Full Judgment
Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of a husband in a proceeding under Section 12(1)(a) of the Hindu Marriage Act, 1955 and is directed against the judgment and decree dated 18th March, 2006, passed by the Additional District Judge, Fast Track Court, First Court at Burdwan, in Matrimonial Suit No. 2 of 2002 thereby dismissing the said proceeding.
2. Being dissatisfied, the husband has come up with the present appeal.
3. The appellant before us filed a suit being Matrimonial Suit No. 91 of 2001 before the learned District Judge for annulling his marriage with the respondent under Section 12(1)(a) of the Hindu Marriage Act on the ground that the marriage had not been consummated due to impotency of the respondent. The said case was subsequently transferred to the Court of the Additional District Judge, Fast Track Court, First Court, Burdwan, and was re-numbered as Matrimonial Suit No. 2 of 2002.
4. The case made out by the appellant may be summed up thus.
a) The parties were married under Hindu Rites and Customs on 27th June, 1986 at F-8, Tallygunj Wireless Quarters, Kundghat, Calcutta-17. At the time of marriage, the husband was living alone in the premises at Mohamadbazar. However, since the death of his father, he was the only member in the family who shouldered the responsibility of looking after the total requirements of his aged mother. The respondent, being a trained nurse, was, at the time of marriage, employed at Government Hospital at Mohamadbazar.
b) The respondent was found to be by nature obstinate and adamant and she insisted that her opinion should be considered to be final in all matters.
c) Within a fortnight after the parties returned to their place of service after marriage, the respondent had to be treated for various ailments and difficulties associated with consummation of the marriage. Under the impression that the problem was a minor one, the respondent was initially treated by Dr. A.K. Bhattacharjee, a close relative of the husband. However, when the medicines prescribed by the doctor did not result in any improvement, the respondent was examined by Dr. J. Sen, Head of the Department, Burdwan Medical College & Hospital in the first week of July, 1987. After carrying out series of confirmatory investigations, the respondent was diagnosed to be suffering from cystic mass in the right ovary. Expensive medicines were prescribed initially in the hope of overcoming the obstruction but as the condition of the respondent deteriorated instead of improving, the respondent was next examined by Dr. B.S. Pal at the primary health centre at Mahammadbazar and on medical advice, a surgical intervention was carried out upon the respondent at Suri Sadar Hospital on 2nd November, 1987.
d) In spite of such surgery and the continuation of the prescribed medicines to induce fertility in the respondent, she was referred to further treatment at Calcutta Medical College & Hospital, where after series of other expensive investigations, the respondent was found to be suffering from 'hydrosulphinx' of both 'fallopian tubes' a sure indication of primary infertility. On medical advice, the respondent underwent second surgical operation in the month of December, 1998 for hydro-tubation of her fallopian tubes.
e) Further medical complications having arisen, the respondent went through exhaustive investigation and treatment for about five months from February, 1989 at Calcutta Medical College & Hospital, S.S.K.M. Hospital, Bellview Clinic & Hospital and at N.R.S. Hospital at Calcutta at huge cost of the husband. The respondent was ultimately diagnosed to be suffering from a large 'intra-cardiac tumour' by Dr. J.C. Ghosh and Dr. Subhas Nandi. The said tumour was ultimately removed by open-heart surgery at Apollo Hospital at Madras towards the end of July, 1989, for which the husband had to obtain loan from his employer.
f) In spite of the successive impediments to the cherished desire of the parties to give birth to a progeny, hydro-tubataion was again performed in April, 1990 both in Calcutta Medical College & Hospital and Burdwan Medical College & Hospital, with no tangible result. In course of further investigation for ascertaining the cause of obstruction, it was the specific suggestion of Dr. G. Bose that surgical removal of the cystic mass in the right ovary should be performed so that the benefit of hydro-tubation could be availed of by the respondent. However, as the respondent had an open- heart surgery in the recent past, it was decided to consult Dr. B.N. Chakraborty before taking final decision.
g) After further investigation, Dr. B. N. Chakraborty decided to remove the cystic mass in the right ovary by surgery on the basis of the USG report dated February, 1992. However, due to complication in course of the surgery, the same was abandoned in June, 1992 and the respondent was again referred to N.R.S. Medical College & Hospital for further investigation. The use of the only drug known to arrest the condition had to be discontinued due to severe adverse side-effects upon the respondent.
h) In this situation, the husband was compelled to initiate homoeopathic treatment for the respondent under Dr. A. K. Bhattacharjee and Dr. Nilachal Dawn from March, 1994 and to carry out periodic radiological investigations thereafter for monitoring the respondent's condition. As all known methods to induce pregnancy in the respondent failed due to inherent incapacity of the respondent in this regard, the husband driven by the natural urge to procreate progeny, thereafter, knocked upon the last available door known as 'in vitro fertilisation and embryo transfer' at the Institute of Reproductive Medicine at Calcutta in June, 1996. However, in the absence of a voluntary donor having required age and parameter, the said idea was abandoned.
i) All attempts by the husband to have a baby through the respondent having failed, the husband was compelled to consider the possibility of mutual termination of the marriage with the respondent and a second marriage thereafter as the only available solution left to the husband for the purpose of procreating a child of his own. Several meetings were held between the family members of both the sides and the husband agreed to transfer either of the second floor of his residential house to the respondent as per the latter's choice to meet the respondent's requirement of a permanent residence. In spite of such settlement, the respondent all of a sudden in April, 2000, demanded that the entire house of the husband must be transferred to her name along with a sum of Rs. 5 lakh as consideration for the agreed termination of the marriage.
j) The respondent unexpectedly brought home a female child allegedly abandoned at the Burdwan Medical College & Hospital on 20th June, 2000 without obtaining any authority or permission from the appropriate authority or even informing the husband about the same. The said step had been taken by the respondent with the intention of causing further harassment, embarrassment and injury to the petitioner. Hence the suit for annulling the marriage between the parties on the ground that the marriage could not be consummated due to impotency of the respondent.
