unconsummated marriage and offered to undergo a medical test if her husband also took medical advice.
The Court ruled in favor of the wife and restored a decree of restitution of conjugal rights stating that the evidence of the wife shows that she persistently made efforts to resume cohabitation but she was denied an opportunity. An attempt by the husband's lawyers to seek divorce by claiming that the marriage had broken down irretrievably did not impress the court either. In law, as it stands today, irretrievable breakdown of marriage is neither a ground for grant of divorce nor a ground to refuse a decree of restitution of conjugal rights, the courts said.
FAMILY COURT APPEAL NO.139 OF 2006
Venkata Natarajan Krishnan
V/s.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Padmashree Krishnan
CORAM : A.S. OKA & S.C. GUPTE , JJ.
DATE ON WHICH JUDGMENT IS PRONOUNCED : 10th APRIL, 2014
JUDGMENT (PER A.S. OKA, J.):
By this Appeal, the Appellant husband has taken an
exception to the Judgment and Decree dated 16 th October, 2006 passed
by the learned Judge of the Family Court at Bandra in Petition No.A393
of 2004 and Petition No.A880 of 2004. Petition No.A393 was filed by
the Appellant husband for seeking a decree of nullity of marriage under
Section 12(1)(a) of the Hindu Marriage Act, 1955. By the impugned
Judgment and Decree, the said Petition was dismissed. The Petition
No.A880 was filed by the Respondent wife for restitution of conjugal
rights. The said Petition was decreed by the impugned Judgment and
Decree.
2.
The marriage between the parties was solemnized on 27 th
October, 2003. According to the case of the Appellant husband, it was
represented to him that the Respondent was a Lecturer in a college
drawing salary of Rs.15,000/ pm. In the Petition filed by the Appellant
husband, various details have been incorporated leading to the
solemnization of the marriage.
3.
According to the case of the Appellant husband, from the
date of marriage, the Respondent wife started behaving whimsically. It
is alleged that though the Appellant husband was employed at Nashik,
the Respondent never stayed continuously with the Appellant at Nashik
and she would come to the matrimonial home at weekends and on
holidays. According to the case of the Petitioner, the Respondent never
allowed the marriage to be consummated. It is alleged that on 28 th
November, 2003, a meeting was held to sort out the matter when the
Respondent's mother and sister were present. The Appellant husband
has alleged that when the Respondent's mother and elder sister tried to
advise her to behave properly, she quarreled with her own mother and
elder sister. The Appellant husband has stated that he had acquired a
flat at Mulund in Bombay out of is own funds. On 29 th November, 2003,
house warming ceremony was held in the said flat which was attended
by the Respondent and her mother. It is alleged that at that time, the
Respondent promised to improve her behavour and attitude. In the
Petition, he has alleged that there was no improvement in the
Respondent's behaviour and that he was made to bear the brunt of her
illtempered and vulgar language. He has alleged that the Respondent
intermittently used to visit matrimonial home. It is stated that on 4 th
February, 2004 she visited matrimonial home and on the next day, left
the matrimonial home informing the Appellant that she would never
return back. The Appellant has stated that a meeting was held on 8 th
February, 2004 to sort out the dispute. At that time, the Respondent
insulted him and used filthy language. The Appellant husband alleged
that he has been a victim of consistent practice of cruelty by the
Respondent and consistent illtempered behaviour. He has alleged that
it became miserable for him to cohabitat with the Respondent. In the
Petition, he has given the list of jewellery left by Respondent at the
matrimonial home. The Appellant relied upon a legal notice dated 16 th
February, 2004 issued by him through an Advocate calling upon the
Respondent to take back the said jewellery. The Appellant has alleged
that on 15th February, 2004, he met the Respondent when Respondent's
mother and elder sister were present. At that time, the Appellant's
brother was also present. It is alleged that the Respondent in a very
filthy language called upon the Appellant to hand over keys of the new
flat. It is alleged in the Petition that the Respondent was not able to
consummate the marriage and therefore, the marriage was nullity.
Initially, apart from the relief of declaration of nullity, by way of a
prayer in the alternative, a decree of divorce on the ground of cruelty
4.
was prayed for which was later on deleted.
