Full Judgment
A.S. Naidu, J.
1. This is an appeal under Section 19 of the Family Courts Act assailing the judgment dated 24th March, 2007 passed by the Judge, Family Court, Cuttack in Civil Proceeding No. 433 of 2000. The said Civil Proceeding was registered on the basis of an application under Section 12(1)(a) of the Hindu Marriage Act with a prayer to declare the marriage between the parties null and void and consequential direction.
2. Bereft of unnecessary details, the short facts necessary for appreciating the case are as follows:
Admittedly the marriage between the appellant and respondent was solemnized on 9th March, 1985 according to Hindu rites and customs. According to the appellant-husband, in the honeymoon, night he discovered that the respondent-wife had no vaginal canal and, as such, she was incompetent for cohabitation or begetting child. On his enquiry, it is averred, the respondent-wife told him that such infirmity was inherent. While she was with her parents, she had been treated at the SCB Medical College-Hospital, Cuttack by one Dr. S. Devi, MD of the Department of Obst. & Gynaecology who had advised hex for re-canalisation of vaginal channel, but then due to lack of funds that was not done. On the fifth day of marriage, the parents and relatives of the appellant-husband sent for the father of the respondent-wife and apprised him of the aforesaid fact and proposed medical treatment/but the latter did not agree and father the respondent-wife left the matrimonial house along with her father since when she had been staying with her parents. After lapse of fifteen years, it is averred, the respondent-wife filed a petition before the State Women's Commission at Bhubaneswar alleging her desertion by the appellant-husband. After receiving notice the appellant-husband appeared before the said Commission and the matter ended in conciliation on 26th August, 2000, the respondent-wife having withdrawn her petition. Thereafter being apprehensive of further problems to him, the appellant-husband, it is averred, filed the aforesaid petition before the Judge, Family Court alleging that the marriage between him and the respondent-wife was solemnized by practising fraud and suppression of true and material facts and that the marriage had never consummated.
3. After receiving notice the respondent-wife appeared before the Judge, Family Court and filed her written statement denying the allegations levelled on her and taking the stand that the documents with regard to her treatment at the SCB Medical College-Hospital were all created for the purpose of litigation. She took the plea that after her marriage she came to know that the appellant-husband had pre-marital relationship with a lady named Jyotsna which continued even after marriage. Consequently she was subjected to physical and mental cruelty and ultimately driven out of. the matrimonial home.
4. the Judge, Family Court, after perusing the respective pleadings of the parties, with consent of the respondent-wife directed her to get herself medically examined. Consequent upon that the respondent-wife appeared before one Dr. Sarojini Sarangi, a Gynaec Specialist and the said doctor medically examined her.
5. In support of their respective cases, the appellant-husband got himself examined as P.W.1, one Dr. Binapani Tripathy, a Lady Asst. Surgeon of Obst. & Gynaec Department as P.W. 2, and Dr. Sarojini Sarangi as P.W. 3. He also exhibited as many as seven documents. The respondent-wife on the other hand got herself examined as D.W. 1 and did not exhibit any document.
6. P.W. 3 Dr. Sarojini Sarangi in her statement before Court stated that in consonance with a requisition she had medically examined the respondent-wife on 29th July, 2006 and further stated:
xx xx xx On local examination I found that there was a non-canalisation of vaginal canal. On P.R. Examination (per rectum examination) only a ridge is felt but uterus not felt. I could not give any final opinion because I have advised her Ultra Sonogram examination of upper abdomen, lower abdomen and pelvis and Diagnostic Laproscopy. But she did not turn up for these examinations, xx xx Without canalization of vagina' consummation is not possible.
Though she was cross-examined, nothing could be elicited from her statement to discredit her.
7. P.W. 2 Dr. Binapani Tripathy who was a Lady Asst. Surgeon in the Obst. and Gynaec Department of the SCB Medical College-Hospital, Cuttack in her statement in Court has corroborated P.W. 3 in material particulars.
8. The Court below after discussing the evidence, both oral and documentary, and referring to a decision of the Calcutta High Court in the case of Samar Ray Chowdhury v. Smt. Snigdha Ray Chowdhury reported in : AIR1977 Cal213 wherein it was held that the question of curability of impotency is not a relevant consideration for the purpose of the decision under Section 12(1)(a) as amended in 1976, abruptly observed that it, did not want to discuss whether impotency was curable or not in the present case, but the fact remained that the respondent-wife was impotent at the time of marriage and the same impotency was continuing as deposed by the doctor P.W.3 even in. July, 2006. However, relying on Sub-section (2)(a)(i) and (ii) of Section 12 of the Hindu Marriage Act, the Court below found that the proceeding was not initiated within one year of the alleged fraud discovered by the appellant-husband. The marriage admittedly having taken place on 9th March, 1985, the proceeding initiated on 30th September, 2000 was not maintainable. On the basis of such conclusion the Court below dismissed the petition of the appellant-husband on the ground that the same was not maintainable being barred by time. Being aggrieved by the said judgment of the Court below the appellant-husband has approached this Court.
