Smt. Kamla Vs. Jagdish Prasad - Court Judgment

Inder Sen Israni, J.

1. This is a Civil Miscellaneous Appeal arising out of decree and judgment passed by the learned District Judge, Alwar on 28-8-1982 in petition No. 19/80 filed under Sections 12 and 13 of the Hindu Marriage Act for nullity of marriage and divorce by the appellant petitioner. The case of the appellant is that she was married with respondent on 2-7-1975 according to the Hindu customs. It is stated that at the time of her marriage, she was of 11 years of age and before attaining the age of 18 years at the time of filing the petition for divorce and praying for declaration of the marriage as nullity, the appellant had repudiated the marriage with respondent. It was further stated that the respondent was not mentally balanced at the time of marriage and even thereafter and that he was suffering intermittently from mental disorder to such an extent that the appellant could not reasonably be expected to live with the respondent. The respondent used to strangulate the neck of the appellant on account of his mental disorder and was cruel to the appellant and used to beat her and turn her out from his house in the night. Therefore, it became impossible for the appellant to reasonably reside with the respondent. It was also pleaded that after the marriage she remained for two-three days with the respondent and came to her parent's house. After two years Gauna Ceremony was performed and she again went to the respondent's house and lived, there for, one month. The appellant last resided continuously for a period of 6 months with the respondent prior to filing of petition for divorce. During this period of stay with the respondent he did not co-habit with the appellant and did not perform any sexual intercourse. Though the respondent many times made attempts to do the sexual intercourse but he could not do so as there was no erection and the respondent was, therefore, impotent. It has also been stated that the respondent said to the appellant that he was impotent and had not desire to marry but on account of compulsion and pressure of respondent's family members he had to marry her. It was also sated that the respondent had undergone a treatment of impotency but there was no improvement and he continued to be an impotent person. Therefore, the appellant on 23-7-1980 filed a petition for divorce and prayed for decree of divorce and declaration for repudiation of the marriage. The respondent contested the petition and denied the allegations made by the appellant against him. It was pleaded by the respondent that in the month of July, 1976, the appellant had pregnancy of three months and she all of sudden had abortion. It was further stated that at the time of marriage, the appellant was 18 years old and that respondent was of sound mind at the time of marriage and was more than 27 years of age at that time. He has discharged all marital obligations with the appellant and lived like husband and wife and performed sexual intercourse with her. He has also stated that he had not lost the mental balance and had never beaten or treated appellant with cruelty. He has also asserted that he was fully potent and that he did not undertake any treatment on this account. He, therefore, prayed that the petition of the appellant for divorce be dismissed.

2. The learned Counsel for the petitioner appellant has urged that he bases this appeal on three counts, i.e., age of minority at the time of marriage (Issue No. 2), cruelty of the respondent after marriage (Issue No. 3) and impotency of the respondent (Issue No. 4).

3. The learned Counsel for the parties have taken me through the relevant portion of the pleadings and statements of the witnesses and the documents on the record.

4. Regarding issue No. 2, the learned Counsel for the appellant has stated that the marriage took place on 2-7-1975 and the petition for divorce was filed on 30-7-1980. In para 7 of the petition, the appellant has stated that at the time of marriage her age was 11 years and no consent from her was obtained regarding her marriage with the respondent which was done against her wishes. It has been further stated that as she was only 11 years old at that time she had no power to think over on such important matters like marriage. Now she has grown and after considering the whole matter she has come to the conclusion that it is not possible for her to live as a wife of the respondent and she repudiated the marriage. Her age is not yet 18 years, therefore, according to law she is entitled to repudiate the marriage. The respondent in his reply in para 7 has stated that the marriage was performed with her consent and also consent of her parents and that she was not 11 years old at the time of marriage. He has stated that now she is more than 23 years old and when she lived along with him for the last time in 1979 before Deewali for 10-11 days he had sexual relations with her. Under Section 13(2)(iv) it is laid down that a wife may present petition for dissolution of her marriage on the ground that her marriage (whether consumated or not) was solemnised before she attained the age of 15 years and she had repudiated the marriage after attaining that age but before attaining the age of 18 years.

5. Learned Counsel for the parties have taken me through the evidence, oral and documentary, in the case. Mst. Kamla (AW 1) has stated in her statement, that she was married 5-6 years back and that time her age was 11 years. She has further stated that at the time of marriage she stayed with her husband for two days. After two years 'Gauna' cermony took place and she again stayed with the respondent for one month in his house. Again after one year she went to the house of the respondent and stayed with him for about six months. In the cross-examination she has denied that her younger sister Vimla was 21 years old. She has stated that her sister was 3-4 years younger to her. She has further stated that she left the School on 2-7-1975 but but has denied that on 2-7-1975 she was 17 years and few months old.

