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Judgment
M. Chockalingam, J.—The suit has been filed for pay a sum of Rs. 15,00,000/- as damages for the wrong done and for the fraud
committed by the defendant''s to the plaintiffs and for costs.
Plaint averments are as follows :
The first plaintiff is the father of the second plaintiff. He states that the mother of the defendant had arranged for the marriage of her son with his
daughter which was per-formed at Loyala College Chappel, Madras-31 on 18-8-96. The first plaintiff states that none of the elders who
participated in the marriaged stated about the impotent and physical debility of the 2nd defendant; that the 2nd defendant was avoiding being in
2nd -plaintiffs company; that the 2nd plaintiff thought that since it was an arranged marriage and till she gets to know the 2nd defendant, that things
would change and their love and affection would blossom and automatically the marriage would be consummated. Even though days and months
passed, the pattern of behaviour of the 2nd defendant did not change bit, instead he was trying to distance himself from the second plaintiff. The
2nd plaintiff did not want to reveal the behaviour of the 2nd defendant to her parents since they would get upset. It could never be accepted that
the first defendant was not aware and could deny that the 2nd defendant was impotent before and at the time of the marriage. The plaintiffs have
been duped by the defendants by arranging the marriage between the second plaintiff and second defendant. Nothing other than exemplary
damages could compensate the plaintiffs for the untold misery caused to the plaintiffs. The second defendant who had filed the written statement in
OMS. No. 46/97 had failed to testify to the same when he was called upon to give evidence before this Hon''ble Court. The learned single Judge
while deciding the case after accepting that the 2nd defendant miserably failed to prove his claim made in his written statement that he is not
impotent and does have a medical certificate to prove the same, has neither filed the said medical certificate nor did he examine himself or the
Doctor who issued the said certificate. The learned single Judge dismissed the plaintiffs petition for nullity of her marriage with the defendant on the
ground that the plaintiff has not fulfilled the ingredients of Section 19 of the Indian Divorce Act and also on the ground of collusion between the 2nd
plaintiff and the 2nd defendant. The plaintiff had preferred an appeal in OSA. No. 50/99 and in the said OSA notice was issued to the defendant
and after another opportunity being given to the defendants, a considered judgment was passed on all counts reversing the judgment of the learned
single Judge on 3-3-99. The plaintiff relies upon the Judgment passed by the Learned single Judge and also the Division Bench Judgment which
clinches the substance that is available to prove the fraud and collusion practised by the defendants in their evil design of destroying the 2nd
plaintiffs life. A sum of Rs. 2 lakhs was given to the 2nd defendant after the marriage and now the said sum was refused to be returned and a civil
suit had been filed before the City Civil Court being O. S. No. 4973/98, which sum was agreed to be paid, but deliberately not paid a Lawyer''s
notice was issued to the defendants on 16-6-99 which was received by the defendants and they still try to maintain in futility that the second
defendant is not impotent. Hence, the present suit for compensation.
In the written statement filed by the 2nd defendant it is contended that the defendant does not suffer from any physical debility and fit enough to
consummate the marriage. The defendant has enough medical proof to show that he is physically fit to perform the sexual act. The non-
consummation of the marriage was only due to the plaintiff weird psychological behaviour. It is false and mischievous to state that the elders in the
family of the defendants were aware of any such thing and planned and cheated the plaintiff. The allegations have been made out in O. M. S. No.
46/97 for the purpose of getting diverse and for harassing the defendants and extracting money from them. The only reason that the defendant did
not appear to give evidence because he was not instructed by his counsel to do so and he was under the bonaflde impression that the written
statement filed was enough. The defendant had examined himself through a well qualified Doctor and the said certificate will be filed in support of
the defendants claim. The defendant was under the bona fide impression that since OMS. 50/ 99 was dismissed, the same findings would be
upheld by the Appellate Court. The defendant denies the claim of Rs. 2 lakhs. The defendant issued reply notice dated 5-7-99 for the plaintiffs
legal notice dated 16-6-99. The defendant states that it was his life shattered and not that of the 2nd plaintiff. Therefore, the suit may be dismissed
with costs.
