Friday 9 May 2014

Divorce can not be granted on ground of mental impotency of wife

Bombay High Court: Dismissing an appeal by a husband of getting decade-old marriage declared void by accusing his wife of "mental impotency", a division bench comprising of AS Oka and SC Gupte, JJ held that he husband did not discharge the burden on him of proving that the marriage could not be consummated due to impotency of his wife. In the present case, the husband had accused the wife of having "aversion or repugnance to have any sexual contact with him and she was suffering from mental impotency". He sought that the marriage be declared null and void on the grounds of the impotency of the spouse under the Hindu Marriage Act, 1956 as her refusal to consummate the marriage was causing him mental agony and affected his life. He also accused his wife of behaving badly with his family. The wife, in turn blamed the husband for the
unconsummated marriage and offered to undergo a medical test if her husband also took medical advice.
The Court ruled in favor of the wife and restored a decree of restitution of conjugal rights stating that the evidence of the wife shows that she persistently made efforts to resume cohabitation but she was denied an opportunity. An attempt by the husband's lawyers to seek divorce by claiming that the marriage had broken down irretrievably did not impress the court either. In law, as it stands today, irretrievable breakdown of marriage is neither a ground for grant of divorce nor a ground to refuse a decree of restitution of conjugal rights, the courts said.

Venkata Natarajan Krishnan


Padmashree Krishnan




By   this   Appeal,   the   Appellant   husband   has   taken   an 
exception to the Judgment and Decree dated 16 th October, 2006 passed 
by the learned Judge of the Family Court at Bandra in Petition No.A­393 
of 2004 and Petition No.A­880 of 2004.  Petition No.A­393 was filed by 
the Appellant husband for seeking a decree of nullity of marriage under 

Section 12(1)(a) of the Hindu Marriage Act, 1955.   By the impugned 
Judgment and Decree, the  said Petition  was dismissed.   The Petition 
No.A­880 was filed by the Respondent wife for restitution of conjugal 
rights.  The said Petition was decreed by the impugned Judgment and 
The marriage between the parties was solemnized on 27 th 
October, 2003.  According to the case of the Appellant husband, it was 

represented   to   him   that   the   Respondent   was   a   Lecturer   in   a   college 
drawing salary of Rs.15,000/­ pm.  In the Petition filed by the Appellant 
husband,   various   details   have   been   incorporated   leading   to   the 
solemnization of the marriage.
According to the case of the Appellant husband, from the 
date of marriage, the Respondent wife started behaving whimsically.  It 
is alleged that though the Appellant husband was employed at Nashik, 
the Respondent never stayed continuously with the Appellant at Nashik 
and   she   would   come   to   the   matrimonial   home   at   weekends   and   on 
holidays. According to the case of the Petitioner, the Respondent never 
allowed   the   marriage   to   be   consummated.   It   is   alleged   that   on   28 th 
November, 2003, a meeting was held to sort out the matter when the 
Respondent's mother and sister were present.   The Appellant husband 
has alleged that when the Respondent's mother and elder sister tried to 

advise her to behave properly, she quarreled with her own mother and 
elder sister.  The Appellant husband has stated that he had acquired a 
flat at Mulund in Bombay out of is own funds. On 29 th November, 2003, 
house warming ceremony was held in the said flat which was attended 
by the Respondent and her mother. It is alleged that at that time, the 
Respondent   promised   to   improve   her   behavour   and   attitude.   In   the 
Petition,   he   has   alleged   that   there   was   no   improvement   in   the 

