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V. SHANKAR RAM V/S MRS. SUKANYA , decided on Tuesday, March 11, 1997.
[ In the High Court of Madras, C.M.A. No. 127 of 1992 . ] 11/03/1997
Judge(s) : AR. LAKSHMANAN AND A. RAMAN
Advocate(s) : C. Harikrishnan, Senior Council, R. Krishnaswamy.
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  "1997 AIR (Mad) 394"  ==   "1997 (2) MLJ 170"  







    Hindu Marriage Act (XXV of 1955) - Section 28 and Section 12(l)(a)(c) -Cases Referred:Romesh Chander v. Savitri A.I.R. 1995 S.C. 851 V. Bhagat v. D. Bhagat [1994] 1 S.C.C. 337 Chanderkala Trivedi v. S. P. Trivedi [1993] 4 S.C.C. 232 Sujatha v Hariharan : [1995] 2 M.L.J. 327 Premchand v. V. Padmapriya [1997] 1 L.W. 83 T. Rangaswami v. Aravindammal A.I.R. 1957 Mad. 243 Jeyaraj v. Seeniammal A.I.R. 1967 Mad. 242 : [1966] 2 M.L.J. 218 Rosaline Rajan v. S. M. Joseph Xavier Lourdararajan A.I.R 1983 Mad. 164.     AR. LAKSHMANAN J.This appeal filed under Section 28 of the Hindu Marriage Act is directed against the judgment and decree dated 22-10-1991 in O.P. No. 88 of 1990 on the file of the Additional Family Court Madras. This appeal is by the husband. The marriage between the appellant and the respondent was solemnized on 27-11-1988 at Guruvayoor. The appellant states that after their marriage they set up a matrimonial home in Madras. The marriage between the appellant and the respondent was an arranged one. The appellant is a member of a joint family and he is the eldest son in a family consisting of his aged parents and brothers. The appellant is a highly qualified engineer who started his business in Madras in the year 1975. The appellant was therefore looking for a wife who could adjust and fit well in a large family. The appellant was informed by the father and brother of the respondent that the respondent having graduated from a well known city college and having widely travelled all over the country as well as the Foreign countries is ideally suited to be the wife of the appellant and a good daughter-in-law for the family. The appellant was further told that the respondent is good at cooking and looking after the household matters. The appellant was aware that the respondent hailed from a famous family of musicians. Therefore the appellant feared that the respondent getting married into a joint family she may have to sacrifice her musical pursuits and may be unhappy after the marriage. Whereas the father and the brother of the respondent emphatically and profusely assured that the respondent would not allow her love for music to interfere with the responsibilities of a wife to her husband and his family. They also assured him that the respondent is a person of varied tastes and hobbies and as such got adjusted with any surroundings effortlessly. It is the case of the appellant that he did not have any opportunity to meet the respondent personally prior to the marriage and the petitioner believed the representations about the respondent by her father and brother as true. This apart the father of the respondent was also suffering from leprosy. However the appellant married the respondent on these assurances and the representative by the father and brother of the respondent and set up the matrimonial house in Madras.2. However according to the appellant the appellant was able to truly judge the respondent in about three months period from the date of wedding by the following amongst various other instances(a) The appellant now and again noticed that the respondent is unwilling to share any household work. When the help is needed the most viz. in the morning when the menfolk get ready to go out for work she would be missing from the scene by being in the bathroom or before the dressing table decked with jewellery with trim silk saree on and profusely sprayed with scent admiring herself and as if she was getting ready to go to some musical concert unmindful of what is happening around her in the house.(b) The appellant also noticed any remarks made in good faith to instill the need for shouldering responsibility of the house would be instantly misunderstood by her as a criticism and she would lock herself in the bedroom sulking like a child and imagine herself as if suffering from some unknown ailment and hence unable to do any work. This would continue for hours together with the no let up for a day or two.(c) The appellant /petitioner further on cooking was practically nil. Else she shunned doing the cooking and did not wish to disclose talents in cooking lest burden of house-hold cooking may fall on her. Here again is the evidence of her childish instincts.(d) Besides when the respondent reluctantly worked in the kitchen she acted in a forgetful manner causing uncalled for worries to others. She would forget to fix the gasket in the cooker and start cooking. She would even forget to put off the gas stove after the work. Her reckless attitude caused alarming situations and tremendous tensions to look after her safety. The respondent doing the work in this manner many times landed other members and the petitioner in acute mental tensions. Even at the factory the petitioner could not work at peace with the constant worry about the accident to the respondent at home.(e) The immature reckless childish as well as absent-minded behaviour of the respondent is reflected in other ways as well. Gaudy dresses talking to friends lack of table manners etc. caused many embarassing times to the petitioner and resulted in misunderstanding with close relatives and thick friends of the petitioner.(f) Contrary to the impression given earlier the respondent was not all adept at any other hobbies. Even when opportunities were given she would not show interest in anything else but music and music alone. She virtually lived and breathes music.(g) The petitioner is convinced that the predominant concern of the respondent is to make a career in music by actively arranging managing participating in musical programmes for her fathers and others in her family. On a slightest pretext the respondent would run to her fathers place and conduct tution classes and rehersals. The respondent never even bothered to understand likes and dislikes of the appellant his hobbies and other interest so as to build a closer relationship. The respondent purposely behaved as if she was least concerned about the appellant. In this process the respondent has thrown on rocks chances for developing attachments with the appellants family and the appellant himself before it could even take roots. Hence the respondent has become a stranger in her matrimonial house for ulterior purposes.