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Vijayan Alias Mathew Vijayakumar v. Bhanusundari .
Written Opinion Summary — Srinivasan, J.
Factual and Procedural Background
The parties were married on 4-2-1987. The petitioner stated that there was no sexual relationship after the marriage; on 8-2-1987 the respondent agreed to consummate but the petitioner discovered she was affected by leucoderma and consummation did not occur. The respondent left the marital house with her belongings. On 11-8-1988 the respondent, through a lawyer, informed the petitioner that a female child was born to her on 6-11-1987 and called upon the petitioner to lead marital life with her. The petitioner replied (dated 31-3-1988) denying any sexual relations and asserting he was not responsible for the child, alleging the respondent had lived in adultery (without naming any co-respondent).
The petitioner filed a petition under S.10 and S.18 of the Indian Divorce Act. The respondent filed a counter-statement denying the petitioner's allegations and asserting the child was the petitioner's. At hearing the respondent's counsel reported no instructions and the respondent later remained absent/ex parte at the District Court proceedings.
The District Judge (Additional District Judge, Thirunelveli) set the respondent ex parte and declared the marriage null and void. The matter was before the court for confirmation of that decree. The petition had been originally filed in Chengalpattu (I.D.O.P. No.109 of 1988) and transferred to Thirunelveli where it was numbered I.D.O.P. No.51 of 1992. The respondent had earlier filed a petition for restitution of conjugal rights (I.D.O.P. No.78 of 1988) which was dismissed for default.
Legal Issues Presented
- Whether the District Judge had jurisdiction to declare the marriage null and void on the ground that the petitioner's consent was allegedly obtained by fraud.
- Whether the petitioner could obtain a decree under S.10 of the Indian Divorce Act without impleading the alleged adulterer as co-respondent or obtaining permission under S.11 to proceed without impleading the co-respondent.
- Whether the evidence on record was sufficient to support a decree of nullity or divorce in favor of the petitioner given the inconsistencies in the petitioner's case and the absence of proof of adultery.
Arguments of the Parties
Petitioner's Arguments
- The petitioner alleged there was no consummation of the marriage because the respondent was affected by leucoderma, discovered before any sexual relationship.
- The petitioner maintained he had no sexual relationship with the respondent and therefore could not be the father of the child born on 6-11-1987; he suggested the child indicated the respondent had lived in adultery.
- The petitioner sought relief under S.10 (divorce for adultery) and S.18 (nullity) of the Indian Divorce Act.
Respondent's Arguments
- The respondent denied the petitioner's allegations and stated that the child born on 6-11-1987 was the child of the petitioner.
- At the court hearing the respondent's counsel reported no instructions and the respondent remained absent at trial and at other proceedings.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court examined the petition, the petitioner's deposition (PW1), the notices marked Ex. A1 (respondent's notice) and Ex. A2 (petitioner's reply), and the procedural posture (respondent's ex parte status). The court identified material inconsistencies between the petition and the petitioner's evidence: in the petition the petitioner alleged no consummation and that he discovered the respondent's leucoderma prior to any sexual relationship; in his testimony he stated that he repeatedly invited the respondent to return and live with him in person and by messengers, which the court found inconsistent with a claim that the child could not be his or that the respondent was living in adultery with a third person.
The court further analysed jurisdictional and procedural requirements under the Indian Divorce Act: for a petition under S.10 (divorce on grounds of adultery) the petitioner was required either to implead the alleged adulterer as co-respondent or to obtain permission under S.11 to proceed without impleading the co-respondent; the petitioner had done neither. For a decree of nullity under S.18 the petitioner had not pleaded any of the specific grounds set out in S.18. The petitioner instead relied on an allegation that consent was obtained by fraud, which falls within the High Court's exclusive jurisdiction under the last paragraph of S.19 ("Nothing in this section shall affect the jurisdiction of the High Court to make decree of nullity of marriage on the ground that the consent of either party was obtained by fraud or force."), and therefore the District Judge lacked jurisdiction to grant nullity on that ground.
The court emphasised that the respondent's ex parte status did not entitle the petitioner automatically to the decree; the petitioner still had to prove the statutory grounds required for the relief sought. Given the inconsistencies in the petitioner's evidence and the absence of impleaded co-respondent or permission under S.11, and no proof of adultery, the court concluded the materials on record were insufficient to support the decree.
Holding and Implications
Holding: The decree of the Additional District Judge, Thirunelveli in O.P. No.51 of 1992 declaring the marriage null and void is set aside and the original petition is dismissed.
Implications:
- The immediate consequence is that the decree of nullity passed by the District Judge is held invalid for lack of jurisdiction and the petitioner's application is dismissed.
- No divorce or nullity decree is granted in favour of the petitioner; the court noted that the petitioner could not proceed under S.10 without impleading the alleged adulterer or obtaining S.11 permission, and that nullity on the basis of fraud in consent is within the High Court's jurisdiction under S.19.
- The opinion does not announce any broader precedent beyond its application of the statutory jurisdictional rules of the Indian Divorce Act to the facts of this case; it confines its effect to the parties and the setting aside of the District Judge's decree.
Result: Petition dismissed.