The Respondent wife filed written statement and denied the
material averments. The Respondent filed a Petition for restitution of
conjugal rights in which she alleged that the Appellant was not able to
consummate the marriage due to physical incapacity. The Respondent
alleged that she was ready and willing to undergo medical examination
and even suggested the Appellant to consult a medical expert. The
Respondent stated that she issued a short reply dated 13th March, 2004
to the notice dated 16th February, 2004. The Respondent prayed for
restitution of conjugal rights. The Appellant filed a written statement
raising similar contentions which were raised in his Petition.
5.
The Appellant examined himself and five other witnesses
namely Shri. V Dharmarajan, Shri. D.V Natrajan, Shri. V
.N.
Subramanian, Ms. Uma M. Shastrigal and Shri. K.R. Sridhar. He relied
upon various documents. The Respondent wife examined herself. She
and answers recorded by her reads thus :
did not examine any witnesses. The issues framed by the learned Judge
“Issues in Petition No.A393/2004 :
ISSUES
FINDINGS
Does the Petitioner prove that the
Respondent is impotent?
No.
2 Is he entitled for a decree of annulment? No.
3 Whether the respondent is entitled No.
for her articles & ornaments?
4 What order & decree?
ig
1
As per final order
Issues in Petition No.A880/2004:
Does the Petitioner prove that the
respondent, without any reasonable excuse
has withdrawn from her society?
2 1 Is she entitled for restitution of conjugal
rights?
3 What order & decree?
6.
Yes.
Yes.
As per final order.”
The learned counsel appearing for the Appellant has taken
us through the pleadings and notes of evidence. He urged that there
was no evidence on record to show that the Appellant had withdrawn
from the society of the Respondent without any reasonable cause. He
pointed out that on 28th March, 2004, the Respondent wife filed a
complaint with Pantanagar Police Station alleging cruelty against the
Appellant and her family members. He pointed out that she also filed a
similar complaint with Byculla Police Station. He urged that evidence
of the witnesses examined by the Appellant could not have been
rejected on the ground that they were interested witnesses. He urged
that the Appellant has established that the marriage could not be
consummated due to impotency of the Respondent. He urged that the
learned Judge has passed a decree for restitution of conjugal rights only
ig
on the ground that the Appellant could not secure a decree of nullity.
He submitted that no case was made out by the Respondent for passing
decree of restitution of conjugal rights. The learned counsel appearing
for the Respondent supported the impugned judgment and decree.
7.
We have considered the submissions. We have perused the
pleadings and notes of evidence. Perusal of the Petition filed by the
Appellant shows that in various paragraphs and in particular paragraph
24, he has alleged that he has been a victim of consistent cruelty at the
hands of the Respondent. In fact, the averments in paragraph 24 are in
support of the initial prayer made by the Appellant in the alternative
for a decree of divorce on the ground of cruelty. In paragraph 29, the
Appellant has alleged thus :
29. “The Petitioner states that he was willing, eager and
capable of consummating the marriage, but the
Respondent was averse to any sexual union neither did
she show any interest or inclination nor did she reflect
any enthusiasm to the idea of consummating the said
marriage. The Petitioner states that they had only
platonic relationship and the Respondent made him
undergo tremendous mental agony on account of the
said nonconsummation of marriage.”
In the same paragraph 29, the Appellant alleged thus :
“29.
........ The Petitioner states that during the entire period,
8.
he underwent tremendous mental torture and his service
life too suffered as a consequence. The Petitioner states
that the Respondent was having aversion or repugnance
to have any sexual contact with him and she was
suffering from mental impotency. The Petitioner submits
that in the circumstances aforesaid the Petitioner is
entitled to a decree of nullity under section 12 (1) (a) of
the Hindu Marriage Act, 1955.”
9.
We must note here that the prayer for a decree of divorce on
the ground of cruelty made in the alternative was deleted by the
Appellant by amendment carried out on 6th March, 2004. On the other
hand, the case made out by the Respondent wife is that it was the
Appellant who avoided to maintain physical relationship with her. In
clause (g) of paragraph 2 of the written statement filed in the Petition
by the Appellant husband, she has given details as to how the Appellant
avoided to maintain relationship with her.
