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Judgment
The plaintiff/wife preferred a petition under S. 18 read with Section 19(1) of the Indian Divorce Act, 1869, for a declaration that the marriage
between the plaintiff and the defendant solemnised on 3-4-1986 is null and void on the ground that the husband/defendant was impotent on the
date of marriage and also at the time of institution of the suit.
The defendant, though received summons from the principal Family Court at Madras, chose to remain ex parte and consequently, the Court was
left with no other option but to decide the matter in his absence. The defendant remained ex parte before this Court also.
In the plaint, in support of her case, the wife was stated that the marriage between her and the defendant was solemnised as per Christian rites at
St. Thomas Basilica at Madras on 3-4-1986. For a long period, the defendant made no attempt to consummate the marriage. They went to Ooty
on 5-4-1986 to enjoy their honey-moon and stayed there till 11-4-1986. Even at that time, the respondent made no attempt to consummate the
marriage. This fact was made known to the father of the plaintiff and through her father, to the sister of the defendant by name Mrs. Lilly
Devadoss. The matter was discussed among them. At that time, the defendant expressed his inability to perform sexual intercourse with the
plaintiff. Her request to undergo a medical examination by a psychiatrist by name Dr. Raj Kumar was turned down by the defendant. Soon after,
the defendant began to shout at the plaintiff even for small matters, presumably out of frustration and also as a result of his physical incapacity to
perform sexual intercourse. It is further stated that the defendant started suspecting the conduct of the plaintiff whenever she talked with her close
relations or friends of her father. The plaintiff, unable to put up with such type of torture, had no other alternative but to cease to live with the
defendant from 29-4-1986. According to the plaintiff, the defendant had been an impotent prior to and at the time of the marriage and continued to
be so even on the date of the filing of the plaint. Under those circumstances, the suit for declaration as stated above, was filed.
The plaintiff as P. W. 1 has stated in her evidence that in spite of her best efforts, she could not persuade the defendant to have sexual
intercourse with her. The marriage was not consummated. The defendant was impotent at the time of marriage and also at the time of the institution
of the suit, and that she is living separately from 29-4-1986. There was no collusion.
From the pleadings, supported by the evidence, and in the absence of any contest by the defendant, no other conclusion is possible except to
hold that the plaintiff was entitled to the declaration prayed for. Accordingly, the Court below declared that marriage between plaintiff and the
defendant as null and void, subject to confirmation by this Court under S. 20 read with S. 17 of the Indian Divorce Act, 1869.
After going through the pleadings and the evidence, the judgment of the Court below and also the arguments of the learned counsel on both
sides, we had no hesitation to concur with the conclusion reached by the Court below. However, the learned counsel appearing for the defendant
as Amicus Curiae raised a technical point stating that the judgment rendered by the Family Court was without jurisdiction in the light of a Full
Bench decision of this Court in Mary Thomas v. Dr. K. E. Thomas, reported in 1982 LW 344.
On a careful reading of the judgment of the Full Bench, we find that the question referred to the Full Bench for consideration was (as set out by
the Full Bench) as follows :
Whether after the Constitution of the Family Court for the Madras area, the Original Jurisdiction of the High Court in respect of matters that may
fall under the Explanation to S. 7 of the Act is ousted or not?
The conclusion reached by the Full Bench on the above question is as follows :--
After the Constitution of the Family Court for the Madras area, the Original Jurisdiction of the High Court in respect of matters that may fall under
the Explanation of S. 7 of the Act is not ousted and the High Court can continue to exercise its jurisdiction notwithstanding the coming into force of
the Family Courts Act, 1984.
From the above, it is clear that the ratio of the Full Bench decision is to the effect that even after the coming into force of the Family Courts Act,
1984, this Court continues to exercise its jurisdiction in respect ot matters falling under Explanation of S. 7 of the Act. In other words, the Full
Bench has not given any opinion to the effect that the Family Courts established under the provisions of the said Act will have no jurisdiction to
deal with the matters that fall under the Explanation of S. 7 of the Act. It cannot be disputed that the Principal Family Court, Madras, which has
decided the suit is one established under S. 3 of the Family Courts Act and consequently the jurisdiction conferred on such Court under S. 7 is
exercisable by it. We, therefore, hold that in respect of matters that may fall under Explanation of S. 7 of the Act, the Family Court/Courts as well
as this Court (on its Original Jurisdiction) will have concurrent jurisdiction. Consequently, we overrule the technical objection raised by the learned
counsel for the defendant.
As pointed out earlier, we concur with the conclusion reached by the Court below. Accordingly, we confirm the decree of the Court below
declaring the marriage between the plaintiff and the defendant as null and void. No costs.
Order Accordingly.