Respondent's behaviour and that he was made to bear the brunt of her 
ill­tempered and vulgar  language.  He has alleged that the Respondent 
intermittently used to visit matrimonial home.   It is stated that on 4 th 
February, 2004 she visited matrimonial home and on the next day, left 
the matrimonial home informing the Appellant that she would never 
return back.   The Appellant has stated that a meeting was held on 8 th 
February, 2004 to sort out the dispute.   At that time, the Respondent 
insulted him and used filthy language.  The Appellant husband alleged 
that   he   has   been   a   victim   of   consistent   practice   of   cruelty   by   the 
Respondent and consistent ill­tempered behaviour.  He has alleged that 
it became miserable for him to co­habitat with the Respondent.  In the 
Petition,  he  has  given   the  list   of   jewellery  left  by  Respondent   at  the 
matrimonial home. The Appellant relied upon a legal notice dated 16 th 
February,  2004   issued   by  him   through   an   Advocate   calling   upon  the 
Respondent to take back the said jewellery.  The Appellant has alleged 

that on 15th February, 2004, he met the Respondent when Respondent's 
mother   and   elder   sister   were   present.   At   that   time,   the   Appellant's 
brother was also present. It is alleged that the Respondent in a very 
filthy language called upon the Appellant to hand over keys of the new 
flat. It is alleged in the Petition that the Respondent was not able to 
consummate   the   marriage   and   therefore,   the   marriage   was   nullity. 
Initially,   apart   from   the   relief   of   declaration   of   nullity,   by   way   of   a 

prayer in the alternative, a decree of divorce on the ground of cruelty 
was prayed for which was later on deleted.
The Respondent wife filed written statement and denied the 
material averments.   The Respondent filed a Petition for restitution of 
conjugal rights in which she alleged that the Appellant was not able to 
consummate the marriage due to physical incapacity. The Respondent 
alleged that she was ready and willing to undergo medical examination 
and  even   suggested   the   Appellant   to   consult   a   medical   expert.     The 
Respondent stated that she issued a short reply dated 13th March, 2004 
to the  notice  dated 16th February, 2004. The Respondent prayed for 
restitution of conjugal rights. The Appellant filed a written statement 
raising similar contentions which were raised in his Petition.
The Appellant examined himself and five other witnesses 
namely   Shri.   V   Dharmarajan,   Shri.   D.V   Natrajan,   Shri.   V

Subramanian, Ms. Uma M. Shastrigal and Shri. K.R. Sridhar.  He relied 
upon various documents.  The Respondent wife examined herself.  She 
and answers recorded by her reads thus :­
did not examine any witnesses.  The issues framed by the learned Judge 
“Issues in Petition No.A­393/2004 :
Does the Petitioner prove that the  
      Respondent is impotent? 
2 Is he entitled for a decree of annulment? No.
3 Whether the respondent is entitled  No.
       for her articles & ornaments? 
4 What order & decree? 

As per final order
Issues in Petition No.A­880/2004:
Does   the   Petitioner   prove   that   the 
     respondent,   without   any   reasonable   excuse       
              has withdrawn from her society?
2 1 Is   she   entitled   for   restitution   of   conjugal 
3 What order & decree?
As per final order.”
The learned counsel appearing for the Appellant has taken 
us through the pleadings and notes of evidence. He urged that there 
was no evidence on record to show that the Appellant had withdrawn 
from the society of the Respondent without any reasonable cause. He 
pointed   out   that   on   28th  March,   2004,   the   Respondent   wife   filed   a 
complaint with Pantanagar Police Station alleging cruelty against the 

Appellant and her family members.  He pointed out that she also filed a 
similar complaint with Byculla Police Station.   He urged that evidence 
of   the   witnesses   examined   by   the   Appellant   could   not   have   been 
rejected on the ground that they were interested witnesses.  He urged 
that   the   Appellant   has   established   that   the   marriage   could   not   be 
consummated due to impotency of the Respondent. He urged that the 
learned Judge has passed a decree for restitution of conjugal rights only 
on the ground that the Appellant could not secure a decree of nullity. 
He submitted that no case was made out by the Respondent for passing 
decree of restitution of conjugal rights. The learned counsel appearing 
for the Respondent supported the impugned judgment and decree.
We have considered the submissions.  We have perused the 
pleadings   and   notes   of   evidence.  Perusal   of   the   Petition   filed  by   the 
Appellant shows that in various paragraphs and in particular paragraph 
24, he has alleged that he has been a victim of consistent cruelty at the 
hands of the Respondent. In fact, the averments in paragraph 24 are in 
support of the initial prayer made by   the Appellant in the alternative 
for a decree of divorce on the ground of cruelty.  In paragraph 29, the 
Appellant has alleged thus :­
29. “The   Petitioner   states   that   he   was   willing,   eager   and 
capable   of   consummating   the   marriage,   but   the 
Respondent was averse to any sexual union neither did 

