Delhi District Court
Sh. Sahil Bansal vs Vasudha on 21 January, 2013
SH. SAHIL BANSAL V/s VASUDHA
HMA No. 535/12
21.01.2013
O R D E R:
1. Vide this order, I shall dispose off the petition as filed U/S 12(1) (a) of HMA by the husband/petitioner seeking thereby a decree of nullity to declare the marriage between the parties as null and void, stating therein that the marriage between the parties was solemnized on 16.07.2011 at an Arya Samaj Mandir, Lucknow, UP according to Hindu Rites and Ceremonies and the marriage was also registered with the Registrar of Hindu Marriage, UP on 18.07.2011. Thereafter, it is stated that marriage between the parties has not been consummated due to the impotence of the respondent qua the petitioner as per para 3 of this petition. The parties to the marriage initially lived together at the house of the petitioner at West Punjabi Bagh, New Delhi as stated. Furthermore stated that the parties were know to each other while pursuing studies and they became friendly with each other and which ultimately led to their marriage.
2. In para 6 of the petition, it has been stated that petitioner learnt that respondent was not a Hindu and that she follows the Church "Scientology", a new religious movement started in the year 1952 as stated. Further stated that since the petitioner belongs to a traditional Hindu family which has been active in various Hindu causes and social work and petitioner himself being a Hindu performs his prayers and doing all ritual etc. However, on the first night of the marriage, when petitioner tried to have access to the respondent in order to consummate the marriage, the respondent is alleged to have 'refused to consummate' the marriage stating that she wanted to share some important things with him and she divulged that she has found a true religion which is declared as a study and relating to the spirit in relation to the universe and other life and that, the Mission of the religion is to help the individual regain his true knowledge about. The said religion is called the "Scientology".
3. It is further stated in para 9 of this petition that the respondent invited the petitioner to convert to "Scientology" before the marriage could be consummated.
4. Further stated that petitioner was confused as respondent was not permitting him being a person of a different religion to consummate the marriage. It was further stated by respondent to the petitioner that consummation with a person of other religion would have serious consequence as according to "Scientology" when a member of "Scientology" is accused of a sexual misconduct, "committee of evidence" examines the case and if the charge is proved, the individual may have to accept expulsion from the faith or participate in rehabilitation and to force to become eligible to rejoin it.
5. Further stated that the further efforts made by the petitioner, the respondent/wife refused to consummate the marriage and remain frigid qua the petitioner. At the same time, it is stated that she told the petitioner that she was not a Hindu and she did not recognize the marriage and was not willing to engage in a "premarital sex" as the same would be a heinous crime in "Scientology".
6. Further stated that petitioner who had never heard about the "Scientology" before that night felt helpless and as a devout Hindu, he could not consummate the marriage if conversion of faith in was a precondition in order to consummate the marriage. Thereafter, in para 13 of the petition, it is stated very vaguely without laying out the details, that "due to some apprehensions", the parties had filed a Writ Petition (Criminal) before the Hon'ble High Court against the State of NCT of Delhi & Ors. including the parents of the respondent.
7. Further alleged that in the meantime the petitioner searched the material of "Scientology" through internet, he described that consummation of marriage between the parties practicing "Scientology" with a person of other faith would indeed be considered a "sexual misconduct" inviting consequences as told by the respondent. It being a deadlock situation, further stated in para 15 that petitioner tried to persuade the respondent to come back to Hinduism, but respondent got irritated and also furious and as such the petitioner gave up this line of persuasion. Thereafter, the petitioner tried coexistence and he told the respondent that he would be comfortable with her pursuing "Scientology" and he pleaded upon her to tolerate Hinduism being followed by the petitioner, but to no avail, as respondent was adamant.
8. Vide para 18 of the petition it is stated that by the respondent did not recognize the marriage "on account of religious conviction" and this fact makes the consummation of the marriage with her an impractical impossibility and further petitioner claims that respondent was impotent qua the petitioner at the time of marriage and continues to be so, until the institution of the present petition.
9. It is again reiterated in the same para that respondent is not permitting the consummation of marriage in view of her religious convictions.
10. In para 24 petitioner has stated that he has been left with no other option accept to file the present petition. In para 28, it has been stated that petition has not been filed by both the partied in collusion with each other and that there is no legal ground why the relief should not be granted.
11. This petition filed on 25.07.2012 was assigned to this Court for 27.08.2012 which was the first date before this Court, but surprisingly even the respondent appeared on the very first date alongwith her counsel.
12. After some preliminary objections raised regarding limitation and other aspects by the Court itself, arguments were addressed on behalf of both the parties together on the maintainability of the petition on the aspects stated and on maintainability U/S 12(1) (a) HMA generally.
13. On 24.09.2012, the second effective date in the case, the respondent present in the Court stated that she had no objection if the decree of annulment was passed in the case. Statement of respondent to this effect was recorded separately.