(h) The respondent was permitted by the appellant as well as his parents to conduct tution classes in music in the appellants house. But in total disregard thereto the respondent is keen to go to her father with a view to develop her music career.(i) The appellant states that the respondent by her behaviour and conduct as above has revealed that what she intended was to secure a marital status to improve her image in music circle in the company of her father and brother. The respondent did not want to be tied down with a life partner in a wedlock wherein both the partners look at each other with high esteem love and affection and lead a peaceful family life.(j) Repeated counselling by the appellant to the respondent to give up childish impulsive attitude and try to live away from her father and brother like a grown up and responsible person had no effect. On the contrary the respondent would turn hostile on such advise and start throwing tantrums causing mental agony to the appellant and other members of the family.(k) Many times the appellant would find the respondent locked in the bedroom and refusing to open up and other members sitting outside with long faces when he would return days hard work. All this apparently triggered off on some small thing. In the result the appellant would strain hard to pacify the respondent and spend sleepless nights brooding over the childish immature behaviour of the respondent.(l) The appellant further found that consummation of the marriage could not take palce as the respondent was not capable as a wife. Her mental conditions aforesaid immature and childish coupled with lurking fear in her mind that the children are obstacles to her advancement of carrer in music weighed in her mind making consummation of the marriage a practical impossibility. As a result of her frigidity and mental set up as above it is impossible to have ordinary and complete consummation of the marriage with the respondent. Thus the respondent is unable to consummate the marriage.(m) The appellant found the situations created by the respondent as unmanageable leading to sleepless nights and mental tensions and the respondent did not show any signs of improvement or urge to improve. Therefore the appellant persuaded her to stay at her fathers place for betterment realising fully well that the appellant was deceived while giving his consent to the marriage with the respondent.3. The appellant caused a legal notice issued to the respondent through his counsel on 15-12-1989. The respondent did not send any reply. But that notice has been acknowledged on 1612-1989. According to the appellant from the date of marriage till the time the respondent went to her parents house the respondent never fulfilled her marital obligation of consummation of the marriage and appeared incapable of doing so. Hence the marriage has not been consummated due to the impotency of the respondent. The appellant further states that a fraud has been played on him by the respondent her father and brother by total misrepresentation on the material facts and the circumstances concerning the respondent. If the appellant had known the conditions of the respondent and the fraud played on him he would never have consented to his marriage with the respondent. According to the appellant the consent was obtained under fraud/deception and misrepresentation that the father and the brother of the respondent knowing fully well about the respondents true character have made the appellant a scape goat by mis-representations for ulterior purposes. The callous attitude of the father and brother of the respondent is further exposed by total silence of the respondent and her father and brother more than 8 months on the date of the petition.4. The appellant therefore filed the O.P. for annulment of the marriage of the appellant with the respondent solemnised on 27-11-1988 and for costs.5. The petition was resisted by the respondent. She filed a counter statement denying the allegations made in the petition as frivolous and not maintainable and to direct the appellant to take back the respondent to lead a happy life. According to the respondent there is no suppression of fact or fraud played upon the appellant. It is also stated that the appellant has not put forth any serious allegations to attract any of the provisions of the Hindu Marriage Act by virtue of which the appellant can seek the relief of dissolution of marriage. It is the case of the respondent that only after the appellant got himself convinced about his choice of the respondent as his life partner the wedding was arranged. It is not correct to say that the appellant did not have the opportunity of meeting the respondent prior to the marriage. The appellant had even attended the music concerts given by the respondent prior to the wedding. In fact he has taken out the respondent for discussions and the appellant and the respondent discussed in great length about their marital life. The brother of the respondent Vaidhyanathan was also present during that time. It is clear beyond doubt that only when the appellant became fully satisfied about the respondent and her family when he gave consent for the wedding. There is no question of any suppression of fact or truth as regards anything about the respondent or her family members. The respondent has also denied all the allegations set forth in para 10. According to the respondent the appellants mother never used to allow the respondent to do anything. Though the appellant did not lay down any serious condition on the respondent in relation to her musical pursuits sensing that it was not so welcomed the respondent put aside all the opportunities that she was given up for giving concerts. In fact though the appellants gave the respondent permission to give performance in the Radio and T.V. the respondent did not honour many such offers after her marriage. Thus at every stage the respondent saw to it that the matrimonial harmony was not at stake. The respondent took serious objection relating to the baseless allegation that the respondent was incapable of conducting herself as a wife. In fact the petitioner had enough conjugal relationship during his stay with the respondent. No women of senses will deny to herself the status of motherhood especially a woman like the respondent to whom domestic life matters the most. In fact no effort was taken for reconciliation and the respondent started living away