How to prove impotency of wife for annulment of marriage?

So far the allegation of impotency of appellant-wife and her inability to have physical and sexual relationship is concerned, this fact is specifically mentioned in petition/plaint but were not specifically denied in written-statement filed by opposite party/appellant. In her statement, opposite-party/appellant had vaguely end evasively denied the facts of petition/plaint on this point, but had nowhere specifically pleaded that she is physically and sexually fit and has been able to makes consummation of the marriage possible, or have sexual relationship with husband. Such non-specific denial technically amounts to admission on part of opposite party-defendant on these points. Rule-3 of Order VIII CPC provides it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. Under Rule-4 such evasive denial shall not be sufficient to be taken up as denial. On this ground alone, main allegation of alleged impotency and inability of appellant to have physical relationship should have been taken to be admitted by the lower court. Absence of specific denial of such facts should be treated as their non-denial and admission. Since there is no pleading of defendant-appellant that she was not impotent or was able to have physical relationship with her husband. There is no averment in her written statement that she had informed petitioner about her physical inability to consummate; therefore, in absence of such pleading her oral evidence could not be accepted on these points. 
Apart from it, the lower appellate court had considered those points also, which were ignored by trial court. The learned Additional District Judge had considered the facts that request of petitioner-husband for medico legal examination of defendant-wife could not be materialized because of non-cooperation of wife-appellant herself who had declined to undergo such examination. Respondent-husband had given other evidences, which were appreciated by the lower appellate court in light of other circumstances, and on the basis of which finding was given by first appellate court that appellant-wife was not able to have physical relationship with husband, and she is impotent. 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
Case :- SECOND APPEAL No. - 239 of 2016 
Appellant :- Smt. Sulekha 
Respondent :- Ashok Kumar 

Hon'ble Pramod Kumar Srivastava,.
 Dated: 14.03.2016 
Citation:AIR 2016(NOC)452 ALL

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Whether concealment of serious incurable ailment amounts to fraud for annulment of marriage?

 This general proposition, however, in my opinion, would not hold good after the amendment of clause (c) of Sec. 12 (1) of the Act by Marriage Laws (Amendment) Act 1976. The Legislature in its wisdom has added the words ''as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent". Thus the emphasis cannot be laid only regarding the nature of ceremony or factum of marriage but in case there is a deception as to any material fact or circumstance concerning the respondent the said case would also be covered by sub-clause (c) of Section 12 (1). A marriage cannot be annulled on the basis of any and every misrepresentation or concealment. How ever, if there is a misrepresentation or concealment regarding a material fact concerning the respondent then the provisions contained in Section 12 (1) (c) would definitely be attracted. Concealment about the ailment of schizophrenia, which is a mental illness and is incurable according to the expert opinion of Doctor Munjal would, in my opinion, amount to obtaining the consent of the respondent by fraud as to any material fact concerning the appellant. The provisions contained in Section 12 (1) (c) would be attracted. In Harbhajan Singh's case (AIR 1964 P&H 359) (supra) the allegation was that the consent of the appellant had been obtained by making wilful misrepresentation and fraudulent statement as to the fact of virginity and good character of the respondent. It was not a case of concealment in respect of an incurable disease. Moreover, one of the reasons for disallowing the annulment was that the Legislature by providing clause (d) in this very section did not intend that the past conduct of the respondent except what is mentioned in clause (d) should become a ground for the annulment of the marriage. In the present case the appellant was suffering from a mental illness which was incurable. It was a ground of divorce under Section 13 of the Act. In Raghunath Gopal's case (MANU/MH/0055/1972 : AIR 1972 Bom 132) referred to above, the respondent was suffering from epilepsy which was curable. Similarly, the disease from which the respondent was suffering in Madhusudan's case (MANU/MP/0032/1975 : AIR 1975 MP 174) (supra) was curable. Not a single case has been cited before me in which even before the amendment of clause (c) of Section 12 (1) it has been held that concealment about a very serious ailment which was incurable did not amount to fraud. To the present case the provisions contained in Section 12 (1) (c) in my view, are fully attracted.