On the above pleadings the following issues were framed :
i) Whether the plaintiffs are entitled for a sum of Rs. 15,00,000/- as damages for the wrong done and for the fraud committed by the defendants on
the plaintiffs?
ii) Whether the decree and judgment passed in O.S.A. No. 50 of 1999 is not conclusive proof of the non-consummation of the marriage by the
2nd defendant with the 2nd plaintiff?
Issues 1 and 2 .-- The plaintiff has sought for payment of a sum of Rs. 15,00,000/- as damages for the wrong done and for the fraud committed
by the defendants to the plaintiffs.
5A. Mr. P. A. Augustine was examined as P.W. I. He would depose that the 2nd plaintiff is his daughter, and he is the Power of Attorney to
represent his daughter. The marriage between his daughter and the 2nd defendant took place on 18-8-96 at Loyola College Chapel. After the
marriage was solemnised the 2nd plaintiff and 2nd defendant lived in the second defendant''s house viz., 55, Salt Colony, Egmore. They lived
together for 10 months and 2 days. His daughter informed him that the 2nd defendant''s behaviour was not normal and that he had conspired along
with his family members. After his daughter came to his house leaving her matrimonial home, he contacted his counsel for dissolution of marriage.
When he sent a notice to the defendants address stating that they are going to seek for nullity of marriage in view of the non-consummation of
marriage in spite of 10 months of married life, their reply was that they are not Interested in the continuation of the marriage and promised to return
the sum of Rs. 2 lakhs which he had given to his daughter within six months. But the defendant did not do so. On 10-8-97 the plaintiffs went along
with their Advocate Mr. Alex to the defendants house to retrieve things under the instruction of the defendant''s lawyer Mr. Sridharan. But the
outcome of their visit was that there was heated confrontation and they locked the 2nd plaintiff in a room and threatened her to cut her Into pieces.
His daughter filed O.M.S. 46/97 before this Hon''ble Court seeking nullity of marriage. The second defendant her ein appeared through his counsel
and filed counter in the said suit and on enquiry the said suit was dismissed. His daughter filed an appeal in O.S.A. 50/99 which was allowed after
enquiry on 29-4-99. In the said proceedings an application in No. 2294/99 was taken up seeking for submission of both the parties before a
medical board for medical check up. But the second defendant did not appear before the said medical board. It is not correct to state that the
present suit is filed in order to harass the defendants and extract money from them. The 2nd plaintiff was Just 21 years old and had lost her life and
lost their dignity, name and suffered financially by running from pillar to post and by approaching advocates and also the church authorities.
Therefore, filed the present suit seeking compensation of Rs. 15 lakhs. Present the 2nd plaintiff was married to a divorcee and Is leading her life.
Ex. P2 is the copy of the legal notice 2-7-97 given by the 2nd plaintiff to the 2nd defendant. Ex. P3 is the true copy of the, reply from the
defendants side dated 17-7-97. Ex. P4 is the certified copy of the petition filed by 2nd plaintiff in OMS 46/97. Ex. P. 5 is the certified copy of the
written statement filed by the 2nd defendant in OMS 46/97. Ex. P. 6 is the certified copy of the affidavit filed in support of the Application No.
2494/ 98 seeking for potency test. Ex. P7 is the certified copy of the counter file by the 2nd defendant for that application Ex. P 8 is the certified
copy of the deposition in chief of the 2nd plaintiff in the aforesaid proceedings. Ex. P. 9 is the certified copy of the cross examination of the 2nd
plaintiff. Ex. P. 10 is the certified judgment copy in OSA 50/ 99. Ex. P 11 is the copy of the notice dated 16-6-99 filed by the 2nd plaintiff prior to
the suit. Ex P. 12 is the reply dated 5-7 99 to the aforesaid notice.
''The evidence of Mr. Agnatius alias Ronnle examined as D. W. 1 is that the 2nd plaintiff was quite indifferent during their married life. She was
basically not interested in the marriage she was quite young and still continuing her studies. The 2nd plaintiff did not co-operate for sexual
relationship. He has not suffered from any physical debility before and after the marriage and he was fit person to perform the marriage obligations.