from the appellant. This decision was taken in the fond hope that the temporary absence of the respondent in the house would make the appellant weigh the situation and take upon himself better sense. In spite of things having gone out of control the respondent went to the appellants factory all alone so that a personal meeting between them would clear the statement. But even at that time the appellant insulted the respondent and her family members in all abusive language which an educated and refined person will not dare to utter. All the attempts taken by the respondents parents and other members of the family to bring forth a reconciliation were not responded to by the appellant and his people. Even now the respondent is willing to go and live with the appellant as a dutiful wife as pleasure and privileges of a matrimonial home loom large in her mind and heart than anything else.6. The appellant Sankar Ram examined himself as P.W. 1 and the respondent Sukanya as R.W. 1. Exs. A1 to A4 were marked on the side of the appellant and no exhibits were marked on the side of the respondent. The Additional Family Court has also tried its level best to reconcile the differences between the parties and to effect a compromise and patch up the differences between them. However he could not succeed on account of the rigid stand of the parties. Thereafter the matter was enquired into. The Family Court framed three points for consideration in the O.P. viz. 1. Whether the marriage was not consumated owing to the impotency of the respondent ?2. Whether any fraud was practiced in getting the consent of the petitioner for the marriage by suppressing certain material particulars concerning the respondent by making false representations to the petitioner ?3. Whether the marriage is liable to be declared as null and void on any one of the grounds mentioned above ?7. On a consideration of the entire evidence the Family Court held that the appellant has not substantiated his contention that the marriage was not consummated owing to the impotency of the respondent. It has also held that the appellant has not made out any case and specifically proved that certain false representations were made to him concerning the material particulars of the respondent at the time of marriage. The family Court has also held that the appellant has not made out any case to show that his consent to the marriage was obtained by practising fraud on him. In the result he dismissed the petition but without costs.8. Aggrieved by the order dated 22-10-1991 passed by the Family Court the appellant filed this Appeal under Section 28 of the Hindu Marriage Act. We have heard Mr. C. Harikrishnan learned Senior Counsel for the appellant and Mr. R. Krishhaswamy learned counsel for the respondent.9. Mr. C. Harikrishnan learned senior counsel appearing for the appellant advanced arguments on three broad grounds(1) The consent of the appellant for the marriage was obtained by mis-representation and fraud;(2) The appellant is therefore entitled to annulment of the marriage since the marriage was not consummated.(3) According to the learned senior counsel for the appellant both parties are living apart from April 1989 i.e. for about 8 years and three months. They have lived together only for about 8 months but they have no children. The appellant is aged 44 now and the respondent is 34 and according to the appellant the marriage which is otherwise dead emotionally and practically be continued for name sake and therefore considering the facts and circumstances of the case this Court should exercise its power and direct the dissolution of the same subject to any condition of payment of money or otherwise.According to the learned senior counsel for the appellant such a practical view alone will solve the problem. In support of his contention he relied on the following decisions :(1) Romesh Chander v. Savitri 1995 AIR(SC) 851 1995 (1) CCC 97 1995 (1) DMC 231 1995 (1) HLR 325 1995 (1) JT 362 1995 MLR 111 1995 (1) Scale 177 1995 (2) SCC 7 1995 (1) UJ 434 1995 (25) ALR 536 1995 AIR(SCW) 647 1985 AIR(Delhi) 76 1995 (1) MPLJ 140).(2) V. Bhagat v. D. Bhagat (Mrs.) 1993 (4) Scale 488 1994 (1) SCC 337 1994 (1) UJ 70 1994 AIR(SC) 710 1994 (1) BLJR 1 1994 (1) PunjLR 603 1994 (1) GLH 186 1994 (1) AnLT 14 1993 (6) JT 428 1994 AIR(SCW) 45 1981 AIR(HP) 63).(3) Chanderkala Trivedi v. S. P. Trivedi 1993 (4) SCC 232 1993 SCC(Cr) 1154.(4) Sujatha v. Hariharan 1995 (11) MLJ 327 and(5) Premchand v. V. Padmapriya 1997 (1) MadLW 83.Further in support of his contention that the appellant is entitled to the annulment of the marriage since the marriage was not consummated he relied on the judgment of a learned Single Judge of this Court reported in T. Rangaswami v. Aravindammalo 1957 AIR(Mad) 243 and a judgment of Full Bench of this Court reported in Jeyaraj v. Seeniammal 1967 AIR(Mad) 242 .10. Mr. R. Krishnaswami learned counsel for the respondent arguing contra would submit that the two grounds alleged for divorce do not exist on a mere reading of the petition. It is simply contended that a fraud has been practised in obtaining the consent of the appellant but the particulars of fraud which are necessarily to be pleaded have not been pleaded at all. He also contended from the petition that there was no plea by the appellant that he expected his wife to assist him in his business. He invited our attention to para 4 of the petition. Para 4 deals within setting up of the matrimonial home and para 5 is the statement of fact. Paras 6 and 7 deal with the representation made by the father and the brother of the respondent which he believed as true. According to Mr. Krishnaswami the averments made therein can only be an expectation of the appellant and not material for concealment of fact. In para 8 there is a reference to the leprosy suffered by the father of the respondent. Since the appellant knew about the same it cannot be construed as a suppression. This apart leprosy is not a ground relevant for divorce. Referring to para 10 Mr. R. Krisbnasway contended that all these flimsy grounds have been mentioned to find fault with the respondent for trivial things.11. The appellant in this case filed the petition for dissolution of the marriage under Section 12 (1) (a) and (c) of the Hindu Marriage Act 1955 as amended by the Act 58 of 1976. Section 12 of the reads thus:12. Voidable marriages:- (1) Any marriage solemnized whether before or after the commencement of this Act shall be voidable and may be annulled by a decree of nullity on any of the following grounds namely(a) that the marriage has not been consummated owing to the impotence of the respondent; or(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or(c) that the consent of the petitioner or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to material fact or circumstances concerning the respondent; or(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.