The legal point established is that non-consummation of marriage must result from the wilful refusal of a spouse, with deliberate and conscious intent, to qualify as a ground for divorce under Sec.10(vii) of the Divorce Act.

Harilal, J.

1. The appellant is the petitioner in O.P.No.529 of 2003 on the files of the Family Court, Thrissur. He is the husband of the respondent herein. The above O.P. was filed under Sec.10(vii) and (x) of the Divorce Act, 1869 on the ground that the respondent has wilfully refused to consummate the marriage and the marriage has, therefore, not been consummated and the non-consummation of the marriage amounted to an act of cruelty to him also. Both parties are Roman Catholic in Christian Religion. Their marriage was solemnized on 19/1/2000 in accordance with the religious customary rites and ceremonies. At the time of marriage, the appellant was working in a construction company in Sharjah. 28 days after the marriage, he returned to Sharjah for joining duty. Thereafter, he came back to India on leave on 11/4/2001 and returned to Sharjah on 1/7/2001. Again, he came on leave to India on 11/9/2002 and returned to Sharjah on 20/10/2002. Then, he again, came on leave to India on 9/4/2003 and this petition was filed on 11/6/2003. Though three years have been elapsed since the solemnization of the marriage and he came on leave twice and cohabited as husband and wife for a substantial period, the respondent had been wilfully refusing to consummate the marriage and thereby the consummation of the marriage between the appellant and the respondent did not take place. In order to avoid sexual relationship, the respondent adopted several techniques. The respondent used to make a cough that too in a peculiar way so as to make the appellant believe that she is unwell. Though he was ready to take her for treatment, the father of the respondent responded that she had been undergoing treatment of Dr. C.M. Peter of Chalakudy I.V.G.M. Hospital for the same. Though the appellant made several attempts to have a sexual intercourse with the respondent, she did not co-operate with the appellant and she didn't allow the appellant even to touch her private parts. She used to wriggle out of the clutches of the appellant when he was desirous of having sexual intercourse. In order to avoid unpleasant situation, the appellant did not have sexual intercourse by force. The moods, behaviour and the act of the respondent very often were like that of a child or like a person having slight mental aberration. In an attempt to bring the respondent to the normal path of marital life, the appellant, when he was in Sharjah, used to write letters to the respondent cajoling and praising her. Though the Eparchial Tribunal, Irinjalakuda, on his application declared the marriage between the appellant and the respondent as null and void. The respondent was not prepared to a divorce under the Divorce Act by mutual consent. Since the refusal to consummate the marriage amounted to cruelty, he is entitled to get divorce on that ground also.

2. The respondent filed a counter statement denying all the allegations of wilful non-consummation and cruelty alleged to have been meted out by her to the appellant. According to her, the allegation that she refused to consummate the marriage and thereby the marriage has not been consummated are incorrect. She complained that the appellant had been suffering from imminent ejaculation and thereby effective intercourse has not been taken place. The intercourse was not successful and she felt that the appellant had been suffering from psychological problem. Both of them were underwent medical examination by Psychiatrist Sri. Arun Kishore and he reported that the appellant is capable to have sexual intercourse; but he is suffering from some psychological problem only. He further denied the allegation that she always pretended illness so as to avoid sexual intercourse. After one year, when the appellant consulted with Dr. P.G. Antony, he advised him to take some medicine so as to have a perfect and successful intercourse. She was always willing and ready to have a sexual intercourse as and when he found desirous of the same. Furth