Kerala High Court
Beena Cherian vs K.J. Varghese on 2 February, 2000
Equivalent citations: AIR2000KER181, I(2000)DMC704, AIR 2000 KERALA 181, (2000) ILR(KER) 2 KER 329, (2000) 1 DMC 704, (2001) 1 HINDULR 306, (2000) 1 KER LJ 430, (2000) 1 KER LT 684, (2000) 2 MARRILJ 461, (2000) MATLR 381, (2000) 3 RECCIVR 237
Bench: Arijit Pasayat, K.S. Radhakrishnan
JUDGMENT Pasayat, C.J.
1. This is a reference under Section 20 of the Indian Divorce Act. 1869 (in short 'the Act'), seeking confirmation of the decree annulling the marriage between the petitioner (hereinafter referred to as the wife) and the respondent (hereinafter referred to as the husband).
2. Factual position as presented by parties, sans unnecessary details is as follows :--
Wife filed the petition under Section 18 of the Act for declaration of her marriage between the husband null and void. The marriage was solemnized in accordance with Christian religious riles at St. Antony's Church, Kurumpanadom on 11-9-1995. They lived together till 29-11-1.995. At the time of marriage, wife was employed In Oman as a Staff Nurse. Even though they lived together till 29-11-1995, the marriage was not consummated on account of her husband's impotency. Though he was unable to perform sexual Intercourse, he was not willing to consult a doctor. On 29-11-1995 she left for Oman and returned in October, 1996 on leave. The husband in the meantime secured a job in Soudi Arabia. The wife told the husband's relatives about the non-consummation of their marriage. Certain letters were also sent by her to the husband and there was no response from him. In the petition seeking annulment of marriage it was indicated that the husband was impotent at the time of marriage and at the time of institution of the suit and therefore the marriage was liable to be declared as null and void.
3. The respondent entered appearance. Counselling was done. Parties were not prepared to live together. The husband filed objection and denied the allegations. He took the positive stand that the marriage was consummated. An allegation was made that since wife wants to re-marry a person, who is financially sound, after getting divorce, this petition was filed. It was also submitted that he had a thorough medical checkup at Mundadanpadom Hospital. It was found that he was perfectly potent. The doctor had also issued a certificate to that effect.
4. Wife was examined as PW1. On the request made by her, she was examined by a Gynacologist attached to Government Hospital, Ernakulam. The purpose of the examination was to prove that she was a virgin and to expose the falsity of the husband's stand. The doctor who examined her was examined as PW2. In examination-in-chief she stated that for the first two days after the marriage the husband had not even made an attempt to have sexual contact with her. On the third day he asked the wife to have sexual contact, but it was found that sexual intercourse with him was not possible. Though after some efforts the husband tried to have sexual intercourse and repeated attempts were made by the wife to arouse him sexually, he failed that, according to the wife, is sufficient to prove that the husband was impotent. The doctor had confirmed that the wife was virgin.
5. Learned Judge, Family Court, Ernakulam, on a consideration of the evidence held that the husband was impotent. Though a certificate issued by Dr. Abraham; about the potency of the husband was filed, no effort was made to tender evidence of Dr. Abraham in Court. Accordingly it is held that there was no consummation of marriage on account of the impotency of the husband. The petition filed by wife was allowed by declaring the marriage to be null and void.
6. When the matter was taken up there was no appearance on behalf of the husband. Learned Counsel for the petitioner highlighted the conclusions of the learned Judge, Family Court.
7. Sections 18 and 19 appearing in Chapter IV of the Act, deal with nullity of marriage and read as follows :
Section 18. Petition for decree of nullity :-- Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void.
Section 19. Grounds of decree :-- Such decree may be made on any of the following grounds :--
(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit; (2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud."
One of the grounds for declaring the marriage null and void is impotency of the husband at the time of the marriage and at the time of institution of the suit.
8. 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.
9. In deciding whether a state of imptency existed at the date of the marriage and continued to the date of the proceedings the Court must take into consideration future medical or surgical treatment which might remove the cause of the disability. See S v. S. (1954) 3 All ER 736. where at the date of the hearing of the petition the wife was willing to undergo and subsequently underwent an operation which remedied the impediment it was held in the said case that the husband failed to prove that the marriage had not been consummated owing to the wife's incapacity. Imperfect and partial intercourse is not consummation. In Sushila v. Vijaya Kumar, AIR 1982 Delhi 272, the husband could not consummate the marriage because of the artificial vagina of the wife, and therefore nullity decree was held to be correct.
10. In order to support a suit for nullity of marriage on the ground of impotency on the part of one of the parties, such impotence must of course be proved, and there must be facts from which impotency, that is physical unfitness for consummation, may be inferred, both at the date of the marriage and at the date of the institution of the suit.
11. The burden of proving the allegation of husband's invincible repugnance to act of coitus rendering him incapable of submitting to sexual Intercourse is on wife, and vice versa. Where medical report showed wife to be potent, the onus of proof is on the husband to show impotency of the wife qua him. To succed in her petition the wife had to prove not only that the marriage had not been consummated but also that any impediment was incurable. Similar is the position vis-a-vis the husband.
12. When a party refuses to attend for medical inspection the Court may properly draw an unfavourable inference. The Courts naturally exercise a wide discretion in ordering physical examination and always do so subject to such conditions as will afford protection from violence to natural delicacy and sensibility. So although it is the practice in a nullity suit for impotency to require medical inspection of the parties, it is not absolutely obligatory in all cases and where the circumstances justify it, the Court has discretion to dispense with the usual order. A person charged of impotency cannot be compelled to undergo medical examination, though it is permissible to grant a decree for nullity in a wife's suit for nullity where there is positive refusal by the husband to submit to medical examination and vice versa. The Court could appoint Commissioner Doctor to examine potency of the parties. There is no deprivation of personal liberty under Article 21 of the Constitution in asking for such examination. Where medical examination is avoided or denied, it is open to the Court to draw adverse inference. Impotence would be within the exclusive knowledge of the spouses. Therefore, normally it would be difficult to get evidence of others in proof of it, except medical evidence which can be made available only on being subject to medical examination.
13. In view of the position of law as enumerated above, on the factual position highlighted by the learned Judge, Family Court, was justified in holding that the husband was Impotent at the time of marriage as also at the time of institution of the suit. The wife was entitled to a declaration that the marriage is null and void and the learned Judge, Family Court justifiably accepted the I prayer. We affirm the decree.
The Reference is answered accordingly.