Andhra HC (Pre-Telangana)
Maganti Kanakadurga vs Maganti Venkateswarlu on 27 April, 2006
Equivalent citations: AIR2006AP259, 2006(4)ALD411, AIR 2006 ANDHRA PRADESH 259, 2006 (5) ALL LJ NOC 1166, 2006 (3) AJHAR (NOC) 979 (AP), 2006 (5) AKAR (NOC) 668 (AP), 2006 A I H C (NOC) 335 (AP), (2006) 4 ANDHLD 411, (2006) 4 ANDH LT 599, (2006) 4 CURCC 98, (2006) 2 MARRILJ 405
JUDGMENT P. Swaroop Reddy, J.
1. This civil miscellaneous appeal has been filed against the orders dated 14-7-2000 passed in O.P. No. 31 of 1996 by the learned Senior Civil Judge, Narsapur.
2. The appellant herein is wife and the respondent is her husband.
3. Respondent filed O.P. No. 31 of 1996 for annulment of marriage and divorce under Section 12(1)(a) of Hindu Marriage Act, 1955 (for short 'the Act') on the ground of non-consummation of marriage on account of impotency of the appellant.
4. The facts of the case, in brief, are as follows:
(i) The marriage of the parties took place on 6-3-1996 in Sri Raja Gopala Swamy Temple, Narsapur as per Hindu Customs and Rites. Nuptials were arranged on 8-3-1996 at the house of the appellant at Moghalthur. The appellant did not co-operate with the respondent for cohabitation, hence consummation did not take place. For three days the same thing happened, on third day the appellant went away from the bedroom weeping and on questioning by the respondent, she revealed that she is impotent and masikamma (one who did not attain puberty),
(ii) Thereafter, the respondent left to his house and informed his parents and other relatives about non-consummation of the marriage. The elders of the respondent questioned the parents of the appellant about their impropriety in not informing them about the impotency of the appellant, for which the parents of the appellant replied that she is not fit for marital life and she would be fit for the same within two or three years.
(iii) Thereafter, the appellant was taken to Bheemavaram for medical examination where she was got examined in Aswani Nursing Home by Doctor Surya Kumari and she opined that appellant is not fit for marital life. After the medical examination, parents of the appellant took mediators to the house of the respondent and offered their younger daughter in marriage to the respondent, but the respondent did not agree for the same as she was too young and requested for divorce. As the parents of the appellant did not say anything, after sometime the respondent got issued a notice dated 18-4-1996 to which the appellant got issued a reply dated 25-4-1996 with false allegations. The respondent got issued another notice dated 6-5-1996.
(iv) Subsequently, the respondent filed the above O.P. for annulment of marriage and divorce on the grounds that the appellant is impotent as she did not attain puberty, and she is not fit for marital life.
(v) A counter was filed by the appellant denying the allegations levelled against her by the respondent and further contending that their marriage was consummated and there was cohabitation during three nuptial nights. On the third day, the respondent left her informing that he would return after three days but he did not return. On enquiry, the parents of the appellant came to know that the respondent wants to break the marital tie and wants to marry another woman for getting more dowry and with that ulterior motive he got subjected her to medical test on the pretext of impotency and the Doctors who examined her opined that she is fit for marital life and the respondent having distressed with the result of the medical examination got issued false notice for annulment of the marriage and divorce.
5. On behalf of the respondent, PWs. 1 to 4 were examined and Exs.A-1 to A-3 were marked. On behalf of the appellant, RWs 1 and 2 were examined and Ex.B-1 was marked.
6. Based on the material on record, the learned Judge allowed the petition granting annulment of marriage of the parties. Aggrieved by the same, the appellant filed the present appeal.
7. Now the contention of the learned Counsel for the appellant-wife is that the trial Court erroneously granted annulment of the marriage and the same is liable to be set aside.
8. On the other hand, learned Counsel for the respondent-husband contends that as it was proved that the appellant was impotent, the trial Court rightly granted divorce and there is no ground for interfering with the order impugned.
9. Now the point for consideration is whether there are any grounds for allowing the appeal?
10. The admitted facts of the case are; the marriage of the parties took place on 6-3-1996 at Narsapur and for three days upto around 8-3-1996 nuptials were arranged and on the third day the respondent went away from the appellant's house contending that there was no consummation of marriage as the appellant did not attain puberty and she is unfit for marital life. The fact that the appellant was subjected to medical examination is also not in dispute as the same was admitted in the counter, filed by her, but there is dispute with regard to result of the medical examination. The Doctor who examined the appellant was not examined by either side and no Medical Certificate was marked.
11. As revealed from the evidence, there is no dispute about the fact of the appellant not attaining puberty whom they called 'masikamma'.