6. Shri Durga Prasad (AW 2) father of the appellant has stated that at the time of marriage the age of the appellent was 11 years and that he had not taken any consent of marriage from her. He has stated in his cross-examination that the appellant is staying with him since last 4 years and had not gone to the house of her husband during that time nor the respondent came to take her to his house. He further states that during this period in the beginning for about 2-1/2 years he persuaded the petitioner appellant to go to the house of her husband but she told her mother that she may be thrown in the well, but she would not go to the house of her husband. She has also stated that the appellant never talked to him directly regarding her marriage and the condition of her husband. He has also stated that at the time when the appellant was given admission in second class, her age was 7-8 years and he has also denied that her age at the time of his giving statement was 22-23 years. He has also stated that since last 2 years she is staying with him. He has also stated that the marriage took place with the consent of the petitioner appellant.

7. Respondent Jagdish (NAW 1) has stated in his statement that when the marriage of the appellant took place she was 17-18 years old. He has also stated that 'Gauna' ceremony took place after 2-3 days and after marriage the petitioner appellant stayed with him for about 4 years. He has also stated that the marriage took place with the consent of the petitioner.

8. Shri Hari Ram (NAW 2) has stated in his cross-examination in chief that at time of marriage the father of the petitioner appellant had given her age to be 16-17 years. In cross-examination, however, he states that he has no personal knowledge about the age of the petitioner and that he is serving out of the village since 1958.

9. Shri Munshi Lal (NAW 3) has stated that the father of the petitioner has stated when the talks of marriage took place that she was 17 years old.

10. Shri Ram Kishore (MAW 4) has stated in his examination in chief that at the time of the marriage the age of the petitioner was 17-18 years. In his cross-examination he has stated that he is related to the non-petitioner/ respondent and that he does not know the date, month or year of birth of the petitioner.

11. Regarding the matter of age Dr. K.L. Pareek (CW 1) was also examined who was posted at the relevant time as Senior Physician, General Hospital Alwar. He examined the petitioner-appellant on 25-2-1982 and in his opinion (Ex.C/1) he has stated that at the time of examination the age was about 18 years. In cross-examination he has stated that in ascertaining the age on the basis of radiological as well clinical examination the range of error may vary from 1 to 3 years. He has also stated that the possibility of the age of Smt. Kamla, in view of eruption of wisdom tooth, being 23 years cannot be ruled out. He has further stated that on the basis of fusion of iliac crest the age of the petitioner should be fixed about 19 years.

12. From the above evidence it is not possible to come to any firm conclusion regarding the age of petitioner at the time of marriage. Learned Counsel for the respondent has also argued that the certificate of school in which the petitioner was educated should also have been obtained and placed on the record by the petitioner-appellant which has also not been done. Learned Counsel for the respondent has also urged that the petitioner in his statement has not said a word regarding repudiating the marriage after attaining the age of 15 yrs. and before attaining the age of 18 yrs. and even if it is taken that she was staying in the house of her father since last 4 years as stated by her father, it does not mean that she had repudiated the marriage during the period because no action in this regard was ever taken by her or by her father. He has also urged that merely because in the present petition, an allegation of repudiation has been made, it cannot be said that the repudiation had been made earlier also. I am inclined to agree with the learned Counsel for the respondent that the age of the petitioner-appellant has not been properly proved and the important evidence in the shape of school certificate has not been produced and the opinion of the doctor is not also of much help to the petitioner-appellant. Apart from this she has not stated anything regarding the repudiation of her marriage after attaining the age of 15 years and before the age of 18 years. Therefore, in my opinion the petitioner-appellant has failed to prove the issue regarding the age of repudiation.