The first defendant did not have any knowledge about the happenings and misunderstandings between the 2nd defendant and the 2nd plaintiff. The
2nd plaintiff left the matrimonial home in June/July 1997 on the pretext that her grand-father was ill. Subsequently came home to take back her
belongings. Subsequently the defendant received a telephonic information from the 2nd plaintiffs father stating that the 2nd plaintiff is going to file a
suit for divorce. The 2nd plaintiff was not allowed to speak to the 2nd defendant. A notice was received from the-Court informing that the 2nd
plaintiff had filed a petition seeking nullity of marriage. The suit OMS 46/97 was filed given statement by the 2nd plaintiff that the reason for her
request for nullity of marriage was the non-consummation of marriage because of the 2nd defendant''s physical debility is not correct. She had
stated so because that is the only way she could get the marriage nullified. Initially the 2nd defendant was not in favour of dissolution of marriage
but since the 2nd plaintiff continued to be indifferent towards marriage he accepted. Initially the 2nd defendant did not undergo any potency test
but after receiving notice from the Court, he underwent the test on his own. One Dr. Parthasarathy'' Family Medical Centre, Annanager,
conducted the potency test on D. W. 1 (D.W.1 underwent the said test just to disprove the accusation of the 2nd plaintiff regarding physical
debility. The said doctor gave D. W. 1 a certificate certifying that he is normal and do not-suffer from any physical debility. Though certificate was
issued on 15-10-98 it was not filed in this Hon''ble Court because the lawyer of D. W. 1 told him that it would be filed at the appropriate time.
Even without filing of the said certificate, the O.M.S. 46/97 was dismissed by this Hon''ble Court. D. W. 1 did not know why Ex. Dl certificate
was not filed even during the appeal proceedings as the same was in the custody of his counsel. D. W. 1''s mother the 1st defendant is a diabetic
and heart patient and she is not medically fit to appear before this Hon''ble Court and thus she has asked D.W. 1 to adduce evidence on behalf of
her also 2nd plaintiff had married for the second time and was expecting a child. D.W. 1 is terribly affected because of these proceedings and his
chances of remarriage have also been affected because whenever a proposal of alliance came, the parties demanded the judgment copy of the
decree nullifying the marriage. D. W. 1 stated that he did not receive Rs. 2 lakhs from the plaintiffs and all the wedding expenses were borne by
them amounting to Rs. 1 lakh and more. In 1998, itself the plaintiffs have filed money suit against D. W. 1 for recovery of Rs. 2 lakhs and he is
defending himself in that case and the same is still pending. D.W. 1 is not employed and he is depending on his elder brother for his maintenance.
His elder brother is looking after his family and D. W. 1 is searching for employment. The reason for the 2nd plaintiff filing suit against D. W. 1 is
that they did not want me as a hurdle for the 2nd plaintiffs remarriage and also because they wanted to exercise their control over me. The 2nd
plaintiff also threatened D. W. 1 that she would end her life if D.W. 1 do not co-operate with her in seeking nullity of marriage. Having no other go,
D. W. 1 is co-operating with 2nd plaintiff. There was a chance of re-union between the D. W. 1 and 2nd plaintiff and D.W. 1 had appealed to the
Church authorities in order to save the marriage but the plaintiff side did not appear before the church authorities. Hence the proposal for re-union
has not materialised. D. W. 1''s mother the first defendant is in no way responsible for the alleged sufferings underwent by the plaintiff.
