The following topic shall be discussed in reference to CJ Joy vs Shily Mary[1]. In the following case the husband seeks petition on the ground that at the time of the marriage wife was unfit for marriage and the consent so obtained was through fraud.
The facts of the case are as follows: Husband is the petitioner. He seeks a declaration that the marriage between him and the respondent is null and void on the ground that the respondent was impotent at the time of marriage and at the time of institution of the proceedings; that the respondent was a lunatic at the time of marriage and consent of the petitioner for the marriage was obtained by fraud. Parties to the marriage are Christians governed by the Indian Divorce Act, 1869 (for short \’the Act\’). The marriage was celebrated on 26.12.1988 at St. Sebastian\’s Catholic Church, Kottappady. It is alleged in the Original Petition that a representation was made by the respondent and her parents that she (the respondent) was having physical and mental health and she has passed the Pre-degree examination. It is believing this representation that the petitioner consented to the marriage with the respondent. At the time of marriage and immediately thereafter, respondent has shown serious symptoms of psychotic disorders. After the marriage, both of them lived together for a few days in the respondent\’s house. She was exhibiting signs of mental disorder. She failed to perform her marital obligations. The mental disorder made her sexually impotent and cohabitation never took place between the petitioner and the respondent. There after, respondent and the petitioner left for the petitioner\’s house at Kottappady where they lived together for a few days. Respondent was showing symptoms of very serious mental disorder. On 9.1.1989 she attempted to commit suicide. On 20-3-1989 respondent was taken to Nair\’s Hospital, Ernakulam for mental disorder and she had undergone treatment as an inpatient there for about 60 days during intermittent periods. She was an inpatient from 20-3-1989 to 23-3-1989 and thereafter from 10- 4-1989 to 16-5-1989. She told the petitioner that she never wanted to marry and she was forced to do so by her parents. Though on subsequent occasions also the petitioner tried to consummate the marriage, it was not successful. All attempts made by him to have sexual intercourse with the respondent did not materialise due to the impotency (frigidity) of the respondent.
Hence approached the court as in ref. to George Sebastian v. Molly Joseph[2]it was held that a decree of the Court is necessary for declaring the marriage null and void.
Following issues were raised in the case of CJ Joy vs Shily Mary:
(a) Was the respondent impotent at the time of marriage and at the time of institution of the proceedings?
(b) Was the respondent a lunatic at the time of marriage?
(c) Was the consent of the petitioner was obtained by fraud?
Sex is one of the purposes of the marriage. The institution of marriage believes in consummation of the same. Cohabitation is a corollary to the solemnization of the marriage. When it is admitted by either side that the marriage was not consummated and cohabitation did not take place, the very foundation of the marriage is crumpled. Refusal to give reasons for non-consummation of the marriage can lead to an inference regarding impotency of the respondent. In J. Anthony v. M.S. Ammal (MANU/TN/0094/1970 : AIR 1970 Mad 103) the High Court of Madras had occasion to consider a similar question and it was held in a husband\’s petition for declaration of nullity of marriage on the ground of wife\’s impotency, the wife\’s consistent refusal to consummate the marriage and also her refusal to submit herself to medical examination are strong circumstances from which a legitimate inference of her impotency at the time of marriage and also at the time of institution of the proceedings against her, within the meaning of Section 19(1) of the Indian Divorce act, can be drawn. In Vincent Adolf v. Jume Beatrice Rama (MANU/MH/0215/1985 : AIR 1985 Bom 103) Justice Kania (as he then was) had occasion to consider the question whether the wife\’s resistance to the attempts of the husband to have sexual intercourse can be termed to be due to the impotency of the wife and it was held that the courts will infer 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. It can also be held that the wife is impotent qua to the petitioner husband. It was also held that it is not necessary to establish that the wife is impotent generally or physically incapable of the act of sexual intercourse. It is enough that she was impotent qua to her husband.
The evidence in this case shows that the respondent was impotent due to her mental ailments. There is evidence to show in this case that the respondent was lunatic at the time of marriage and it is due to this, she could not consummate the marriage.
When it comes to answering the second issue, the hon’ble court relied on evidences like doctor certificate, case sheets, prescription, etc to infer that the respondent was suffering from mental disorder at the time of wedding as well.
Hence the only other question to be considered is whether the marriage could be declared as null and void on the ground of fraud.
It is in evidence that the fact that the respondent was insane was suppressed from the petitioner as well as his relatives. When the case of the respondent is that she was not insane before marriage, the question of disclosing about the insanity of the respondent to the petitioner before the marriage does not arise. Having come to the conclusion that the respondent was insane before marriage and in the light of the pleadings and evidence adduced in this case, it could be reasonably held that the consent of the petitioner was obtained by suppressing the fact that the respondent was insane. Concealing the fact that one of the parties to the marriage was insane will amount to fraud. Concealment of psychosis, which the respondent had, from the petitioner before the marriage was considered to be a fraud in matrimonial cases which led to a decree of divorce (see : Asha Srivastav v. R.K. Srivastava- AIR 1981 Del 253). A similar view was taken by the Punjab & Haryana High Court in the decision reported in Tarlochan Singh v. Jit Kaur (MANU/PH/0154/1986: AIR 1986 P & H 379) and it was held that concealment of the fact that the wife was suffering from schizophrenia before the marriage will lead to grant of a decree for annulment of marriage as it amounts to a matrimonial fraud.
Concealment of abnormal mental condition of the respondent was sufficient to grant of a decree for nullity of marriage as held in the decision reported in Asha v. Pradeep Shelly (II (1983) DMC 436). Even concealment of vasectomy performed by the husband was considered to be a sufficient ground for annulment of the marriage (see : Valsa v. Moore – 1991 (1) KLT 132 and affirmed by the Division Bench in P.J. Moore v. Valsa – MANU/KE/0035/1992 : AIR 1992 Ker 176).
CONCLUSION
The marriage between the petitioner and the respondent is declared as null and void on the ground that the respondent was impotent at the time of marriage and at the time of institution of the proceedings; she was a lunatic at the time of marriage and that the consent of the petitioner was obtained by fraud. There will be a decree accordingly.
[1] 1995(2)KLJ377
[2] 1994(2) KLT 387 FB