13. Regarding the issue about impotency and non-consummation of marriage by the respondent, AW 1 Smt. Kamla has stated in her statement that when ever she stayed for short interval with her husband, as stated above, the respondent never had any cohabitation with her and that he had also told her that he was impotent. She has further stated that he was not willing to marry, but was forced to marry, by the members of the family and that she was of no use to him and can go wherever she likes. In the cross-examination she has denied that in the month of July, 1976 she had pregnancy of 3 months and had abortion on this account. She has also stated that for some time she did not inform her parents regarding the impotency of the respondent as she was of very young age at the time. She also states that her husband was getting medical treatment for impotency and thereafter on this account also she did not deem it proper to talk about this matter with her parents. But she has not been able to give the name of the person from whom the respondent was getting the treatment. She has also stated that they used to sleep separately. She states that she had also told about the impotency of the respondent to her mother-in-law, but the respondent in the presence of his mother denied that he was impotent. AW 2 Shri Durga Prasad father of the appellant has stated that she had told her mother about the impotency of her husband and she refused to go to the house of her husband at any cost. AW 3 Banwari Lal Sharma has stated that the respondent once or twice had told him about this weakness and enquired about the medicines for the same. This witness has not been cross-examined by the respondent, so there is no reason to disbelieve his testimony. Respondent (NAW-1) Jagdish Prasad has denied that he is impotent and has stated that the marriage had been consummated and that the petitioner-appellant was pregnant for 2-3 months during the year 1976 and that abortion had taken place. In cross-examination he has stated that at the time of abortion, treatment of any doctor or Vaihya had not been done but the abortion was done through one 'Dai', who lived in their village. He has not stated her name nor she has been produced as a witness. NAW 2 Shri Hariram has also stated that the appellant was pregnant in the year 1976 and has said that at that time she lived with the respondent. In cross-examination, he has stated that he does not remember the date or month of abortion.

14. The appellant and respondent both were examined by Dr. K.L. Pareek (CW-l) Senior Physician of General Hospital, Alwar, who has also filed his report which is Ex. C-l and C-2 respectively. The medical examination was conducted by the Board of Doctors of which this witness was the Chairman. It has been mentioned in the report that no organ disease could be detected however, failure of erection of penis and inability to pass semen is indicative of the fact that he may be impotent. No opinion can be given about the sterlity as semen could not be tested. In his statement this witness has said that the Board of doctors had examined the respondent and since the respondent failed to obtain erection and eject semen, they had doubted his potency. He had stated that there was no deformity in the male organ and some times due to tension, fear or anxiety erection may not be possible. He further states that however on the tactile, erection is not affected by emotional feelings. In the present case Shri Jagdish Prasad was given half an hour time in a secluded corner to attempt erection and pass semen. He has further stated that he does not agree with the proposition that the emotional stresses would stand in the way of manual erection. He has also stated that by manual efforts, normally in case of a potent person erection must be there. The same may not be complete, but partial erection should always be there and normally the patient should have come out to show even partial erection and in the fond hope of obtaining complete erection. On further cross-exanimatiora he has stated that the possibility of respondent being potent cannot be totally ruled out. In the report Ext. C-l regarding the petitioner-appellant it has been stated that in the opinion of the Medical Board, she is not habitual of sexual intercourse. The Board has also opined that there were no signs of pregnancy in the appellant. In the cross-examination, this witness has stated that there were old tears in the hymen but he cannot conclusively opine that the same was inevitable result of sexual intercourse. He has also stated that hymen cart be ruptured by means other than intercourse also. He has also stated that the appellant might have been subjected to sexual intercourse, but not in the recent past. It will be seen from this cross-examination that this witness was not put a single question regarding the allegation of pregnancy made by the respondent, which has been denied by the petitioner-appellant. It may be stated that the marriage of the parties took place on 2-7-75 and after 2 days she lived with her parents for years and came after gauna ceremoney to stay with her husband. It is conclusively proved that she was staying in the house: of her parents in the year 1976. The allegation of the respondent that she became pregnant in the year 1976 is therefore, evidently false and cannot be relied upon. The respondent has also failed to produce the Dai, who had performed the abortion. The Medical Board specially constituted for the purpose has also opined that there were no signs of pregnancy when she was examined. Therefore, it can safely be said that the appellant was never pregnant as alleged by the respondent. In the report Ex. C-2 the Medical Board has clearly opined that failure of erection of penis and inability to pass semen is indicative of the fact that he may be impotent. In his statement it has been clearly stated that the respondent was given half an hours time in a secluded corner to pass through semen and erection. This witness has further opined that by manual efforts, normally in case of a potent person erection must be there but he failed even to get partial erection and could not pass semen at all. Merely because the Doctor has stated in his cross-examination the possibility of respondent being potent can be ruled out, the whole opinion of the Medical Board cannot be ignored. In my considered opinion the Medical Board had given the respondent sufficient opportunity to prove his potency and the Medical Board after considering the whole aspect of the matter, came to unanimous conclusion that all these signs were of the indication that the respondent may be impotent. Sexual intercourse or consummation is some times referred as vera copula, i.e., as the natural conjuction of bodies short of coitus without power of conception, i.e., of erection and penetration by the male of the woman. For full and complete sexual inter course, complete penetration is the essential ingredient of sexual inter course. In legal parlance consummation means full and complete penetration. A partial penetration or an abort attempt at inter couse would not constitute consummation. The definite term 'impotency' in the back ground of matrimonial law, their Lordships of the Supreme Court in Digvijay Singh v. Pratap Kumari : [1970]1SCR559 , have held, that a party must be held to be impotent if his or her mental or physical condition makes consummation impossible. It has been held in Nijhawan v. Nijhawan AIR 1973 Del. 100 that impotency is the lack of ability to perform full and complete sexual inter course and that partial inter course would not amount to consummation of marriage and if the husband is found incapable of performing sexual intercourse, he would in law be deemed to be impotent. In Laxmi Devi v. Babu Lal AIR 1973 Raj 83 this Court has held that impotency in matrimonial cases has been understood to mean incapacity to con-sumate marriage, that is to say, incapacity to have consumable inter course, which is one of the objects of marriage. It is not absolutely necessary that incapacity to perform the sexual act should be general because though a person may generally be capable of performing sexual act yet he may be incapable of it vis-a-vis a particular person, the court can grant relief even if the spouse is found to be impotent only in relation to the other spouse. This is called relative impotency or 'quod hunc.'