she show any interest or inclination nor did she reflect 
any enthusiasm to the idea of consummating the said 
marriage.     The   Petitioner   states   that   they   had   only 
platonic   relationship   and   the   Respondent   made   him 
undergo tremendous mental agony on account of the 
said non­consummation of marriage.”
In the same paragraph 29, the Appellant alleged thus :­
........ The Petitioner states that during the entire period, 

he underwent tremendous mental torture and his service 
life too suffered as a consequence.  The Petitioner states 
that the Respondent was having aversion or repugnance 
to   have   any   sexual   contact   with   him   and   she   was 
suffering from mental impotency.  The Petitioner submits 
that   in   the   circumstances   aforesaid   the   Petitioner   is 
entitled to a decree of nullity under section 12 (1) (a) of 
the Hindu Marriage Act, 1955.”
We must note here that the prayer for a decree of divorce on 
the   ground   of   cruelty   made   in   the   alternative   was   deleted   by   the 
Appellant by amendment carried out on 6th March, 2004.  On the other 
hand,   the   case   made   out   by   the   Respondent   wife   is   that   it   was   the 
Appellant who avoided to maintain physical relationship with her.   In 
clause (g) of paragraph 2 of the written statement filed in the Petition 
by the Appellant husband, she has given details as to how the Appellant 
avoided to maintain relationship with her.

We must note here that as far as the Petition filed by the 
Appellant is concerned, he has specifically claimed a declaration that 
the marriage was null and void under Clause (a) of Sub­section (1) of 
Section  12.   On  plain  reading  of  Clause  (a)  of  Sub­section   (1), it  is 
applicable only when marriage has not been consummated owing to the 
impotency of the Respondent.  After having perused the affidavit­in­lieu 
of examination­in­chief of the Appellant and the Petition filed by the 

Appellant husband, we find that there is no allegation that the marriage 
could not be consummated due to the impotency of the Respondent. 
Moreover, the Respondent had offered to undergo a medical check up. 
In her pleadings as well as in her evidence, she has stated that she had 
suggested to the Appellant to take medical advice.  The learned Judge 
of   the   Family   Court   recorded   a   finding   that   the   Appellant   neither 
pleaded   that   non­consummation   was   due   to   Respondent's   impotency 
nor supported this case by any medical report. After having perused the 
pleadings   and   evidence,   we   find   no   error   in   the   view   taken   by   the 
Family Court that the Appellant husband did not discharge the burden 
on him of proving that the marriage could not be consummated due to 
impotency of the Respondent.  
Now, we turn to the findings recorded by the learned Judge 
of   the   Family   Court   on   the   issue   of   restitution   of   conjugal   rights. 

Paragraphs 44 and 45 of the impugned judgment which reads thus :­
“44. The Wife in her petition has stated that she suggested to 
the Husband to take medical help; she has also set out 
specific   reasons   due   to   which   the   Husband   avoided 
consummation.  The Wife has not been cross­examined 
by the Husband on these reasons and therefore, it has 
gone unchallenged.  The Husband's cross­examination is 
based   on   the   allegations   in   paragraph   7   to   20   of 
affidavit of evidence, which do not find any place in his 
petition and are emphatically denied by the Wife. The 

