Gujarat High Court
Dharmendrasinh Mahipatsinh ... vs State Of Gujarat on 11 August, 2025
NEUTRAL CITATION
R/SCR.A/3957/2018 ORDER DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3957 of 2018
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DHARMENDRASINH MAHIPATSINH MORI(DARBAR) & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AB GATESHANIYA(3766) for the Applicant(s) No. 1,2,3,4,5
MR BHAVESH B SARODE(6454) for the Respondent(s) No. 2
MR CHINTAN DAVE, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 11/08/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the petitioners nos.2 and 3 have prayed to quash and set aside the proceedings of Criminal Misc. Application No.78 of 2017 (Old No.94 of 2016) filed under the provisions of Protection of Woman from Domestic Violence Act, 2005 pending in the Court of learned JMFC, Detroj and all the consequential proceedings arising therefrom.
2. Seeking quashment of questioned proceedings under D.V.Act, learned advocate for the applicants submits that the private respondent is suffering from physical infirmities and she was not able to cohabit the marriage and this aspect was suppressed. He would further submit that the petitioner husband has filed HMP No.37 of 2013 before the learned Page 1 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined Principal Senior Civil Judge, Surendranagar for seeking divorce u/s 13(1)(a) and 13(1)(ib) of the Hindu Marriage Act on the similar ground that the private respondent is unable to cohabit the marriage, as the uterus was absent. He would further submit that the competent civil Court declared the marriage of the petitioner husband with the private respondent as null and void by passing judgment and decree dated 31.12.2014. In support of his submission, learned advocates for the petitioners referred to and relied upon Annexure C. In addition to aforesaid, Learned advocate for the petitioners would submit that the private respondent preferred Criminal Misc. Application No.6 of 2018 before the learned JMFC, Detroj u/s 125 of the Code of Criminal Procedure, 1973 for getting maintenance. The learned JMFC after referring to the judgment passed by the competent civil Court declaring the marriage of the petitioner husband with the private respondent as null and void, declined to grant maintenance.
2.1 To buttress the submission, learned advocate Mr. Gateshaniya referred to and relied upon the judgment insurance company case of Kanjibhai Bhanabhai Parmar Vs. Urmilaben Kanjibhai Parmar, 2020(3) GLR 1877 and submit that once the divorce took place between the husband and wife, the provisions of DV Act cannot be invoked. He would further submit that in the present case, the learned Court declared the marriage of the petitioner husband with the private respondent as null and void much prior to invocation of the Page 2 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined provisions under the DV Act by the private respondent.
2.2 In the aforesaid premises, learned advocate Mr. Gateshaniya prays to allow this petition by quashing and setting aside proceedings of Criminal Misc. Application No.78 of 2017 (Old No.94 of 2016) filed under the provisions of Protection of Woman from Domestic Violence Act, 2005 pending in the Court of learned JMFC, Detroj and all the consequential proceedings arising therefrom.
3. Though served, none appears for the respondent - original complainant.
4. Per contra, learned APP appearing for the private respondents would submit that it is dispute between private parties. However, he would submit that the competent civil Court has observed that the private respondent is lacking physical sufficiency to cohabit the marriage and in that circumstances, since the marriage was declared null and void since inception by the competent civil Court, having not been challenged before higher forum, would govern the field that the provisions under the DV Act cannot be invoked subsequent thereto. On this grounds, it is submitted to dismiss the petition.
5. Having heard learned advocates for the parties, at the outset, I may refer to the judgment in case of Kanjibhai Bhanabhai Parmar (supra), wherein in para 15, the Coordinate Bench of this Court referred to definition of "aggrieved party" and Page 3 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined also definition of "domestic relationship" and held that the provisions of the DV Act cannot be invoked subsequent to the divorce took place between the parties. Para 15 reads as under:-
"15. To decide the controversy in this case, it would be profitable to refer certain Sections of "the Act":
2(a) "aggrieved person" means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent 2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through relationship in the nature of marriage, adoption or are family members living together as a joint family;
Considering the definition of an aggrieved person, it is clear that a woman who is, or has been, in a domestic relationship with the respondent can invoke the provisions of "the Act". Again referring the definition of domestic relationship, it is clear that it is a relationship, which is alive between the persons. Even on separation or staying apart, marital relationship still continues. Once the marital tie is severed by way of divorce between the parties the relationship between them is snapped. Considering the definitions, as aforesaid, it is clear that the wife would be aggrieved person so long as domestic relationship survives. As soon as it is snapped, it is an end to the domestic relationship and she would not be aggrieved person then. Thus, after divorce between two persons, neither the domestic relationship survives nor any person would be termed as an aggrieved person for the purpose of this Act. Hence, after divorce takes place between husband and wife, the provisions under "the Act" cannot be invoked. Things would be different if the provisions are invoked and thereafter divorce takes place. The said situation is Page 4 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined covered by the decision of the Supreme Court in the case of Juveria (Supra). In short, in my opinion, divorced wife cannot invoke the provisions of "the Act". So far as the present case is concerned, even if the divorced wife is entitled to invoke the provisions of "the Act", respondent no.1 - wife, after getting divorce from the petitioner, 28 years before, contracting second marriage with Premjibhai Tundia, the domestic relationship with the erstwhile husband is not subsisting, and therefore, in no case, respondent No.1 wife can invoke the provisions of "the Act". Thus, there is irresistible conclusion that divorced wife who has remarried cannot invoke provisions of "the Act"
against her erstwhile husband."
