Ramya Chandran vs Sanju Mohan
2021 Latest Caselaw 7001 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                   &

          THE HONOURABLE MR.JUSTICE DR.KAUSER EDAPPAGATH

     MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942

                       Mat.Appeal.No.754 OF 2017

     AGAINST THE JUDGMENT IN O.P.No.1713/2014 DATED 09.11.2016
                      OF FAMILY COURT, THRISSUR
                               --------


APPELLANT/S:

                RAMYA CHANDRAN, AGED 31 YEARS,
                D/O.PREMACHANDRAN, PREM NIVAS,
                NEELESWARAM P.O, NEELESWARAM,
                HOSDURG TALUK, KASARAGOD DISTRICT.

                BY ADV. SRI.K.P.HARISH


RESPONDENT/S:

                SANJU MOHAN, AGED 40 YEARS,
                S/O.JAYAMOHAN, PALLATH, MANJARI,
                KOORKKANCHERY, THRISSUR DISTRICT-680007.

                BY ADV.SRI.C.CHANDRASEKHARAN


THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.754/2017               2



                                   JUDGMENT

Dated this the 1st day of March 2021 A.Muhamed Mustaque, J.

This appeal arises from the dismissal of a

petition for divorce. The appellant-wife was the

petitioner before the Family Court. The respondent-

husband was the respondent before the Family Court.

The marriage was solemnized on 12.09.2010 at Sree

Maheswara Temple, Koorkkanchery, Thrissur. The love

affair between the parties led to the marriage. The

appellant- wife is a Homeopathic Doctor by profession.

The respondent-husband is an engineer by profession

possessing B.Tech degree.

2. The petition for divorce was filed on the ground of cruelty. It is averred in the petition that

the respondent-husband suffers from tranverse

myelitis. According to the appellant-wife, on account

of this disease, the husband has same difficulty in

achieving erection and having physical intimacy with

her. Though it is pleaded by her in the petition that

this disease has adversely affected their marital

relationship, she narrated the same in evidence while

she was mounted in box. According to her, there was

no satisfactory sexual life on account of the disease

with the respondent-husband. According to the

appellant-wife, suppression of the disease also

amounts to cruelty.

3. The respondent-husband admitted about this

disease. According to him, he was undergoing

treatment at the age of 19 and was cured of that

illness and he was having normal sexual life with

the appellant-wife.

4. The Family Court, after the evaluation of

the evidence, found that the parties were leading in

a joyful life as evident from the photographs

produced before the Family Court. It was further

observed that if such a problem existed with the

respondent-husband, the appellant-wife could not

have remained with him till April, 2014.

5. Any disease which would materially affect

the marital life, certainly, would amount to cruelty

if that was suppressed prior to the marriage.

Admittedly, before the marriage itself, the

respondent suffered from such disease. According to

him, after the treatment, he recovered from such

disease. However, the respondent has not chosen to

produce any document to show that he has recovered

from such illness. Having admitted the illness as

above, it is the bounden duty of the respondent to

produce the medical records to show that he has

recovered from such disease before the marriage. In

the absence of any such records, the case put

forward by the appellant-wife is more probable as

the respondent-husband himself has admitted about

such illness.

6. Then the next question is whether this

itself amounts to cruelty or not. The medical

opinion is available in internet, expert view of the

Mayo Clinic, a reputed clinic in US, refer the

following complications related to the aforesaid

illness:

Complications:

People with transverse myelitis usually experience only one episode. However, complications often linger, including the following:

•Pain, one of the most common debilitating long-term complications of the disorder. •Stiffness, tightness or painful spasms in your muscles (muscle spasticity). This is most common in the buttocks and legs.

•Partial or total paralysis of your arms, legs or both. This may persist after the first symptoms.

•Sexual dysfunction, a common complication of transverse myelitis. Men may experience difficulty achieving an erection or reaching orgasm. Women may have difficulty reaching orgasm. (emphasis supplied).

•Depression or anxiety, which is common in those with long-term complications because of the significant changes in lifestyle, the stress of chronic pain or disability, and the impact of sexual dysfunction on relationships.

6. The appellant-wife is a Homeopathic Doctor.

The complications as above cannot be ruled out in

such circumstances unless the respondent is able to

demonstrate himself through medical evidence as he

has undergone treatment and recovered from such

illness. The respondent also failed to produce the

evidence to prove that it has not affected sexual

functions. The initial burden is on the appellant-

wife to prove that the respondent suffers from such

illness. Once that is discharged, the burden is on

the respondent to prove that he has recovered from

the illness and it has not affected his sexual

functions.

7. In such circumstances, we are of the view

that the appellant has successfully discharged her

burden in proving the illness of the respondent. The

only irresistible conclusion that can be drawn in

the absence of any rebutting evidence is that the

illness as above had affected the marital

relationship. The appellant has no case that the

respondent has disclosed about such illness with her

prior to the marriage. The physical inability of the

husband in performing the marital obligation would

amount to cruelty if the same was not disclosed

prior to the marriage to the wife.

8. In the light of the discussions as above, we

are of the view that a decree of divorce has to be

granted to the appellant-wife. Accordingly, we

allow this appeal. The impugned order is set aside.

The marriage between the appellant and the

respondent solemnized on 12.9.2010 is dissolved by a

decree of divorce. The parties are directed to

suffer their respective costs.

All pending interlocutory applications, if any,

are closed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

KAUSER EDAPPAGATH

JUDGE

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