The main legal point established in the judgment is the determination of the mental and intellectual capacity of the respondent at the time of marriage, her ability to give consent for marriage understanding its objects and implications, and the validity of the petitioner's claim of fraud in obtaining consent for marriage.

P.C. Balakrishna Menon, J.

1. This is a petition under S.18 of the Indian Divorce Act 1869 (hereinafter referred to as the Act), by the husband for a declaration of nullity of marriage between himself and the respondent on grounds 1 and 3 of S.19 of the Act, namely that the respondent was impotent at the time of marriage and at the time of the institution of the proceedings and that she was a lunatic or idiot at the time of marriage. It is also alleged that since the respondent is a lunatic or idiot she is incapable of giving consent the condition of the respondent was not disclosed to the petitioner by the respondent's parents and the petitioner's consent was obtained by fraud practised on him. Thus according to the petitioner the marriage was without consent of the parties thereto.

2. The petitioner belongs to the Marthomite Christian community, while the respondent is a Jacobite Christian. The petitioner's house is at Niranam, thirteen kilometers away from Thiruvalla, where the respondent has her parental home. The marriage between them was solemnised on 29-8-1974 at the St. Thomas Mar Thoma Church at Niranam. The proposal for marriage was brought to the petitioner's parents who were made to believe that the respondent belongs to a respectable family and is a proper match for the petitioner, who at that time was working at Quilon managing a fishing boat belonging to his brother inlaw, examined in this case as P.W. 5. After exchange of visits between the members of the families the proposal was settled. The respondent was seen at her house by the petitioner and his parents. They took her to be normal. It is on that faith the marriage took place on 29-8-1974. The petitioner noticed that the respondent had to be prompted by her sister spelling out her name to sign the marriage register. It was later realised that the respondent was mentally retarded and is a "lunatic or idiot" within the meaning of the Indian Divorce Act. She was aged 18 years at the time of marriage and was studying in the 8th standard. The petitioner at the first instance thought that it was due to shyness and the changed pattern of family circumstances that the respondent was behaving in an abnormal manner. However as time passed it became clear to him that the respondent was deficient in her mental and intellectual equipment and required constant supervision. She was found incapable of normal married life. The petitioner further alleges that the respondent was impotent at the time of marriage and continued to be so even at the time of institution of this petition. The petitioner was so depressed in mind that he left his home in March, 1976 for UAE where he got a job. Thereafter he had visited his house in June 1977, December 1979, July 1981 and August 1981. The petitioner was not aware of the remedy available under the Indian Divorce Act, until a few days before the filing of an earlier O.P. No. 3594 of 1982 in May, 1982. That petition was withdrawn for some technical defect with liberty to file a fresh petition and this original petition was filed on 22-9-1982 for the relief of declaration of nullity of marriage between the petitioner and the respondent on the aforesaid grounds. The petitioner had filed C.M.P. No. 20522 of 1982 for the appointment of a guardian for the respondent.

3. Both the main petition and the petition for appointment of guardian were opposed by the respondent. She filed a counter affidavit denying the allegations in the original petition. According to her, she did not and does not suffer from any mental ailment either before or after marriage, she is neither a lunatic nor an idiot nor is she impotent as alleged. She had normal marital relationship with the petitioner since their marriage and they were leading a normal married life. The allegation of fraud is denied. The marriage was settled after negotiations between the parents of