6. In view of above, if we examine the facts of the case, according to the private respondent, she married to the petitioner husband as per Hindu rites and rituals six years prior to filing of the petition under the provisions of the DV Act. She suppressed the facts of judgment and decree passed by the competent civil Court declaring the marriage of the petitioner husband with the private respondent as null and void. Thereafter, the private respondent filed Criminal Misc. Application No.78 of 2017 (Old No.94 of 2016) u/s 12 of the DV Act before the learned JMFC. Annexure C is the judgment and decree passed by the learned Principal Senior Civil Judge, Surendranagar in HMP No.37 of 2013. Relevant paras of the said judgments are para 11 to 19, which reads as under:-
"11. However, for the sake of proving the aforesaid fact, looking to the evidence, the petitioner has also succeeded in proving the aforesaid averments on record by examining the witness, Dr.Manish Pandya vide Exh.19, who has issued certificate Exh.14 and deposed that the respondent came with the Page 5 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined petitioner husband at his hospital for her treatment and he had examined her and had opined on the basis of report of UCG of the respondent issued by Dr.Jayesh R.Shah Exhs.15,16 that the respondent has no uterus as well as the left kidney and therefore, she is not able to give birth to child naturally. The aforesaid medical evidence have also remained unchallenged and there is no reason before this court to disbelieve the same.
12. Further, the aforesaid contentions and allegations have also IRENE been made in the notice dated 04/10/2013 sent by the learned advocate for the petitioner to the respondent, which was refused by her Exh.12. The notice sent by this court of the petitioner's petition has also been reused by the respondent. Hence, this court has reason to believe that though it is definitely within the knowledge of the respondent being wife of the petitioner that the petitioner communicated with her regarding dispute of their marriage life. However, she fails to appear before this court to respond the averments and allegations made by the petitioner and therefore, such conduct also goes to show that she has not interested to solve the dispute of their marriage life in order to reside with the petitioner or even defend the proceeding initiated by the petitioner. on the basis of averments and allegation raised in the petition. Hence, the issue No.3 is answered in the affirmative.
Issue Nos. 4 and 5;
13. In view of the aforesaid facts, circumstances and evidence on record, it is proved on record that the respondents has defect i.e. not to having uterus in her body by birth and to due such defect she is unable to give birth of a child. It is also alleged by the petitioner that he could not cohabit with the respondent and she denied to marital conjugal right. It has also been averred by the petitioner that the respondent is not able to give birth to child naturally.Page 6 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025
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14. Now, this court has to decide on the said ground whether the of his marriage Petitioner is entitled to a decree of divorce solemnized with the respondent on 04/06/2010 as prayed for in the A Marriage Act under which the petitioner has prayed for aforesaid prayer are concerned, on going through the provisions of the said Sections, it appears that the petitioner's case as well as dispute in IPAL SEMquestion do not fall under these Sections. However, in order to put an end to the matter in the interest of justice, this court has go through the provisions of the said Act and observed that the main facts, averments of the petition falls U/s.12 (1)(a) of The Hindu Marriage Act and the said Section is reproduced hereunder for ready perusal;
12. Voidable Marriages.-(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 impotency of the respondent.
Hence, looking to the facts and circumstances, it can be said that the petitioner may intent to file the petition U/s.12 (1)(a) of The Hindu Marriage Act and therefore, this court is inclined to matter under the provision of the said Section.
