The need for clear-cut findings based on evidence, including cohabitation, medical reports, and direct or circumstantial evidence of wilful refusal, in cases of annulment under the Special Marriage Act, 1954.

1. The respondent in this appeal made an application before the Court below under Section 25 of the Special Marriage Act, 1954 for annulment of the marriage between herself and her husband the appellant. The grounds on which this application was founded were Section 25(i) & (iii). We reproduce the said sections: -

"(i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or

(iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872(9 of 1872):

Provided that, in the case specified in clause (ii), the Court shall not grant a decree unless it is satisfied, -

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(b) that proceedings were instituted within a year from the date of the marriage; and

(c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:

Provided further that in the case specified in clause (iii), the Court shall not grant a decree if,-

(a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or

(b) the petitioner has with his or her free consent lived with the other partly to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered."

2. On 10th April, 2014, the Additional District Judge, 3rd Court, Barrackpore, decreed the suit and cancelled the marriage certificate.

3. The husband appellant appeals before us.

4. In our opinion, he succeeds on one ground. While analysing the evidence, the learned Judge has held as follows:-

"Considering such evidence on record and facts and circumstances of this case I did not find sufficient materials on record to hold that there was a cohabitation in between the petitioner and the respondent since after their alleged marriage and their marriage was duly consummated beyond all probabilities.

Accordingly, this issue is decided in favour of the petitioner."

5. This issue was sufficiently brought out in the pleadings in paragraph 8 of the plaint. It was alleged that "the alleged marriage" was not "consummated as yet owing to the lawful refusal...........of the respondent to consummate........".

Issue No. 4 reads as follows: -

"4. Is the marriage between the parties has been duly consummated?"

6. It is an elementary rule of evidence that one who alleges a fact has to prove it. The facts required to be proved under Section 25(i) of the said Act were:-

i. The marriage had not been consummated.

ii. It was owing to the wilful refusal of the respondent to do so.

7. In our opinion, cohabitation may be a relevant fact but not a fact in issue. The learned Judge was free to enter a finding that there was no cohabitation between the parties. That could have been a relevant fact. His finding that there were insufficient materials to hold that there was cohabitation between the parties was wrongly directed. A finding was required in the negative.

8. Furthermore, the main finding was not arrived at by the learned Judge, namely, whether the marriage had been consummated and whether this was due to the wilful refusal of the respondent.

9. What is to be inferred from the lack of cohabitation?

10. Cohabitation according to the Oxford dictionary (Compact Reference) means living together in a sexual relationship. Whether there was consummation of the marriage or not can be proved largely from the evidence of the parties and partly from the medical reports. Whether there was wilful refusal by the husband may be proved by direct evidence, circumstantial evidence, medical evidence and so on.

11. In a case like this, a clear-cut finding is very important to decide the fate of it. This finding is to a certain extent lacking in the impugned judgment and order.

12. In those circumstances, we remand the case back to