Wife in her Written Statement to the Husband's petition 
has, time and again, preferred for reconciliation.   The 
parties   were   referred   to   Marriage   Counsellors.   Where 
efforts   for   reconciliation   were   made.     The   Court   also 
made  efforts for settlement, but the Wife opposed for 
settlement and insisted for reconciliation.
45. The   Husband   has   not   been   able   to   prove   non­
consummation   due   to   the   impotence   of   the   Wife, 
various complaints filed by the Wife were for settlement 
by way of reconciliation and not separation. She refused 
to  file  complaint   under   section  498/A  even   when   the 
police  inquired about the  same  with her. She  has not 
collected her articles with a hope that she would return 
to the matrimonial home.”
At this stage, it will be necessary to make a reference to the 
averments made by the Respondent wife in the said Petition. Various 
allegations have been set out as regards the objectionable behaviour of 

the   husband   and   husband's   family   members.   It   is   alleged   that   the 
husband's family members and particularly his father repeatedly told 
her   to   leave   matrimonial   home.   As   regards   the   consummation   of 
marriage, in paragraph 11 the Respondent wife alleged thus :­
“11. The Petitioner states that when she enquired with the 
respondent that the respondent should consult medical 
experts, if necessary, for the physical incapacity, if any, 
to   consummate   the   marriage.     The   petitioner   further 
offered all  necessary moral and financial  support and 

also   to   take   appointment   of   any   Doctor   in   this   field. 
The respondent got wild on the petitioner and bluntly 
told her that he did not want to discuss any thing in this 
regard   with   the   petitioner.   This   attitude   of   the 
respondent   gives   rise   to   a   reasonable   belief   for   the 
petitioner that the respondent is deliberately avoiding 
the   petitioner   to   consummate   the   marriage.   The 
petitioner   is   ever   ready   and   willing   to   consummate 
marriage and further she is ready and willing to submit 
herself for any medical examination, if required, by the 
respondent.   Right from the date  of the  marriage the 
petitioner   has   been   ever   ready   and   willing   to 
consummate   the   marriage   and   in   fact   had   made   her 
best   attempts   in   this   regard.   However,   on   all   the 
occasions   the   respondent   never   made   any   sincere 
attempts to consummate the marriage, initially due to 
physical incapacity and later for the reasons best known 
to   the   respondent   and   apparently   to   get   rid   of   the 

Further,   the   Respondent   wife   alleged   that   the   Appellant 
husband   was   always   under   the   influence   of   his   mother.     The 
Respondent wife is relying upon incident of 5 th February, 2004.  She has 
alleged that when she was getting ready to leave for her college, her 
father­in­law picked up quarrel with her.   He told her to either bring 
money from her maternal home or leave the matrimonial home.   It is 

alleged that her father­in­law physically assaulted her when she politely 
declined to bring money.   She has stated that her father­in­law asked 
her to leave matrimonial home and, therefore, she went to her mother's 
home at Ghatkopar.  She has stated that as she intended to return to the 
matrimonial  home,  she did not take  any of  her belongings  with her. 
She  alleged   that   she  was   waiting  for   Appellant   husband   to  respond. 
However, till 15th February, 2004, he did not respond.  On 15 th February, 
2004,   he   called   the   Respondent   wife   to   meet   him   outside   Mulund 
Railway   Station.   Accordingly,   the   Respondent   wife   along   with   her 
mother and two sisters met the Appellant. The Appellant husband was 
accompanied by his brother and some unknown persons.   It is alleged 
that the Appellant took them to his new flat at Mulund (East).  At that 
time, the builder informed them that flat cannot be occupied without an 
occupation   certificate.   It   is   alleged   that   the   persons   accompanying 
husband started abusing the Respondent wife, her mother and sisters. 

