JUDGMENT
Subramonian Poti, J.
1. The parties to this appeal are a wife and husband governed by the Indian Divorce Act, 1869. The parties are Christiana. They were married on 22-6-1968. The marriage was solemnized at St. Thomas Catholic Church, Payippad in Changanacherry Taluk, Kerala State. According to the wife who is the petitioner in the petition for a decree of nullity of marriage there was no consummation of the marriage by sexual intercourse. The wife is said to have attempted her best to induce her husband to have such intercourse but at all times he had remained unresponsive. This is attributed to impotency of the husband. At the moment the husband and wife are both employed in the Persian Gulf countries. But of course they are not living together though at one time they resided together even there, According to the wife, even while they so resided together the marriage was not consummated.
2. The plea that the respondent was impotent at the time of the marriage as also at the time of the institution of the proceedings is recognised in Section 19 of the Indian Divorce Act as a valid plea in
support of a petition for a decree declaring the marriage null and void. That provision is invoked by the petitioner in this case.
3. The husband entered appearance and contested the petition. He admitted that the marriage had taken place, but according to him it had been properly consummated, and he had sexual intercourse with his wife. The ground of impotency, it was said was urged only as an excuse to support the petition. The petition itself was filed because of ill-feeling between the parties which arose due to certain circumstances. It was further contended by the husband that the petition itself was not maintainable as the petitioner was not a resident in India at the time of presentation of the petition.
4 Two questions arose for consideration by the District Court before which the petition was moved by the wife, Whether the petitioner was a resident in India at the time of filing the petition which is a necessary requisite for maintaining the petition and whether the husband was impotent at the time of the marriage and on the date of institution of the suit were the questions that arose for decision by the court below. On the first of these the court found that the petitioner was living in the Gulf countries and it was on her return to her home here for temporary stay that she filed the petition. It was found by the court that the petitioner’s temporary stay would not take the case within the meaning of the term ‘resident in India’ in Section 2 of the Indian Divorce Act. In this view the petition was held to be not maintainable. The court also went into the merits and on that accepted the case of the petitioner that the husband was Impotent. In view of the finding on the question of maintainability of the petition, the petition was dismissed. This appeal is by the wife against that Judgment.
5. Section 3 of the Indian Divorce Ad which is the interpretation clause defines a District Court to mean-
"..... in the case of any petition under this Act, the Court of District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together." There is no case that the husband and wife did not last reside together within the jurisdiction of the District Court of Quilon and for that reason the petition is not maintainable before the District Court of Quilon. Therefore such a question does not arise for consideration in this case. Section 2 of the Indian Divorce Act runs as follows : "2. Extent of Act-- This Act extends to the whole of India except the State of Jammu and Kashmir. Extent of power to grant relief generally -- Nothing hereinafter contained shall authorise any court to grant any relief under this Act except where the the petitioner or respondent professes the Christian religion, and to make decrees of dissolution- or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the lime when the petition is presented, or of nullity or to make decrees of nullity of marriage except where the marriage has been solemnized in India and the petitioner is resident in India at the time of presenting the petition, or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition."
Evidently what is sought is a decree of nullity of marriage and the two requirements are : (1) The marriage had been solemnized in India and (2) the petitioner was resident in India at the time of presenting the petition. It is admitted that the marriage was solemnized in India. The petitioner and her husband were residents of India but they sought their fortunes in the Gulf States. In the case of those so employed it generally happens that they would be visting their homes occasionally on vacation or on leave. The petitioner in this case so visited her home and it was during such time as she was in India for that purpose that she filed the petition. Could it then be said that at the time of presenting the petition she was residing in India? Evidently the court below seems to take the view that she was not so resident. In coming to this conclusion reliance has been placed by the court below on a Full Bench decision of this Court in Poonen v. Rathi Varghese, 1966 Ker LT 454 : (AIR 1967 Ker 1). The court was there concerned with Section 3, Clause (3) of the Indian Divorce Act In a petition filed for declaration of nullity of marriage the contention was taken in that case that the District Court, Trivandrum had no jurisdiction to entertain the petition. The Trivandrum Court was resorted to in that case on the averment that the permanent place of residence of the husband was Trivandrum and that according to the wife both of them last resided together at Trivandrum, The husband denied that his permanent place of residence was Trivandrum. According to him he had stayed in various places from time to time for the last 20 years and on most occasions he stayed in hostels attached to educational institutions, in hotels and boarding houses and occasionally with his parents who were living in various rented houses in Trivandrum, Therefore, according to him, himself and his wife had not last resided together at Trivandrum so much so Trivandrum court had no jurisdiction. It is in the context of this that the meaning of the term ‘last resided’ was considered by the Full Bench. The Full Bench laid down the following propositions :
“1. to constitute “residence”, it is not necessary that the party or parties must have his or their own house;
2. to constitute ‘residence’, the stay need not be permanent; it can also be temporary, so long as there is animus manendi or an intention to stay for an indefinite period;
3. “Residence” will not take in a casual stay in, or a flying visit to a particular place; a mere casual residence in a place for a temporary purpose, with no intention of remaining, is not covered by the word ‘reside’;
4. “Residence” connotes something more than “stay”; it implies some intention to remain, at a place, and not merely to pay it a casual visit;
5. as emphasised by the Supreme Court, by staving in a particular place, in order to constitute “residence” the intention must be to make it his or their abode or residence, either permanent or temporary;
6. the expression “last resided” also means the place where the person had his last abode or residence permanent or temporary;
7. where there has been residence together of a more permanent character, and a casual or brief residence together, Courts have taken the view that it is only the former that can be considered “residence together” for determining the jurisdiction;
8. the question as to whether a particular person has chosen to make a parti-
cular place his abode, is to be gathered from the particular circumstances of each case.”
