Punjab-Haryana High Court
Anil Kumar vs Raj Bala on 16 December, 2013
Author: Jaspal Singh
Bench: Ajay Kumar Mittal, Jaspal Singh
FAO No.2219 of 2011 (O&M)
-1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
FAO No.2219 of 2011 (O&M)
Date of Decision:16.12.2013
Anil Kumar ... Appellant
Versus
Raj Bala ... Respondents
CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. Suresh Ahalawat, Advocate for the appellant.
Mr. S.N. Pillania, Advocate for the respondents.
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest?
Jaspal Singh, J.
1. This appeal has been preferred by the appellant-husband feeling dissatisfied against judgment and decree dated February 15, 2011 passed by District Judge (Family Court), Hisar whereby a petition preferred by the respondent-wife under Section 12 (1) (a) and 13(1) (ia) of the Hindu Marriage Act 1955 (for short "the Act") as amended upto date, was allowed and a decree of nullity of the marriage as well as for divorce was passed.
2. Briefly stated the facts contained in the petition are that the marriage of the parties was solemnized on July 5, 1991 at village Niyana, Hisar as per Hindu Rites and Ceremonies when the respondent-wife was only seven years of age. Muklawa ceremony was performed on May 7, 2000 and the respondent-wife started living with the appellant-husband at village Sisai, Tehsil Hansi, District Hisar as his legally wedded wife. It has been unfolded by the respondent-wife that the very first night of the matrimonial life after the muklawa ceremony, the appellant-husband failed to Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -2- consummate the marriage with her owing to his impotence. He failed to have sexual intercourse with her despite all best co-operation provided by her to the appellant-husband for establishing sexual relations. When the appellant-husband was accosted in this regard, he disclosed that he has been getting treatment and would be cured within a short span of time. She stayed with the appellant-husband for a period of 1 ½ years. Though she made efforts on various occasions to establish the sexual relation with the appellant-husband but he could not succeed. It was only thereafter this fact was disclosed by her to her mother and ultimately the matter was brought to the notice of parents of the appellant-husband. The factum of impotency of the appellant-husband was not disclosed prior to the marriage or the muklawa ceremony either by the appellant-husband or his parents and a fraud has been played by them with her in this regard. The main object of the marriage could not be fulfilled due to the non consummation of marriage due to the impotency of the respondent. It has further been submitted by the respondent-wife that she preferred a petition under Section 12 (1) (a) of the Act for annulment of marriage on the ground of impotency of the appellant- husband on April 29, 2006 but it was withdrawn on August 7, 2007 on the assurance of the appellant-husband and his family members that he would be cured with the help of medicines as they have consulted some prominent sexologist and thereafter, the appellant-husband took her to the matrimonial home on August 23, 2007. The appellant-husband started taking some medicine for his treatment. Even she also proceeded on leave in the month of September, October and November, 2007 and gave full co-operation to the appellant-husband to consummate the marriage by having sexual intercourse but he failed as he could not be cured even with medicine. Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -3- Seeing no hope, she asked the appellant-husband and his family members as to why they have ruined her life by making false assurance, to which, they parried that their object was only to get the withdrawal of the petition preferred by her for declaring the marriage null and void which they have achieved. Thereafter, the appellant-husband and his family members also compelled her to bring ` 50,000/- or a motorcycle from her parents as she is unable to leave this house any more due to the withdrawal of the petition. On December 10, 2007, when she was on leave from December 4, 2007 to December 13, 2007, the appellant-husband and his family members pressurized her to bring a motorcycle from her parents and to hand over all her savings. When she showed her inability to meet these illegal demands, she was mercilessly beaten and thrashed by them and ultimately, she was thrown out of the matrimonial home. Since then, she is living with her parents. On March 25, 2008, she accompanied by her father and brother visited the appellant-husband and his parents with a request to return her istridhan but they flatly refused and reiterated their illegal demand. The appellant-husband was impotent since her marriage with him. He is still impotent and has failed to consummate the marriage. Just to put a veil on this aspect, the appellant-husband and his family members also committed cruelty with her and now it is not safe for her life and limb to live for further period in the company of the appellant-husband. Finding no other option, she preferred a petition for getting her marriage declared null and void as well as dissolved.
