Mumbai: Holding that when a woman claims that there was no physical relationship between her and her husband, the burden of proof is on the husband to prove that there was a physical relationship, the Bombay high court has nullified a marriage as per the wife’s demand. Though the husband in the petition had claimed that their marriage was consummated and the wife has had a miscarriage, the HC disbelieved his claims as the man could not produce any evidence of miscarriage.
“One of the most important objects of the marriage is a regularisation of the sexual relationship between the two parties and in the absence of such relationship, the object of marriage is frustrated,” Justice Mridula Bhatkar observed while granting the wife’s plea, which was earlier rejected by a Kolhapur court.
The judge also held that while “an irretrievable marriage” is not a ground under Special Marriage Act for divorce, but “non-consummation of the marriage” is a ground.
The woman wanted to end the marriage on the grounds of non-consummation for nine years and had filed an appeal in the high court challenging the Kolhapur court order. The woman had filed a petition for divorce on two grounds — that there was no consummation of marriage; and the husband allegedly married her using fraudulent methods and made her sign blank documents. On her first demand, the HC held that there was no evidence that there were sexual relations between the couple in the span of last nine years and allowed the petition. On her second demand, Justice Mridula Bhatkar said that there was no proof of fraud. The husband had clai-med that he had maintained sexual relationship with his wife and she even had a miscarriage, the court disbelieved him, as he could not produce any evidence backing his claims.
The HC held that the wife denied having sexual relationship and therefore the burden of proof was on the husband. “If the opinion of a gynaecologist about a pregnancy test was available, evidence could have been produced on record. However, it was not brought and therefore, the fact ofnon-consummation of the marriage is to be believed and accepted,” said Justice Bhatkar.
The judge also noted that all the courts dealing with matrimonial issues have to consider that the age of the parties in marriage proceedings has an important bearing on the issues.
“In the present case, when no evidence is brought by the respondent (husband) when he claims that there was sexual relationship, then in absence of such evidence, the contention of the respondent is not accepted while the appellant (the wife) establishes the case of non-consummation of marriage,” Justice Bhatkar observed.
