Judgment:
V.K. Ahuja, J.
1. This is an appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955, against the judgment passed by the learned Presiding Judge, Fast Track Court, Mandi, dated 26.2.2008, vide which the petition filed by the respondent as against the appellant under Section 12 of the Hindu Marriage Act, for annulment of the marriage, was allowed by the Court.
2. Briefly stated, the facts of the case are that a petition under Section 12 of the Hindu Marriage Act for annulment of marriage was filed by the respondent, hereinafter referred to as the petitioner as against the appellant, hereinafter referred to as non-applicant. The allegations made by the applicant were that the non-applicant i.e. his wife Smt. Meenakshi was impotent at the time of her marriage and continued to be so till the institution of the petition. The marriage was solemnized in between the parties on 1.7.2001 according to Hindu rites and it was alleged that it could not be consummated. The petitioner got the respondent treated, but to no avail and since she was suffering from psychological disorder, which is the cause of her incapability to enjoy marital life, hence, the petition filed by the petitioner.
3. The respondent denied the allegations and denied that the marriage was not consummated. She pleaded that the marriage was cohabitated between the parties till her stay with the petitioner and she is not an impotent and had sexual intercourse with her husband in several times at different places of his posting.
4. On the pleadings of the parties, the learned trial Court framed the issues as under:
1. Whether the respondent was impotent at the time of marriage and continued to be so, as alleged? ... OPP
2. Relief.
5. Parties led their evidence and the learned trial Court vide its impugned judgment held that the marriage had not been consummated and as such, non-applicant was impotent and the petition for annulment of the marriage on the ground of impotency of the non-applicant was allowed.
6. I have heard the learned Counsel for the parties and have gone through the record of the case.
7. The submissions made by the learned Counsel for the appellant were that there is no medical evidence on record to substantiate the plea that the appellant was impotent and it was also submitted that the two Doctors, who had examained the appellant allegedly at Mandi, had not been examined by the petitioner/respondent. The only evidence led is of one PW-2 Dr. Naresh Kumar Sharma, whose statement was challenged on the ground that the appellant had not gone there and no record has been proved regarding her examination by the Medical Officer. It was also denied that any letter was written by PW-2 Dr. Naresh Kumar Sharma to the father of the appellant since it was produced from the possession of the applicant/respondent himself. Thus, it was submitted that there was no order of the Court for medical examination and, therefore, the learned trial Court had wrongly drawn an inference that the appellant had not been subjected herself for medical examination at Shimla and in the absence of any medical record, the findings of learned trial Court holding that the appellant was impotent are liable to be set aside.
8. On the other hand, the learned Counsel for the respondent had supported the impugned judgment for the reasons given therein supplementing it by submission that the testimony of the appellant as RW-1 is there wherein she admitted that she refused to appear for check up and, therefore, adverse inference was rightly drawn. It was submitted that the appellant was not physically unfit but was a case of mental impotency, which has been proved from the statement of the applicant/respondent himself, statement of the Medical Officer PW-2 Dr. Naresh Kumar Sharma and finds corroboration from the testimony of the appellant examined in evidence. Thus, it was submitted that the findings of the learned trial Court which are based upon correct appreciation of facts and law do not call for an interference by this Court.
9. To substantiate his submission, the learned Counsel for the respondent had relied upon the following decisions:
10. The decision in Smt. Urmila Devi v. Narinder Singh , shows that the observations made by this Court in Para-28 are relevant and may be reproduced below:
Impotence is the incapacity to consummate the marriage for physical or psychological reasons. Therefore, a mental defect or mental block 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 reason enough to hold that the marriage cannot be dissolved. In case it is proved that sexual life is virtually impossible due to some mental apathy which is likely to be permanent, the Court must annul the marriage. The Court dealing with such question has to take a practicable and reasonable view on the basis of the evidence led before it.
11. Reliance was placed upon the decision in Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari : [1970]1SCR559 , shows that the observations made in Para-5 are relevant and may be reproduced below:
A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. In order to entitle a petitioner under Section 12(1)(a) Hindu Marriage Act, 1955 to obtain a decree of nullity, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.
12. In the light of the pleas raised by the learned Counsel for the parties during the course of arguments and the case law cited, it has to be considered as to whether the findings of the learned trial Court are correct or not.