(2) Notwithstanding anything contained in sub-section (1) no petition for annulling a marriage-- (a) on the ground specified in clause (c) of sub-Section (1)shall be entertained if -(i) the petition is presented more than one year after the force had ceased to operate or as the case may be the fraud had been discovered or(ii) the petitioner has with his or her full consent lived with the other party to the marriage as husband or wife after the force had ceased to operate or as the case may be the fraud had been discovered;(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the Court is satisfied -(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground. * 12. This section deals with voidable marriages. The four clauses (a) to (d) of sub-section (1) enumerate marriages which are voidable viz. (a) if the marriage has not been consummated owing to the impotence of the respondent or (b) if the marriage is in contravention of the condition in clause (ii) of Section 5 i.e. at the time of the marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent has been suffering from mental disorder to such an extent as to be unfit for marriage and the procreation of children or has been subjected to recurrent attacks of insanity or epilepsy or (c) that the consent of the petitioner or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act 1978 the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent or (d) the respondent was at the time of the marriage pregnant by some person other than the petitioner.13. A decree of nullity can be granted under this section only on the grounds mentioned in the section and not merely because the parties to the marriage cannot live happily together for any domestic reason. Sub-clause (a) was substituted for the original clause by Section 6 of the Marriage Laws (Amendment) Act 1976. Before the amendment Clause (a) was as follows :that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings. * Impotence means the incapacity to perform full and natural sexual intercourse. Before the amendment of Clause (a) in 1976 it was necessary to show that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings. Now under the present law a marriage may be annulled by a decree of nullity on the ground that the marriage has not been consummated owing to the impotence of the respondent. A person charged with impotency cannot be compelled to undergo medical examination. However several High Courts held that the Court has got power to order medical examination of the respondent and if the respondent refuses to submit to medical examination it is open to the Court to draw an adverse inference. Impotence would be within the exclusive knowledge of the spouses. Therefore it would be difficult to get evidence of others in proof of it except medical evidence which can be made available only on being subject to medical examination.14. Clause (c) of Section 12 (1) states that a marriage is voildable on the ground that the consent of the petitioner or of the guardian has been obtained by force or fraud. After the amendment of 1976 raising the minimum marriageable age of the bride to 18 years and that of the bridegroom to 21 years the question of consent of the guardian would not arise. But as the section applied to marriages solemnized before the Act also it was necessary to refer to a case of that is contemplated in this sub-section is as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. The expression as to the nature of the ceremony or as to the material fact or circumstances concerning the respondent was added by the Amending Act of 1976. This provision treats such a marriage as voidable giving option to the spouses to obtain a decree of nulity. The expression consent of the petitioner used in Section 12(1)(c) in the background of arranged marriages amongst Hindus would include consent given by the petitioner to the marriage as a result of negotiations made on his or her behalf by his or her parents elders in the family or other relations and friends. The words force and fraud are not defined in this Act. Section 17 of the Contract Act defines the word fraud. It means and includes acts committed by a party or with his connivance or by his agent with intent to deceive or to induce the other party to enter into the contract. However a marriage is liable to be annulled when fraud was played on the husband by suppressing a material fact. Similarly the wife also is entitled to claim annulment.15. In the legal perspective the word fraud or misrepresentation has a limited scope under this Act unlike the Contract Act. Non-disclosure of each and every fact is not material concealment. The respondent in her counter affidavit has denied all the averments of the petitioner/appellant in his petition as baseless. She has also deposed to the said effect in her evidence. Fraud within the meaning of Section 12(1)(c) of the Act means either (a) deception as to the identity of the other party to the marriage or (b) deception as to the nature of the ceremonies being performed. Where consent is given with the intention to marry the other party and with the knowledge that what is being solemnized is marriage. Courts have held that an objection to the validity of the marriage on the ground of any fraudulent misrpresentation or concealment is not tenable.16. Similarly in Mullas Hindu Law. 13th Edition at p. 682. We have the following observations :A person who freely consents to a solemnization of the marriage with the other party in accordance with customary ceremonies that is with knowledge of the nature of the ceremonies and intention to marry cannot raise an objection to the validity of the marriage on the ground of any fraudulent representation or concealment. The test to be applied is whether there was any real consent to the solemnization of the marriage. * We shall now consider the case of the appellant in this light.17. The petition is filed for the relief of annulment of the marriage of the appellant with the respondent which took place on 27-11-1988 the relief being sought under Section 12( 1)(a) and (c) of the Act. The date place and form of marriage are not in dispute. According