were aware of any such thing and planned and cheated the plaintiff. The allegations have been made out in O. M. S. No. 46/97 for the purpose of getting diverse and for harassing the defendants and extracting money from them. The only reason that the defendant did not appear to give evidence because he was not instructed by his counsel to do so and he was under the bonaflde impression that the written statement filed was enough. The defendant had examined himself through a well qualified Doctor and the said certificate will be filed in support of the defendants claim. The defendant was under the bona fide impression that since OMS. 50/ 99 was dismissed, the same findings would be upheld by the Appellate Court. The defendant denies the claim of Rs. 2 lakhs. The defendant issued reply notice dated 5-7-99 for the plaintiffs legal notice dated 16-6-99. The defendant states that it was his life shattered and not that of the 2nd plaintiff. Therefore, the suit may be dismissed with costs.

4. On the above pleadings the following issues were framed :

i) Whether the plaintiffs are entitled for a sum of Rs. 15,00,000/- as damages for the wrong done and for the fraud committed by the defendants on the plaintiffs?

ii) Whether the decree and judgment passed in O.S.A. No. 50 of 1999 is not conclusive proof of the non-consummation of the marriage by the 2nd defendant with the 2nd plaintiff?

5. Issues 1 and 2 .-- The plaintiff has sought for payment of a sum of Rs. 15,00,000/- as damages for the wrong done and for the fraud committed by the defendants to the plaintiffs.

5A. Mr. P. A. Augustine was examined as P.W. I. He would depose that the 2nd plaintiff is his daughter, and he is the Power of Attorney to represent his daughter. The marriage between his daughter and the 2nd defendant took place on 18-8-96 at Loyola College Chapel. After the marriage was solemnised the 2nd plaintif and 2nd defendant lived in the second defendant's house viz., 55, Salt Colony, Egmore. They lived together for 10 months and 2 days. His daughter informed him that the 2nd defendant's behaviour was not normal and that he had conspired along with his family members. After his daughter came to his house leaving her matrimonial home, he contacted his counsel for dissolution of marriage. When he sent a notice to the defendants address stating that they are going to seek for nullity of marriage in view of the non-consummation of marriage in spite of 10 months of married life, their reply was that they are not Interested in the continuation of the marriage and promised to return the sum of Rs. 2 lakhs which he had given to his daughter within six months. But the defendant did not do so. On 10-8-97 the plaintiffs went along with their Advocate Mr. Alex to the defendants house to retrieve things under the instruction of the defendant's lawyer Mr. Sridharan. But the outcome of their visit was that there was heated confrontation and they locked the 2nd plaintiff in a room and threatened her to cut her Into pieces. His daughter filed O.M.S. 46/97 before this Hon'ble Court seeking nullity of marriage. The second defendant her ein appeared through his counsel and filed counter in the said suit and on enquiry the said suit was dismissed. His daughter filed an appeal in O.S.A. 50/99 which was allowed after enquiry on 29-4-99. In the said proceedings an application in No. 2294/99 was taken up seeking for submission of both the parties before a medical board for medical check up. But the second defendant did not appear before the said medical board. It is not correct to state that the present suit is filed in order to harass the defendants and extract money from them. The 2nd plaintiff was Just 21 years old and had lost her life and lost their dignity, name and suffered financially by running from pillar to post and by approaching advocates and also the church authorities. Therefore, filed the present suit seeking compensation of Rs. 15 lakhs. Present the 2nd plaintiff was married to a divorcee and Is leading her life. Ex. P2 is the copy of the legal notice 2-7-97 given by the 2nd plaintiff to the 2nd defendant. Ex. P3 is the true copy of the, reply from the defendants side dated 17-7-97. Ex. P4 is the certified copy of the petition filed by 2nd plaintiff in OMS 46/97. Ex. P. 5 is the certified copy of the written statement filed by the 2nd defendant in OMS 46/97. Ex. P. 6 is the certified copy of the affidavit filed in support of the Application No. 2494/ 98 seeking for potency test. Ex. P7 is the certified copy of the counterfile by the 2nd defendant for that application Ex. P 8 is the certified copy of the deposition in chief of the 2nd plaintiff in the aforesaid proceedings. Ex. P. 9 is the certified copy of the cross examination of the 2nd plaintiff. Ex. P. 10 is the certified judgment copy in OSA 50/ 99. Ex. P 11 is the copy of the notice dated 16-6-99 filed by the 2nd plaintiff prior to the suit. Ex P. 12 is the reply dated 5-7 99 to the aforesaid notice.