13. A perusal of the petition shows that the petitioner had alleged in the petition that the marriage was not co-habitated since respondent was impotent at the time of marriage and continued to be so until institution of present proceedings. It was clearly alleged that the respondent showed reluctance towards enjoyment of marital obligation and thereafter, the petitioner firstly treated the respondent for mental illness and even for effect of devil power but of no avail. He also alleged that he also got her treated from various Doctors who had advised that the respondent is suffering from psychological disorder, which is the cause of her incapability to enjoy marital life. He also alleged that the efforts made by him to have sexual intercourse turned of no avail due to deformity/impotency of the respondent. It was also alleged that the parents of the respondents and her other relations were also apprised about the defect and request made to them also turned fruitless. The respondent left the house of respondent and resided in her parental house since 11.1.2003 and the petition was filed on 18.1.2003,
14. It is, therefore, clear that the petitioner did allege the facts in regard to the treatment of his wife, but he had not specifically alleged that he got her treated from the Medical Officer PW-2 Dr. Naresh Kumar Sharma. The petitioner did state in his statement as PW-1 that he got his wife treated from two lady Doctors at Mandi, who told him that the respondent was not having any physical problem but she needed mental treatment. The non-examination of the said two Medical Officers cannot be said to be relevant because the petitioner has never alleged that those findings of the two Medical Officers were incorrect that she was having no physical disability. Once there was no physical defect as opined by the Medical Officer, their examination would not have given any further credence to the testimony of the petitioner which is sufficient to prove that the appellant was not suffering from any physical incapacity. The only question was that she was suffering from mental disorder and the perusal of the above decision, it is very clear that the impotency can be mental also due to various reasons which need not be elaborated here but suffice to say that if a woman is unable to enjoy sex for one reason or other, it can be said that she was suffering from impotency.
15. To prove that there is statement of PW-1 Puran Chand, corroborated by the testimony of PW-2 Dr. Naresh Kumar Sharma, who had issued a certificate Ext. PW2/A in this regard. No record has been produced by the Medical Officer in regard to the examination of the appellant, who denied having ever gone to the Medical Officer but the statement of the petitioner coupled with the testimony of this witness who has no enmity or bias as against the appellant to depose against her, establishes this fact that the non-applicant was shown to the Medical Officer who gave this certificate. There were no suggestions made to PW-2 Dr. Naresh Kumar Sharma that he has issued this certificate falsely and, therefore, his testimony has to be accepted as correct. The mere fact that he had written a letter to the father of the appellant Mark-B to come for discussion but it was never sent to him, is not sufficient to disbelieve his statement. The learned trial Court had rightly referred to the testimony of RW-2 Loat Ram, father of the non- applicant, who admitted that the petitioner had told him on 11.1.2003 that he had taken the respondent for treatment to Dr. N.K. Sharma but his daughter had refused to take treatment. Therefore, the statement of the petitioner coupled with the testimony of PW-2 Dr. Naresh Kumar Sharma and the statement of the father of the respondent are sufficient to prove the assertions made by the petitioner that the respondent/nonapplicant was impotent.
16. To my mind, if the statement of the respondent/appellant is perused carefully, it will clearly prove that the allegations made by the petitioner are not incorrect. In her statement as RW-1, she simply stated that she is living with her husband as his wife, she is not impotent, but never stated anything more than that during the period she remained with the petitioner, had sex with him and how many times or at which places. She never stated anything in this regard and to my mind, her own statement was sufficient to prove that she had not enjoyed sex with the petitioner so far. In case, she had enjoyed sex, then she should have stated about the sex, how many times or at which places. In her statement she had stated that she was not impotent and had lived with the petitioner as his wife. Her denial is not sufficient to prove the charges that she was suffering from mental disturbance and was in-impotent. She has not specifically stated that she had sexual relation with her husband or she never refused to have sexual intercourse with the petitioner. She never came up specifically with the plea that either her husband had made not any attempt to have sex with her and, therefore, the only inference that can be drawn is that she was not able to have sexual relations since she was suffering from mental impotency. In her statement she has taken the plea that her husband wants to marry a girl who is in service but this was never so stated by her father as RW-2, who admits that a complaint was made to him by the petitioner in this regard. The mere fact that this complaint was made to him after two years as per his statement and not earlier also as alleged by the petitioner, is not sufficient to hold that no complaint was made to him or that the appellant was not suffering from any disorder. The learned trial Court had rightly drawn adverse inference as against the non-applicant for not appearing before the Medical Board in view of the statement made by the non-applicant.
17. In view of the above discussion, it is clear that the findings of the learned trial Court holding that the appellant was impotent and the marriage deserves to be annulled, which are based upon correct appreciation of facts and law, these do not call for an interference by this Court. The appeal filed by the appellant is dismissed. However, the parties are left to bear their own costs. Decree sheet be prepared accordingly.