15. In the matter of Usha Rani v. Sikander Lal (1983) 1 DCM 361, wife filed a petition for nullity of marriage on the ground of non-consummation of marriage due to husband's impotency qua her. However, the husband was found potent by the Board of Medical experts. The husband was unable to give the date, month or year when he performed sexual inter course. The wife specifically stated that there was no consummation of marriage. It was held that the statement of the husband did not inspire confidence as it was vague and indefinite and in view of specific statement by the wife regarding the non-consummation of marriage and further that she was also prepared to get herself examined by the Medical Board regarding non-consummation of marriage. The court concluded that the husband was impotent qua his wife and annulled the marriage. It may be stated that after the amendment of Clause (a) of Sub-section (1) of Section 12 of the Hindu Marriage Act by the amending Act of 68 of 1976, a wife seeking decree of nullity of marriage need no more proof than that the husband was impotent at the time of marriage and continued to be so when the petition was filed. If it is proved that the marriage has not been consummated and the absence of consummation is due to the impotency of the husband, the proof that the husband is wholly and totally impotent, i.e., impotent with other women as well is also not required and divorce can be granted, even if impotency is only with regard to a particular woman. In Sarwan v. G.M. Acharya : AIR1979AP169 , it has been held that when the respondent husband came forward with a positive case of having had sexual intercourse with the petitioner several times and that is found to be false and when the petitioner wife alleged that the absence of consummation was due to impotency of the respondent, it is not unreasonable to infer that the consummation did not take place because of sexual incompetence of the respondent. In this case also the respondent husband has come up with same plea and has even alleged that the petitioner wife was pregnant and has given particular month and year of the same, which he has failed to prove and there is evidence on record to show that she was not even staying with him at that time. This false allegation has been evidently made to hide his impotency. Coupled with this the opinion of the Medical Board also goes to prove the incompetence of the respondent to perform sexual intercourse.

16. It is well known that the ladies in our country belonging to middle class find it very difficult to come and state such allegations in the court of law unless they are compelled to do so, knowing fully well that they will be subjected to cross-examination and all sort of question will be put to them.

17. In view of the legal position stated above, this is absolutely essential for the respondent to be fit to perform complete sexual intecourse to prove his potency. I do not find any reason to disbelieve the statement of the appellant coupled with the medical opinion given by the Medical Board consisting of 3 doctors specially constituted for this purpose. The respondent not only failed to achieve complete erection but failed even to get partial erection, which shows that the opinion of the Medical Board is worth-relying. Under Section 12A of the Act as it stands amended by the Marriage Law Amendment Act, 1976 the marriage shall be annulled by decree of nullity if the marriage has not been consummated owing to the impotency of the respondent. In this ease the appellant has lived for sufficiently long time at different intervals with the respondent and he has failed to consummate the marriage as is evident from the oral and documentary evidence on the record. It is, therefore, clear that in any case the respondent was utterly unable to have sexual intercourse with his own spouse and, therefore, he can be termed to be impotent vis-a-vis appellant, In Nijwahan's case (supra) it has been held that sexual dissatisfaction to the spouse also amounts to legal cruelty and on this account also the marriage was dissolved. The facts and circumstances of the present case are similar to the one noted above. 1 am therefore, of the considered opinion that the appellant petitioner has succeeded in proving that the respondent was impotent and in any case impotent vis-a-vis the appellant and therefore she is entitled to get the marriage annulled under Section 12(1)(a) of the Act.

18. In the result the appeal is allowed. The judgment and decree of the learned lower court is set aside. The marriage of the appellant with the respondent is annulled and decree of divorce is passed in favour of the petitioner-appellant. In the facts and circumstances of the case, the parties arc left to bear their own costs.