Can the court grant a divorce to the husband if the wife makes a false allegation of his impotence amounting to cruelty?

  As regards the allegations made in pleadings, Courts have considered

this question time and again and it is now no longer res integra that false,

baseless, scandalous, malicious and unproven allegations made in the written

statement may amount to cruelty. If it is established from the evidence that

the allegations were evidently false, then such baseless allegations made in

the written statement can amount to cruelty and the Court can pass a decree

of dissolution of the marriage. In Jayanti v. Rakesh Mendiratta, 2016 (4) CLJ 498 Del, it was held that in matrimonial proceedings, the pleadings

assume great significance. Similarly, in the case of V. Bhagat (supra), grave

false allegations were made by the wife against the husband in her written

statement. Such allegations were even put to the husband in crossexamination.

The Supreme Court held that such allegations were bound to

cause mental pain and anguish to the husband amounting to mental cruelty

and dissolved the marriage between the parties. In the present case, we

therefore agree with Mr. Prabhjit Jauhar that the allegations in the Written

Statement are grave and serious accusations, which are likely to impact

Respondent’s self-image and adversely affected his mental well-being. Thus,

having regard to the law on the subject, we find no infirmity in the findings

and observations of the trial court that the allegation of the Appellant in the

Written Statement with respect to the impotency clearly falls within the

concept of cruelty as defined under law.{Para 19}

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 MAT.APP.(F.C.) 92/2020 &CM APPLs. 14842-14843/2020

KIRTI NAGPAL  Vs ROHIT GIRDHAR 

CORAM:

HON'BLE MR. JUSTICE MANMOHAN

HON'BLE MR. JUSTICE SANJEEV NARULA

Author: SANJEEV NARULA, J.

Pronounced on: 20.11.2020

Print Page

Whether calling husband impotent in pleading amounts to offence of defamation?

 The essentials of offence of defamation are that
there should be some imputation harming the reputation of a
person and publication of such imputation by communicating it to
a person other than a person against whom the imputation is
made.
[ii] Existence of the aforestated two essentials of the
offence of defamation must be ascertained from the allegations
made in the complaint and other material produced on record, if
any, by applying the test of face value or prima facie worth of the
material on record taken as it is, and a detailed analysis of the
material available on record is not permissible.
[iii] The question as to whether or not there is
sufficient evidence to establish guilt of the accused or the question
as to whether or not the imputation has been made in good faith
or for public good or the question as to whether or not the
imputation depicts the factual position, all are the questions which
must be answered on merits of the case after a detailed evidence
is available and not at the stage of issuance of process.
[iv] A defamatory statement made in the plaint or
written statement or a reply gets published the moment such
plaint or written statement or reply is filed in a Court of law.

These principles of law would have to be borne in mind
while examining the impugned order for it's legality or otherwise.
17] Of course, Shri Bajaj, learned Counsel for the applicant
relying upon the case of Raminder Kaur Bedi has submitted that
when the alleged defamatory imputation is made a ground for
seeking divorce and is upheld by the civil court, conviction of the
accused for an offence of defamation would not be possible and,
therefore, the interest of justice would require that the criminal
case is stayed till disposal of the divorce case. The learned
Counsel for the non-applicant submits that this case does not
involve any issue about stay of the criminal proceedings.
18] I think, the learned Counsel for the respondent is right.
What has been challenged in this application is the order of
issuance of process and no issue about the necessity of staying the
trial of the criminal case has arisen in these proceedings and,
therefore, the case of Smt. Raminder Kaur Bedi would not help the
applicant in any manner.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION [APL] NO.774 OF 2017
Applicant : X (Name withheld)
(Original Accused No.1)
Vs
Non-Applicant : Y (Name withheld)
(Original Complainant)

CORAM : S.B. SHUKRE, J.

PRONOUNCED ON : 2 nd NOVEMBER, 2018.

Print Page

When marriage can be declared as void on ground of impotency of wife?

It will therefore be seen that while the appellant filed the application on the ground that the respondent was impotent, the respondent, in turn, had alleged that it was the appellant who was impotent. The material provision of the Act under which the application was filed by the appellant is s. 12(1) (a) which is as follows :

" 12(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely

(a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding;

A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility'. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.

Supreme Court of India

Yuvraj Digvijay Singh vs Yuvrani Pratap Kumari on 2 May, 1969

Equivalent citations: 1970 AIR 137, 1970 SCR (1) 559

Bench: Vaidyialingam, C.A.

Print Page

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

Print Page

When husband is entitled to get annulment of marriage on ground of impotency of wife?

In my view, therefore, if the condition of a spouse is such as to make intercourse imperfect or painful it would amount to impotency. Even the aversion or abhorence shown by spouse to having intercourse caused by prolapse can amount to impotency. In the present case in my view the respondent was impotent for two reasons. Firstly, it is proved that the respondent resisted all the approaches of the petitioner to consummate the marriage, possibly with a view to conceal the condition or prevent the pain which may possibly result because of the intercourse and secondly, because with such a prolapse the intercourse is possible only after manipulation with hands. The sight of the protruding uterus is more likely than not to cool down the ardour and desire of the husband to perform the sexual act resulting in frustration for the husband. Even if the ardour and desire survive the sight of the protruding organ, the manipulation itself will cool it down. In any case an intercourse which demands previous manipulation of the uterus before penetration cannot be said to be an intercourse in the normal way. Therefore, both reasons independently of each other are indicative of impotency and this coupled with non-consummation which I have already held, to have been established, entitle the petitioner to annulment of the marriage.

Bombay High Court

P.V. Gopalkrishnan vs Kanaksha Gopalkrishnan (Mrs.) on 14 July, 1981

Equivalent citations: 1982 (1) BomCR 454 a

Bench: A Mody

Print Page