12. The questions that arise for determination to decide as to whether the annulment of marriage granted by the trial Court is correct, are:
(i) Whether the admitted fact that the appellant did not attain puberty itself is sufficient to hold that she is impotent?
(ii) Whether the appellant is fit for consummation though she did not attain puberty and whether consummation has taken place as contended by her?
(iii) Whether the appellant is an impotent for any other reason?
13. As already referred, absolutely there is no medical or any other kind of evidence to show that the appellant was not fit for consummation though there is no dispute that she did not attain puberty.
14. Learned Counsel for the appellant contends that it is not essential for consummation of marriage that a woman should have attained puberty and that non-attainment of puberty would not amount to impotency. That various Courts have held that even a woman whose uterus is removed before the marriage also cannot be called impotent, as such, the woman, who did not attain puberty, cannot be called impotent.
15. Learned Counsel for the respondent contends that the very fact that the appellant did not attain puberty itself is sufficient to hold that she is impotent and added to that there was no consummation on account of such impotency.
16. The evidence on record reveals that three days after the marriage the respondent went away from the house of the appellant and thereafter the elders of the respondent contended that there was no consummation of the marriage and the appellant is unfit for consummation as she did not attain puberty.
17. The contention of the appellant is that there was consummation of marriage and after three days of the marriage, the respondent went away from the house of the appellant and with an intention to marry another woman for the purpose of getting more dowry, he made false accusations of non-consummation of the marriage and of about the appellant being unfit for consummation as she did not attain puberty.
18. It is very difficult to believe that within three days of the marriage, the respondent and his parents would think of going for another marriage for the sake of dowry. According to the counter filed by the appellant in the O.P., her parents are labourers not having much property and knowing about the said fact also, the respondent married her. Such being the case, we are not at all inclined to accept that within three days of the marriage, the respondent and his parents changed their mind and with an intention to get rid of the appellant made accusations that she is impotent and consummation did not take place. This circumstance supports the contention of the respondent that there was no consummation of the marriage and only for that reason he filed O.P. for annulment of marriage/divorce.
19. The allegation of the respondent that the appellant was subjected to medical examination is also not disputed, but it is the contention of the appellant that just to create a ground for getting rid of her, they have enacted the drama of subjecting her to medical examination and declaring that she is unfit for martial life. This contention also cannot be accepted in view of the circumstances already referred supra that it is impossible to believe that within three days of the marriage the respondent and his parents would think of getting rid of the appellant and go for another marriage just for the sake of getting more dowry. It is not a case, where lot of dowry or property was promised and immediately after the marriage it came to light that the parents of the appellant have no property or they refused to give any dowry/property. Thus, we accept the case of the respondent that there was no consummation.
20. Coming to the question as to what amounts to impotency of a woman, in a decision of this Court in Gudivada Venkateswararao v. Smt. Gudivada Nagamani AIR 1962 AP 151 (V49 C42), a reference was made to the decision of Madras High Court in T. Rangaswami v. T. Aravindammal , wherein it was observed that " "Potence" in case of males means power of erection of the male organ plus discharge of healthy semen containing living spermatozoa and in the case of females menses....
21. In the above case impotency was alleged against the male and not against the female and the observation with regard to impotency of woman was only something like passing remark, but it was not a question for determination in that particular case.
22. In Beena Cherian v. K.J. Varghese , a Full Bench of Kerala High Court observed as under:
When impotency is alleged, evidence of expert Medical Officer is normally necessary. A person is impotent if his or her mental or physical condition makes sexual intercourse and consummation of the marriage practically impossible. Impotency has been taken to mean physical or psychological and incurable incapacity to consummate the marriage. It means the incapacity to perform full and natural intercourse. It may be due to an organic defect or due to invincible repugnance or hatred for sexual intercourse in general. It need not be due to physical incapacity and may be caused by the mental or physical condition which would render normal intercourse impossible. It may be pathological or psychological, permanent or temporary. Capacity for sexual intercourse does not depend on capacity to conceive and incapacity to conceive is not impotency and not a ground of annulment of marriage. Impotency contemplated in Section 19 does not signify sterility but incapacity to have normal sexual intercourse. The presence or absence of uterus is quite immaterial to the question whether a woman is impotent or not.
23. In Rangaswami's case (supra), it was observed that:
Potence in case of males means power of erection of the male organ 'plus' discharge of healthy semen containing living spermatozoa and in the case of females means (1) development of external and internal genitals and (2) ovulation and menstruation.
24. Though it was a case of the alleged impotency of the wife, the question in dispute was not as to whether the particular lady attained menstruation or not. However, the position with regard to impotency was summed up as under:
To sum up, a marriage will be avoided or dissolved on the ground of impotence on the petition of either party if it is proved that at the time of the marriage one of the parties is and continues to be incapable of effecting or permitting its consummation either of some structural defect in the organs of generation which is incurable and renders complete sexual intercourse impracticable or of some incurable mental or moral disability resulting in the man inability to consummate the marriage with the particular woman or in the woman to an invincible repugnance to the act of consummation with the particular man.
