A vs B on 18 January, 1996

    A vs B on 18/1/1996

JUDGMENT

   K. Narayana Kurup, J.

   1. This is a petition for nullity of marriage filed by the husband under
Section 18 of the Indian Divorce Act.

   2. The parties belong to the Syrian Christian community. Their marriage was
solemnised on 12.2.1995 at the St. Thomas Catholicate Aramana Church,
Muvattupuzha. Admittedly, the parties resided together only for 15 days. On
27.2,1995, the respondent returned to her own house at Trichur. The allegations
of the petitioner are that the respondent was and is a schizophrenic, that she
is physically under-developed, and impotent, that these facts were suppressed
from the petitioner before marriage and that, therefore, the petitioner is
entitled to a decree of nullity of marriage under Section 19 of the Indian
Divorce Act on the grounds of insanity and impotency of the respondent and
fraud. It is also alleged in the petition that because of the respondent's
mental and physical deficiencies, she also refused to have sexual intercourse
with the petitioner and thereby failed to consummate the marriage. The averments
contained in the petition are repudiated by the respondent. According to the
respondent, she is absolutely normal-physically and mentally. Her further case
is that she never refused to have sexual intercourse with the petitioner. On the
contrary, it was the petitioner who refused to have normal sexual intercourse
with her. According to the respondent, the petitioner refused to have normal
sexual intercourse with her, but compelled her to have only oral sex with him or
in other words, to satisfy him by performing fellatio on him. The case of the
respondent is that this deprivation of normal sexual intercourse coupled with
the insistence for fellatio only amount to physical and mental cruelty entitling
her to a decree of divorce under Section 10 of the Indian Divorce Act. The
respondent has narrated certain instances of physical assault committed by the
petitioner in support of her plea of cruelty. The respondent has filed a
counter-affidavit and it is in the counter-affidavit that she has raised her
plea for divorce on the ground of cruelty. The petitioner has filed a reply
affidavit and the respondent has filed an additional counter-affidavit. Based on
the pleadings, the following issues were framed.

     1. Whether the respondent is schizophrenic before the marriage and at the
time of marriage and even thereafter ?

     2. Whether the respondent is physically under-developed and impotent
(frigid) ?

     3. Sine the marriage is not consummated as admitted by both parties whether
a decree for nullity can be issued ?

     4. Whether the marriage solemnised on 12th February, 1995 between the
petitioner and respondent is liable to be declared as null and void as provided
in the Indian Divorce Act ?

     5. Whether the respondent is entitled to get divorce on the ground of
alleged cruelty ?

     6. Whether the relief prayed for by the petitioner is liable to be granted
on the facts and circumstances of the case as pleaded by the parties ?

     7. Whether the petitioner is entitled to get his costs in prosecuting the
case ?

   3. The evidence in the case consists of the oral testimony of the petitioner
as PW 1 and the respondent as RW 1. At the outset, it has to be noted that the
allegations of the petitioner that the respondent is insane and that this fact
was suppressed from him by the parents of the respondent, that the respondent is
physically under-developed and that she had refused to have sexual intercourse
with him remain in the realm of mere allegations only without any scintilla or
iota of evidence to support them. No inmate of the house of the petitioner has
been examined to substantiate his version. No medical evidence has been adduced
in this regard. No prescription of a doctor or other documentary evidence has
been produced in support of the petitioner's case. In the counter-affidavit the
respondent has a specific case that she was examined by two named psychiatrists
and a gynaecologist and they certified her to be perfectly normal. In the reply
affidavit file by the petitioner, he has a case that those certificates "might
have been obtained by crooked means'. While in the box, it is significant to
note that the petitioner had no case that the stand of the respondent regarding
the examinations or the certificates are false or obtained by crooked methods.
Further, the evidence of RW 1 on these aspects were not even challenged in
cross-examination. Therefore, I find that there is no evidence to prove the
alleged insanity or fraud and that issue Nos. 1, 2, 4 and 6 are found against
the petitioner.

