Calcutta High Court
Bhaswati Sarkar (Nee Mukhopadhyay) vs Angshuman Sarkar on 21 March, 2000
Equivalent citations: AIR2000CAL210, II(2001)DMC237, AIR 2000 CALCUTTA 210, (2001) 1 ICC 628, (2001) 2 DMC 237, (2001) 1 HINDULR 70, (2000) 2 MARRILJ 580, (2000) MATLR 525, (2001) 1 RECCIVR 586, (2000) 2 CAL HN 373, (2000) 2 CAL LJ 219
ORDER Prabir Kumar Samanta, J.
1. This Revisional Application is directed against the Order No. 12 dated 23-6-99 passed by the Court of 4th Additional District Judge, Barasat, 24-Parganas (North) in Matrimonial Suit No. 10 of 1991. By the said order the petition filed by the husband-respondent was allowed by permitting the husband-Opposite Party to undergo medical examination at any Government Hospital or by any other expert at his own costs. choice and responsibility.
2. The wife-petitioner instituted a proceeding under Sections 24(ii) and 27(i)(d) of the Special Marriage Act, 1954 against the husband-opposite party alleging inter alia that the opposite party was impotent at the time of marriage, and continued to be so during their joint living and till the date of institution of the proceeding rendering the marriage as void and null. Husband-opposite party entered appearance in the said suit and filed written statement denying the allegations made therein. It was specifically denied that the husband-respondent is not capable of performing marital intercourse as alleged. It was further pleaded that due to initial refusal by the wife-petitioner, the respondent could not have sexual intercourse with the petitioner-wife and she was wholly responsible for non-consumation of the marriage. In particular it was stated that the wife-petitioner was totally against performing sexual intercourse in the first few nights after the marriage and further since she was not willing to conceive right after the marriage so she asked the husband-respond-
ent to take enough precaution for which the act of consummation of marriage on subsequent occasions was discontinued midway to avoid conception of the wife-petitioner. On the basis of the said pleadings the husband-respondent before framing of issues in the suit made an application for his examination by a medical board and/or Chief Medical Officer of the District which was allowed by the learned Court below.
3. The wife-petitioner in support of this revisional application raised the same points as were raised before the learned Trial Court, that under Section 27(i)(d) of the Special Marriage Act the petitioner-wife is required only to prove that the husband-respondent was impotent at the time of the marriage and continued to be so till the institution of the proceeding and therefore any medical examination subsequent to the institution of the above proceeding would not bring any relevant evidence for the purpose of passing a decree for nullity of marriage on the ground of impotency. Secondly, the conclusion of impotency of the husband-respondent could be arrived at if the wife-petitioner is medically examined and found virgin even after the institution of the above proceeding. Therefore, the Learned Court below acted illegally and with material irregularity in allowing the husband-respondent's application as above at this stage. Mr. Subhra Kamal Mukherjee, Learned Advocate appearing on behalf of the wife-petitioner in support of the above contentions referred to the decisions of the Supreme Court (Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari) and the decisions (Smt. Suvarnav. G. M. Achary) and (Ushman v. Inderjit). All the aforesaid decisions lay down with uniformity that in order to entitle the applicant to obtain a decree of nullity, as prayed for by the applicant, the applicant will have to establish that the opposite party was impotent at the time of the marriage and continued to be so until the institution of the proceeding. The case before Punjab and Haryana High Court further lays down that a person is impotent qua his wife would mean and include his incapacity to consummate the marriage which is one of the objects of the marriage and if no evidence is led to show that the husband has cured himself of his incapacity to consummate the marriage it would have to be as-
sumed that the husband continued to be impotent qua her. The decision of Andhra Pradesh High Court is to the effect that where the medical evidence on the part of the husband is non-committal and incomplete and the medical evidence on the part of the wife clearly proves that the wife remained virgin, the Court would presume that the marriage had not been consummated due to impotency of the husband.