5. The suit was contested by the respondent by fling writing statement thereby denying the material allegations made in the plaint and the sum and substance of the defence was that the marriage had been duly consummated but her infertility cannot be a ground for divorce. The sole object of the husband was to perform the second marriage which was opposed not only by the respondent but also the other members of the family and thereafter on false and frivolous ground, he has filed the present proceeding.
6. At the time of hearing of the suit, the husband himself and three other witnesses gave evidence in support of the case of the petitioner while the wife alone gave evidence in opposing the prayer of the husband.
7. As indicated earlier, the learned Trial Judge by the judgment and decree impugned herein has dismissed the application holding that the marriage had been duly consummated and as such, Section 12(1)(a) of the Act cannot have any application. It has been further held that mere fact that the wife is unable to give birth to a child cannot be a ground for annulling the marriage.
8. Being dissatisfied, the husband has come up with the present appeal.
9. The only question that arises for determination in this appeal is whether the mere fact that due to physical defect, the wife, in spite of having regular sexual intercourse with the husband, is unable to give birth to a child, is a ground for annulling the marriage in terms of Section 12(1)(a) of the Act.
10. In order to appreciate the said question, it will be profitable to refer to the said provision which is quoted below:
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 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.
(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 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.
11. After hearing the learned Counsel for the parties and after going through the provision contained in Section 12(1)(a) of the Act we find that in order to attract the said provision, it must be proved that the marriage could not be consummated due to impotence of the respondent.
12. The word 'consummate' according to the Oxford Advanced Learner's Dictionary of Current English, Fourth Edition, by A.S. Hornby is as follows:
1. Make (sth) complete or perfect: This award consummates my life's work. 2. Make (a marriage) legally completed by having sexual intercourse.
13. According to Black's Law Dictionary, Seventh Edition, the word 'consummate' has been described as follows:
vb. 1. To bring to completion; to make (a marriage) complete by sexual intercourse. 2. To achieve; fulfil. 3. To perfect; carry to the highest degree.
14. In the Osborn's Consise Law Dictionary, Seventh Edition, by Roger Bird, the meaning of the word 'consummated' has been described as follows:
Completed, e.g. a marriage is consummated when completed by ordinary and complete sexual intercourse. 'Consummate' denotes coitus and not coitus which may result in conception. If either party is impotent or wilfully refuses to consummate such marriage is voidable by decree of nullity.
15. The word 'impotence' according to the aforesaid Osborn's Dictionary means 'incapacity for normal sexual intercourse'.
16. According to Black's Law Dictionary, impotence has been described as under:
A man's inability to achieve an errection and therefore to have sexual intercourse. Because an impotent husband cannot consummate a marriage, impotence has been cited as a ground of annulment.
17. Oxford Advanced Learner Dictionary, on the other hand, has defined impotent as follows:
Adj. 1. (usu pred) unable to take effective action; powerless or helpless. Without the Chairman's support the committee is impotent. 2. (of men) unable to have sexual intercourse or reach an orgasm.
18. Wharton's Law Lexicon, Fourteen Edition, has defined the word 'impotence' as follows:
Physical inability of a man or woman to perform the act of sexual intercourse. A marriage is void if, at the time of the celebration, either of the parties to it is incurably impotent, and may be declared void by a decree in a suit of nullity of marriage.
19. It is, therefore, clear that in order to attract the provision of Section 12(1)(a) of the Act, all that is necessary is that it must be proved that due to impotence of the respondent, the marriage could not be consummated, meaning thereby, that there was no complete sexual intercourse between the parties due to incapability of the respondent whether such respondent is husband or the wife. If the sexual intercourse is complete, it is immaterial whether a child is born due to such sexual intercourse.
20. In other words, the legislature has not prescribed infertility of a spouse as a ground for annulling the marriage if such spouse is capable of being a party to normal coitus. Although according to some of the dictionaries, the allegation of impotence is attributable only to men, the Hindu Marriage Act has, however, adopted the broader view that even a wife can be impotent if she is unable to be a party to normal coitus. As pointed out by the Supreme Court in the case of Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari reported in : [1970]1SCR559 , a party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. In the case before us, normal sexual intercourse between the parties having been admitted by the husband, the marriage should be held to have been duly consummated and thus, the case cannot come within the purview of Section 12(1)(a) of the Act, for the mere infertility of the wife.
21. The learned Trial Judge, in our opinion, rightly dismissed the application when it is the admitted case of the parties that the wife had no deficiency in participating in natural coitus with the husband.
22. The appeal is, thus, devoid of any substance and is dismissed. In the facts and circumstances, there will be, however, no order as to costs.
Bhaskar Bhattacharya, J.
23. I agree.