6. 'The evidence of Mr. Agnatius alias Ronnle examined as D. W. 1 is that the 2nd plaintiff was quite indifferent during their married life. She was basically not interested in the marriage she was quite young and still continuing her studies. The 2nd plaintiff did not co-operate for sexual relationship. He has not suffered from any physical debility before and after the marriage and he was fit person to perform the marriage obligations. The first defendant did not have any knowledge about the happenings and misunderstandings between the 2nd defendant and the 2nd plaintiff. The 2nd plaintiff left the matrimonial home in June/July 1997 on the pretext that her grand-father was ill. Subsequently came home to take back her belongings. Subsequently the defendant received a telephonic information from the 2nd plaintiffs father stating that the 2nd plaintiff is going to file a suit for divorce. The 2nd plaintiff was not allowed to speak to the 2nd defendant. A notice was received from the-Court informing that the 2nd plaintiff had filed a petition seeking nullity of marriage. The suit OMS 46/97 was filed given statement by the 2nd plaintiff that the reason for her request for nullity of mariage was the non-consummation of marriage because of the 2nd defendant's physical debility is not correct. She had stated so because that is the only way she could get the marriage nullified. Initially the 2nd defendant was not in favour of dissolution of marriage but since the 2nd plaintiff continued to be indifferent towards marriage he accepted. Initially the 2nd defendant did not undergo any potency test but after receiving notice from the Court, he underwent the test on his own. One Dr. Parthasarathy' Family Medical Centre, Annanager, conducted the potency test on D. W. 1 (D.W.1 underwent the said test just to disprove the accusation of the 2nd plaintiff regarding physical debility. The said doctor gave D. W. 1 a certificate certifying that he is normal and do not-suffer from any physical debility. Though certificate was issued on 15-10-98 it was not filed in this Hon'ble Court because the lawyer of D. W. 1 told him that it would be filed at the appropriate time. Even without filing of the said certificate, the O.M.S. 46/97 was dismissed by this Hon'ble Court. D. W. 1 did not know why Ex. Dl certificate was not filed even during the appeal proceedings as the same was in the custody of his counsel. D. W. 1's mother the 1st defendant is a diabetic and heart patient and she is not medically fit to appear before this Hon'ble Court and thus she has asked D.W. 1 to adduce evidence on behalf of her also 2nd plaintiff had married for the second time and was expecting a child. D.W. 1 is terribly affected because of these proceedings and his chances of remarriage have also been affected because whenever a proposal of alliance came, the parties demanded the judgment copy of the decree nullifying the marriage. D. W. 1 stated that he did not receive Rs. 2 lakhs from the plaintiffs and all the wedding expenses were borne by them amounting to Rs. 1 lakh and more. In 1998, itself the plaintiffs have filed money suit against D. W. 1 for recovery of Rs. 2 lakhs and he is defending himself in that case and the same is still pending. D.W. 1 is not employed and he is depending on his elder brother for his maintenance. His elder brother is looking after his family and D. W. 1 is searching for employment. The reason for the 2nd plaintiff filing suit against D. W. 1 is that they did not want me as a hurdle for the 2nd plaintiffs remarriage and also because they wanted to exercise their control over me. The 2nd plaintiff also threatened D. W. 1 that she would end her life if D.W. 1 do not co-operate with her in seeking nullity of marriage. Having no other go, D. W. 1 is co-operating with 2nd plaintiff. There was a chance of re-union between the D. W. 1 and 2nd plaintiff and D.W. 1 had appealed to the Church authorities in order to save the marriage but the plaintiff side did not appear before the church authorities. Hence the proposal for re-union has not materialised. D. W. 1's mother the first defendant is in no way responsible for the alleged sufferings underwent by the plaintiff.

