Point of Law: Non-consummation of marriage – it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist.

JUDGMENT :

C.S. Sudha, J.

1. This Mat. Appeal is against the judgment and decree dated 25/09/2021 in O.P.No.1060 of 2011 of the Family Court, Ettumanoor. The appellant is the respondent and the respondent herein, the petitioner in the proceedings before the Family Court, Ettumanoor. The parties and the documents will be referred to as described in the proceedings before the court below.

2. The petitioner/wife moved O.P.(Div.)No.334 of 2009 under Section 10(x) of the Divorce Act, 1869 (the Act), before the Family Court, Thodupuzha, seeking dissolution of her marriage to the respondent solemnized on 17/01/2009, on the ground of cruelty. The respondent/ husband challenged the jurisdiction of the court. The point was found against him. Hence the respondent challenged the same before this Court in Mat. Appeal No.303 of 2011. As per judgment dated 05/06/2011, this Court directed the Family Court, Thodupuzha, to return the original petition for presentation before the appropriate Family Court. Pursuant to the same, the original petition was presented before the Family Court, Ettumanoor, and it was re-numbered as O.P.No.1060 of 2011. Thereafter, the petition was amended to bring in an additional ground for dissolution of marriage, that is, non-consummation of marriage under Section 10(vii) of the Act.

3. On completion of pleadings, the parties went to trial. PW1 was examined on behalf of the petitioner/wife and Exts.A1 to A3 were marked. The respondent/husband examined himself as RW1 and Exts.B1 to B6 were marked on his side. After considering the oral and documentary evidence and after hearing the parties, the court below by judgment dated 07/12/2013 dismissed the petition. The petitioner/wife preferred an appeal before this Court as Mat. Appeal No.238 of 2014. This Court by judgment dated 29/12/2019 allowed the appeal and the judgment dated 07/12/2013 of the Family Court, Ettumanoor, was set aside. The matter was remanded and the petitioner/wife was given an opportunity to adduce further evidence to substantiate her case on both the grounds. The respondent was also given the liberty to adduce further evidence, if so desired by him.

4. After remand, PWs.2 and 3 were examined and Ext.A4 marked on the side of the petitioner/wife. No additional oral or documentary evidence was adduced by the respondent/husband. As per judgment dated 25/08/2021, the Family Court, Ettumanoor, allowed the petition and the marriage between the petitioner and the respondent solemnized on 17/01/2009 has been dissolved by a decree of dissolution of marriage, by accepting the ground under Section 10(vii), that is, non-consummation of marriage. However, the court below rejected the allegation of cruelty raised by the petitioner under Section 10(x) of the Act. Aggrieved by the decree of dissolution of marriage granted under Section 10(vii), the respondent/ husband has come up in appeal.

5. In the appeal memorandum, it is alleged that the court below on an incorrect appreciation of the facts, evidence and law, has erroneously concluded that the marriage has not been consummated and so granted the petitioner/wife a decree of dissolution under Section 10(vii) of the Act. The court below has granted the decree relying solely on the evidence of PW2 and Ext.A4 which are insufficient to establish the ground of non-consummation of marriage, alleges the respondent/husband.

6. The points that arise for consideration in this appeal are-

(i) Has the petitioner succeeded in establishing that the respondent had wilfully refused to consummate the marriage and as a result of the same, the marriage has not been consummated?

(ii) Does the finding of the court below granting dissolution of marriage on the ground under Section 10(vii) of the Act suffer from any infirmity?

(iii) Is the petitioner/wife, entitled to challenge the finding of the court below rejecting her prayer for dissolution of marriage on the ground of cruelty as contemplated under Section 10(x) of the Act, without fi