3. Upon notice, the appellant-husband appeared and contested the petition. He filed the written statement raising objection that the respondent- wife is estopped from filing divorce petition by her own act and conduct. Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -4- He has admitted that the marriage was solemnized with the respondent-wife on July 4, 1991. However, he alleged that muklawa ceremony was performed in March 1999 and the marriage was consummated at village Sisai Bolan. It has further been alleged by him that the respondent-wife previously filed a petition in March 2006 when she was residing with him. She was admitted in Government Senior Secondary School, Sisai from where she passed her 10+2 examination and thereafter with his sincere efforts, she was got employed as constable in the Department of Police, Haryana. If at all, he was found impotent on the very first night why she did stay with him for such a long period. In fact, the respondent-wife stayed with him upto September 2006 when she was recruited in Police Depatment. All other averments have been denied by the appellant-husband alleging the same to be wrong and he prayed for dismissal of the petition.
4. On going through the pleadings of the parties, following issues were culled out in order to adjudicate upon the matter in controversy:
"1. Whether the petitioner is entitled to a decree of divorce on the grounds alleged in the petition? OPP.
2. Whether the petitioner is estopped from filing the present petition by her own act and conduct? OPR.
3. Relief."
5. Both the parties were afforded ample opportunity by the learned lower Court to adduce and conclude their evidence in support of their respective pleadings and they led oral as well as documentary evidence. In order to substantiate his case, the petitioner herself stepped into the witness box as PW-1 thereafter closed her evidence.
6. To rebut the evidence adduced by the petitioner-wife, respondent-husband appeared in the witness box as RW-1 and also Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -5- examined Om Parkash as RW-2. Thereafter, he closed his evidence.
7. After considering the evidence and hearing the learned counsel for the parties, the learned lower Court has held that marriage between the parties was not consummated owing to impotency of the appellant-husband and further that the respondent-wife was treated with cruelty during her stay with the appellant-husband. Accordingly, the learned lower court decreed the petition.
8. Aggrieved with the same, the present appeal was preferred which was admitted for hearing vide order dated August 8, 2011. Lower Court's record was also requisitioned and received.
9. We have heard the learned counsel for the parties at length.
10. While assailing the impugned judgment and decree, it has been ebulliently argued by the learned counsel for the appellant that the learned lower Court has committed an error while relying upon the sole testimony of the respondent-wife which even does not find corroboration from any medical evidence. The burden was heavily on the respondent-wife to prove that the appellant-husband was impotent. The respondent-wife has failed to discharge the burden. The stand of the appellant-husband is that after the muklawa ceremony, their marriage was consummated in the first night and even thereafter, it had been consummated during the period, the respondent- wife lived with him. In addition to the allegation of impotency on the part of the appellant-husband, she has also levelled false and frivolous allegations with regard to the demand of ` 50,000/- or the motorcycle and further that for not meeting the said demand, she was subjected to cruelty. These false allegations were levelled by her just to make out a case for the grant of divorce. In fact, after she got employment as a constable in the Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -6- Haryana Police Department, her conduct and behaviour towards the appellant-husband as well as his other family members was entirely changed as she wants to get rid off the appellant-husband especially being interested in some glorious personality in the Police Department so that she may marry with him.
11. It has further been argued by the learned counsel for the appellant-husband that she previously filed a divorce petition on the ground of impotency but the same was withdrawn by her. Thereafter, she got registered a false criminal case under Sections 498-A, 406 IPC vide FIR No.462 dated June 15, 2006 and on enquiry, that case was found to be false and was ultimately cancelled. Not only this, after the cancellation of the aforesaid FIR, she filed a complaint against him and his parents under Sections 498-A, 406 IPC in which the Court declined to summon his parents. However, he was summoned to face trial. Moreover, the marriage was simple one. No dowry was given and as such, the question of any demand of dowry, motorcycle or the cash amount does not arise at all. Similarly, she was never subjected to any mental or physical cruelty either by the appellant or by his parents at any point of time.