We must note here that as far as the Petition filed by the
Appellant is concerned, he has specifically claimed a declaration that
the marriage was null and void under Clause (a) of Subsection (1) of
Section 12. On plain reading of Clause (a) of Subsection (1), it is
applicable only when marriage has not been consummated owing to the
impotency of the Respondent. After having perused the affidavitinlieu
of examinationinchief of the Appellant and the Petition filed by the
Appellant husband, we find that there is no allegation that the marriage
could not be consummated due to the impotency of the Respondent.
Moreover, the Respondent had offered to undergo a medical check up.
In her pleadings as well as in her evidence, she has stated that she had
suggested to the Appellant to take medical advice. The learned Judge
of the Family Court recorded a finding that the Appellant neither
pleaded that nonconsummation was due to Respondent's impotency
nor supported this case by any medical report. After having perused the
pleadings and evidence, we find no error in the view taken by the
Family Court that the Appellant husband did not discharge the burden
on him of proving that the marriage could not be consummated due to
impotency of the Respondent.
11.
Now, we turn to the findings recorded by the learned Judge
of the Family Court on the issue of restitution of conjugal rights.
Paragraphs 44 and 45 of the impugned judgment which reads thus :
“44. The Wife in her petition has stated that she suggested to
the Husband to take medical help; she has also set out
specific reasons due to which the Husband avoided
consummation. The Wife has not been crossexamined
by the Husband on these reasons and therefore, it has
gone unchallenged. The Husband's crossexamination is
based on the allegations in paragraph 7 to 20 of
affidavit of evidence, which do not find any place in his
petition and are emphatically denied by the Wife. The
Wife in her Written Statement to the Husband's petition
has, time and again, preferred for reconciliation. The
parties were referred to Marriage Counsellors. Where
efforts for reconciliation were made. The Court also
made efforts for settlement, but the Wife opposed for
settlement and insisted for reconciliation.
45. The Husband has not been able to prove non
consummation due to the impotence of the Wife,
various complaints filed by the Wife were for settlement
by way of reconciliation and not separation. She refused
to file complaint under section 498/A even when the
police inquired about the same with her. She has not
collected her articles with a hope that she would return
to the matrimonial home.”
12.
At this stage, it will be necessary to make a reference to the
averments made by the Respondent wife in the said Petition. Various
allegations have been set out as regards the objectionable behaviour of
the husband and husband's family members. It is alleged that the
husband's family members and particularly his father repeatedly told
her to leave matrimonial home. As regards the consummation of
marriage, in paragraph 11 the Respondent wife alleged thus :
“11. The Petitioner states that when she enquired with the
respondent that the respondent should consult medical
experts, if necessary, for the physical incapacity, if any,
to consummate the marriage. The petitioner further
offered all necessary moral and financial support and
also to take appointment of any Doctor in this field.
The respondent got wild on the petitioner and bluntly
told her that he did not want to discuss any thing in this
regard with the petitioner. This attitude of the
respondent gives rise to a reasonable belief for the
petitioner that the respondent is deliberately avoiding
the petitioner to consummate the marriage. The
petitioner is ever ready and willing to consummate
marriage and further she is ready and willing to submit
herself for any medical examination, if required, by the
respondent. Right from the date of the marriage the
petitioner has been ever ready and willing to
consummate the marriage and in fact had made her
best attempts in this regard. However, on all the
occasions the respondent never made any sincere
attempts to consummate the marriage, initially due to
physical incapacity and later for the reasons best known
to the respondent and apparently to get rid of the
petitioner.”
Further, the Respondent wife alleged that the Appellant
13.
11
husband was always under the influence of his mother. The
Respondent wife is relying upon incident of 5 th February, 2004. She has
alleged that when she was getting ready to leave for her college, her
fatherinlaw picked up quarrel with her. He told her to either bring
money from her maternal home or leave the matrimonial home. It is
alleged that her fatherinlaw physically assaulted her when she politely
declined to bring money. She has stated that her fatherinlaw asked
her to leave matrimonial home and, therefore, she went to her mother's
home at Ghatkopar. She has stated that as she intended to return to the
matrimonial home, she did not take any of her belongings with her.
She alleged that she was waiting for Appellant husband to respond.
