Point of law :Dissolution of marriage - Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situation, it may be true mental cruelty

JUDGMENT :

KAUSER EDAPPAGATH, J.

1. Two young medical graduates tied the knot with the hope that the bond between them would last for ever with love and joy. But, their hope did not last even the first night. For both, much anticipated wedding night was disappointing, if not pretty terrible - the husband found the wife drowsy, lethargic, abnormal and not being excited as a normal newly wedded bride would be; the wife found the husband emotionless and suffering from erectile dysfunction. Initially, the couple lived together just for a week without consummation and left to their respective colleges where they were pursuing post graduation. After a short while, they stayed together for twenty five days. During this period, the marital feud existed between them was further intensified. They started living together two years thereafter on the husband completing his post graduation. By that time the gap between them was much widened; their relationship further deteriorated. The wife was still willing to patch up and continue the relationship, but the husband was not. Eventually, the spouses ended up initiating legal proceedings against each other - the husband, for divorce and the wife, for restitution of conjugal rights.

2. The appellant and the respondent in both appeals are husband and wife respectively. They are doctors by profession. The appellant is a General Physician and the respondent is an Ophthalmologist. Their marriage was solemnized on 30.6.2008 at St. Martin De Pores Church, Palarivattom, Ernakulam as per the Christian religious rites. There are no issues in the wedlock.

3. The appellant filed Original Petition (OP No. 1113/2012) against the respondent to declare his marriage with the respondent as null and void or, in the alternative, to pass a decree of dissolution of marriage. The respondent filed Original Petition (OP No. 2091/2011) against the appellant seeking a decree for restitution of conjugal rights. Both original petitions were jointly tried by the court below. After trial, the Court below, by the impugned common order, dismissed the original petition filed by the appellant and allowed the original petition filed by the respondent granting her a decree for restitution of conjugal rights. The appellant challenges both the orders in these appeals.

4. We have heard Sri. N.K. Subramanian, the learned counsel for the appellant and Sri. K.N. Abhilash, the learned counsel for the respondent.

5. The appellant sought for decree of nullity on the ground that his consent to the marriage was obtained by fraud perpetrated by the respondent in suppressing material facts regarding her mental condition under Section 18 and the proviso to Section 19 of the Divorce Act, 1869 (for short ‘the Act’). He also, in the alternative, prayed that the marriage be dissolved on the grounds of incurable unsound mind and cruelty on the part of the respondent under Section 10(1)(iii) and 10(1)(x) of the Act.

6. According to the appellant, the respondent was suffering from incurable unsoundness of mind and mental disorder prior to the marriage and his consent to marriage was obtained by suppressing the said fact. In order to prove the same, the appellant relied on his own oral testimony. Though it was alleged by the appellant, and practically admitted by the respondent, that two psychiatrists viz. Dr. K.P. Raghavan and Dr. K.S. Rajeev treated the respondent, no steps were taken by the appellant to examine them or to produce the treatment records. It is true that the respondent has admitted that she was suffering from some kind of delusion disorder. The essential ingredient to be proved for securing an order of dissolution of marriage under Section 10 (1) (iii) of the Act, 1869 is that the respondent has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; but there is no convincing evidence on record to prove that the respondent has been suffering from any mental d