Sri A Radhakrishnan vs Smt R Vanitha
2022 Latest Caselaw 12970 Kant

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 14TH DAY OF NOVEMBER, 2022

                       PRESENT

       THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

              M.F.A.No.6389/2014 (FC)

BETWEEN:

SRI A. RADHAKRISHNAN
AGED ABOUT 51 YEARS
S/O SRI N. ANNAMALAI
RESIDING AT NO. 7, 2ND CROSS
IYYANAR KOIL STREET
EZIL NAGAR NORTH
PUDUCHERRY - 605 003
NOW WORKING ALSO AT:
SRI A RADHAKRISHNAN
BRANCH MANAGER
INDIAN BANK, METTUPALAYAM
PUDUCHERY - 605 009.                    ...APPELLANT

(BY SRI B. MOHAN, ADV. A/W
    SRI DEVARAJ C.H., ADV., FOR
    SRI VIJAYA KUMAR V. ADV.)

AND:

SMT. R. VANITHA
AGED ABOUT 44 YEARS
D/O SRI V.T. RAJENDRAN
W/O SRI A. RADHAKRISHNAN
RESIDING AT "GANESH NILAYAM"
NO. 3/1, 2ND CROSS, NEHRU ROAD
KAMMANAHALLI
BANGALORE - 560 084.                ...RESPONDENT

(BY SRI RAHUL CARIAPPA, ADV.)
                             2

     THIS M.F.A. IS FILED UNDER SECTION 19(1) OF THE
FAMILY COURTS ACT, PRAYING AGAINST THE JUDGMENT AND
DECREE DATED 18.08.2014 PASSED IN M.C. NO.2496/2010
ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE, ALLOWING THE PETITION FILED U/S 12(1)(A)
AND 13(1)(IA) OF THE HINDU MARRIAGE ACT, FOR DECREE
OF NULLITY AND DIVORCE.

     THIS APPEAL HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, VISHWAJITH
SHETTY J., DELIVERED THE FOLLOWING:

                    JUDGMENT

This Miscellaneous First Appeal under Section 19(1)

of the Family Courts Act is filed challenging the judgment

and decree dated 18.08.2014 passed by the Principal

Judge, Family Court, Bengaluru, in M.C.No.2496/2010,

wherein the petition filed by the respondent-wife under

Sections 12(1)(a) and 13(1)(ia) of the Hindu Marriage

Act, 1955 (for short, 'the Act') was allowed and the

marriage of the appellant with the respondent was

declared as nullity, and accordingly, the marriage was

dissolved by a decree of divorce.

2. Heard the learned Counsel for the parties and

also perused the material available on record.

3. Brief facts of the case as revealed from the

records which would be necessary for the purpose of

disposal of this appeal are, the marriage of the appellant

and the respondent was solemnized on 29.10.2001 at

Mani Shadakshari Kalyana Mantap, No.307, Thimmaiah

Road, Off. Queens Road, Bengaluru. At the time of

marriage, the respondent was working in General Post

Office at Bengaluru, while the appellant was working as a

Clerk in Indian Bank, Neyveli Branch, Neyveli, Tamil

Nadu.

4. After the marriage, nuptial ceremony was

arranged at the residence of the respondent in

Bengaluru, but the appellant had refused to cohabit with

her on the ground that he was not well and was suffering

from high fever. Immediately thereafter, the appellant

had left to Neyveli and the respondent was left back in

her parents house at Bengaluru, though initially it was

agreed that she would be taken to Puducherry where the

parents of the appellant were residing. After a great deal

of persuasion, the parents of the respondent reluctantly

took the respondent to Puducherry and the respondent

stayed there from 01.11.2001 to 20.11.2001, but during

the said period, the appellant allegedly stayed away from

the respondent throughout. While she was returning to

Bengaluru from Puducherry, she was specifically

instructed by her in-laws that she would be returning to

Puducherry only after she obtains permanent transfer.