6. The respondent in this case seems to have relied on the decision of the Full Bench in support of his case that residence requires animus or intention to
stay for an indefinite period and a casual
stay in or a flying visit to a particular place or a mere casual residence in a place with no intention of remaining there is not covered by the term “reside”.
7. We must notice that every term has to be understood in the context in which it is used and particularly in the context of association with other terms. In considering the definition of the term
‘District Court’ in Section 3 (3) of the Indian Divorce Act the court was not deciding the meaning of the term ‘residing’ dehors the context in which it was used but only in the context in which it appeared in the definition. “Resided together” denotes a concept different from the concept involed in the term ‘resides’. In Section 2 of the Act the requirement needed to seek relief under the Act is what is already indicated. Only in the case of marriages solemnized in India could a decree for nullity be sought in a court in India. This may not be so in regard to decrees for dissolution of marriages. That relief could be granted even when the marriage is solemnized outside India if parties to the marriage are domiciles of India at the time the petition is presented. Besides solemnization in India the requirement for seeking a decree for nullity of marriage is that the petitioner should be resident in India at the time of presenting the petition. If he is residing outside India at that time he or she cannot seek a decree for nullity of marriage.
8. Any Indian Citizen when he goes out of India to earn his livelihood need not, as a rule, be taken to Intend to settle down permanently in the land where he earns his bread. Normally that would not be the case. Where facts are proved which indicate that he has taken up the citizenship of a foreign country and has permanently settled down in such country it may be said that there s no intention to return to India, except perhaps as a visitor to this country. But in the generality of cases there is always the animus to revert to India at some time of his or her life since remaining outside India is mainly with a view to make his earnings which he may
not be able to make with the same ease in this country. His home here continues to be his permanent home to which he looks forward to as a place to spend his retired life and, quite often, his vacations. In fact during the periodical short visits that he may make to this country he is at home in his own surroundings. There is always the animus in him to treat his home in India as his permanent home to which he would be returning some day or other to spend the rest of his life here. In such a case his stay at his home here in this country when he is on leave or on vacation cannot be said to be a casual stay or a temporary residence in the sense we speak of a person visiting a hotel in a city and staying there for a while to en-joy the sights of the city. The duration of the stay may be immaterial. Thai must necessarily depend upon the avail-ablity of leave or vacation. But the fact is that when he comes back to his country and lives in his home it is not casual stay by him here. During that period he is “residing in India” within the meaning of the term. In the context to which the term appears, this we feel. is the scope of the expression ‘resides in India at the time of presenting the petition’. In this view we are of the opinion that the District Judge was in error in dismissing the petition on the ground that the petitioner was not a resident in India on the date of presentation of the petition.
9. That leads us to consider the question of impotency of the husband who has been found by the court below to be so. Though so found the finding is attacked in appeal by the respondent to support the decision of the court below dismissing the petition. According to him the case of the petitioner, even if believed, would not be sufficient to prove a case of impotency of the husband. The mere fact that the husband has been unresponsive to the overtures of the wife may not be sufficient to call the husband impotent. According to the husband it must be further shown that he would be unresponsive to all and in all circumstances and frigidity as against the female sex as a whole alone can be said to constitute impotency of a nature to justify a wife seeking a decree of nullity. For this, according to the respondent, there is no proof in the case.