12. While concluding his arguments, it has been submitted by the learned counsel for the appellant that since the respondent-wife has miserably failed to establish that the appellant-husband is impotent and further that she was subjected to cruelty on account of dowry or otherwise, the impugned judgment and decree are not sustainable in the eyes of law and the same are liable to be set aside by way of acceptance of the instant appeal.
13. Per contra, the contention of the learned counsel for the Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -7- respondent-wife is that she has narrated each and every detail in her statement as to how her marriage had not been consummated. Her evidence on material points is worthy of credence and could not be shaken despite the fact that she was subjected to thorough, lengthy and probed cross examination. The respondent-wife while appearing in the witness box as PW-1 has categorically stated that despite her best co-operation on the very first night, the appellant-husband failed to cohabit/consummate the marriage owing to his impotence. She did not immediately disclose this fact with the hope that with the passage of time every thing will be all right and when for a period of about 1 ½ years on various occasions, the appellant-husband failed to establish the sexual relations, the matter was brought to the notice of her mother by her who further disclosed this fact to her father. It was only thereafter, her father visited the house of the appellant, raised objection in this regard to the appellant and his parents and they could not give any satisfactory reply. Ultimately, they admitted their guilt for not disclosing the factum of impotency of the appellant-husband prior or at the time of marriage. As far as the contention of the learned counsel for the appellant that there is no medical evidence to prove impotency adduced by the respondent-wife is concerned, her sworn testimony cannot be disbelieved or brushed aside. If no medical evidence was brought on record by the respondent-wife in this regard, the appellant-husband could have offered himself for his medical examination to disprove it or to prove that he is "potent" but no such effort was made by him. The evidence of the respondent-wife fully establishes her case. Moreover, there is no perversity or illegality in the impugned judgment and decree which is well reasoned one. Accordingly, learned counsel for the respondent-wife prayed for Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -8- dismissal of the appeal with costs.
14. We have given our anxious thought to the rival contentions put- forth by the learned counsel for the parties and have gone through the records.
15. First of all, it would be apt and proper to have a glance on the material provisions of the Act which provides "Impotency" as a ground for declaring the marriage null and void. Section 12 (1) (a) of the Act reads thus:
"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 marriage has not been consummated owing to the impotence of the respondent;
xxx"
16. Hon'ble Apex Court while deciding the issue "Impotency" in case captioned as Digvijay Singh v. Pratap Umari; (1970) 1 SCR 559 has observed as under:
"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."
17. In another case titled as Manjula and S. Desmukh v. Sijresh Deshmukh; AIR 1979 Delhi 93, the Full Bench of Delhi High Court Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -9- discussed the impotency ut-infra:
"19. Impotence is inability to consummate the marriage and to be a ground for nullity, such inability must exist at the time of marriage and continue to exist at the time of the institution of the suit. For this purpose sexual intercourse has been defined as ordinary and complete intercourse, not partial and imperfect intercourse. If so imperfect as scarcely to be natural, it is no intercourse at all, but recent cases suggest that modern surgery has introduced the need of further scrutiny. Though it has been held that full penetration without ejaculation on at least one occasion amounts to consummation, but more recently another judge decided that penetration for a short time without any ejaculation, did not amount to consummation. See R.v.R. (otherwise F) (1952) 1 All. E.R. 1194 and W (orsc K) v. W; (1967)1 W.L.R. 1554 See Latey on Divorce (1973) 15th ed. p.225.
20. Impotency means incapacity to consummate she marriage and not merely incapacity for procreation. The test is consummation and capacity to consummate."
18. Similarly, the Division Bench of Andhra Pradesh High Court while rendering pronouncement in case Smt. Suvarna v. G.M. Achary; MANU/AP/0090/1979 observed that impotency of spouse, husband, in particular case, vis-a-vis, the other spouse is sufficient. Total impotency need not be proved.