Even when she stayed in Bengaluru thereafter, the

appellant never visited her and the marriage remained

unconsummated. Though the appellant had promised to

the respondent that he would setup a marital house at

Puducherry immediately after the marriage, no such

arrangements were made.

5. In the meanwhile, the appellant was transferred

to Cuddalore and after great persistence, the respondent

got herself transferred to Puducherry in the year 2005.

Since the appellant had failed to setup a house at

Puducherry, though the appellant's parents were residing

at Puducherry, the respondent was constrained to stay in

a hostel accommodation at Puducherry and attend her

office. In the meanwhile, in the year 2004, the appellant

was transferred from Cuddalore to Punganur in Andhra

Pradesh, and on 28.03.2004, the respondent along with

her parents went to Punganur and met the appellant in

his bank. However, the appellant did not show any

concern and his response was extremely poor. Though he

had assured that he would be taking a transfer to

Puducherry, he never made any efforts for the same. In

the year 2007, the appellant was transferred from

Punganur to Proddadur in Andhra Pradesh and the

respondent again went to Proddadur and requested the

appellant to set up a house at Proddadur for their

residential purpose. However, the appellant stoutly

refused to the same. It is under these circumstances,

after informing her parents that her marriage was not

consummated with the appellant, the respondent had

filed a petition before the Family Court at Bengaluru

seeking a decree declaring the marriage as nullity and

also for dissolution of the marriage by a decree of

divorce.

6. In the said proceedings, the appellant had filed

detailed objections denying the petition averments and

contended that the marriage was not consummated for

the reason the respondent was not cooperating for

cohabitation since she had some gynecology problems.

He contended that the respondent had refused to take

any treatment for her gynecology problems though he

had insisted for the same on many occasions. He also

contended that he was potent and he was ready and

willing to undergo any test to prove his potency.

7. During the course of trial before the Family

Court, the respondent was examined as PW-1 and she

got marked as many as 14 documents as Exs.P-1 to P-

14. The appellant had got examined himself as RW-1 and

two documents were marked in support of his case as

Exs.R-1 & R-2. The learned Judge of the Family Court,

thereafter, vide the impugned judgment and decree

allowed the petition and declared that the marriage that

was solemnized between the parties was a nullity and

accordingly dissolved the same by a decree of divorce.

Being aggrieved by the same, the husband has preferred

this appeal.

8. Learned Counsel for the appellant submits that

the respondent has not proved the allegations made by

her against the appellant. He submits that there is no

medical evidence to show that the appellant was

impotent and in the absence of the same, the Family

Court was not justified in arriving at the conclusion that

the appellant was impotent, and therefore, the marriage

was not consummated. He submits that the petition is

filed after a period of nine years from the date of

marriage and for the first time after nine years, the

allegation of impotency is made against the appellant. He

also submits that though the appellant had specifically

contended in his pleading as well as in his deposition that

he was ready and willing to undergo any medical test to

disprove the allegation of impotency, the respondent had

not made any application before the court requesting the

appellant to undergo any such medical test. He also

submits that the documents at Exs.R-1 & R-2 would

prima facie show that the appellant was potent and

unless the same is disproved, the Family Court could not

have declared the marriage as nullity on the ground that

the same was not consummated that the appellant was

impotent. In support of his contentions, he has relied

upon the judgment of the Hon'ble Supreme Court in the

case of SHARDA VS DHARMPAL - (2003)4 SCC 493.

9. Per contra, learned Counsel for the respondent

submits that the medical documents at Exs.R-1 & R-2 are

concocted documents. The said documents do not show

the medical tests undergone by the appellant. He also

refers to the cross-examination of the respondent and

submits that the appellant's sister was admittedly

working in the institution from where the said documents

are issued and the appellant has admitted that he does

not know the doctor who had examined him, which would

prima facie disclose that the said documents are created

documents. He submits that unless the doctor who has

issued the certificate or who has medically examined the

appellant is examined before the Court, no reliance can

be placed on the said documents. He submits that the

respondent was medically examined through a

gynecologist on the application made by her before the

Family Court, for which the appellant had not objected

and the medical report would go to show that her

condition was normal. He submits that the fact that the

appellant throughout remained away from the

respondent and never made any attempts to join her and

lead a normal life would also establish that he was not

interested in cohabitation. He submits that the fact the

marriage was not consummated is undisputed and the

medical evidence would go to show that the respondent

was normal, and therefore, the only inference that can be

drawn is that the appellant was impotent, and therefore,

the marriage was not consummated.