15. Further, this court has minutely perused the judgment reported in 2003(2) GLR 1395; Jyotsanaben Ratilal v. Pravinchandra Tulsidas, which is more helpful to this court and squarely applicable in the present matter in order to decided the same. In the matter aforesaid before the Hon'ble High Court, it is the case of the husband that the opponent wife has no vagina and the petitioner - husband was not able to perform sexual intercourse. Further, from the medical report it appears that coitus of the vagina was only 0.5 inch deep; thatin view of this physical defect in the vagina, such lady would not be Page 7 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined able to have satisfactorily sexual intercourse; that she has no uterus that it was first stated that she has no regular monthly manstrual cycle; this means there was no process of discharging blood or other material from the uterus in sexually mature non- pregnant woman at the intervals of about one lunar month until the menopause; that she cannot give birth to a child as per examination done through leproscope. In view of the aforesaid facts and circumstances, though the petitioner husband lived with the opponent wife for some period, ultimately on 18-4-1994, he filed the application u/s 12 (1) (a) of the Hindu Marriage Act, 1955 for annulment of the marriage and prayed for decree of nullity on the ground that the marriage has not been consummated owing to the impotence of the opponent. Whatever was stated in the medical report, the petitioner has stated the same thing in his application filed u/s 12 (1) (a) of the Act.
16. 16. In that case, the Ld., Trial Court did not allow the petitioner aforesaid petition, but the Hon'ble Appellate Court noted that there is physical defect to the opponent wife and the petitioner will not be able to have intercourse with the opponent wife. She has no uterus. Hence, The Hon'ble Appellate Court came to the conclusion that the trial Court has committed error in holding that the marriage of the parties has been consummated; that the Trial Court has erred in refusing a decree of nullity by annulment of marriage of the parties under Section-12 of the Hindu Marriage Act and the Hon'ble Appellate Judge was pleased to quash and set aside the judgment and decree of the Trial Court and held that the marriage between the Parties is declared as null and void under Section 12 (1) (a) of the
17. Further, being aggrieved and dissatisfied with the above referred judgment and decree of the Appellate Court, the respondent original opponent wife has filed Second Appeal before the Hon'ble High Court of Gujarat and while deciding the aforesaid matter the Hon'ble Gujarat High Court has Page 8 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined concluded as follow:-
25. Section 12, prior to its amendment in 1976, stated that the the respondent was impotent at the time of the marriage and continued to be so until the institution of proceeding. By the Amending Act of 1976 the substituted clause emphasises the element of nonconsummation of the marriage owing to the impotence of the respondent. Medical evidence may establish that the petitioner wife has remained a virgin and the court may presume that the requirements of the amended clause are satisfied.
Clause (a) of sub-s (1) makes it abundantly clear that a marriage solemnized whether before or after the commencement of the Act is voidable at the instance of either party on the ground of nonconsummation of the same due to the impotence of the other party to the marriage and may be annulled by a decree of nullity of marriage. The marriage of a female with a male who was impotent and who had not been able to consummate the marriage is a nullity.
26. What is meant by impotent: Impotence means the incapacity to perform full and natural sexual intercourse. It may be due to an organic defect or due to invincible repugnance or hatred for sexual intercourse in general or with reference to a particular person or due to some loathsome and incurable disease like syphilis which incapacitates the individual from having sexual intercourse. It need not be due to physical incapacity and may be caused by the mental or physical condition which would render normal intercourse impossible though such mental condition may not amount to unsoundness of mind, insanity or idiocy." FR. Mayne's Hindu Law & Usage, 13th Edition, at page 207)
27. "A person is impotent if his physical or mental condition makes consummation of marriage a practical impossibility. Impotency may arise on account of physical defect or mental condition such as total repugnance to be sexual act. It may be well arise qua a person qua the other spouse quoad hune Page 9 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined or hane. In other words, invincible and persistent repugnancy on the part of the respondent to the act of consummation amounts to impotency."
(Re.: Paras Diwan "Law of Marriage and Divorce, 4th Edition. Page No. 286.
27.1 Impotency : Non-consummation of Marriage owing to Impotence under Modern Law.
"In the modern law there is still a controversy on the question whether the marriage of impotent person should be null and void or merely voidable.
The reason seems to be this: Just as under Hindu law so under some other systems, impotency related to the physical capacity of the parties or incapacity to consummate the marriage, and if this capacity was lacking marriage was treated as null and void. The notion was that if at the time the solemnization of the marriage any party lacked capacity to consummate the marriage, no marriage could come into existence. In short, the physical capacity was as much a basic requirement of marriage as mental capacity." (Ref. Page 285 Paras Diwan, "Law of Marriage and Divorce" 4th Edition.