19. Adverting to the facts of the instant case, it is an admitted fact that the marriage of the parties was solemnized on July 5, 1991 at village Niyana, Hisar. The muklawa ceremony was performed as per the version of the respondent-wife on May 7, 2000. The respondent-wife while appearing in the witness box has categorically deposed that though the factum of impotency of the appellant-husband came to light on the very first night of Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -10- the matrimonial home yet it was not disclosed to her parents due to shyness by her. Moreover, the appellant-husband also disclosed that he is getting treatment and he would be cured very soon. The matter was disclosed after about 1 ½ years and then the matter was taken up with the appellant and his parents by the father of the respondent-wife and at that time family of respondent admitted their guilt for not disclosing this fact to the respondent- wife or her parents prior to the marriage. She preferred a petition for annulment of marriage under Section 12(1)(a) of the Act on April 29, 2006 but it was withdrawn on August 7, 2007 on the assurance of the appellant- husband and his family members that he is under treatment of some specialized Doctor and his impotency would be cured. On this assurance, the appellant-husband took her to the matrimonial home on August 23, 2007 but there was no change in the circumstances despite full co-operation from her side for the consummation of the marriage even by obtaining special leave from her duty by her during the months of September, October and November 2007. The incident of demand of motorcycle and to hand-over her savings took place in the month of December 2007 when she is alleged to have been mercilessly beaten and thrashed and to pressurize her to remain tight-lipped about the impotency of the appellant-husband. The allegation that conduct and behaviour of the respondent-wife changed after her joining service as a constable or that she intended to marry with some glorious personality in the Police Department is without any substance. Even the name and parentage of that glorious personality has not been unfolded by the appellant-husband during the course of his evidence. This allegation can be termed to be unfounded, false and baseless. Rather, it amounts to "cruelty".
Thakral Rajeev2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -11-
20. No doubt, there is no medical evidence showing the impotency of the appellant adduced by the respondent-wife. The second petition on the ground of impotency and cruelty was preferred by the respondent-wife on October 15, 2009 i.e. after about 9 years and the appellant-husband could not point out even a single instance of the consummation of marriage. No lady would come forward with such an allegation. At the same time, the appellant also did not make any effort to bring on record any medical evidence showing that he is potent. He could have produced the medical evidence by getting himself medically examined.
21. It would not be out of place to mention here that during the pendency of the instant appeal, learned counsel for the appellant sought time to seek instructions and to show any medical documentary evidence with regard to the allegations made under Section 12(1)(a) of the Act which was granted by this Court vide order dated July 18, 2013 and for that purpose, the appeal was adjourned to August 21, 2013, September 30, 2013, November 15, 2013 and then for today but the learned counsel for the appellant showed his inability to produce any such evidence.
22. So considering over all evidence, we are of the considered view that the evidence of the respondent-wife is convincing and reliable and inspires confidence whereas the evidence of the appellant is vague. Mere denial of the version of the respondent-wife by the appellant-husband regarding impotency of the appellant is not sufficient.
23. Similarly, the evidence brought on record by the respondent- wife with regard to the cruelty faced by her at the hands of the respondent and his family members especially after withdrawal of the previous petition moved by her under Section 12(1)(a) of the Act is cogent and convincing. It Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2011 (O&M) -12- cannot be discarded simply on the ground that it does not find corroboration from any other evidence. It is pretty settled that it is the quality of evidence that matters and not the quantity. He is admittedly facing criminal trial under Sections 406, 498-A IPC. So, learned Lower Court has rightly concluded that "impotency" and "cruelty" are fully established.
24. In view of the over all discussion, we do not find any perversity or illegality in the findings recorded by the learned Lower Court as well as the impugned judgment and decree and the same are affirmed/upheld. Consequently, the appeal stands dismissed but with no order as to costs.
(JASPAL SINGH) JUDGE (AJAY KUMAR MITTAL) JUDGE 16.12.2013 rajeev Thakral Rajeev 2014.01.23 14:14 I attest to the accuracy and integrity of this document High Court Chandigarh