10. In reply, learned Counsel for the appellant

submitted that the appellant had never stated that the

respondent had any gynecology problems and it is she

who had refused to cohabit with the appellant on the

ground that she had gynecology problems. He, therefore,

submits that the medical report which shows that the

respondent is normal and she had no gynecology

problems will not have any bearing on the case.

11. The undisputed facts of the case are, the

marriage between the parties was solemnized on

29.10.2001 and the said marriage remained

unconsummated. The respondent has approached the

Family Court seeking for a decree declaring the marriage

as nullity and had also sought to dissolve the said

marriage by a decree of divorce contending that the

appellant was impotent, and therefore, the marriage had

remained unconsummated. The appellant though

admitted that the marriage was not consummated, has

taken a defence that the marriage was not consummated

since the respondent did not cooperate for cohabitation

on the ground that she had some gynecology problems.

In order to substantiate her case, the respondent had

examined herself as PW-1 and also got marked the

documents at Exs.P-1 to P-14. In her pleadings as well as

her deposition, she has stated that immediately after the

marriage though nuptial ceremony arrangement was

made in their house at Bengaluru, the appellant had not

cohabitated with her citing the ground of his ill-health

and thereafter he had returned to Naiveli where he was

working. She has also stated that they never lived

together thereafter at any point of time and though she

got transferred to Puducherry where the parents of the

appellant were staying, the appellant did not make any

efforts to get transfer to Puducherry and on the other

hand, he got transferred to different places other than

Puducherry. She has also stated that while at Puducherry

she was constrained to take shelter in a Girls Hostel

though the parents of the appellant were staying at

Puducherry. She has also stated that though she had

made repeated requests with the appellant to setup a

house for the purpose of leading of marital life, he had

not responded to the same and the material on record

would go to show that throughout he was maintaining

distance from the respondent. Nothing is elicited in her

cross-examination to disbelieve her contentions.

12. Though the initial burden to establish that the

appellant was impotent was on the respondent, having

regard to the facts and circumstances of the case, even

though she had not produced any material to establish

that he was impotent, from the conduct of the appellant

and other relevant material available on record, an

adverse inference can be drawn that he was evading the

respondent and he had not cooperated for cohabitation or

he had no willingness for cohabitation. He had not setup

a marital house ever since the marriage and had not

lived with the respondent and the efforts made by the

respondent to convince the appellant to setup a marital

house were also in vain.

13. Though the appellant has produced Exs.R-1 &

R-2 so as to establish the potency, no reliance can be

placed on the said documents since the author who has

issued the said documents has not been examined before

the court. From the perusal of the said documents, it is

also seen that there is no mention as to the particulars of

the medical test that was undergone by the appellant.

The appellant during his cross-examination has admitted

that he is not aware of the tests that he had undergone

nor was he aware of the doctor's name who had

examined him. He has also admitted that his sister

A.Bhuvaneshwari was a employee of the institution which

had issued Exs.R-1 & R-2.

14. Though the appellant has contended that it was

the respondent who was avoiding cohabitation on the

ground that she had some gynecology problems and it

was not his contention that she had some gynecology

problems, the perusal of the pleadings as well as the

cross-examination of the appellant would go to show that

a specific contention was taken by the appellant that the

respondent was suffering with some gynecology

problems, and therefore, the marriage had not

consummated. It is under these circumstances, the

respondent had filed an application before the Family

Court for her medical examination and the said

application was not objected to by the appellant, and

accordingly, the Family Court had directed the

respondent to undergo medical test and the report

submitted by the doctor which is available on record

would clearly go to show that the respondent was normal

and she had no gynecology problems. Since the appellant

had produced medical records as per Exs.R-1 & R-2 to

establish his potency, no fault can be found on the part

of the respondent in not insisting him to undergo any

medical test.