27.2 "A party is impotent of his or her physical or mental makes consummation of marriage a practical impossibility, invincible and persistent repugnancy on the part of the respondent to act of consummation amounts to impotency ? Impotency means inability to perform sexual act or inability to consummate the marriage."
Ref. Page 99-100 Paras Diwan, "Modern Hindu Law", 11th Edition.
xxx 27.4 In my view. the reasonings of the Appellate Court bstantial question of law raised by the Page 10 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined appellant original 2chanting divorce are legal and valid. I do not see any mponent wife in the present second appeal and therefore the indgment and decree of the Appellate Court is to be confirmed. costs. The judgment and decree of the Appellate Court is confirmed.
18. Now come back to the present matter on hand, it is alleged by the petitioner husband that he could not cohabit with the respondent due to physical fault on her part and she denied to marital conjugal right and it was also revealed by the petitioner that though she and her family member knew the facts that the respondent could not give such happiness to the petitioner, her marriage has been solemnized with the petitioner by suppressing such fact. It is also proved on record by medical evidence that the respondent has no regular monthly manstrual cycle and since she has no uterus as well as the left side kidney and therefore, she is not able to give birth to child naturally, which is proved by the medical evidence on record viz., deposition of Dr.Manish Pandya vide Exh.19, report of UCG of the respondent issued by Dr.Jayesh R.Shah Exhs.15,16.
19. Further, it is abundantly clear that the aforesaid allegations more particularly that there is physical defect to the opponent wife and the petitioner will not be able to have intercourse with the opponent wife and due to that defect petitioner could not cohabit with the respondent and she denied to marital conjugal right and she has deserted the petitioner since 17/04/2013, have remained Wirunchallenged. Further, the conduct of the respondent wife in refusing the notice dated 04/10/2013 sent by the learned advocate for the peitioner and notice sent by this court of the petitioner's petition, Wwas refused by the opponent, which also suggest that REMORAver steps taken by the petitioner against her and therefore, this CANondent has not been taking care or giving attention to the Court is left with no option to believe that the husband has been able to prove the Page 11 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025 NEUTRAL CITATION R/SCR.A/3957/2018 ORDER DATED: 11/08/2025 undefined ingredients of Sec. 12(1)(a) of the Act on the basis of aforesaid allegations, which have remained unchallenged in absence of the respondent. Hence, this court is inclined to hold that the marriage between the parties solemnized on 04/06/2010 as null and võid under Section 12 (1)(a) of the Act and therefore, a decree of divorce can be passed accordingly. Thus, the issue Nos.4 and 5 are answered in the affirmative by grating petitioner's prayer under the provision of aforesaid Section of the Act instead of under the provision as prayed by him in his petition and therefore, in respect of issue No.6, following final order is passed."
7. In the aforesaid reasonings and findings, the learned Principal Senior Civil Judge, Surendranagar believed that the physical infirmities of the private respondent has been suppressed and due to that, the petitioner husband and the private respondent are unable to cohabit their conjugal rights and marital obligations. The learned civil Court found that the marriage between the petitioner husband and the private respondent is null and void since inception as ingredients of sections 12(1)(a) of the Act are proved. The operative portion of the judgment and decree passed on 31.12.2014 reads as under:-
"1. This petition is hereby allowed.
2. Marriage solemnized between the parties on 04/06/2010 is hereby declared as null and void under the provision of Section 12(1)(a) of The Hindu Marriage Act.
No order as to costs.
Decree be drawn accordingly.
Pronounced in the open court on 31th day of December, 2014."Page 12 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025
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8. An unsuccessful attempt was made by the private respondent by filing Criminal Misc. Application No.6 of 2018 before learned JMFC, Detroj u/s 125 of the Code for maintenance. The learned JMFC after referring to the judgment passed by the competent civil Court declaring the marriage of the petitioner husband with the private respondent as null and void, declined to grant maintenance. Present one is another attempt by the private respondent.
9. In view of the foregoing discussion, the application is allowed. The proceedings of Criminal Misc. Application No.78 of 2017 (Old No.94 of 2016) pending in the Court of learned JMFC, Detroj as well as all consequential proceedings initiated in pursuance thereof against the petitioners are hereby quashed and set aside. Direct service is permitted.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 13 of 13 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Aug 11 2025 Downloaded on : Mon Aug 11 22:43:28 IST 2025