7. Arguing for the plaintiffs, the learned counsel would submit that the second plaintiff is the daughter of the first plaintiff; that the second defendant is the son of the first defendant; that after number of meetings and discussions and following the arrangements, the marriage of the second plaintiff with the second defendant was celebrated on 18-8-1996 at Loyola Church, Madras; that it was presumed that the second defendant was free from any physical debility and would be able to consummate the marriage thereof; that after the marriage the couple were living at the first defendant's house at No. 55, Sait Colony, 2nd Street, Egmore, Chennal 8; that from the very first day for a period of 10 months during the matrimonial life, the second defendant never disclosed that he was Incapable of havingsexual intercourse, but was avoiding on some pretext or other; that the second plaintiff was with the fond hope that the marriage would be consummated on one day, but at one point of time she was able to understand that the second defendant was impotent and that they have deliberately suppressed the fact and due to that the plaintiff who could not bear the mental pain, sufferrings and deception left the matrimonial home, went to her parents and informed them about the same and as to the conspiracy also; that when the first plaintiff asked about the same, there was no reaction on the part of the defendants; that even the attempts for reconciliation, compromise or mediation or counselling through the lawyer also did not fructify; that the second plaintiff had no other alternative than to issue a notice stating all the circumstances, as found under Ex. P. 2, which resulted in a reply of the second defendant as found under Ex. P 3; that a perusal of Ex. P3 would clearly reveal that the second defendant has not answered in respect of the allegations as to his impotency, but on the contrary he requested two months' time for payment of Rs. 2.00 lakhs what they received at the time of the marriage; that the second plaintiff under the stated circumstances filed O.M.S. 46/97 seeking dissolution of marriage on the ground of impotency. The second defendant seriously contested the suit and on trial, the learned single Judge dismissed the suit; that aggrieved by the said judgment, the second plaintiff filed O.S.A. 50/99; that the Division Bench of this Court after full consideration of the facts and circumstances, rival pleadings and evidence granted the relief of dissolution of marriage and set aside the judgment of the learned single Judge; that the plaintiff has filed a suit for recovery of Rs. 2.00 lakhs which was given at the time of the second plaintiffs marriage; that the plaintiffs have filed this suit for damages due to fraud, pain and mental sufferings, loss of status and deprivation of the marriage life of the second plaintiff for the stigma caused for the family of the plaintifs; that P.W. 1 for himself and on behalf of his daughter the second plaintiff herein has categorically deposed as to the fraud played on them and the suppression of the impotency and the loss of reputation and stigma to the family. Added further the learned counsel that the second defendant has taken the stand that he was not suffering from any physical debility in all the earlier proceedings; that the contention of the defendants' side that the second defendant has undergone the potency test, sine the medical science would require in order to confirm the same is false; that the further contention of the defendants' side that Ex. D1 certificate would clearly speak of the potency of the second defendant has got to be rejected since Ex. Dl certificate has been given only on the basis of the semen analysis and it was not on the basis of the potency test and apart from that Ex. Dl certificate bears the date as 15-2-1998, but in the earlier proceedings the written statement was filed on 4-7-98; that the second defendant has categorically deposed that what was referred to in the written statement in O.M.S. was Ex. Dl and thus it would be clear that on the date of filing the written statement on 4-7-98, Ex. D1 certificate was not at all available with the second defendant and hence Ex. Dl certificate should have come into existence during the pendency of this proceedings; that the Division Bench of this Court has much commented upon the second defendant's conduct in not examining himself as a witness to rebut the case of the plaintiffs side and as to the non production of the medical certificate what was refered to in the written statement; that the Division Bench has categorically analysed the whole facts and circumstanes and the evidence adduced both oral and documentary and has arrived at a correct conclusion that the marriage could not be consummated only due to incapability and impotency of the second defendant and the said judgment has become conclusive, since no appeal has been preferred and now it would be too late for the defendants to state that the second defendant is well fit for sexual acts and the marriage could not be consummated because of the age, and lack of co-operation on the part of the second plaintiff and if is pertinent to note that the second plaintiff was 22 years at the time of the marriage; that there is overwhelming evidence indicating that the defendants have suppressed the impotency of the second defendant, played fraud on the plaintiffs and have conducted the marriage and even subsequent to the conduct of the marriage, they have suppressed the same and in particular the second defendant has suppressed the same during the period of 10 months of short matrimony and not satisfied with all the above, the second defendant contested both the suit and the appeal and thus the defendants are responsible for mental agony and sufferings; that it is true that the second plaintiff due to her advanced stage of pregnancy, was not examined in Court; that the first plaintiff for himself and as the power of attorney of the second plaintiff was examined as P.W. 1; that by his clinching oral evidence and documentary evidence, the plaintiffs have proved their claim and hence the suit has got to be decreed.