to Mr. C. Harikrishnan learned Senior Counsel for the appellant the matter in issue is about the expectations of the appellant from the respondent and the subsequent failure of the respondent to fulfil the same. It is stated that the respondents father and brother are said to have played a fraud on the appellant.18. A perusal of the petition filed by the appellant would reveal that factually the appellant himself has accepted in paragraphs 5 to 7 of the petition his attempts to gather information about the respondent and her family before living his consent for the marriage. The respondent has also denied in her counter affidavit regarding the appellants lack of opportunities to meet the respondent and discuss with the appellant. The respondent both in her chief and cross examination has stood by the statement that there was enough discussion mutually between them before the marriage.19. It is alleged by the learned counsel for the appellant that the respondent has failed to disclose the disease of the respondents father viz. leprosy. According to the respondent the disease was only nurities and not leprosy. Yet this fact was also discussed before the marriage. In the counter affidavit it is specifically stated that his suffering is one of nurities and not leprosy. The appellant also gave his free consent for the marriage. Mr. C. Harikrishnan argued that the appellant within three months time of his marriage with the respondent was able to measure the deficiencies of the respondent. The various instances which are mentioned in paragraph 10(a) to (m) of the petition have already been extracted in paragraphs supra. This has been specifically and fully denied in the counter affidavit by the respondent. According to the respondent she was never treated well by the appellants mother. In the chief-examination the respondent has also narrated as to how she was made to suffer the wrath of her in-laws for flimsy thing. Even if such insignificant accusations are admitted we are of the view that they can never go against the expectations of the appellant. It is stated in paragraph 10(c) to (k) of the petition that the respondents knowledge of cooking was practically nil that she would reluctantly work in the kitchen and acted in a forgetful manner causing uncalled for worries to others that the immature reckless childish as well as absent minded behaviour gaudy dresses talking to friends lack of table manners etc. causing many embarrassing tunes to the appellant and resulted in misunderstanding with close relatives and thick friends of the appellant. It is also stated in paragraph 10(f) of the petition that contrary to the impressions given earlier the respondent was not a suitable partner to him and even when opportunities given she would not show interest in anything else but music and music alone and she virtually lived and breathed music. It is averred in paragraph 10(g) of the petition that the respondent not even bothered to understand the likes and dislikes of the appellant his hobbies and other interests so as to build a closer relationship and that the respondent purposely behaved as if she was least concerned about the appellant. In this process the respondent has thrown on rocks chances for developing attachments with the appellants family and the appellant himself before it could even take roots.20. In paragraph 10(k) of the petition the appellant has stated that he would always find the respondent locked in the bed room and refusing to open up and the other members sitting outside with long faces when he would return from days hard work. The appellant further found that the consummation of the marriage could not take place as the respondent was not capable as a wife. As a result of her mental conditions as aforesaid immature and childish coupled with lurking fear in her mind that the children are obstacles to her advancement of career in music weighed her mind making consummation of the marriage a practical impossibility. As a result it is impossible to have ordinary and complete consummation of the marriage with the respondent. Thus according to the appellant the respondent is unable to consummate the marriage. It is also contended that the situations created by the respondent became unmanageable leading to sleepless nights and mental tension and the respondent did not show any sign of improvement or urge to improve.21. The above accusations have been answered by the respondent in detail in her counter statement. The respondent has specifically stated as to how all these petty happening in the home were carried to the appellant. The respondent has stated in paragraph 4 of the counter that she did give her permission to continue herself in music but in her anxiety to give first priority to domestic harmony she only let go opportunities of music performances. In this context it is not out of place to state that three months time is too short a period to come to any decisive conclusion about a person as rightly contended by Mr. R. Krishnaswami learned counsel for the respondent and by no stretch of imagination can it be held that these will fall under the head fraud and misrepresentation. The appellant himself has admitted that he only persuaded the respondent to leave his house and stay with her parents. The respondent has also denied as incorrect that no attempt was made to mend the patches. It was the only hope of the respondent that a saner decision will prevail upon the appellant one day or the other and that things will be alright.22. In paragraphs 13 to 17 the appellant has stated that the respondent has never fulfilled her marital obligations of consummation of marriage and appeared incapable of doing so and that a fraud had been played on him by the respondent and her father and brother by total misrepresentation of the material facts and circumstances concerning the respondent and that the consent of the appellant to the marriage was obtained under fraud/deception and misrepresentation and that the appellant had every reason to believe that in his arranged marriage with the respondent her father and brother knowing fully well that the respondents true character have made the appellant a scape goat by mis-representation for ulterior purposes.23. In order to substantiate the allegations made the appellant has not let in any independent evidence to prove these happenings. Mere pleading is not evidence. The burden of proof is very heavy on the appellant. The appellant has not discharged his burden except to examine himself as a witness. In