10. The evidence in the case indicates that the petitioner was taken to
the residence of her husband on the very night of the marriage. This was at Ranni. In her evidence as P. W. 1 she has given the details as to the happenings during the first night. According to her though they slept in the same bedroom, her husband did not share the same bed and he showed no interest in her. The next day the respondent left for Kuwait through Bombay without taking his wife with him. He seems to have stayed at Bombay for sometime and then left for Kuwait. She would also say that there was subsequent occasion also when they could have consummated the marriage, but still consummation did not take place. The respondent is said to have returned to India. Then the petitioner obtained an employment in the Middle East country. She took the respondent also to that country to find some employment for him and during that time though they lived together there was no inclination on the part of the respondent to have sexual intercourse with the wife. On the other hand, despite the best efforts of the wife, he is said to have repulsed her and exhibited reluctance to have any sexual intercourse with her. Though the respondent had entered appearance in the case, the petitioner, P. W. 1, was not cross-examined by his counsel. During part of the chief examination counsel for the respondent was actually present in court.
11. Besides her own evidence the petitioner has attempted to support the plea of impotency by examining Dr. Nirmala Venugopal, who is a Gynaecologist in the Medical Trust Hospital, Cochin. Ext. A1 is the certificate issued by Dr. Nirmala Venugopal to the petitioner. The certificate showed :
“Hymen intact. Does not allow a two finger vaginal examination so in all probability the marriage has not been consummated.”
Evidently the case of P. W. 1 that she continues to be a virgin is supported by the certificate and the evidence of P. W. 2, the Doctor who issued Ext. P1. P. W. 2 has been cross-examined. But no circumstance has been brought out to discredit her evidence. There is no proper exuse pleaded for not cross-examining the petitioner. Notice on the main petition had been served on the respondent prior to the date of hearing, 3-9-1977. But on 3-9-1977 the respondent did not enter appearance. Therefore the
respondent was declared ex parte. Of course, no evidence had been taken at that time. On 5-9-1977 the respondent applied to set aside the ex parte and this was considered and disposed of by an order dated 1-10-1977 the date to which the case had been posted. The court, in a very elaborate order, gave reasons for refusing to set aside the ex parte order. But that did not materially affect the respondent. That was because the court also observed that under Order IX Rule 7 of the Code of Civil Procedure the setting aside of the ex parte order was necessary only if defendant desired to be relegated to the position as on the previous hearing date. His right to take part in the further proceedings was not affected. That means that in the case before the court the respondent could take part in the further proceedings. Since the trial had not commenced earlier virtually the respondent had no cause for grievance. In her chief-examination P. W. 1 specifically mentioned that she had come on leave for 7 days spending about Rs. 6000/- for travel and that she had to reach back (to) her office by 8-10-1977. She said that she had no further leave. Despite this counsel for the respondent, though present during her chief-examination, absented himself without indicating any reason, when she was to be cross-examined. Even if there was some inconvenience that day he could have moved the court to permit him to cross-examine the petitioner before 7th. That would not have prejudiced the petitioner. On 5-11-1977 the Advocate for the respondent moved a petition, I. A. 1310 of 1977, praying that he may be permitted to cross-examine the petitioner, that for that purpose she may be directed to appear in court and that he may be given 3 months’ time to examine his party. The significant fact about this petition his that there is no relevant reason indicated as to why on 1-10-1977 the petitioner was not cross-examined or why before she left India motion was not made to direct her to appear for her cross-examination. The only averment, seen in para 2 of the petition, is that the counsel was not able to cross-examine :
(This matter being in Malayalam we regret that we have to omit it here as we have no facilities for printing Malayalam –Ed).
Naturally the request made to court to direct the petitioner to be present again was objected to by the petitioner by a
petition filed in court on 17-11-1977. There she mentioned that she was always ready to be cross-examined but the counsel did not co-operate, and further she could have been called upon to appear prior to her return particularly when she had said that for a fresh appearance she would have to spend Rupees 6000/- to come to India. Further she
said that she was prepared to appear in case her costs for travel, namely. Rs. 6000/- was paid by the respondent. She said that she may not be asked to
spend another sum of Rs. 6000/- for no fault of hers. Her stand was evidently reasonable and the respondent appears to have been not ready to offer her the costs of travel to enable her to appear In the case. The court did not accede to the request of the respondent. The respondent did not appear to examine himself. The respondent could have made available the certificate of a competent medical expert as to his potency. He could have offered himself for examination by a Medical Board. He had certainly a duty to rebut the evidence that had been adduced by the petitioner. In these circumstances the question is whether the court was right in acting upon P. W. 1’s evidence supported as it was by the evidence of P. W. 2 and the certificate issued by her particularly when this was not contradicted by any material.