9. Though notice was issued to the respondent-wife by registered post and the A.D. was received from her, she has chosen not to appear before this Court.
10. Before delving into the factual aspects, it would be necessary to refer to Section 12 of the Hindu Marriage Act which deals with voidable marriages. This section states that any marriage solemnized, whether before or after the commencement of the 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 any material fact or circumstance concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
11. Sub-section (2) of Section 12 stipulates that notwithstanding anything contained in Sub-section (1), no petition for annulling a marriage on the grounds specified in Clause (c) of Sub-section (1) shall be entertained, if 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.
Clause (b) of Sub-section (2) to Section 12 stipulates that no petition for annulling a marriage 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. Under Section 12(1)(a), a marriage if not consummated owing to impotence is liable to be annulled. The word 'impotence' means a practical impossibility to perform sexual act in complete and perfect manner. Full and complete sexual penetration is an essential ingredient for ordinary and complete intercourse.
13. 'Impotence' has been understood in matrimonial cases as incapacity to consummate marriage, that is incapacity to have conjugal intercourse which is one of the primary objects of marriage. A person is impotent if he is or her mental or physical condition makes consummation of marriage a practically impossible, as has been held by the Supreme Court in the case of Digbijoy Singh v. Pratap Kumari reported in : [1970]1SCR559 . Thus if impotence is proved by medical evidence and the marriage has not been consummated, the marriage becomes voidable under Section 12(1)(a) of the Hindu Marriage Act. Similarly, a person is incapable of consummating the marriage if his or her mental health or physical condition makes the consummation a practically impossible. The expression 'consummation' is otherwise understood in common parlance to mean perfect and complete intercourse.
14. A cumulative reading of the entire Section 12 of the Act clearly reveals that so far as ground (a) of Section 12(1) is concerned, no period of limitation has been prescribed, though Sub-section (2) of Section 12 prescribes period of limitation so far as ground (c) and (d) are concerned. This aspect of law was not kept in mind by the Court below. The judgment itself reveals that the Court below referred to Sub-section (2)(a)(i) and (iii) of Section 12 though the said provision had absolutely no application to the case at hand which is squarely governed under Section 12(1)(a) of the Act.
15. So far as factual matrix is concerned, it has to be considered as to whether wife's incapacity to have sexual relationship amounted to legal and mental cruelty to the husband and, if so, is the husband entitled to seek declaration that the marriage is void. The appellant-husband has established the fact that the respondent-wife has physical infirmity like non-canalisation of vaginal canal for which consummation of marriage was not possible.
16. Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a man's mind and body. The result being that if he does not get proper sexual satisfaction, it will lead to depression and frustration. This view of ours is fortified by the decision of the Supreme Court reported in AIR 1981 SC 7972 Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and Anr. That apart, impotency of a wife results in her inability to discharge her marital obligation which amounts to both legal and mental cruelty.
17. Marriage under the Hindu Law is not a pure religious ceremony. A wife who is not fit to have sex or beget child would be unable to fulfil the main object of marriage and it would be a very just and reasonable ground on the part of a husband to refuse to live with wife on such ground either under the Hindu Law, Mohammedan Law or as a matter of fact any other law. Here is a case where the appellant-husband is forced or compelled to live a life of celibacy while staying with the respondent-wife who is unable to have sexual relationship with him. Such a life is one of perpetual torture, and even from the medical point of view it is detrimental to the health of a man.
18. Admittedly the marriage of the parties has not yet consummated due to infirmity of the wife. This fact gets amply established from the evidence of P.W.3, a renowned Specialist in Obst. & Gynaec. Section 12(1)(a) of the Hindu Marriage Act stipulates that any marriage can be annulled on the ground that the same has not consummated owing to impotence of the respondent. The said provision squarely applies to the case at hand.
19. For the aforesaid discussion, we have no hesitation to aside the impugned judgment passed by the Judge, Family Court, Cuttack and declare the marriage of the parties null and void, and we accordingly do so. The MATA is thus disposed of.
B.P. Ray, J.
20. I agree.