25. A Division Bench of this Court in Smt. Suvarna v. G.M. Achary , held that impotency of spouse, husband, in particular case, vis-a-vis, the other spouse is sufficient. Total impotency need not be proved.
26. In Samar Som v. Sadhana Som , a Division Bench of the Calcutta High Court held that a woman, whose uterus was removed by an operation prior to the marriage, cannot be called impotent. In Beena Cherian's case (supra), it was held that the presence or absence of uterus is quite immaterial to the question whether a woman is impotent or not.
27. Thus, what is predominantly required to prove the impotency of a woman is not whether she has capacity of reproduction or not and whether she has uterus or not and whether she attained puberty or not. A woman who has not attained puberty at all need not be impotent at all in case she is fit for sexual intercourse and there was co-operation from her side for consummation. Nowhere, it is held that a woman who did not attain puberty is not fit for sexual intercourse. As referred above, in Beena Cherian's case (supra), Kerala High Court held that the presence or absence of uterus is quite immaterial to the question whether a woman is impotent or not. In case of woman, who did not attain puberty, the probable reason for not attaining puberty might be her not having uterus.
28. Thus, as far as the first question is concerned, it has to be held that a woman has not attained puberty need not be held to be impotent as long as it is not proved that she is physically or mentally not fit for consummation as consummation can always take place even without the woman attaining puberty and without her having uterus.
29. Coming to the next question, it has to be held that there is no material to show that the appellant was not fit for consummation though she did not attain puberty. It has to be further held that consummation has not taken place as the appellant has not co-operated for consummation, may be on account of her feeling that she has not attained puberty and for that reason she is unfit for consummation, and for that reason, she might have become mentally paralysed towards consummation.
30. Coming to the third question the conduct of the appellant shows that she was averse for consummation, may be on account of her feeling that she has not attained puberty and that she had a feeling that she is unfit for consummation. As observed by the Madras High Court in Rangaswami 's case (supra), non-consummation might be on account of some incurable mental or moral disability resulting in the person's inability to consummate the marriage with a particular woman or in the woman to an invincible repugnance to the act of consummation with a particular person and as observed by Kerala High Court in Beena Cherian 's case (supra), it may be due to an organic defect or due to inconvincible repugnance or hatred for sexual intercourse in general.
31. Here, it might be a case where the wife was repugnant for sexual intercourse not only with her husband but against total consummation due to her physical disability of not having attained puberty, though she is physically capable of consummation. This can be called impotency.
32. The appellant pleaded that consummation has taken place but her conduct shows that no consummation has taken place.
33. In Rangaswami's case (supra), the Madras High Court held that the conduct of the parties subsequent to the marriage would be important to prove as to whether the consummation has taken place or not. It was held that whether the particular person has spoken about the impotency of the spouse to anybody like friend, relative or parents, if not spoken why? Whether would it be natural not to do so? Or was there no opportunity? It would not be natural for everybody to speak these matters to others. A reserved or shy or a reticent person would not. On the other hand, other types almost certainly would. Whether the parties to the case fall within the one class or the other, it is for the Trial Judge to discover.
34. In the present case, the respondent-husband immediately told his parents and relatives about non-consummation of the marriage and even subjected the appellant to medical examination. On the other hand, the claim of the appellant was that for the sake of dowry and to get rid of her, the respondent has taken the plea of her non-cooperation to the consummation and impotency. The above circumstances clearly show that the non-consummation was on account of appellant's failure to cooperate for the same with the respondent.
35. In all these circumstances, we are inclined to hold that the consummation has not taken place and as already referred it was on account of the appellant's repugnancy for consummation and probably on account of her reluctance towards consummation due to her physical disability of not having attained puberty. Thus, it can be held that the appellant-wife is an impotent.
36. Such being the case, the respondent is definitely entitled to annulment of marriage.
37. Learned Trial Judge relying on a decision of this Court in Gudivada Venkateswararao's case (supra), held that as the appellant did not attain puberty, it has to be held that she is impotent. As already referred, in the above decision, the question whether a woman was impotent or not was the issue. As such and in view of our discussion based on the subsequent decisions of Calcutta High Court in Samar Som 's case (supra) and Kerala High Court in Beena Cherian 's case (supra), the contention that on account of appellant not attaining puberty itself amounts to impotency and is a ground for granting of annulment is not tenable.
In all these circumstances, the appeal is liable to be dismissed and the same is accordingly dismissed. In the circumstances, no costs.