   4. The non-consummation of marriage by itself being not a ground enumerated
under Section 19 of the Act for a decree of nullity issue No. 3 is also found
against the petitioner.

   5. Then, the main issue that remains to be considered by this Court is issue
No. 5, namely, whether respondent is entitled to get a decree of divorce on tine
ground of alleged cruelty. The question then is, in a petition for nullity of
marriage filed by the petitioner-husband under Section 18 of he Act, whether a
relief under Section 10 of the Act can be granted in favour of the respondent.
The relevant provision is contained in Section 15 of the Act which reads as
follows :

     "15. Relief in case of opposition on certain grounds-In any suit instituted
for dissolution of marriage, if the respondent opposes the relief sought on the
ground, in case of such a suit instituted by a husband, of his adultery, cruelty
or desertion without reasonable excuse, or in case of such a suit instituted by
a wife on the ground of her adultery and cruelty, the Court may in such suit
give to the respondent, on his or her application, the same relief to which he
or she would have been entitled in case he or she had presented a petition
seeking such relief, and the respondent shall be competent to give evidence of
or relating to such cruelty or desertion."

   From a perusal of the said section it can be seen that the said provision
permits a respondent/wife in a divorce proceeding to allege adultery, cruelty or
desertion against the petitioner/husband and pray for a decree for divorce
against the husband on any of those grounds, namely adultery, cruelty or
desertion without filing a separate petition. There can be no doubt regarding
the application of Section 15 of the Act. This petition unfortunately happens to
be one not for a decree for dissolution on the grounds of cruelty, but for a
decree of nullity of marriage. As a prelude to the consideration of the question
as to whether Section 15 can be invoked in a proceedings for declaration of
nullity also, I refer to the following decisions which have a bearing on the
issue. In the decision reported in Reynold Rajamani and Anr. v. Union of India
and Anr., AIR 1982 SC1261, the Apex Court held as follows :

     "The history, of all matrimonial legislation will show that at the outset
conservative attitudes influenced the grounds on which separation or divorce
could be granted. Over the decades, a more liberal attitude has been adopted,
fostered by a recognition of the need for the individual happiness of the adult
parties directly involved.....".

   6. A Full Bench of this Court in the decision reported in Mary Sonia
Zachariah v. Union of India, 1995 (1) KLT 644 (FB), has held as follows :

     "Life of a charistian wife who is compelled to live against her Will though
in name only as the wife of a man who hates her, has cruelty treated her and
deserted her putting an end to the marital relationship irreversibly will be a
sub-human life without dignity and personal liberty. It will be a humiliating
and oppressed life without the freedom to remarry and enjoy life in the normal
course. It will be life without the freedom to uphold the dignity of the
individual in all respects as ensured by the Constitution in the various fields
of human activity. On the whole such a life can legitimately be treated only as
a life imposed by a tyrannical or authoritarian law on a helpless, deserted or
cruelly treated Charistian wife quite against her Will, which she is bound to
lead till her death tormented always by the feeling that she is remaining as the
wife of a man who has treated her cruelly, hated her and deserted her for no
fault of her. Such a life can never be treated as a life with dignity and
liberty. It can only be treated as a depressed or oppressed life without the
full liberty and freedom to enjoy life as one would desire to lead it in the way
Constitution has ensured. No purpose whatsoever will be irretrievably broken
down as a result of desertion by the husband for a continuously long period and
cruelty meted out which would justify an order for judicial separation. It will
also not be in the interest of either of the parties or the society at large to
continue such a marital relationship. On the other hand, it will only be in the
interest of all concerned to allow the parties to such a marriage to put an end
to the relationship legally also, when it is established that in reality it has
broken down irreversibly as a result of cruelty or desertion...." The Full Bench
went on to observe as follows:"

