The Kerala High Court, while granting the divorce of two doctors in Ernakulam observed that, making a false statement of impotency or erectile dysfunction against a spouse by another as a part of counter-statement filed in divorce cases amounts to mental cruelty
By: Saumya Sakshi, B.A., LL. B (H), Amity Law School, Noida, UP
The appeal was filed by the appellant-husband against the order passed by the Family court, Thrissur which denied a decree of dissolution of the marriage to the appellant. The appellant, in the appeal, claims that his wife is suffering from incurable unsoundness of mind, and also claims that she is drowsy, lethargic, and unhygienic, and has hostility towards other members in the matrimonial home.
The appeal was laid before the division bench comprising Justice A. Muhamed Mustaque and Justice Kauser Edappagath.
The court allowed this appeal and set aside the order passed by the family court to the extent of rejecting the claim for divorce on the ground of mental cruelty.
The respondent in her written statement filed in the court, accused that the appellant is suffering from erectile dysfunction and sexual incapacity, which cannot be proved because she was contradicted by her own statement and there was no evidence of it.
The respondent further, in her written statement, accepted the fact that she experiences delusions on an occasional basis and she was also on medication for the same. The Appellant taking this statement as reference urges the court that suppression of this vital fact warrants divorce.
The court while commenting on section 19 of the Divorce Act, said that “This Section cannot be treated as a provision placing the burden upon a spouse to the marriage, to reveal the entire information about him or her to the other. This provision cannot at all be operated vis a vis the suppression of information.” The court further explains the application of section 19, suppression of fact would amount to fraud only when it is presented as true, and the other party was aware of its falsity. In these types of cases, a marriage can be dissolved by the court.
Therefore, the court decided not to interfere with the order of the family court denying the decree of nullity of marriage on the ground of fraud, the reason being that in this case, the allegation was non-disclosure of a particular fact, not that there was deception.
Thereby releasing the respondent from the charge of fraud, as she was not legally obliged to disclose such fact to the appellant.
The bench held that “unsubstantiated accusation and character assassination in written statement would constitute mental cruelty”. The court thus granted a divorce to the parties on the ground of mental cruelty.
The court further said that “Apart from the bald allegations in the counter statement, there is nothing on record to show that the appellant was suffering from erectile dysfunction,”. The appellant was also ready to undergo a medical examination to disprove the contention raised by the wife that he is impotent, but no such steps had been taken by the respondent.
The court ruled that, although the respondent’s conduct may not be intentional, such conduct that arises even from minor mental illness cannot be excused. Therefore, the court pronounced an order of divorce between the couple.