4. The principles as laid down in the aforesaid decisions are not in dispute. The parties have not yet led any evidence in the above proceeding. The aforesaid principles relate to the obvious presumption that can be drawn by the Court where no evidence is led by the husband to show that he has cured himself of his incapacity to consummate the marriage or where medical evidence of sexual potency of the husband was non-commital or incomplete or without following the normal tests or standard. These decisions did not lay down in clear and specific terms that in a proceeding for a decree for nullity of marriage on the ground of sexual impotency of the husband, the husband who has specifically denied his incapacity to consummate the marriage shall not be required to be medically examined and the only precedure to be adopted in such a case is to get the wife examined to prove her virginity. These decisions rather lay down a principle for drawing up of a presumption on the basis of the evidences led by both the husband and the wife but not a law that whenever and wherever the virginity of the wife is proved, the sexual impotency of the husband will automatically be presumed.
5. Mr. Mukherjee, Learned Advocate for the petitioner putting much stress on the averments of the husband-opposite party in the written statement that "since the petitioner (wife) was against conceiving right away, she asked the respondent-husband to take enough precautions. With this at the back of his mind, the attempt for consummation was made. On subsequent occasions the act was discontinued midway, lest the petitioner conceived" contended that since it is the case of the husband that sexual Intercourses were performed on the wife so upon proof of virginity of the wife the case made out by the husband would be falsified. Answer to this contention is two fold; firstly the husband has not pleaded only such sexual intercourses against the allegations made by the wife. It is rather the specific case of the husband that he is not sexually impotent and that due to initial refusal of the wife-petitioner, the husband could not have sexual intercourse with her. Secondly the wife-petitioner will be at liberty to lead medical evidence of her virginity till today at the trial of the suit against the evidence that may be led by the husband to show his capacity to sexual intercourse.
6. Again in a proceeding of this nature the initial onus lies upon the wife-petitioner to show that the marriage was not consummated because of the sexual impotency of the husband-respondent and such impotency continued till the institution of the proceeding and if such onus is discharged by the wife-petitioner, the burden of proof that the husband-respondent was not impotent both at the time of the marriage and till before the institution of the aforesaid proceeding and the marriage was not consummated because of the unwillingness of the wife will lie upon the husband-respondent. How the burden would be discharged by the husband-respondent is a matter relating to the quality of evidence that may be led by the husband-respondent which stage has not yet come. But it cannot be said that the husband-respondent would be precluded from leading any evidence in support of his case to establish that he was not sexually impotent at any point of time more particularly at the time of the marriage and during the period before the institution of the proceeding. The evidentiary value of the report that will be forthcoming upon medical examination of the husband-respondent will be weighed at the time of trial and not at this stage. The husband-respondent cannot therefore be shut out from leading evidence in support of his case at the threshold.
7. That apart Order 8 Rule 1 of the Code of Civil Procedure enables the defendant to annex the list of documents in support of his defence to the written statement within the extended period as the Court may grant. The Medical Report if any as to the sexual capacity of the husband-respondent will be in the nature of an expert's opinion and in view of the defence taken by the husband would certainly be a relevant document and could be included in his list of documents that may be annexed to the written statements filed by the husband-respondent. The Court hav-
ing empowered to extend the time to include a document in support of the defence taken in the written statement in such a list, the order impugned made by the Court cannot be assailed more so when such evidence may be led in support of the defence case at the time of trial of the aforesaid proceeding and against the evidence that may be led by the wife-petitioner discharging her onus showing the husband-respondent was sexually impotent both at the time of marriage and continued to be so till the institution of the suit.
8. I am also not inclined to hold in this case that the sexual impotency of the bus-band-respondent could only be proved upon proof of virginity of the wife-petitioner at the trial. Because that would be a secondary and/or alternative approach for the purpose of determination of the sexual impotency of the husband-respondent, where no evidence as to sexual potency of the husband is available. Such evidence will clinch the issue where there is no evidence as to the sexual potency of the husband and no pleading by the husband that for non-consummation of the marriage the wife was responsible.
9. In all these views the contentions put forward by Mr. Mukherjee, Learned Advocate for the wife-petitioner cannot be upheld. The Revisional Application therefore must fail. Hence, the same is dismissed however, without any order as to costs. The interim orders made in the revisional application shall stand vacated.