8. Countering to the above contentions, the learned counsel appearing for the defendants would submit that before the marriage the defendants did not have knowledge that the second defendant was impotent and had physical debility; that the alleged conspiracy was neither explained nor proved; that immediately after the second plaintiff got a decree of nullity, she got remarried and now she is living happily with a child; that the plaintiffs have no proof for the alleged mental depression and humiliation; that there is no proof to show that the second plaintiff had any treatment for such mental depression; that after leaving the matrimonial home the second plaintiff had given a notice for breaking the marriage; that it is not explained what prevented her from pressing the second defendant for a medical check up and treatment through elders and the church; that Instead of doing so, they rushed to the Court by way of this civil action; that the period of ten months is too short for losing hopes of becoming a mother; that in a physical relationship between the spouses, psychological factors play an important role, that the second defendant always denied that there was nothing wrong with him and it was the second plaintiff who avoided sexual life on flimsy grounds; that it is the second plaintiff who moved the Court for annulling a Christian marriage and not her husband; that the second plaintiff filed the said O.M.S. for nullity of the marriage on the grounds of adultery and impotency only with the consent of the second defendant; that he was asked to appear and file a written statement also and abandon the case after that in order to get an order on merits as exparte decree is not considered by the church or proposers for a remarriage; that he was threatened through all women police when he wanted to file a medical certificate for potency obtained from a well qualified specialist in October 1998 itself; that the second plaintiff also threatened to end her life, and put the blame on the defendants if the second defendant defended on O.S.A. 50/99 which ultimately was allowed almost without any representation from the second defendant's side; that D2 has produced and marked the said medical certificate and also explained the reason for delay; that Ex. Dl is a genuine document and the delay cannot take away its strong bearing on the present case; that the second defendant is the actual affected person; that though he is fit and wants to settle in peaceful married life, the decree of nullity passed by the Court on the ground of is alleged impotency will remain a permanent stumbling block for a remarriage, as his church will not approve any marriage proposal; that the second plaintiff who is supposed to be the affected person, alone can speak or answer the minute details regarding her conjugal relationship, but she refrained from examining herself as a witness and thus depriving the defendants a chance for eliciting the crucial facts; that the first defendant, an aged mother of D2 has nothing to do with the problems between her son and his wife and she has been unnecessarily dragged into the Court; that the present proceedings has been initiated with the sole motive of exercising undue influence and control over the second defendant, as the plaintiffs anticipated that he would interfere with the proposed re-marriage of the second plaintiff and spoil the chances as he had stated in his reply notice dt. 5-7-99 that he was taking steps to challenge the decree in O.S.A. and also is defending the money suit filed by the plaintiffs; that the plaintiffs have failed to prove the claim and hence the suit is liable to be dismissed.

9. The plaintiffs have come forward with the civil action for recovery of an amount of Rs. 15.00 lakhs towards damages for the wrong done and for the fraud committed by the respondents.