Arguing for the plaintiffs, the learned counsel would submit that the second plaintiff is the daughter of the first plaintiff; that the second defendant
is the son of the first defendant; that after number of meetings and discussions and following the arrangements, the marriage of the second plaintiff
with the second defendant was celebrated on 18-8-1996 at Loyola Church, Madras; that it was presumed that the second defendant was free
from any physical debility and would be able to consummate the marriage thereof; that after the marriage the couple were living at the first
defendant''s house at No. 55, Sait Colony, 2nd Street, Egmore, Chennal 8; that from the very first day for a period of 10 months during the
matrimonial life, the second defendant never disclosed that he was Incapable of having sexual intercourse, but was avoiding on some pretext or
other; that the second plaintiff was with the fond hope that the marriage would be consummated on one day, but at one point of time she was able
to understand that the second defendant was impotent and that they have deliberately suppressed the fact and due to that the plaintiff who could
not bear the mental pain, sufferings and deception left the matrimonial home, went to her parents and informed them about the same and as to the
conspiracy also; that when the first plaintiff asked about the same, there was no reaction on the part of the defendants; that even the attempts for
reconciliation, compromise or mediation or counselling through the lawyer also did not fructify; that the second plaintiff had no other alternative than
to issue a notice stating all the circumstances, as found under Ex. P. 2, which resulted in a reply of the second defendant as found under Ex. P 3;
that a perusal of Ex. P3 would clearly reveal that the second defendant has not answered in respect of the allegations as to his impotency, but on
the contrary he requested two months'' time for payment of Rs. 2.00 lakhs what they received at the time of the marriage; that the second plaintiff
under the stated circumstances filed O.M.S. 46/97 seeking dissolution of marriage on the ground of impotency. The second defendant seriously
contested the suit and on trial, the learned single Judge dismissed the suit; that aggrieved by the said judgment, the second plaintiff filed O.S.A.
50/99; that the Division Bench of this Court after full consideration of the facts and circumstances, rival pleadings and evidence granted the relief of
dissolution of marriage and set aside the judgment of the learned single Judge; that the plaintiff has filed a suit for recovery of Rs. 2.00 lakhs which
was given at the time of the second plaintiffs marriage; that the plaintiffs have filed this suit for damages due to fraud, pain and mental sufferings,
loss of status and deprivation of the marriage life of the second plaintiff for the stigma caused for the family of the plaintiffs; that P.W. 1 for himself
and on behalf of his daughter the second plaintiff herein has categorically deposed as to the fraud played on them and the suppression of the
impotency and the loss of reputation and stigma to the family. Added further the learned counsel that the second defendant has taken the stand that
he was not suffering from any physical debility in all the earlier proceedings; that the contention of the defendants'' side that the second defendant
has undergone the potency test, sine the medical science would require in order to confirm the same is false; that the further contention of the
defendants'' side that Ex. D1 certificate would clearly speak of the potency of the second defendant has got to be rejected since Ex. Dl certificate
has been given only on the basis of the semen analysis and it was not on the basis of the potency test and apart from that Ex. Dl certificate bears
the date as 15-2-1998, but in the earlier proceedings the written statement was filed on 4-7-98; that the second defendant has categorically
deposed that what was referred to in the written statement in O.M.S. was Ex. Dl and thus it would be clear that on the date of filing the written
statement on 4-7-98, Ex. D1 certificate was not at all available with the second defendant and hence Ex. Dl certificate should have come into
existence during the pendency of this proceedings; that the Division Bench of this Court has much commented upon the second defendant''s
conduct in not examining himself as a witness to rebut the case of the plaintiffs side and as to the non production of the medical certificate what was
referred to in the written statement; that the Division Bench has categorically analysed the whole facts and circumstances and the evidence adduced
both oral and documentary and has arrived at a correct conclusion that the marriage could not be consummated only due to incapability and
impotency of the second defendant and the said judgment has become conclusive, since no appeal has been preferred and now it would be too
late for the defendants to state that the second defendant is well fit for sexual acts and the marriage could not be consummated because of the age,
and lack of co-operation on the part of the second plaintiff and if is pertinent to note that the second plaintiff was 22 years at the time of the
marriage; that there is overwhelming evidence indicating that the defendants have suppressed the impotency of the second defendant, played fraud
on the plaintiffs and have conducted the marriage and even subsequent to the conduct of the marriage, they have suppressed the same and in
particular the second defendant has suppressed the same during the period of 10 months of short matrimony and not satisfied with all the above,
the second defendant contested both the suit and the appeal and thus the defendants are responsible for mental agony and sufferings; that it is true
that the second plaintiff due to her advanced stage of pregnancy, was not examined in Court; that the first plaintiff for himself and as the power of
attorney of the second plaintiff was examined as P.W. 1; that by his clinching oral evidence and documentary evidence, the plaintiffs have proved
their claim and hence the suit has got to be decreed.