     "................ Thus we find that in regard to the grounds allowed by law
for dissolution of marriage, there is a discriminatory treatment meted out to
Christian spouses. We do not find any constitutionally justifiable reason for
denying a right of dissolution of marriage on the ground of cruelty and
desertion to Christian wives alone when spouses belonging to all other religions
are granted dissolution on those grounds also independent of adultery. The
discrimination resulting from the absence of suitable provisions recognising
cruelty and desertion for a reasonable period as grounds for dissolution of
marriage in the Act can in the circumstances by treated only as one based solely
on relation and as such violative of Article 15 of the Constitution. The
offending portions of the provisions as already indicated are severable and they
are liable to be quashed as ultra vires. We would further hold that the
remaining portions of the provisions can remain as valid provisions allowing
dissolution of marriage on grounds of adultery simpliciter and desertion and/or
cruelty inde- pendent of adultery. Adoption of such a course, in our view, would
help to avoid striking down of the entire provisions in Section 10 of the Act
and to grant necessary reliefs to the petitioners and similarly situated
Christian wives seeking dissolution of their marriage which has for all intent
and purposes ceased to exist in reality. We would accordingly sever and quash
the words "incestuous" and 'adultery coupled with" from the provisions in
Section 10 of the Act and would declare that Section 10 will remain hereafter
operative without without the above words"

   7. The clarion call of the Constitution Bench of the Supreme Court in Mohd.
Ahmed Khan v. Shah Bano Begum and Ors., AIR 1985 SC 945, held in the following
terms :

     "Inevitably, the role of the reformer has to be assumed by the Courts
because, it is beyond the endurance of sensitive minds to allow injustice to be
suffered when it is so palpable."

   8. Viewed in the backdrop of the above judicial pronouncements as fortified
by the Full Bench decision of this Court cited supra which has held that cruelty
by itself is sufficient for a Christian wife to pray for divorce, Section 15 of
the Act deserves a pragmatic and liberal approach. The intention of the
Legislature that opposing spouses need not be driven to multiplicity of
matrimonial proceedings is clear from Section 15 of the Act. There is no
provision in the Act which prevents a respondent in a proceeding for declaration
of nullity of marriage to the benefit like that which is found in Section 15. If
a Court of Law finds that there is a legally valid marriage which is not liable
to be declared as a nullity as in the present case, then to deny a relief to the
suffering spouse solely on the basis of the nomenclature of the petition filed
by the other spouse, will result in gross miscarriage of justice. In other
words, when marriage is admitted and there is no evidence or material available
to declare the marriage as a nullity, then the spouses have the status of
husband and wife as contemplated in Section 15 of the Act as also the right to
reliefs on the grounds and in the manner provided in Section 15 even though the
proceedings originally initiated by a spouse, may not be for dissolution but for
nullity. Such an interpretation that tends to advance the intention of the
Legislature which is in tune with the needs of the changing times recognising
the needs of the individual happiness of the adult parties directly involved
will befit the role of the reformer that has to be inevitably assumed by the
Courts.

   9. In the light of the aforesaid discussion, I have no hesitation in holding
that in a petition for nullity of marriage filed by the husband under Section 18
of the Act it is open for the wife to allege adultery, cruelty or desertion
against the petitioner husband and pray for a decree of dissolution of marriage
against the husband on any of the grounds mentioned in Section 15 of the Act,
namely adultery, cruelty or desertion without reasonable excuse and without
filing a separate petition for the said purpose.