14. In the statement of respondent recorded on oath, she has mainly stated that she has no objection if a decree of annulment U/S 12(1) (a) HMA is passed in the matter.
15. It was stated by the Ld. Counsel for petitioner that in viewo f the entire backdrop particularly the statement of the respondent straightaway a decree of nullity should be passed, keeping in view also the provisions of Order 12 Rule 6 CPC as respondent had admitted the claim of the petitioner.
16. I have given my thoughtful consideration to this entire matter, wherein initially the very same parties went before the Hon'ble High Court (certified copy of which petition is on record) stating therein that the parties had entered into a love marriage, but the parents of the respondent were not allowing them to live a peaceful and happy married life.
17. From the record itself, it evident that petitioner as well as respondent even prior to marriage were very well a Hindu, being from Garg community, as is visible from the memo of parties showing the surnames of the parties and further it is also conspicuous that there is not even a single word in this petition to the effect that parties could not consummate their marriage due to any physical medical reason whatsoever. On the other hand, through and through, the averment was that it is the parents of the respondent who were not allowing the parties to live a happy married life.
18. Through the period of pendency of the writ petition as well, the parties are shown to have been residing at one on the same address at West Punjabi Bagh and they have not stated anywhere that the marriage has not been consummated, on the other hand, it has been specifically stated in para1 of the said petition itself that parties should be restrained from interfering in the peaceful lives of the petitioners, (it being a joint petition by the husband and wife) as husband and wife. When a man and woman file a joint petition beat criminal writ petition seeking protection against their parents and others to be protected against any inference in their "peaceful married" lives as husband and wife, there is no reason to imagine that the marriage between the parties would not have been consummated and even if so same has not been mentioned anywhere therein.
19. As such, the presumption is that petitioner and respondent were living as husband and wife together at Punjabi Bagh address. Further in case they simply did not get alongwith each other would not be a case sufficient to be covered under the provisions of Section 12(1) (a) HMA which provides for a specific ground of impotence of the opposite party.
20. Section 12(1) (a) of HMA, the relevant provision is necessary to be reproduced herein and it provides that any marriage solemnized;
(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 marriage has not been consummated owing to the impotence of the respondent.
21. The impotence in the legal as well as medical parlance would mean an incapacity to have sexual intercourse and nothing more and nothing less. It would not cover cases where out of choice, due to religious reasons or due to conversion to another religion, opposite party is of the view that marriage should not be consummated. Furthermore, in the statement as made by the respondent on oath on the very first date, it is not that she has admitted herself to be impotent. All that she has stated is that a decree should be passed.
22. In order to pass any decree in the Court, it is not sufficient that the opposite party makes a statement that a decree should be passed, but the relevant/essential ingredients of the provision under which the petitioner has come and the entitlement of the petitioner to a decree would still have to be seen and considered by the Court.
23. Furthermore, Section 23 of HMA clearly provides that in any proceeding under this Act whether defendant or not, if the Court is satisfied that ................... (c) the petition (not being a petition presented U/S 11 of Act) is not presented or prosecuted in collusion with the respondent ....................... but not otherwise, the Court shall decree such relief accordingly.
24. Going through the contents of the petition in the proceedings, through and through, what is made out is not a case of impotence of the respondent but one of her conversion to other religion due to which she does not want to have sexual relations with the petitioner and to consummate the marriage.
25. These like averments as made in the present petition cannot by any stretch of imagination be covered within the provision of Section 12 (1) (a) HMA and no case as such is being made out to pass a decree of nullity on the ground that marriage has not been consummated owing to impotence of the respondent.
26. On the other hand, on the contrary, the Act does make another provision for such like situation where one spouse converts into another religion and provides for the remedy for such like situation in the form of one of the ground for a divorce.
27. Reference is had to Section 13(1) (ii) of HMA wherein it states that any marriage solemnized whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that other party, (ii) has ceased to be a Hindu by conversion to another religion.
28. As such, in the circumstances, the remedy that lay open to the petitioner was to file a petition U/S 131 of HMA to seek a decree of divorce and not one for nullity of the marriage on ground of U/S 12(1) (a) of HMA.
29. In view of the above discussion, the present petition as filed by U/S 12(1) (a) of HMA is not maintainable and no case is being made out for passing of any decree U/S 12(1) (a) of HMA and petition is liable to be dismissed straightaway.
However, in the interest of justice, petitioner is granted liberty to withdraw the present petition with permission to file a fresh petition under the appropriate provisions of law to seek the appropriate nature of relief, for which he may move application within seven days from today.
In case the opportunity is not availed, the present petition would be deemed to have been dismissed w.e.f. today i.e. on 21.01.2013 without any further orders, whereafter the file shall be consigned to Record Room.
(SUJATA KOHLI)
ADJ:WEST: THC
SK DELHI:21.01.2013