Mangho Shiv Dasani Vs. Smt. Mohani - Court Judgment

Excerpt:
hindu marriage act, 1955 - divorce on ground of impotency--wife can be potent qua a particular person and impotent qua other person due to psychological reasons--held, burden lay on husband to prove impotency by producing all possible evidence--mere absence of consummation of marriage is not sufficient to establish impotency.;the wife can be potent qua a particular person and yet impotent qua other person. this can be due to various psychological reasons.... the burden lays on the husband. the husband was under law bound to produce all possible evidence to prove that the wife was impotent. mere absence of consummation of marriage can never raise absence of potency.;appeal dismissed - - it is true that it is well known medical phenomenon that the wife can be potent qua a particular person and yet impotent qua other person. the husband may not like the wife. the spouse may not like each other. having failed to do so, the petitioner cannot make capital out of it.guman mal lodha, actg. c.j. 1. this is husband's appeal against a decree dismissing his petition for divorce and declaring the marriage void. the principal contention and ground made by the husband in the petition was that the wife was impotent qua him. it was also submitted that there was no consummation of the marraige even through the husband and wife lived together for 8 months or so. 2. the learned trial court, after recording the evidence and hearing the parties, came to the conclusion that the husband has not proved the case. the medical examination of the non-petitioner wife revealed that she was potent and not impotent. 3. shri j.c. jain, the learned advocate for the appellant husband, has argued that the medical examination was not complete and comprehensive. according to him the question, whether the wife was impotent qua him (husband) was not considered by the medical board it was also argued that no psychologist was produced by the lady to show that she was not impotent qua husband. it was also argued that mere fact that there was no consummation of the marriage in spite of living together of the husband and wife for 8 months or so, raises presumption that the wife is impotent. 4. i am not inclined to accept any of the above contention. the impotency of a man and/or woman is a serious phenomenon. it is true that it is well known medical phenomenon that the wife can be potent qua a particular person and yet impotent qua other person. this can be due to various psychological reasons. it is now established law of medical phenomenon that the wife is potent yet mentally impotent. however, all the above have got no relevancy. simple reason is that it was husband's petition for declaring the marriage void and null on the ground of impotency of the wife. the burden lay on the husband. the husband was under law bound to produce all possible evidence to prove that the wife was impotent. mere absence of consummation of marriage can never raise inference of absence of potency. the absence of potency can be on other various reasons. the husband may not like the wife. the spouse may not like each other. there may be some quarrel or enmity. non-consummation can also be on account of the impotency of the husband even though the wife is potent. it is difficult to raise an inference of impotency of the wife only on account of non-consummation of the marriage. there cannot be rebuttal or irrebuttal presumption of this type. 5. so far as the medical evidence is concerned, it is clear that the non-petitioner respondent wife was potent and was not impotent and this opinion is of medical board which was set up at the instance of the application of the husband. 6. if the medical examination was not complete and comprehensive on all respects including psychological aspect or impotency for the particular person, it was the duty of the husband to move an application forgetting the wife re-examined for her further examination by the medical board. having failed to do so, the petitioner cannot make capital out of it. no body can get advantage of his own lapses or wrongs, i am convinced that the reasons given by the trial court are just and proper and call for no interference. 7. consequently, this aspect fails and is hereby dismissed without any order as to costs.