Equivalent Citation : AIR 1981 Delhi 253

IN THE HIGH COURT OF DELHI

F.A.F.O. No. 90 of 1978

Decided On: 01.05.1981

Smt. Asha Srivastava  Vs. R.K. Srivastava

Hon'ble Judges/Coram:
Gian Chand Jain, J.

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Whether husband is entitled to get annulment of marriage on ground of concealment of mental illness of wife?

Taking into consideration all the circumstances, it is very clear that the mental illness, which requires continuous medica-lion and due to which there was irritability, unco-operativeness and hostility on the part of the appellant/wife and which is incurable, is something which is a material fact or the circumstance concurring the present appellant. In the clinical history given at Exh. 31, it was mentioned that the appellant had come to the hospital of Dr. Barhale as she was overtalkative, abusive, irritable, angry, biting to any one, not mixing with people, talking on one topic, crying, shouting, trying to run away, biting to mother, laughing to herself, not working at home. If these were the symptoms of the mental illness, we cannot say that the mental illness of the appellant was a fact, which need not have been disclosed or which was not material. Therefore, concealment of such thing is definitely a fraud within the meaning of Section 12(l)(c) of the Act of 1955. Such bahaviour materially affects the marital life, so also tranquillity and happiness in the home.

22. The learned Counsel for the respondent cited the case of Smt. Kiran Bala Ashthana v. Bhaire Prasad Shrivastava . In that case, it Is observed that:

If it is shown that the facts and circumstances about one of the parties were such that the other party could not have readily consented to marry the other, and there was an element of deception or misrepresentation in bringing about the marriage at the instance of a party, such as to amount to fraud, a Hindu marriage could surely be annulled under Section 12(1)(a) of Hindu Marriage Act, notwithstanding its sacramental character.

We agree with the said observations in para 11 in the above case.

23. In this case, the respondent, who is a normal young man, graduate working as an accountant and earning, would not have consented to marry a girl having background of such mental illness, had he known about the said fact before the marriage. No special reason was disclosed. We are more inclined to believe the words of the respondent/husband that the papers regarding prescriptions and discharge card were handed over to him by Dr. Barhale, rather than by the father of the appellant/wife prior to the marriage. In our opinion, the said theory put forward by the appellant was unnatural and improbable.

Bombay High Court

Vandana J. Kasliwal vs Jitendra N. Kasliwal on 28 September, 2006

Equivalent citations: AIR 2007 Bom 115, II (2007) DMC 227

Bench: N Dabholkar, P Borkar

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When non examination of doctor is not fatal in hindu marriage petition proceeding?

Taking the first point first, it may be noted that the court below has based its judgment on medical report of J.P. Memorial Hospital by Dr. S. Khanjuja. He has reported that the defendant wife has no ovary and as such she cannot conceive. Her uterus is also defective. It is a stated that the said doctor has not been examined to prove the medical report. But on bare perusal of the record, we find that there appears to be no dispute between the parties with regard to essential fact that the respondent wife cannot conceive. The husband in his statement has deposed besides many other things, that the respondent is unable to conceive and he was defrauded. In the statement of the respondent wife, the aforesaid fact has not been disputed at all. She in her short deposition has stated only this much that she was being ill treated by her husband and was turned out from the house. The husband is in job of printing sarees at Bombay. There appears to be no serious dispute with regard to vital fact that the respondent wife does not possesses ovary. 
In para-5 of the petition, it has been stated that the parents of the respondent got married the respondent with the petitioner fraudulently when they had full knowledge that the respondent has no ovary and she had no menstruation cycle ever at her parental house. The said paragraph of the petition has not been denied specifically by the respondent wife in her written statement. Reply is given in para-5 of the written statement. In para-5 of her written statement, there is a general denial. The written statement consists 14 paragraphs but in none of them, it has been stated that the allegation of the husband that she has no ovary has been denied specifically. The allegation of fraud has been pleaded in para-5 of the petition, has also not been denied in specific term. The only defence which can be read out from the written statement is that she was treated with physical cruelty and was subjected to abusive language calling her as Banjh (infertile lady) and used to demand of dowry. In absence of any specific denial and coupled with the evidence led by the parties; and keeping in view of Section 20 sub-section (2) of the Hindu Marriage Act read with section 10 of the Family Courts Act, we do not find substance on the facts of the present case, in the argument that medical report is not proved. Noticeably, except making a denial, the respondent wife has not led any evidence which she could have led easily in rebuttal. The plaint allegation having not been denied shall be treated as correct and uncontroverted. 