10. The facts admitted by the parties could be briefly stated as follows :

The marriage between the second plaintiff who is the daughter of the first plaintiff and the second defendant, son of the firstdefendant was solemnised on 18-8-1996 as per the Romah Catholic rites at Loyola Church, Nungambakkam, Madras. The second plaintiff lived with the second defendant in his house for a period of 10 months therefrom. During the said period, there was no consummation of marriage. The second plaintiff left the matrimonial home on 19-6-1997. The second plaintiff through her lawyer issued a notice under Ex. P2 on 2-7-1997 stating that the marriage could not be consummated because of the impotency of the second defendant. The second defendant issued a reply under Ex. P3 dated 17-7-1997 denying the contents of the second plaintiffs notice under Ex. P.2. Following the exchange of notice, the second plaintiff filed O.M.S.,46/97 seeking declaration of the said marriage between the parties as null and void. The second defendant seriously contested the claim of the second plaintiff by filing a written statement. The certified copy of the petition and the written statement in O.M.S. No. 46/97 are marked as Exs. P4 and P5 respectively. Aggrieved by the dismissal of the suit by the single judge, the second plaintiff preferred an appeal in O.S.A. 50/99. The Division Bench of this Court allowed the appeal, set aside the judgment of the learned single judge and granted a declaration as asked for by the second plaintiff. The judgment in O.S.A. No. 50/99 is marked as Ex. P. 10. The plaintiff has filed a civil action in O. S. 4973/98 for recovery of Rs. 2.00 lakhs which was given to the defendants at the time of the mariage and it is pending.

11. The plaintiffs have filed the civil action for recovery of damages, alleging that the defendants fraudulently and deliberately suppressed the impotency of the second defendant prior to the marriage and even subsequent to the mariage for a period of 10 months when the second plaintiff lived with the second defendant and thereby they have ruined the yound life of the second plaintiff and they are responsible for causing fraud, pain and mental sufferings, loss of status and deprivation, of the marriage life of the second plaintiff for the stigma caused for the family of the plaintiffs. Both the defendants have seriously contested the suit stating that it is an utter falsehood to state that the second defendant is impotent, but he was physically fit for sexual acts and the non consummation of the marriage was only due to the total unwillingness and lack of stimulation and through non co-operation on the part of the second plaintiff. It is an admitted position that the marriage between the spouses was an arranged one and hence prior discussions about everything would have preceded the solemnization of the marriage. In the instant case, the defendants have come forward with the defence stating that the second defendant was physically fit for sexual acts. It is not in dispute that though the couple lived under the same roof, for a period of 10 months, there was no consummation of marriage at all. The second plaintiff who became completly frustrated, left the matrimonial home and has caused a notice issue to the second defendant through her lawyer as found under Ex. P.2, wherein she has specifically stated that the second defendant failed to consummate the marriage, even after having had adequate opportunity because of his lack manliness and which led to the irresistable conclusion that he could not fulfil his fundamental obligations of the matrimony. On receipt of the said notice under Ex. P2, the second defendant through his lawyer issued Ex. P3 reply wherein he has not specifically denied the averment that he has failed to fulfil his obligations of matrimony. But on the contrary he has stated as follows :

'Our client is not interested in continuing with the marriage solemnized with your client on 18-8-1996. Our client is prepared to return the amount of Rs. 2 lakhs within 6 months, which time he require for arranging the same.............. Our client is prepared for an amicable settlement and you may inform us the further course of action to be taken in this matter .'

Following the exchange of the said notices, the second plaintiff sought for dissolution of the marriage by filing-O.M.S. 46/97 on the ground of impotency of the second defendant herein and the said suit was contested by the second defendant alleging that the marriage did not consummate because of her age, unwillingness and non co-operative attitude. On trial the learned single Judge dismissed the suit in the ground that the petitioner therein has not proved the ground of impotency and apart from that it was a collusive suit. Aggrieved by the said dismissal, the second plaintiff herein filed O.S.A. 50/99. The Division Bench of this Court, after full consideration of the matter allowed the appeal, set aside the judgment and decree of the learned single Judge and granted a declaration that the marriage that took place between the second plaintiff and the second defendant on 18-8-96 is null and void. It is an admitted position that the judgment rendered by the Division Bench of this Court declaring the marriage of the parties as null and void has not been appealed against and has become final. At this juncture it has become necessary and more advantageous also to refer to the relevant portions of the judgment of the Division Bench since they have got direct bearing on the issue whether the second defendant was potent or not.