our opinion the appellant hits not come out with facts that would entitle him for the relief under S. 12(1)(c) of the Act. The appellant himself has stated in paragraph 10(f) of the petition that contrary to the impression given earlier the respondent was not at all suitable to him. It is argued by Mr. R. Krishnaswahti that impressions are not material facts. The suppression or active concealment of the same would not fall under the definition of fraud. In paragraph 10(c) of the petition the appellant himself has mentioned the occasional failings of the respondent as childish instincts and in paragraph 10(j) as childish impressive attitude. The respondent has further denied all the allegations as baseless.24. Truth/falsity of the horoscope was not pleaded in the petition. Evidence was let in to prove that the appellant relied on the particulars given in the horoscope and given his consent. Though the appellant has stated in his evidence that the respondent is suffering from many other defects (Vernacular matter ) he does not want to disclose the same to Court because according to the appellant they are not relevant for this case. He has also deposed that he met the respondent and talked to her for about ten minutes. The meeting was arranged because he wanted to talk to her in order to find out as to whether the respondent has given her consent for the marriage without force or compulsion from any other quarter and also to ascertain from her as to whether even after the marriage she will be having the same interest in music and take the same as her profession. It is his further evidence that he talked to her about both the above matters and that respondent told him that she has given her consent for the marriage without compulsion from anybody.25. To prove the allegation under S. 12(l)(a) of the Act two ingredients should be strictly followed viz.. (1) the marriage was not consummated; and (2) non-consummation is due to the impotence of the respondent. In the instant case no independent witness was examined and no suggestion was even made to subject the respondent to any medical examination. A bare accusation that consummation of the marriage could not take place as the respondent was not capable as a wife does not in our opinion attract the relief under S. 12(1)(a) of the Act. The appellant has contended in paragraph 13 of the petition that the respondent appeared incapable of fulfilling her marital obligation. No such abnormality of appearance or activity proved either in the chief-examination of the respondent or in the chief-examination of the respondent. Matters of such grave nature are to be proved strictly. The appellant has not let in any evidence which would corroborate his case. In such an event he cannot come out with a bare allegation or accusation of either mental or physical impotency on the part of the respondent. It is not a case of psychological or physchogical impotency pleaded but a case of wilful denial by the respondent to cohabit with the appellant. Even that is not the case set out in the petition. This has not been set out in the notice issued prior to the filing of the petition. It is only an additional development in the pleadings. The respondent has specifically and emphatically denied the allegations on this aspect in her evidence.26. In this context Mr. Harikrishnan cited the decision reported in T. Rangaswami v. T. Aravindammal 1957 AIR(Mad) 243 wherein this Court has held as follows (at page 249)To prove impotency there is no minimum standard of proof necessary. Even uncorroborated testimony of the petitioner is sufficient if it can be believed. In case of this nature corroboration can only be obtained from the evidence of the other party to the marriage. Under S. 120 Evidence Act the other party to the marriage is a competent witness. Also the conduct of the parties subsequent to the marriage would be important. It may be established by medical examination of the parties.Held on the facts of the case that neither organic impotency nor a tonic impotency quod the petitioner had been made out. * 27. Citing the above decision Mr. C. Harikrishnan contended that the testimony of the appellant should be accepted in regard to his case under S. 12(1)(a) of the Act. In this case we are unable to disbelieve the evidence of R.W. 1 the respondent. There is no corroboration of the evidence of the appellant on this aspect by any other independent witness. The other party to the marriage viz. the wife/respondent who is the competent witness has specifically denied the suggestion. It is true that it may be established by medical evidence of the parties. But the appellant has not taken any step to subject the respondent to any medical examination. Therefore the allegation made by the appellant stands only as an allegation.28. The conduct of the parties subsequent to the marriage would be a matter. The parties lived together only for a few months. The respondent in her evidence has clearly stated that she is always willing to live with the appellant but however the appellant has not shown any interest in this regard. The efforts made by her parents were also not fruitful. This apart a common family friend Mrs. Seetha Chidambarams efforts through Mrs. Lalitha Gopalan the sister of the appellant were also of no avail. In the chief-examination the respondent as R.W. 1 has said that she was living with the appellant happily for three months after the marriage and she had intercourse with the appellant from the beginning. She has also said that she has not suppressed any information about her from the appellant. She has further deposed that she met the appellant five times before the marriage at various places and on each time they spent about half-an-hour. In the cross-examination she said that she met the appellant four or five times in a hotel and at the time of such meetings they alone were there and on such meetings they exchanged their pleasantries and also their views.29. The judgment cited by Mr. C. Harikrishnan reported in Jayaraj Antony v. Mary Seeniammal 1967 AIR(Mad) 242 will be of no assistance to him. In the present case impotence is alleged with regard to the wife i.e. wilful denial by the respondent to cohabit with the appellant. It is not a case of physical or psychological impotency pleaded. If it is physical or psychological impotency evidence is necessary particularly in the form of medical testimony and Courts have no hesitation in declaring a marriage void but the present case is a far different case of a refusal to