Countering to the above contentions, the learned counsel appearing for the defendants would submit that before the marriage the defendants did
not have knowledge that the second defendant was impotent and had physical debility; that the alleged conspiracy was neither explained nor
proved; that immediately after the second plaintiff got a decree of nullity, she got remarried and now she is living happily with a child; that the
plaintiffs have no proof for the alleged mental depression and humiliation; that there is no proof to show that the second plaintiff had any treatment
for such mental depression; that after leaving the matrimonial home the second plaintiff had given a notice for breaking the marriage; that it is not
explained what prevented her from pressing the second defendant for a medical check up and treatment through elders and the church; that Instead
of doing so, they rushed to the Court by way of this civil action; that the period of ten months is too short for losing hopes of becoming a mother;
that in a physical relationship between the spouses, psychological factors play an important role, that the second defendant always denied that there
was nothing wrong with him and it was the second plaintiff who avoided sexual life on flimsy grounds; that it is the second plaintiff who moved the
Court for annulling a Christian marriage and not her husband; that the second plaintiff filed the said O.M.S. for nullity of the marriage on the
grounds of adultery and impotency only with the consent of the second defendant; that he was asked to appear and file a written statement also
and abandon the case after that in order to get an order on merits as exparte decree is not considered by the church or proposers for a remarriage;
that he was threatened through all women police when he wanted to file a medical certificate for potency obtained from a well qualified specialist in
October 1998 itself; that the second plaintiff also threatened to end her life, and put the blame on the defendants if the second defendant defended
on O.S.A. 50/99 which ultimately was allowed almost without any representation from the second defendant''s side; that D2 has produced and
marked the said medical certificate and also explained the reason for delay; that Ex. Dl is a genuine document and the delay cannot take away its
strong bearing on the present case; that the second defendant is the actual affected person; that though he is fit and wants to settle in peaceful
married life, the decree of nullity passed by the Court on the ground of is alleged impotency will remain a permanent stumbling block for a
remarriage, as his church will not approve any marriage proposal; that the second plaintiff who is supposed to be the affected person, alone can
speak or answer the minute details regarding her conjugal relationship, but she refrained from examining herself as a witness and thus depriving the
defendants a chance for eliciting the crucial facts; that the first defendant, an aged mother of D2 has nothing to do with the problems between her
son and his wife and she has been unnecessarily dragged into the Court; that the present proceedings has been initiated with the sole motive of
exercising undue influence and control over the second defendant, as the plaintiffs anticipated that he would interfere with the proposed re-marriage
of the second plaintiff and spoil the chances as he had stated in his reply notice dt. 5-7-99 that he was taking steps to challenge the decree in
O.S.A. and also is defending the money suit filed by the plaintiffs; that the plaintiffs have failed to prove the claim and hence the suit is liable to be
dismissed.
The plaintiffs have come forward with the civil action for recovery of an amount of Rs. 15.00 lakhs towards damages for the wrong done and
for the fraud committed by the respondents.
The facts admitted by the parties could be briefly stated as follows :
The marriage between the second plaintiff who is the daughter of the first plaintiff and the second defendant, son of the first defendant was
solemnised on 18-8-1996 as per the Romah Catholic rites at Loyola Church, Nungambakkam, Madras. The second plaintiff lived with the second
defendant in his house for a period of 10 months therefrom. During the said period, there was no consummation of marriage. The second plaintiff
left the matrimonial home on 19-6-1997. The second plaintiff through her lawyer issued a notice under Ex. P2 on 2-7-1997 stating that the
marriage could not be consummated because of the impotency of the second defendant. The second defendant issued a reply under Ex. P3 dated
17-7-1997 denying the contents of the second plaintiffs notice under Ex. P.2. Following the exchange of notice, the second plaintiff filed
O.M.S.,46/97 seeking declaration of the said marriage between the parties as null and void. The second defendant seriously contested the claim of
the second plaintiff by filing a written statement. The certified copy of the petition and the written statement in O.M.S. No. 46/97 are marked as
Exs. P4 and P5 respectively. Aggrieved by the dismissal of the suit by the single judge, the second plaintiff preferred an appeal in O.S.A. 50/99.