12. During the pendency of the trial in O.M.S. 46/97, the second plaintiff had taken out an application in No. 2294/99 to direct the second defendant to submit himself before the Medical Board for ascertaining his potency, and for a report to the court. The second defendant, husband had filed an affidavit stating that he would rely on the medical report referred to in his written statement during trial. But he did not file any medical certificate to substantiate his potency. It is pertinent to note that the aggrieved wife seeking relief of annulment of marriage on the ground of impotency of her husband has examined herself and has spoken to all the averments made in her case. It could also be seen from the Judgment in that case that she was even prepared to submit herself for medical examination to prove that she was perfectly alright, and the consummation of marriage was never prevented by her health or otherwise in any way and she was also cross-examined. The Division Bench has pointed out that when the turn of the husband came to adduce evidence, neither he chose to adduce evidence nor he attended the Court and thus he has denied to the petitioner therein the opportunity of cross-examining him. Taking into consideration of all the aforestated reasons, the Division Bench has observed as follows :

The reasonable inference, having regard to this conduct of the respondent in the background of the pleadings in the case and the evidence given by the wife is that the respondent was incapable of consummating the marriage, and that debility continued even when the matter was taken up for trial. Any man, who has no doubt about his potency, would not decline to submit himself to medical examination to establish that fact. Though the respondent had claimed that he had been medically examined, and he had a report, no such report was placed before the Court. He was also unwilling to submit himself to medical examination. The wife offered to have herself medically examined. The respondent did not call upon her to undergo such examination that would to show that his allegation that she was responsible for the marriage not being consummated, was incorrect.'

The only reasonable Inference from the facts proved in the case and the conduct of the parties is that the husband was incapable of consummating the marriage.

13. Much relying on the medical certificate now produced by the second defendant during the pendency of this proceedings and marked as Ex. Dl the learned Counsel for the defendants would submit that Ex. D1 is the genuine document which cannot be challenged; that the second defendant in his evidence has well explained the reasons for the delay in the production of the said document and the delay in the production of the same cannot be taken as a ground to reject his defence of potency. After perusal of Ex. d1 medical certificate, the court is of the view that no evidenciary value could be attached to the said document. The said medical certificate under Ex. Dl is dated 15-10-1998. The second defendant has admitted that he signed Ex. P5 written statement on 4-7-1998 and it was Ex. D1 certificate that was referred to in the said written statement filed in OMS 46/97. Since Ex.Dl certificate is dated 15-10- 98 only, the same could not have been available in the hands of the first defendant when the written statement was signed on 4-7-98, and thus it would be clear that this Ex.Dl document could have come into existence subsequently and brought about to suit the defence in this case. Apart from that the defendants have not examined any medical person either to prove Ex. Dl or to prove the contents therein. The explanation tendered by D.W. 1 that the said certificate under Ex. D1 was not filed in the earlier proceedings since the counsel who appeared then told him that it would be filed at an appropriate time, but he did not file the same. It remains to be stated that the second defendant has contested the proceedings both in OMS 46/97 and in OSA 50/99, wherein he was represented by the same counsel. All the above would indicate that no such document was available for production either before the learned single Judge or before the Division Bench.

14. As seen from the earlier proceedings between the parties, the second plaintiff sought for a declaration that her marriage with the second defendant is null and void only on the ground of the impotency of the second defendant and the Division Bench has granted the relief as asked for on the ground that the husband was incapable of consummating the marriage. Admittedly the said judgment of the Division Bench in OSA 50/99 is not appealed against. Hence the said judgment passed by the Division Bench has become final and conclusive proof of the non-consummation of the marriage by the second defendant with the second plaintiff. At this stage, all the contentions put forth by the defendant's side that the second defendant was fit for sexual acts and it was only the second plaintiff who was responsible for the non-consummation of the marriage, have got to be rejected as devoid of merits. As held in the earlier proceedings during the marital life of 10 months, the marriage could not be consummated solely due to the second defenant's incapability and impotency. The available evidence and the circumstances would indicate that the defendants who had the thorough knowledge of the impotency of the second defendant have deliberately suppressed the said fact and deceived the second plaintiff and her parents. Had it been brought to the notice earlier, the marriage of the second plaintiff who was 21 years old then with the second defendant, would not have been solemnised at all. Under the stated circumstances the contention of the plaintiffs' side that the defendants are responsible for causing mental agony has got to be accepted. The learned counsel for the defendants brought to the notice of the court that even during the pendency of the earlier proceedings, arrangements for the second marriage of the second plaintiff were going on and subsequent to the judgment in OSA 50/99 the second plaintiff has got married for second time and she is living happily and thus the reasons adduced for seeking damages are neither sufficient nor satisfactory, but motivated to harass the defendants. Admittedly the second plaintiff lived with the second defendant for a period of 10 months, during which there was no consummation of marriage which was solely due to the impotency on the part of the second defendant. When a notice was issued stating the said ground, the second defendant did not come with the reply specifically denying the same. But on the contrary the second defendant would say that he was ready to pay back Rs. 2.00 lakhs what he received at the time of the marriage. When the wife moved the court by filing OMS 46/97, he has not only contested the same, but also has not cared to give evidence or to attend the court at the stage of the defence. Aggrieved by the dismissal of OMS, when an appeal was filed by the wife before the appellate forum, there also the husband contested the same by appearing through his counsel. The Court is of the view that all the above are aggravated circumstances, apart from the deliberate suppression of his impotency even before the arrangement of the marriage. It is true that the second plaintiff after a declaration by a court of law that her earlier marriage with the second defendant was void has contracted second marriage after sometime. Having suppressed his incapability even prior and susbsequent to the marriage for a period of 10 months, the second defendant cannot now be permitted to say that the second plaintiff has contracted the second marriage and therefore she is not entitled for damages for the mental pain and sufferings undergone by their family. No doubt the defendants were responsible for the pain and mental sufferings experienced by the second plaintiff and her parents by suppressing the fact of incapability of the second defendant and hence they are liable to compensate the same by way of paying damages to the plaintiffs.