The petition was initially filed under Section 13 of the Hindu Marriage Act and the amendment was allowed by the order dated 20th July, 2005. The husband was permitted to convert the petition under Section 12 of the Hindu Marriage Act. He was also permitted to add the plea that on medical examination it has become clear that she has no ovary and the marriage is useless and there cannot be a relationship of husband and wife between the parties. The amendment was incorporated on 20th July, 2005 and the time was given to file additional written statement fixing 26th September, 2005. The order-sheet dated 26th September, 2005 records that no additional evidence was filed and the date was fixed for evidence. Evidence was recorded thereafter and the judgment was pronounced. This also leads to the conclusion that the pleadings with regard to lack of ovary remained uncontroverted by the present appellant and thus, is an admitted fact between the parties. Therefore, on uncontroverted pleadings and evidence even if, the medical report is put aside for the time being, the husband has proved his case. 

ALLAHABAD HIGH COURT
FIRST APPEAL NO. 319 OF 2006 

Parvati Devi  V Dharm Chandra Seth

Hon'ble Prakash Krishna,J 
Hon'ble Arvind Kumar Tripathi (II),J. 

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When court can declare marriage as void on ground of fraud?

The free consent of the parties is sine quo non for valid marriage. Where consent has been obtained by force or fraud as to the nature of the ceremony or as to the material fact or circumstance concerning the respondent, such marriage is voidable and can be declared void under Section 12(1)(c) of the Act. It is essential to note that this section does not speak of fraud or of every misrepresentation or concealment which may be fraudulent but fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. The case herein falls in the clause 'any material fact or circumstance concerning the respondent'. It has been pleaded which has not been denied by the respondent, that the respondent's parents knew about the fact that the respondent who was fully grown-up and had attained the age of majority was not having menstruation cycle, which is a normal incident in respect of an ordinary healthy woman. Menstruation cycle relates to the formation of sex hormones in the body that the lady may be conceived. The respondent was not having menstruation cycle, was indicative of the fact that sex hormones are not being formed for fertilization in her body and she is incapable to conceive. Normal and regular ovulation, or release of a mature egg, is essential for women to conceive naturally. Ovulation often can be detected by keeping a menstrual calendar or using an ovulation predictor kit. 

There are many disorders that may impact the ability for a woman to ovulate normally. The most common disorders impacting ovulation include polycystic ovary syndrome (PCOS), hypogonadotropic hypogonadism (from signaling problems in the brain), and ovarian insufficiency (from problems of the ovary). If your cycles are infrequent or irregular, the doctor will examine you and perform the appropriate testing to discover which problem you may have and present the appropriate treatment options. This was a material fact concerning the respondent which was not disclosed to the petitioner before the marriage. The pleadings and evidence of the husband in this regard is almost uncontroverted. Under Hindu Law, marriage is a sacrament. Nonetheless party to a marriage who is incapable to giving birth a child due to physical incapacity if known before the marriage, relates to essential fact concerning the said party which should have been disclosed to the other party before hand of marriage. In view of the facts which are not much in dispute, the argument of the appellant that the facts of the present case are beyond the purview of grounds as mentioned under Section 12 of the Act to declare a marriage null and void, has no substance. The pleadings and evidence filed by the parties do show that this case relates to fraud as to the material fact concerning the respondent wife within the meaning of Section 12(1)(c) of the Act. 

ALLAHABAD HIGH COURT

FIRST APPEAL NO. 319 OF 2006 

Parvati Devi V Dharm Chandra Seth

Coram:

Hon'ble Prakash Krishna,J 

Hon'ble Arvind Kumar Tripathi (II),J. 

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