The Division Bench of this Court allowed the appeal, set aside the judgment of the learned single judge and granted a declaration as asked for by
the second plaintiff. The judgment in O.S.A. No. 50/99 is marked as Ex. P. 10. The plaintiff has filed a civil action in O. S. 4973/98 for recovery
of Rs. 2.00 lakhs which was given to the defendants at the time of the marriage and it is pending.
The plaintiffs have filed the civil action for recovery of damages, alleging that the defendants fraudulently and deliberately suppressed the
impotency of the second defendant prior to the marriage and even subsequent to the marriage for a period of 10 months when the second plaintiff
lived with the second defendant and thereby they have ruined the young life of the second plaintiff and they are responsible for causing fraud, pain
and mental sufferings, loss of status and deprivation, of the marriage life of the second plaintiff for the stigma caused for the family of the plaintiffs.
Both the defendants have seriously contested the suit stating that it is an utter falsehood to state that the second defendant is impotent, but he was
physically fit for sexual acts and the non consummation of the marriage was only due to the total unwillingness and lack of stimulation and through
non co-operation on the part of the second plaintiff. It is an admitted position that the marriage between the spouses was an arranged one and
hence prior discussions about everything would have preceded the solemnization of the marriage. In the instant case, the defendants have come
forward with the defence stating that the second defendant was physically fit for sexual acts. It is not in dispute that though the couple lived under
the same roof, for a period of 10 months, there was no consummation of marriage at all. The second plaintiff who became completely frustrated,
left the matrimonial home and has caused a notice issue to the second defendant through her lawyer as found under Ex. P.2, wherein she has
specifically stated that the second defendant failed to consummate the marriage, even after having had adequate opportunity because of his lack
manliness and which led to the irresistible conclusion that he could not fulfil his fundamental obligations of the matrimony. On receipt of the said
notice under Ex. P2, the second defendant through his lawyer issued Ex. P3 reply wherein he has not specifically denied the averment that he has
failed to fulfil his obligations of matrimony. But on the contrary he has stated as follows :
Our client is not interested in continuing with the marriage solemnized with your client on 18-8-1996. Our client is prepared to return the amount
of Rs. 2 lakhs within 6 months, which time he require for arranging the same.............. Our client is prepared for an amicable settlement and you
may inform us the further course of action to be taken in this matter .
Following the exchange of the said notices, the second plaintiff sought for dissolution of the marriage by filing-O.M.S. 46/97 on the ground of
impotency of the second defendant herein and the said suit was contested by the second defendant alleging that the marriage did not consummate
because of her age, unwillingness and non co-operative attitude. On trial the learned single Judge dismissed the suit in the ground that the petitioner
therein has not proved the ground of impotency and apart from that it was a collusive suit. Aggrieved by the said dismissal, the second plaintiff
herein filed O.S.A. 50/99. The Division Bench of this Court, after full consideration of the matter allowed the appeal, set aside the judgment and
decree of the learned single Judge and granted a declaration that the marriage that took place between the second plaintiff and the second
defendant on 18-8-96 is null and void. It is an admitted position that the judgment rendered by the Division Bench of this Court declaring the
marriage of the parties as null and void has not been appealed against and has become final. At this juncture it has become necessary and more
advantageous also to refer to the relevant portions of the judgment of the Division Bench since they have got direct bearing on the issue whether
the second defendant was potent or not.
