IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 468 of 2008()
1. JIBU MATHEW THARAKAN
... Petitioner
Vs
1. RENILA NINA
... Respondent
For Petitioner :SRI.C.RAJENDRAN
For Respondent :SRI.V.PHILIP MATHEW
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :18/11/2008
O R D E R
P.R. RAMAN &
T.R. RAMACHANDRAN NAIR, JJ.
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MAT. APPEAL NO. 468 OF 2008
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DATED THIS, THE 18TH DAY OF NOVEMBER, 2008.
J U D G M E N T
Ramachandran Nair, J.
This appeal is filed by the husband in a matrimonial dispute. The
respondent- wife sought for divorce under Section 10 of the Indian Divorce
Act by filing O.P. 203/2007 before the Family Court, Kottayam. She had
filed another Original Petition for return of money and gold ornaments as
O.P. 202/2007. Both the cases were tried together and disposed of by a
common judgment.
2. Divorce is sought on various grounds like impotency of the
husband, non consummation of the marriage, cruelty etc. The evidence in
the case consists of the testimony of PWs 1 to 3 on behalf of the wife and
the oral evidence of RW.1, the father of the appellant, on his side. Exts.C1
is a medical report. The other documents are Exts.A1 and A2, and B1 to
B3.
3. This appeal is concerned only with the divorce granted by the
Family court. Mainly, the decree for divorce is granted on the ground that
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the cruelty alleged by the wife stands proved. The plea that the husband is
impotent was rejected for want of sufficient evidence.
4. We have heard the learned counsel for the parties. The allegation
is that the marriage was not consummated at all. The marriage was
solemnized on 4.1.2004 and they started residing together in the paternal
house of the wife at Changanacherry as well as in the house of the appellant
– husband in Kundara. The wife went to Dubai on 23.1.2004 and the
husband also accompanied her there on 3.2.2004, wherein they were
residing together with the parents of the wife up to second week of March,
2006. Subsequently, dispute arose between the parties which resulted in
separation. The wife, in the petition, alleged in para 5 that from the very
beginning of the marriage itself the appellant was not interested in sexual
intercourse and the marriage was not consummated. She has alleged
various acts of cruelty also in the petition. A reading of the objection filed
by the husband shows that the fact that the marriage was not consummated
is practically admitted even though he denied the allegation of impotency.
According to him, the wife could not conceive due to various reasons.
5. Before the Family Court, PW.1 gave evidence regarding the non-
consummation of marriage, impotency and the allegation of cruelty. But
after the medical report Ext.C1 was received wherein it is recorded that
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further examination is necessary as regards the husband, practically the
ground of impotency was not pursued. The Family Court mainly considered
the question of cruelty. Regarding that, apart from the evidence of PW.1,
the only evidence is that of PW.2, the mother. Even according to the
mother, the alleged torture of the respondent was not before her. It is stated
that a criminal case alleging offence under Section 498 A I.P.C. is pending.
By accepting the sole testimony of the wife alone, cruelty was found. We
are of the view that going by the evidence, clinching materials have not
been established to prove cruelty and the divorce granted on that ground
cannot be sustained.
6. The next aspect is non-consummation of the marriage. There is
clear allegation in the petition regarding the non-consummation of marriage
though the parties co-habited in India as well as in Dubai. The husband
also, in his objection, practically admitted that there was no consummation
of marriage; of course the reasons found out by him are different. In para
19 of the judgment, the court below has found that though the wife had
failed to prove the impotency of the husband, her version that the husband
was not interested for sexual intercourse is true and believable. The most
competent person to say about sexual intercourse is the wife and she
deposed that even a single day there was any sexual intercourse with the
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husband. As noted already the husband never entered the box and only his
father was examined. Therefore, regarding non-consummation of the
marriage, there is the uncontroverted testimony of the wife. Therefore,
there is clear proof that the marriage was never consummated and going by
Section 10(xii) of the Indian Divorce Act, the same is a ground for granting
a divorce. We are of the view that in the absence of any oral testimony by
the husband, it can be presumed that there was clear refusal on his part to
consummate the marriage. We therefore hold that the wife is entitled for a
decree of divorce for non-consummation of marriage due to refusal by the
husband. Therefore, the appeal is partly allowed. The decree of the court
below stands modified and we grant a decree for divorce on the ground of
non-consummation of the marriage.
There will be no order as to costs.
P.R. RAMAN,
(JUDGE)
T.R. RAMACHANDRAN NAIR,
(JUDGE)
knc/-