The main legal point established in the judgment is that wilful refusal to consummate the marriage, as defined in clause (vii) of sub-section (1) of Section 10 of the Divorce Act, 1869, can be grounds for dissolution of marriage.

Sankaran, J.

The questions involved in this Matrimonial Appeal are: (1) Whether a petition for dissolution of marriage filed by the husband on the ground that the wife wilfully refused to consummate the marriage and the marriage has not therefore been consummated [which is a ground for dissolution of marriage under clause (vii) of Section 1 0 introduced by The Indian Divorce (Amendment) Act, 2001, Act 51 of 2001 by the substitution of Section 10 of The Divorce Act, 1869] is liable to be dismissed on the ground that the Petition was filed twelve years after the marriage and therefore the petitioner is guilty of unreasonable delay in presenting the petition within the meaning of Section 14 of the Act, when the petition was presented within reasonable time after the commencement of Act 51 of 2001? (2) Whether refusal by the wife to consummate the marriage on the ground that there is likelihood of her begetting children with mental disorder as the relatives of the husband have children with mental retardation, amounts to wilful refusal to consummate the marriage?

2. The parties are Indian Christians. Their marriage was solemnized on 29-8-1991 at St. Mary's Malankara Syrian Catholic Church, Vettiyar. The husband was working as a Mechanical Engineer in H.M.T. Kalamassery at the time of marriage. After the wedding, for three days, the parties stayed at Bharat Tourist Home, Ernakulam. According to the husband, the wife did not co-operate for sexual union during those days and thereafter. According to him, he took a sympathetic attitude towards his wife since he had lost her father before the marriage. The husband secured a job in Saudi Arabia in 1995 and he left India. According to the husband, he used to talk to the wife over phone. He even purchased a Maruti 800 car and gifted to his wife. All the needs of the wife were satisfied by him, at the request of the wife. At the request of the wife's people, the F.D. receipts in the name of the wife were returned by the husband. In spite of his such attitude towards his wife, she did not co-operate and the marriage was never consummated. The mother of the husband committed suicide on 25-6-2003. He came back to India. In spite of this tragic event, the wife remained unchanged. It is stated in the petition as follows:

"Hence even though the petitioner and the counter petitioner acted as husband and wife before the public more than a decade, their marriage had not come into effect either due to the physical or mental inability of the counter petitioner or due to the reluctancy of the counter petitioner towards the petitioner. Hence she is to be treated as impotent suffering either complete impotency or relative impotency. On the above ground the petitioner is entitled to nullify the marriage with the counter petitioner. If she is not in any way impotent she is playing utmost mental cruelty to the petitioner. Hence the petitioner is either entitled for a decree to nullify the marriage on the ground of impotency or for a decree of divorce on the ground of cruelty."

3. The respondent---wife in her counter stated that she hails from a highly educated and academically well placed Syrian Catholic family. It is stated that on 1-9-1991, that is, on the 4th day of marriage, they went to the house of the Appellant at Mavelikkara. As regards non consummation of marriage, we would prefer to quote what the wife said in the counter, which reads as follows:

"During the visit, the respondent found that one child in every house of the petitioner's father's side was mentally retarded. The respondent was shocked and shattered because the petitioner hails from such a mentally retarded family background. Hence the respondent decided then and there itself that she will not bear a child from the petitioner because the child will be a carrier of 'mentally retarded gene'."

4. As regards the incidents after her visit to Mavelikkara on 1-9-1991, the respondent stated in the counter thus:

"Respondent along with her