During the pendency of the trial in O.M.S. 46/97, the second plaintiff had taken out an application in No. 2294/99 to direct the second
defendant to submit himself before the Medical Board for ascertaining his potency, and for a report to the court. The second defendant, husband
had filed an affidavit stating that he would rely on the medical report referred to in his written statement during trial. But he did not file any medical
certificate to substantiate his potency. It is pertinent to note that the aggrieved wife seeking relief of annulment of marriage on the ground of
impotency of her husband has examined herself and has spoken to all the averments made in her case. It could also be seen from the Judgment in
that case that she was even prepared to submit herself for medical examination to prove that she was perfectly alright, and the consummation of
marriage was never prevented by her health or otherwise in any way and she was also cross-examined. The Division Bench has pointed out that
when the turn of the husband came to adduce evidence, neither he chose to adduce evidence nor he attended the Court and thus he has denied to
the petitioner therein the opportunity of cross-examining him. Taking into consideration of all the aforestated reasons, the Division Bench has
observed as follows :
The reasonable inference, having regard to this conduct of the respondent in the background of the pleadings in the case and the evidence given by
the wife is that the respondent was incapable of consummating the marriage, and that debility continued even when the matter was taken up for
trial. Any man, who has no doubt about his potency, would not decline to submit himself to medical examination to establish that fact. Though the
respondent had claimed that he had been medically examined, and he had a report, no such report was placed before the Court. He was also
unwilling to submit himself to medical examination. The wife offered to have herself medically examined. The respondent did not call upon her to
undergo such examination that would to show that his allegation that she was responsible for the marriage not being consummated, was incorrect.
The only reasonable Inference from the facts proved in the case and the conduct of the parties is that the husband was incapable of consummating
the marriage.
Much relying on the medical certificate now produced by the second defendant during the pendency of this proceedings and marked as Ex. Dl
the learned Counsel for the defendants would submit that Ex. D1 is the genuine document which cannot be challenged; that the second defendant in
his evidence has well explained the reasons for the delay in the production of the said document and the delay in the production of the same cannot
be taken as a ground to reject his defence of potency. After perusal of Ex. d1 medical certificate, the court is of the view that no evidentiary value
could be attached to the said document. The said medical certificate under Ex. Dl is dated 15-10-1998. The second defendant has admitted that
he signed Ex. P5 written statement on 4-7-1998 and it was Ex. D1 certificate that was referred to in the said written statement filed in OMS
46/97. Since Ex.Dl certificate is dated 15-10- 98 only, the same could not have been available in the hands of the first defendant when the written
statement was signed on 4-7-98, and thus it would be clear that this Ex.Dl document could have come into existence subsequently and brought
about to suit the defence in this case. Apart from that the defendants have not examined any medical person either to prove Ex. Dl or to prove the
contents therein. The explanation tendered by D.W. 1 that the said certificate under Ex. D1 was not filed in the earlier proceedings since the
counsel who appeared then told him that it would be filed at an appropriate time, but he did not file the same. It remains to be stated that the
second defendant has contested the proceedings both in OMS 46/97 and in OSA 50/99, wherein he was represented by the same counsel. All the
above would indicate that no such document was available for production either before the learned single Judge or before the Division Bench.
As seen from the earlier proceedings between the parties, the second plaintiff sought for a declaration that her marriage with the second
defendant is null and void only on the ground of the impotency of the second defendant and the Division Bench has granted the relief as asked for
on the ground that the husband was incapable of consummating the marriage. Admittedly the said judgment of the Division Bench in OSA 50/99 is
not appealed against. Hence the said judgment passed by the Division Bench has become final and conclusive proof of the non-consummation of
the marriage by the second defendant with the second plaintiff. At this stage, all the contentions put forth by the defendant''s side that the second
defendant was fit for sexual acts and it was only the second plaintiff who was responsible for the non-consummation of the marriage, have got to
be rejected as devoid of merits. As held in the earlier proceedings during the marital life of 10 months, the marriage could not be consummated
solely due to the second defendant''s incapability and impotency. The available evidence and the circumstances would indicate that the defendants
who had the thorough knowledge of the impotency of the second defendant have deliberately suppressed the said fact and deceived the second
plaintiff and her parents. Had it been brought to the notice earlier, the marriage of the second plaintiff who was 21 years old then with the second
defendant, would not have been solemnised at all. Under the stated circumstances the contention of the plaintiffs'' side that the defendants are