   10. The question now to be considered whether the respondent wife has
succeeded in establishing cruelty by adducing satisfactory evidence before this
Court in this proceeding. In the counter affidavit filed by the respondent wife,
she has specifically highlighted the sexual perversity of the petitioner
husband. In the reply affidavit the petitioner has not denied those allegations.
Surprisingly, on the other hand, he relies on those allegations and contend the
such activities show that he has "sexual interest". When the petitioner was
examined as PW 1 there is not even a whisper in his chief examination denying
the allegations of forcible oral sex, and other acts of cruelty and strange
behaviour exhibited by him on 24th, 25th and 26th of Feb., 1995. On the
contrary, in chief examination itself he admits that even in the written
statement submitted by the respondent wife to the ecclesiastical Tribunal, she
had leveled allegations of sexual perversity against him. The respondent giving
evidence as RW 1 had categorically mentioned about the indifferent and
inconsiderate attitude of the petitioner to the respondent from the very nuptial
night onwards, about his refusal to indulge in normal sexual intercourse and his
insistence on oral sex only and about the other acts of mental and physical
cruelty meted out to the respondent. The petitioner in cross-examination has not
challenged any of those statements or even suggested any motives for imputing
such acts to the petitioner. Thus, the allegations of cruelty made by the
respondent stand uncontroverted and proved.

   11. The legal concept of cruelty which is not defined by statute, is
generally described as conduct of such character as to have caused danger to
life, limb or health (bodily or mental) or as to give rise to a reasonable
apprehension of such danger. The general rule in all questions of cruelty is
that the whole matrimonial relations must be considered, that rule is of special
value when the cruelty consists not of violent acts but of injurious reproaches,
complaints, accusations or taunts. It may be mental, such as indifference and
frigidity towards wife, denial of company to her, hatred and abhorrence for
wife, or physical like acts of violence and abstinence from sexual intercourse
without reasonable cause. See in this connection the decision reported in
Jyothish Chandra Guha v. Sm. Meena Guha, AIR 1970 Calcutta 266 (DB). Relying on
the decisions reported in Abbas Ali v. Mt. Rabia Bibi, AIR 1952 Allahabad 145,
and Sarah Abraham v. Pyli Abraham, AIR 1959 Ker. 75 (DB), a Division Bench of
the High Court of J & K in the decision reported in Smt. Kamala Devi v. Amar
Nath, AIR 1961 J & K 33 (DB) has held as follows :

     "Where evidence of physical violence is not per se sufficient to warrant a
finding of cruelty, the Court is bound to take into consideration the general
conduct of the husband towards the wife and if this is of the character tending
to degrade the wife and subjecting her to a course of intense indignity
injurious to her health, the Court is at liberty to pro- nounce the cruelty
proved".

   In the decision of a Special Bench reported in AIR 1989 M.P. 326, Prem
Prakash Rubin v. Smt. Sarla Rubin, it has been held as follows :

     "Sex plays important role in matrimonial life and cannot be separated from
other factors leading to a successful married life. Therefore, conduct of
husband or wife which renders the continuance of cohabita- tion and performance
of conjugal duties impossible amounts to such cruelty."

   I am winding up this judgment with an observation of Lord Denning in the
decision reported in 1950 (2) All. E.R. 398, Kaslefsky v. Kaslefsky, in which it
is held as follows:

     "The wilful and unjustifiable refusal of sexual intercourse is destructive
of marriage, more destructive, perhaps, than anything else. Just as normal
sexual intercourse is the natural bond of marriage, so the wilful refusal of it
causes a marriage to disintegrate. It gives rise to irritability and discord, to
nervousness and manifestations of temper, and hence to the breakdown of the
marriage."

   12. In the light of the foregoing discussion, the following conclusions
emerge:

     1. In the petition filed by the husband for nullity of marriage no valid
ground has been made out so as to declare the marriage null and void;

     2. In a petition for nullity of marriage filed under Section 10 of the Act,
it is open for the respondent-wife to pray for a decree for dissolution of
marriage on the ground of cruelty and relief under Section 10 of the Act can be
granted to the respondent;

     3. On the facts and circumstances disclosed in the case, the allegation of
cruelty levelled against the petitioner stands proved; and

     4. Cruelty simpliciter is a sufficient ground for granting a decree of
dissolution of marriage in favour of the respondent wife.

   In the result, the prayer of the petitioner for nullity of marriage is
rejected and the respondent is granted a decree for dissolution of marriage on
the grounds of cruelty simpliciter.

   The petition is disposed of as above. No costs.