On August 27, while hearing a case under the Protection of Women from Domestic Violence Act, a bench of the high court suggested that couples should undergo medical examinations to check for impotency or sexually transmitted diseases before marriage.
The ruling aimed to address cases of couples seeking divorce on the grounds of impotency, particularly cases in which men deceive their brides by hiding the fact of their condition before marriage. According to Justice Kirubakaran, who was hearing the case, pre-marital tests would be most beneficial to women, who are often blamed for their husbands’ impotency and are made to suffer for it.
A sensitive issue
In its ruling, the High Court noted that the number of impotency-related cases of failed marriages recorded at the Chennai family court rose from 88 in 2009 to 715 in 2013. However, while divorce lawyers agree that impotency is a reasonably large problem among estranged Indian couples, many are not convinced about the Madras High Court’s recommendations on the matter.
“Every problem cannot have a legal solution and the issue of sexual potency is a very sensitive one that lies in the social domain,” said Aishwarya Bhati, an advocate at the Supreme Court in Delhi. “There are other, graver issues within matrimony that need more attention, such as cruelty and the demand for dowry.”
Over the years, Bhati has dealt with a number of cases of marital problems involving impotency – often coupled with complaints of cruelty – and points out that clients tend to confuse issues of infertility or sexual incompatibility with impotency.
A certified medical check-up to test potency would ensure that such confusions are clarified before marriage itself, but lawyers believe the practical implementation of such a legal recommendation in a matter that is all about trust and mutual consent would be nearly impossible.
“In India, particularly in the arranged marriage set up, asking a groom to undergo a potency test would be considered very insulting,” said Abbas Mookhtiar, a lawyer at the Mumbai family court. “All marriages involve some amount of risk, and if families begin insisting on such tests, people would stop getting married.”
According to Mookhtiar, the current divorce laws are good enough to deal with the problem because they offer the option of annulment of marriage in cases where impotency is a problem. But this is precisely why some others find the Madras High Court ruling to be an important development in the field of family law.
“We currently have a culture in which women get blamed for everything, and annulments typically take a long time to process,” said Vandana Shah, a divorce lawyer based in Mumbai. Pre-marital potency tests would mean that the question of annulments on the grounds of impotency would not arise. “Implementation will definitely be difficult, but the court’s socio-legal recommendation is revolutionary and I don’t think it can be easily misused,” she said
In a landmark ruling, the Madras high court bench here has suggested pre-marital clinical examination of prospective couples to avoid impotency and sexually-transmitted diseases spoiling matrimonial lives.
Justice N Kirubakaran, calling it an avoidable human tragedy, on Wednesday said: "If pre-marital clinical examinations by doctors are done, it will prevent not only impotents getting married, but (also) prevent marriages of people suffering from dangerous and incurable diseases. Governments should give first preference to tackling this kind of human problems." Noting that women were the worst sufferers in such cases, he said it violated the very basic human rights, and right to decent and meaningful life.
Underscoring the high rate of impotency-related marriage failures, the judge asked whether state and central governments were aware of the social scourge and whether they were ready to amend marriage laws so as to fast-track disposal of matrimonial disputes.
Why not the government prescribe punishment for people who suppress impotency or frigidity at the time of marriage and cheat their would-be spouses, Justice Kirubakaran asked.
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