However, till 15th February, 2004, he did not respond. On 15 th February,
2004, he called the Respondent wife to meet him outside Mulund
Railway Station. Accordingly, the Respondent wife along with her
mother and two sisters met the Appellant. The Appellant husband was
accompanied by his brother and some unknown persons. It is alleged
that the Appellant took them to his new flat at Mulund (East). At that
time, the builder informed them that flat cannot be occupied without an
occupation certificate. It is alleged that the persons accompanying
husband started abusing the Respondent wife, her mother and sisters.
Thereafter, the Respondent wife, her mother and sisters went to the
matrimonial home of the Appellant husband. The family members of
the Appellant did not open the door of the matrimonial home but still
the Respondent, her mother and sisters waited there for five hours. It is
alleged that a false complaint was filed by Appellant husband with
Navghar Police Station alleging that the Respondent wife was
demanding the keys of the new flat. It is alleged that on 5 th March,
ig
2004, the Respondent's father and brotherinlaw made an attempt to
meet the Appellant for reconciliation but they were insulted by the
Appellant and his family members. The Appellant pointed out that on
16th February, 2004, a notice was issued by the Appellant, who is an
Advocate, making various allegations. She referred to her short reply
requesting the Appellant to fix a meeting for reconciliation. It is stated
that the Appellant, by sending a letter dated 24 th March, 2004 through
his Advocate refused to meet the Respondent wife. Thereafter, a reply
dated 24th March, 2004 was sent by the Respondent through her
Advocate to the Appellant.
14.
As the Respondent was receiving threats from unknown
persons, she lodged a complaint in Byculla Police Station on 1 st April,
2004. The officers of Byculla Police Station called the Appellant on 3 rd
April, 2004 in presence of the Police Officers. The Appellant told the
Respondent that he would not unite with the Respondent. The Petition
for restitution of conjugal rights was filed by the Respondent on 5 th
15.
Appellant husband on 22nd February, 2004.
April, 2004. The Petition for declaration of nullity was filed by the
Perusal of the evidence of the Respondent wife shows that
she has reiterated what she has stated in the Petition. In the cross
examination, the version of the Respondent wife regarding efforts made
by her to resume cohabitation has not been shaken. In the Petition filed
by the Appellant husband and his evidence, the case made out is that
the marriage is nullity because the Respondent wife declined to
consummate the marriage. In paragraphs 40 and 41 of the affidavitin
lieu of examinationinchief of the Appellant, he has stated that he gave
opportunities to the Respondent wife for reconciliation and he also
offered to provide medical help to the Respondent wife if she was
suffering from any disorder. He stated that by way of notice dated 16 th
February, 2004, he showed willingness for amicable settlement and also
for taking divorce by consent. In paragraph 40, the husband has again
reiterated that it was the Respondent who persistently refused to
consummate marriage and, therefore, he cannot be expected to reunite
with the Respondent wife at any costs.
16.
We have already held that the Appellant failed and
neglected to establish his case of nonconsummation of marriage on
account of the alleged impotency of the Respondent wife. On the other
hand, the deposition of Respondent wife shows that she made efforts
for reconciliation and she was willing to cohabit with the Appellant. The
Respondent wife stated that when on 4 th February, 2004, she was forced
to leave the matrimonial home, she did not take her belongings as she
was desirous of returning to the matrimonial home. Moreover, the
ig
Appellant husband failed to prove his allegations regarding impotency
of the Respondent wife. The evidence of Respondent wife shows that
she persistently made efforts to resume cohabitation but she was denied
an opportunity to resume cohabitation. On the other hand, the
Appellant could not prove his allegations against the Respondent.
17.
Some argument is canvassed by the learned counsel
appearing for the Appellant regarding total breakdown of marriage. His
submission was that due to total breakdown of marriage, the parties
cannot come together. In law, as it stands today, irretrievable
breakdown of marriage is neither a ground for grant of divorce or a
ground to refuse a decree of restitution of conjugal rights. Once the
ingredients of Section 9 of the said Act are satisfied, a decree of
restitution of conjugal rights must follow.
We, accordingly, find no merit in the Appeal and the same
is accordingly dismissed with no order as to costs.
18.
(A.S. OKA, J )
(S.C. GUPTE, J )
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