12. The burden of proving the plea of impotency on the part of the husband is on the wife. Normally a mere averment by her that the husband is impotent may not be sufficient to find such Impotency. Impotency is defined in “The Text of Medical Jurisprudence and Toxicology” by Modi as “physical incapacity of accomplishing the sexual act.” Sterility means “inability for procreation of children,” and this is different from impotency. The mere absence of a desire for sexual intercourse may not by itself amount to impotency. Absence of such desire may be temporary and the attitude of the person may be a pass-ing phase and may be due to age or other similar factors or may be due to psychical influence. It has been noticed that temporary absence of a desire for sexual intercourse may be due to fear, anxiety, guilt sense, timidity and the like and sometimes due to sexual over-indulgence. But where the complaint arises from a spouse that his or her partner has not been responsive in the matter of
sexual relations not for a day or an occasion but during a fairly reasonable period one must assume want of desire and intention on the part of the unresponsive spouse to consummate the marriage. This may be due to incapacity of such spouse. Apart from medical evidence the other evidence in such a easel could normally be that of the husband or wife, as the case may be, who has failed to receive sexual attention from his or her partner.
13. Certain facts are proved in this case. We may take note of the proved fact that the respondent has not availed of the reasonable opportunity to adduce evidence which he could have and therefore we will be Justified in drawing the legitimate inference therefrom. That this is not a case of collusion between the husband and wife to obtain a decree of nullity of marriage is beyond doubt. The medical evidence in this case proves positively that the wife continues to be a virgin and therefore there has been no consummation of the marriage. The explanation given by the wife to this is that despite all her feminine charms having been brought to bear on the husband he behaved in an abnormal fashion and though normally under such circumstances a man who is not sexually incapacitated would be aroused that did not happen in the case of her husband. If there was any explanation offered for this, which would be sufficient to rule out the plea of impotency, such explanation would have had to be considered by a court. But there is none and there is no attempt to explain it away otherwise by any evidence in the case. The evidence by way of medical examination of the husband to see whether he was impotent and whether he continued to be impotent could be obtained only with his co-operation and in the absence of such co-operation such evidence is naturally wanting in this case.
14. As observed by Natesan J., speaking for the Full Bench in Jean Emeline v. Joseph Tavlor, AIR 1966 Mad 155, “if the circumstances warrant it, from a refusal to consummate the marriage, inference of impotency can be drawn.” The following passage of Latey on Divorce, 14th Edition at page 195 quoted at paragraph 7 of the judgment would be relevant. It runs thus :
"Where after a reasonable time it is shown that there has been no sexual intercourse and that the wife has resisted all attempts, the court, if satisfied of the bona fides of the suit, will not usually infer (unless it is merely a case of wilful and knowing refusal.....) that the refusal arises from incapacity caused by nervousness or hysteria; or from an invincible repugnance to the act of consummation resulting in a paralysis of the will, and pronounce a decree..... When a husband abstains from or fails to attempt intercourse with his wife, the inference of incapacity is even stronger, and the onus is on him to rebut that presumption."
15. No doubt the onus of proving the impotency of the husband is on the wife and the court would not lightly presume such impotency merely because the wife speaks to it. In divorce suits or actions for declaration of nullity of marriage the court has a duty to see that the parties have not come to court colluding together to obtain a decree. That is because such decree could not be granted merely on consent and what could not be obtained directly cannot be obtained by the parties indirectly by coming to court with a collusive action. Respecting the sanctity of the Institution of marriage courts exercise the duty to examine whether it is likely that the parties have put their heads together to obtain a decree of nullity of marriage or divorce from the court though the grounds therefor do not really exist. But in a case where the court is convinced that there is no collusion between the husband and wife and the wife who has moved for a decree for nullity of marriage has placed her part of the case honestly before court the court may accept her case. Though the best evidence in such a case would be the evidence of medical examination of the respondent, when, in the absence of co-operation from the respondent-husband, that is not available the court will not be wrong in proceeding to consider the case giving due weight to the
oral testimony of the wife and if that appears to be acceptable acting upon it. We have already indicated that the material in this case proves positively absence of consummation of marriage
and we have also indicated that the positive case of the wife is that it was due to the impotency of the husband, a case which has not been controverted. In such circumstances a court would be justified in drawing the inference that
the husband did not have the capacity to consummate the marriage, and that ha was impotent. Of course, this assumption is made on the facts and circumstances of this case and if there was evidence to the contra there would have been no scope for such assumption. A Division Bench of this Court in the decision in Ponnen v. Ponnen, AIR 1968 Ker 129, after referring to a passage in Eversley on Domestic Relations, has taken the same view as we have expressed in this judgment,
16. We are therefore of the view: that the husband must be found to have been impotent at the time of the marriage and continued to be so at the time of the institution of the suit. This was what has been found by the learn-ed District Judge in the judgment under appeal.
Since the learned District Judge dismissed the petition on the ground that the petition did not lie in his court and we have found that this view is erroneous, we have to allow this appeal, when, on the merits we agree with the court below. Accordingly we allow this appeal. We declare that the marriage of the appellant with the respondent is null and void. No costs.