Thereafter,   the  Respondent   wife,  her  mother  and   sisters  went   to  the 
matrimonial home of the Appellant husband.   The family members of 
the Appellant did not open the door of the matrimonial home but still 
the Respondent, her mother and sisters waited there for five hours.  It is 
alleged   that   a   false   complaint   was   filed   by   Appellant   husband   with 
Navghar   Police   Station   alleging   that   the   Respondent   wife   was 
demanding the keys of the new flat.   It is alleged that on 5 th  March, 
2004, the Respondent's father and brother­in­law made an attempt to 
meet   the   Appellant   for   reconciliation   but   they   were   insulted   by   the 
Appellant and his family members. The Appellant pointed out that on 
16th  February, 2004, a notice was issued by the Appellant, who is an 
Advocate, making various allegations.   She referred to her short reply 
requesting the Appellant to fix a meeting for reconciliation.  It is stated 
that the Appellant, by sending a letter dated  24 th March, 2004 through 
his Advocate refused to meet the Respondent wife. Thereafter, a reply 
dated   24th  March,   2004   was   sent   by   the   Respondent   through   her 
Advocate to the Appellant.
As   the   Respondent   was   receiving   threats   from   unknown 
persons, she lodged a complaint in Byculla Police Station on 1 st  April, 
2004.  The officers of Byculla Police Station called the Appellant on 3 rd 
April, 2004 in presence of the Police Officers.   The Appellant told the 
Respondent that he would not unite with the Respondent. The Petition 

for   restitution   of   conjugal   rights   was   filed   by   the   Respondent   on   5 th 
Appellant husband on 22nd February, 2004.
April,   2004.     The   Petition   for   declaration   of   nullity  was   filed   by   the 
Perusal of the evidence of the Respondent wife shows that 
she   has   reiterated   what   she   has   stated   in   the   Petition.   In   the   cross­
examination, the version of the Respondent wife regarding efforts made 

by her to resume co­habitation has not been shaken. In the Petition filed 
by the Appellant husband and his evidence, the case made out is that 
the   marriage   is   nullity   because   the   Respondent   wife   declined   to 
consummate the marriage.  In paragraphs 40 and 41 of the affidavit­in 
­lieu of examination­in­chief of the Appellant, he has stated that he gave 
opportunities   to   the   Respondent   wife   for   reconciliation   and   he   also 
offered   to   provide   medical   help   to   the   Respondent   wife   if   she   was 
suffering from any disorder.  He stated that by way of notice dated 16 th 
February, 2004, he showed willingness for amicable settlement and also 
for taking divorce by consent. In paragraph 40, the husband has again 
reiterated   that   it   was   the   Respondent   who   persistently   refused   to 
consummate marriage and, therefore, he cannot be expected to reunite 
with the Respondent wife at any costs.
We   have   already   held   that   the   Appellant   failed   and 

neglected   to   establish   his   case   of   non­consummation   of   marriage   on 
account of the alleged impotency of the Respondent wife.  On the other 
hand, the deposition of Respondent wife shows that she made efforts 
for reconciliation and she was willing to cohabit with the Appellant. The 
Respondent wife stated that when on 4 th February, 2004, she was forced 
to leave the matrimonial home, she did not take her belongings as she 
was   desirous   of   returning   to   the   matrimonial   home.   Moreover,   the 
Appellant husband failed to prove his allegations regarding impotency 
of the Respondent ­ wife. The evidence of Respondent wife shows that 
she persistently made efforts to resume cohabitation but she was denied 
an   opportunity   to   resume   cohabitation.   On   the   other   hand,   the 
Appellant could not prove his allegations against the Respondent.
Some   argument   is   canvassed   by   the   learned   counsel 
appearing for the Appellant regarding total breakdown of marriage. His 
submission was that due to total breakdown of marriage, the parties 
cannot   come   together.     In   law,   as   it   stands   today,   irretrievable 
breakdown of marriage is neither a ground for grant of divorce or a 
ground to  refuse a  decree of  restitution  of conjugal  rights. Once the 
ingredients   of   Section   9   of   the   said   Act   are   satisfied,   a   decree   of 
restitution of conjugal rights must follow.

We, accordingly, find no merit in the Appeal and the same 
is accordingly dismissed with no order as to costs.

(A.S. OKA, J ) 

 (S.C. GUPTE, J )

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