15. Though the marriage had taken place in the

year 2001 till the filing of the petition in the year 2010,

admittedly, the marriage was not consummated. Having

regard to the aforesaid material available on record, the

only inference the court can draw is that the appellant

was not cooperating for cohabitation and it is therefore

the marriage was not consummated. Under the

circumstances, in the present case, even though the

respondent has failed to produce any material before the

Family Court in order to substantiate that the appellant

was impotent, it cannot be said that the Family Court

was completely wrong in recording a finding that the

marriage was not consummated because the appellant

was not interested in cohabitation. It has also come on

record that even on the day of nuptial immediately after

the marriage, the appellant had not cooperated for

cohabitation citing health grounds. The respondent has

made efforts to live with the appellant by setting up a

marital house, but it is the appellant who did not

cooperate for the same, and therefore, no error can be

found in the judgment of learned Judge of the Family

Court that the respondent had substantiated the

allegation made by her against the appellant.

16. In Sharda's case supra, the Hon'ble Supreme

Court was considering a case wherein the petition

seeking divorce was filed on the ground of unsoundness

of mind of the wife and though an application was filed

by the husband to direct medical examination of the wife,

she had refused for the same and it is under these

circumstances, the Hon'ble Supreme Court had held that

an adverse inference can be drawn against her. The said

judgment cannot be made applicable to the facts of the

present case. In the present case, the appellant had

raised a contention that the marriage was not

consummated because the respondent was suffering

from some gynecology problems. To disprove the same,

the respondent had got herself examined by a doctor and

the doctor's report which is available on record would go

to show that the respondent had no such gynecology

problems and she was normal. On the other hand,

though the appellant had produced Exs.R-1 & R-2 to

establish his potency, for the reasons aforesaid, a prima

facie doubt arises with regard to the genuineness of the

said documents.

17. The respondent being a lady had not initially

informed to her parents that the marriage was not

consummated and she had made efforts to live with the

appellant under a common roof. But all such efforts did

not find any positive response from the appellant. On the

other hand, the appellant was throughout avoiding her

and he never made any effort to seek transfer to a place

where the respondent was working. Even after the

respondent took transfer to Puducherry, the appellant did

not join her even at Puducherry though his parents were

residing in Puducherry. It is not in dispute that the

respondent was staying in a hostel accommodation in

Puducherry and this itself would be sufficient to show

that the appellant did not have any intention or

willingness to cohabit with the respondent. Merely for the

reason that the respondent had not revealed about the

impotency of the appellant to her parents within a

reasonable period and she has revealed the same just

before the filing of the petition, that itself cannot be a

factor to disbelieve her version, more so having regard to

the conduct of the appellant and other material available

on record.

18. The parties are staying separately for the last

nearly 13 years and the material on record would go to

show that the relationship between the parties is also

strained to the extent that it would not be able to

reconcile and live together. The efforts made by this

Court for reconciliation has also failed. From the material

on record, it is also seen that the parties do not have

respect or faith on each other.

19. The Hon'ble Apex Court in the case of SAMAR

GHOSH VS. JAYA GHOSH - (2007)4 SCC 511 has

observed that where there has been a long period of

continuous separation, it may fairly be concluded that the

matrimonial bond is beyond repair. The marriage

becomes a fiction though supported by a legal tie. By

refusing to sever that tie, the law in such cases, doe not

serve the sanctity of marriage; on the contrary, it shows

scant regard for the feelings and emotions of the parties.

In such like situations, it may lead to mental cruelty.

20. Under the circumstances, we do not find any

good ground to interfere with the judgment and decree

passed by the Family Court allowing the petition filed by

the respondent-wife under Sections 12(1)(a) and

13(1)(ia) of the Act and declaring the marriage between

the parties as nullity and accordingly, dissolving the

marriage by a decree of divorce. Accordingly, the appeal

is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE KK