consummate.30. Mr. C. Harikrishnan also cited the decision reported in Rosaline Rajan v. S. M. Joseph Xavier Lourdarajan 1983 AIR(Mad) 164 wherein a Division Bench of this Court held as follows (at page 165)Impotency is an incapacity to consummate marriage and it may be physical or psychological. Therefore a mental defect which precludes the consummation of marriage is as much a ground for annulment as a physical shortcoming. The mere absence of a physical or anatomical defect is not sufficient to render a marriage binding and if it can be shown that sexual life is almost impossible due to some mental apathy which is likely to be permanent the Court has to annul the marriage. Therefore in cases where aversion or mental apathy is pleaded the Court will have to take a practical and a reasonable view of the evidence and free the case from all technical aspects as far as possible. However it must always be proved that the alleged coldness or repugnance of the spouse existed at the time of the marriage as well and a the time of the suit. * In the instant case it is not proved by the appellant that his sexual life is impossible with the respondent. Though there is a plea of aversion etc. it has not been proved that the alleged coldness or repugnance of the wife/respondent existed at the time of the marriage as well and the time of the filing of the petition.31. In the decision reported in Sujatha v. C. D. Hariharan 1995 (2) MLJ 327 a Division Bench of this Court consisting of M. Srinivasan J. as he then was and S. S. Subramani J. has held that to have a cause of action for annulling a marriage under S. 12(1)(c) of the Act to constitute fraud there must be some abuse of confidential position some intentional imposition or some deliberate concealment of material facts which are the fundamental bases of the marriage contract. Two questions were posed for decision in that case. The first question relates to suppression of material facts concerning the appellant/wife. The further questions whether the wearing of contact lens is a material fact which affects marital relationship so as to annul the marriage. The Bench had only the oral evidence of both parties. The Bench on a consideration of the evidence of the wife observed that her evidence discloses that the wearing of a contact lens was disclosed to the husband and his parents well in advance and only after getting knowledge of the same the proposal was proceeded with. The Bench held that the husband has not made out any case for annulling the marriage under S.12(1)(c) of the Act. On the question of the alleged suppression of material fact concerning the respondent the Bench after considering the 59th Report of the Law Commission and other decisions of various Courts held that the allegations have not been proved. The Bench has summarised its view as follows:To summarise the above case law to have a cause of action for annulling a marriage under S.12(1)(c) of the Hindu Marriage Act to constitute fraud there must be some abuse of confidential position some intentional imposition or some deliberate concealment of material facts which are the fundamental bases of the marriage contract (See Laws of Marriage and Divorce by H.K.Saharay second edition at page 127). The above case law makes it clear that the concealment even if any must be of such nature which affects the ordinary marital life of the parties. In this case it has come out in evidence that the appellant is a post-graduate. She is now undergoing B.Ed. course and has also studied Hindi for three courses. It has also come out in evidence that while she was in her husbands house she was doing all manual and household work and the petitioner has even taken her to a cinema. How far that marital life is affected is not explained by the petitioner. He only says that he did not like the respondent (wife) and hence there is no consummation of marriage. Pending trial the Family Court has got a report from another doctor where also the eye defect was stated to be minus 15 and minus 17. No attempt was made by the petitioner to give treatment to the wife and he has not even ascertained whether it can be cured or not. Unless it is incurable as observed in the earlier case law any concealment of the same will not amount to concealment of a material fact which will give a cause of action for annulling the marriage. According to the appellant and her father the eye defect is curable if proper treatment is given. Even in the present state it does not affect her marital life. She says that the marriage was consummated and they had physical contact on many days. If the eye defect is not a material fact which does not affect the marital life the petitioner cannot have any cause of action for annulling the marriage. In this case he has not adduced any evidence whether the eye defect is curable or not and whether the degree of the defect could reduced he takes her to the doctor only for the purpose of ascertaining and assessing the defect and not to get it cured. That also shows that his intention is not bona fide. We have stated that even according to his on showing he did not consider the eye defect is a material fact. According to him it is alleged mental illness of the respondent that causes him concern and it is for that reason he wanted the annulment of marriage. To say that he has taken her to a Psychiatrist but that is an evidence regarding her alleged mental defect. On the contrary we have the oral evidence of R.W 1 herself where she ably speaks before court about her mental condition. * 32. In the decision reported in A. Prcmchand v. V. Padmapriya (1997) (1) LW 83 a Division Bench consisting of A. Abdul Hadi and. P. Sathasivam JJ.. held following the decisions reported in 1975 (1) ILR(Ker) 469 and 1995 (2) MLJ 327 that the consent obtained by fraud should be as to material fact or circumstance concerning the other party before the marriage and subsisting even at the time of marriage. The Bench has further held that the fraud alleged in that case cannot be said to have subsisted on the date of the marriage as the husband was well aware of the correct date of birth when the marriage was celebrated. The Bench has also held that S.12(1)(c) of the Act will apply only if the fraud subsists on the date of the marriage.33. We now come to the last contention of Mr. C. Harikrishnan. He submitted that the marriage between the appellant and the respondent has for all practical purposes become dead that there can be no chance of being retrieved and that it was better to bring