responsible for causing mental agony has got to be accepted. The learned counsel for the defendants brought to the notice of the court that even
during the pendency of the earlier proceedings, arrangements for the second marriage of the second plaintiff were going on and subsequent to the
judgment in OSA 50/99 the second plaintiff has got married for second time and she is living happily and thus the reasons adduced for seeking
damages are neither sufficient nor satisfactory, but motivated to harass the defendants. Admittedly the second plaintiff lived with the second
defendant for a period of 10 months, during which there was no consummation of marriage which was solely due to the impotency on the part of
the second defendant. When a notice was issued stating the said ground, the second defendant did not come with the reply specifically denying the
same. But on the contrary the second defendant would say that he was ready to pay back Rs. 2.00 lakhs what he received at the time of the
marriage. When the wife moved the court by filing OMS 46/97, he has not only contested the same, but also has not cared to give evidence or to
attend the court at the stage of the defence. Aggrieved by the dismissal of OMS, when an appeal was filed by the wife before the appellate forum,
there also the husband contested the same by appearing through his counsel. The Court is of the view that all the above are aggravated
circumstances, apart from the deliberate suppression of his impotency even before the arrangement of the marriage. It is true that the second
plaintiff after a declaration by a court of law that her earlier marriage with the second defendant was void has contracted second marriage after
sometime. Having suppressed his incapability even prior and subsequent to the marriage for a period of 10 months, the second defendant cannot
now be permitted to say that the second plaintiff has contracted the second marriage and therefore she is not entitled for damages for the mental
pain and sufferings undergone by their family. No doubt the defendants were responsible for the pain and mental sufferings experienced by the
second plaintiff and her parents by suppressing the fact of incapability of the second defendant and hence they are liable to compensate the same
by way of paying damages to the plaintiffs.
Coming to the question of damages, the plaintiffs have claimed a sum of Rs. 15.00 lakhs for the wrong done and for the fraud committed by
the defendants. It is not in dispute that at the time of the marriage, the second plaintiff was 21 years old. As pointed out above, had the defendants
made expression of the impotency of the second defendant, the plaintiffs would have dropped the engagement itself. But the defendants who
thoroughly knew about it have committed a serious wrong by suppressing the same and thus the marriage of the second plaintiff with the second
defendant had taken place, following the said deception. Though the second plaintiff had lived with the second defendant for a period 10 months,
she was thoroughly denied of the sexual pleasure. Needless to say that the denial of the sexual activity in marriage would bring forth very
unfavourable influence on a woman''s mind and body which leads to depression and frustration. There cannot be anything more fatal to marriage
than disappointing any sexual intercourse. In the instant case, the second defendant who was unable to discharge his marital obligations because of
his impotency was evading the same on flimsy reasons, without disclosing the true state of affairs. Both the defendants were responsible for the
alleged suppression of the impotency of the second defendant. The second defendant who was living with his wife for a period of 10 months has
not only made a deliberate suppression during the short course of matrimony, but has contested all the proceedings put forth by her alleging that he
was potent and thus the defendants were responsible for deprivation of the married life of the second plaintiff till she got remarried, after obtaining
the orders of declaration by the court of law. As rightly pointed out by the learned counsel for the plaintiffs, this would have caused pain and mental
suffering not only to the second plaintiff but her parents also. The learned counsel for the defendants pointed out that the second plaintiff who is
supposed to be the affected person alone could speak about her marital relationship, but has refrained from examining herself as a witness and thus
deprived the defendants a chance for eliciting the crucial facts. It is true that the mental pain and sufferings experienced by the second plaintiff
should have been spoken to only by her, since they are subjective in character. But the second plaintiff has not been examined. The Court is of the
view that on that ground the claim made by the plaintiffs cannot be rejected. In the instant case the first plaintiff who is the father of the second
plaintiff has also filed a power of attorney. As stated above in the instant case the plaintiffs put forth acceptable and satisfactory evidence proving
the fraud and deception played on them, thereby causing mental agony and sufferings to the plaintiffs. Here is a case where the defendants by the
suppression and the fraud of impotency of the second defendant have not only made the other spouse viz. the second plaintiff to suffer but also
made her parents to undergo mental agony. Under the circumstances, the court is of the firm view that interest of justice would be best met by
awarding damages only to the extent of Rs. 1.00 lakhs to the plaintiffs. The above issues are answered accordingly .
In the result, this suit is decreed fixing the damages at Rs. 1.00 lakh only, payable by the defendants with interest at 12% per annum from the
date of plaint till payment. The plaintiffs are entitled to get proportionate costs.