15. Coming to the question of damages, the plaintiffs have claimed a sum of Rs. 15.00 lakhs for the wrong done and for the fraud committed by the defendants. It is not in dispute that at the time of the marriage, the second plaintiff was 21 years old. As pointed out above, had the defendants made expression of the impotency of the second defendant, the plaintiffs would have dropped the engagement itself. But the defendantswho thoroughly knew about it have committed a serious wrong by suppressing the same and thus the marriage of the second plaintiff with the second defendant had taken place, following the said deception. Though the second plaintiff had lived with the second defenant for a period 10 months, she was thoroughly denied of the sexual pleasure. Needless to say that the denial of the sexual activity in marriage would bring forth very unfavourable influence on a woman's mind and body which leads to depression and frustration. There cannot be anything more fatal to marriage than disappointing any sexual intercourse. In the instant case, the second defendant who was unable to discharge his marital obligations because of his impotency was evading the same on flimsy reasons, without disclosing the true state of affairs. Both the defendants were responsible for the alleged suppression of the impotency of the second defendant. The second defendant who was living with his wife for a period of 10 months has not only made a deliberate suppression during the short course of matrimony, but has contested all the proceedings put forth by her alleging that he was potent and thus the defendants were responsible for deprivation of the married life of the second plaintiff till she got remarried, after obtaining the orders of declaration by the court of law. As rightly pointed out by the learned counsel for the plaintiffs, this would have caused pain and mental suffering not only to the second plaintiff but her parents also. The learned counsel for the defendants pointed out that the second plaintiff who is supposed to be the affected person alone could speak about her marital relationship, but has refrained from examining herself as a witness and thus deprived the defendants a chance for eliciting the crucial facts. It is true that the mental pain and sufferings experienced by the second plaintiff should have been spoken to only by her, since they are subjective in character. But the second plaintiff has not been examined. The Court is of the view that on that ground the claim made by the plaintiffs cannot be rejected. In the instant case the first plaintiff who is the father of the second plaintiff has also filed a power of attorney. As stated above in the instant case the plaintiffs put forth acceptable and satisfactory evidence proving the fraud and deception played on them, thereby causing mental agony and sufferings to the plaintiffs. Here is a case where the defendants by the suppression and the fraud of impotency of the second defendant have not only made the other spouse viz. the second plaintiff to suffer but also made her parents to undergo mental agony. Under the circumstances, the court is of the firm view that interest of justice would be best met by awarding damages only to the extent of Rs. 1.00 lakhs to the plaintiffs. The above issues are answered accordingly .

16. In the result, this suit is decreed fixing the damages at Rs. 1.00 lakh only, payable by the defendants with interest at 12% per annum from the date of plaint till payment. The plaintiffs are entitled to get proportionate costs.


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