the marriage to an end. He also submitted that since the respondent has taken all her articles vessels etc. the appellant is prepared to pay her any amount which this Court may fix for her livelihood. He cited three instances of the Supreme Court exercising its jurisdiction under Art. 142 of the Constitution in this regard.34. Mr. C. Harikrishnan first cited the decision reported in Chanderkala Trivedi v. Dr. S. P. Trivedi (supra) which is an appeal before the Supreme Court against the grant of decree for divorce by the Bombay High Court on the - ground of cruelty under S. 13(1)(i-a) of the Act. When leave was granted the Supreme Court observed that they are granting leave because it appears to them that the marriage between the parties was in all practical purposes dead and the enforced continuity of the marriage will only mean that the parties will spend more years in bitterness against each other. Since the husband was in a position to provide reasonable maintenance or permanent alimony the Supreme Court granted Special Leave. At the time of final hearing the Supreme Court deleted the findings and has however decided not to interfere with the order passed by a Division Bench of the Bombay High Court. The husband on the persuasion of the Supreme Court agreed to provide a one bed-room flat to the appellant/wife in a locality where it can be available between Rs. 3 and Rs. 4 lakhs. The husband has also agreed to deposit a sum of Rs. 2 lakhs for the welfare of the appellant. Therefore while dismissing the appeal the Supreme Court directed the husband to purchase a flat for the wife and further deposit a sum of Rs. 2 lakhs by means of a demand draft in the name of the appellant with the Family Court Bombay.35. In the decision reported in V. Bhagat v. D. Bhagat 1993 (4) Scale 488 1994 (1) SCC 337 1994 (1) UJ 70 1994 AIR(SC) 710 1994 (1) BLJR 1 1994 (1) PunjLR 603 1994 (1) GLH 186 1994 (1) AnLT 14 1993 (6) JT 428 1994 AIR(SCW) 45 1981 AIR(HP) 63) the Supreme Court on facts while allowing the marriage to dissolve on ground of mental cruelty and in view of the irretrievable breakdown of marriage and the peculiar circumstances of the case held that the allegations of adultery against the wife were not proved thereby vindicating her honour and character. The Supreme Court while exploring the third alternative observed that the divorce petition has been pending for more than eight years and a good part of the lives of both the parties has been consumed in this litigation and yet the end is not in sight. After all the allegations made against each in the petition and counter by the parties against each other will go to show that living together is out of question and rapproachment is not in the realm of possibility. In the concluding part of the judgment the Supreme Court has observed thus (at page 720 (of AIR))Before parting with this case we think it necessary to append a clarification. Merely because there are allegations and counter allegations a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. There must be really some extra-ordinary feature to warrant grant of divorce on the basis of pleading (and other admitted material) without a trial. Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground (s) alleged is/are made out and in determining the relief to be granted the said circumstances can certainly be borne in mind. The unusual step as the one taken by us herein can he resorted to only to clear up an insoluble mess when the court finds it in the interest of both parties. * 36. The decision reported in Romesh Chander v. Savitri (supra) is yet another case where the Apex Court in its powers under Art. 142 of the Constitution directed the dissolution of the marriage subject to the transfer of the house of the husband in the name of the wife. In that case the parties have not enjoyed the company of each other as husband and wife for 25 years and within 25 years this is the second round of litigation which routing through the trial court and the High Court has reached the Supreme Court. That appeal is based on cruelty. Both the Courts below have found that the allegation was not proved and consequently it could not be made the basis for claiming divorce. The Supreme Court after following the earlier decisions in 1993 (4) SCC 232 1993 SCC(Cr) 1154 and 1993 (4) Scale 488 1994 (1) SCC 337 1994 (1) UJ 70 1994 AIR(SC) 710 1994 (1) BLJR 1 1994 (1) PunjLR 603 1994 (1) GLH 186 1994 (1) AnLT 14 1993 (6) JT 428 1994 AIR(SCW) 45 1981 AIR(HP) 63 : 1993 (4) Scale 488 1994 (1) SCC 337 1994 (1) UJ 70 1994 AIR(SC) 710 1994 (1) BLJR 1 1994 (1) PunjLR 603 1994 (1) GLH 186 1994 (1) AnLT 14 1993 (6) JT 428 1994 AIR(SCW) 45 1981 AIR(HP) 63 in exercise of its power under Art. 142 of the Constitution directed the marriage between the appellant and the respondent shall stand dissolved subject to the appellant transferring the house in the name of his wife within four months from the date of the order and the dissolution shall come into effect when the house is transferred and possession is handed over to the wife.37. The facts and circumstances mentioned in the above three cases disclose that re-union is impossible. Our case is not one such. It is true that the appellant is aged 44 and the respondent is aged 34 and the parties living away for the last eight years. It is also true that a good part of the life of both parties has been consumed in this litigation. But we are unable to agree with Mr. C. Harikrishnan that the end is not in sight. We interviewed the appellant and the respondent and their parents. The assertion of the wife during our interview in Chamber that she wants to live with her husband even now appears to us to be true. Mr. C. Harikrishnan is not fully correct when he says that dislike for each other was burning hot. The wife in her evidence says that she likes her husband and still wants to live with him. We do share the feelings of the wife expressed before us that a conservative Hindu Brahmin family girl would not prefer to be known as divorcee (Vernacular matter omitted.) in the society.38. Before parting with this case we think it necessary to say the following. Marriages are made in heaven. Both parties in our opinion have not crossed the point of no return. A workable solution is certainly possible if the parties reconcile themselves and live together forgetting their past as a bad dream.39. For the fore-going reason we concur with the finding of the Family Court and dismiss the appeal. However there will be no order as to costs.Appeal dismissed.