Srinivasan, J.:—This matter comes for confirmation of decree, declaring the marriage between the petitioner and the respondent, which took place on 4-2-1987 as null and void.
2. In the original petition the petitioner has stated that after the marriage was performed on 4-2-1987, there was no sexual relationship between him and the respondent. On 8-2-1987, she agreed for consummation, but the petitioner was shocked to find that she was affected by leucoderma and there was no consummation on that day also. When he questioned her, the respondent said that her parents would have disclosed that fact prior to the marriage. The respondent left the house with all her belongings. She sent a notice on 11-8-1988 through a lawyer to the petitioner informing him that a female child was born to her on 6-11-1987 and called upon the petitioner to lead marital life along with her. The petitioner sent a reply stating that he had no sexual relationship with her and he could not be made responsible for the child born to her. According to him, the birth of the child shows that the respondent is living in adultery. But the petitioner has not chosen to mention the name of any person with whom the respondent was living in adultery according to him. He has filed the petition under S. 10 as well as S. 18 of the Indian Divorce Act. For the purpose of Sec. 10 of the Act, the petitioner is bound to implead the adulteror as correspondent or he has to obtain permission under S. 11 of the Act for proceeding with the petition without impleading the co-respondent.
3. For the purposes of S. 18 of the Act, there are only certain grounds under which a decree of nullity can be prayed for. The petitioner has not set out any of the grounds set out in S. 18 of the Act. On the other hand, the petitioner has stated that he is entitled to get the marriage declared to be null and void as his consent for the marriage was obtained by fraud and deceitful means.
4. The respondent filed a counter statement, denying the allegations made by the petitioner and also stating that the child was born to her as a result of the sexual relationship between her and the petitioner. However, respondent's counsel reported no instructions when the matter came before the court for hearing.
5. The petitioner gave an evidence as PW 1. In his evidence he has stated that the respondent refused to have consummation on the ground that she had a disease and if there was sexual intercourse he would get the disease. In spite of the petitioner calling her several times in person and through messengers, the respondent did not choose to come and live with him. This version of the petitioner shows that he is not speaking the truth. In the petition his case is that before he could have sexual relationship with the respondent, he discovered that she was suffering from leucoderma and there was no consummation of marriage between them. But in the evidence he chooses to say that he invited her in person to come back and live with him and also sent word through messengers and she refused to do so. This also disproves the case of the petitioner that the child born on 6-11-1987 was not his child. If really the petitioner's stand was that the child was born out of adulterous connection between the respondent and a third person, he would not have requested the respondent repeatedly, in person and through messengers to come and live with him. Thus a reading of the deposition of the petitioner itself shows that he is not speaking the truth. The notice issued by the wife on 11-8-1988 is marked as Ex. A1 and the reply sent by the petitioner dated 31-3-1988 is marked as Ex. A.2 The notices do not improve the case of the petitioner in any manner.
6. Unfortunately, on the basis of the deposition given by the petitioner and taking note of the fact that the respondent has remained ex parte, the learned District Judge has proceeded to declare the marriage as null and void without looking into the provisions of law. The learned District Judge has completely ignored the fact that there is no ground available to the petitioner under S. 18 and S. 19 of the Act to have the marriage declared null and void. The only ground alleged by the petitioner is that his consent for the marriage was obtained by fraud and deceitful means. With that ground the petitioner cannot maintain a petition in the court of the District Judge. On that ground it is only the High Court which has jurisdiction to grant a decree of nullity of marriage. Last paragraph of S. 19 reads thus:
“Nothing in this section shall affect the jurisdiction of the High Court to make decree of nullity of marriage on the ground that the consent of either party was obtained by fraud or force.”
7. Hence the decree, declaring the marriage to be null and void is invalid null and void as the District Judge had no jurisdiction to pass such a decree.
8. It is also not possible for us to grant a decree for divorce under S. 10 of the Act as the co-respondent has not been impleaded in this case and the petitioner has not obtained permission under S. 11 of the Act. Moreover, there is no proof to show that the wife is living in adultery or leading an adulterous life with some other person.
9. In the circumstances, there is no alternative but to dismiss the original petition.
10. We must also mention one other fact. The respondent had filed a petition for restitution of conjugal rights in I.D.O.P No. 78 of 1988 on the file of the District Court Tirunelveli. The petitioner had filed this original petition on the file of the District Court, Chengalpattu and it was numbered as I.D.O.P No. 109 of 1988. On an application in this court, an order was passed transferring I.D.O.P No. 109 of 1988 from the court of Chengalpattu to the Court of Thirunelveli. There it was numbered as I.D.O.P No. 51 of 1992. When the matters came up for hearing the respondent remained absent and her petition for restitution of conjugal rights was dismissed for default.
11. In this petition the District Judge set the respondent ex parte and proceeded to pass a decree as stated earlier. Just because the respondent remained ex parte, the petitioner is not entitled automatically to get a decree as prayed for by him. He has to prove and make out the grounds required for getting such a decree. As the materials on record are not sufficient to grant a decree, we are of the view that this petition shall be dismissed.
12. In the result, the decree passed by the Additional District Judge, Thirunelveli in O.P No. 51 of 1992 is set aside and the original petition is dismissed.
13. Petition dismissed.
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