Madhya Pradesh High Court
Harprasad Santore vs Anita Santore on 16 October, 1992
Equivalent citations: I(1993)DMC27
JUDGMENT Gulab C. Gupta, J.
1.The appellant husband feels aggrieved by the Judgment dated 19-11-90 passed by Shri R.K. Shrivastava, District Judge, Hoshangabad in Civil Suit No. 41-A/89 dismissing his application for divorce under Section 12(l)(a) of the Hindu Marriage Act (hereinafter referred to as the Act) and has preferred this appeal challenging the legality and validity thereof under Section 28 of the Act.
2. That the parties were married on 7-3-88 and lived together upto 11-6-89 does not seem to be in dispute. The appellant in his application alleged that the respondent left his home on 15-6-89 and did not return so far. He also alleged that during this period, the respondent could not bear any child. He also alleged that there was no consumation of marriage as the respondent's vagina was not well developed and ovary was missing. He further alleged that though her breasts were developed, she was not able to engage in sexual act because of absence of ovary. The appellant further alleged that the respondent was treated by one Dr. Smt. Kalyani at Hoshangabad who had opined (hat the respondent was not till for sexual intercourse. He therefore alleged that she was impotent and therefore their marriage was liable to be dissolved under Section 12(1)(a) of the Act.
3. The respondent admitted the marriage and slaying together for about 15 months-but denied that during this period she was not able to engage herself in sexual intercourse. She however admitted that her menstruation was not regular but denied everything else. She asserted that she was a fully grown up woman, capable of engaging in sexual intercourse and therefore prayed that the petition be dismissed. The appellant, during the trial, made a request to the learned District Judge to direct the respondent to submit herself to medical examination. The respondent in her reply to the said application, denied that the ground of impotency was not capable of being proved by her medical examination alone and therefore submitted that her medical examination was not necessary. She further stated that she is not willing to submit herself to medical examination.
4. The learned Judge by his order dated 2-7-90, relying on a decision of this Court in Maya Gohiya v. Premlal, 1990 JLJ 346, held that the burden of proving allegations made in the plaint was on the appellant and since the respondent was not willing to submit herself to medical examination, no commission for examination could be issued. The appellant's application for issuing a commission for respondent's examination was therefore dismissed.
5. Thereafter, the appellant examined himself and closed his case. Similarly the respondent examined herself and closed her case. The learned District Judge, on examination of material on record, was of the opinion that the evidence does not establish that the respondent was impotent and not able to consumate the marriage. That is how the petition was dismissed and the matter is in this Court for consideration in this first appeal.
6. Section 12(1)(a) of the Act provides that if any party to the marriage was impotent at the time of marriage and continued to be so until the institution of the proceedings, the marriage would be voidable at the instance of a party to the same and liable to be annulled by a decree of nullity on that ground. Explaining the meaning of the word the Supreme Court in Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari, AIR 1970 SC 137 hold that a party is impotent if his or her menial or physical condition makes consumation of the' marriage a practical impossibility. The condition must be one which existed at the time of the marriage "and continued to be so until (he institution of the proceedings. The Court therefore held that "in older 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". A Division Bench Of this Court in Mst. Shewanti v. Bhaurao 1971 MPLJ 411 examined the matter in greater details and held that a party is impotent if his or her mental condition makes consolidation of the marriage a practical impossibility. Simply because the ovaries of the wife were not developed or that she was having no menses or that she was sterile, it cannot be held that she was incapable of sexual intercourse or there was any incapacity to consumate the marriage. The Court further clarified that mere sterility in the absence of incapacity of the wife to consumate the marriage is no ground for declaration of the marriage a nullity. In that case, medical evidence relating to the physical condition of the 'wife indicated (hat she was suffering from sterility and amenorrhoea or no menstruation. Though her uterus was normal but the right lube and ovary were small and flat and the left tube and ovary were rudimentary, i.e. very small just like a streak. No overium tissue was present on the left side. On this date, the opinion of the lady doctor was that the respondent "was sterile, but it could not be said that she was impotent. It was in this context that the Division Bench held that sterility is not impotency for the purpose of this rule and cannot therefore furnish a ground for dissolution of marriage.
7. In Digvijay Singh's case (supra) the Supreme Court has clarified that it was for the petitioner to establish (bat the respondent was impotent at the time of the marriage and continue to be so until the institution of the proceedings. This is also the view of this Court in Shewanti's case (supra). The learned counsel for the appellant does not seem to dispute this legal position but submits that refusal of the respondent to submit herself to medical examination by a doctor justifies drawing an adverse inference against her and accepting the appellant's statement that she was physically incapable of engaging in any sexual act. Reliance has been placed on Samar Roy Choudhary v. Smt. Snigdha Roy, AIR 1977 Calcutta 213 to support the said submission. It was not a case where the wife had refused to submit herself to medical examination. In the said case, the wife was examined by doctors under orders of the Court and evidence furnished by these doctors was taken into consideration. The question of drawing adverse inference is always dependant on circumstances of the case. In Smt. Rita Roy v. Sitesh Chandra Roy, AIR 1982 Calcutta 138 a similar request was made to the Court. The case of the wife in that case was that she has already been subjected to medical examination and therefore it was not necessary for her to submit herself to further examination. The Court refused to draw adverse inference against the wife only because she had been examined by a doctor earlier. The rule of adverse inference is a rule of prudence and application thereof depends on the conclusion whether the party against whom such an inference is required to be drawn is withholding the evidence from the Court. The provision is not available to help the opposite party in establishing his case which he is bound to do on his own.. Under the circumstances, this Court will draw an adverse inference against the respondent if she is held guilty of withholding relevant evidence from being produced in the Court. But the Court in the grab of drawing such an inference would not force the respondent to help the appellant in establishing his case:
8. Keeping this principle in view, this Court is of the opinion that no such inference can be drawn against the respondent. It is the appellant's own case that the respondent had been examined by Dr. Smt. Kalyani of Hoshangabad who bad after examination, held that the respondent was incapable of engaging in sexual intercourse (See para 6 of the plaint). He has also asserted the aforesaid on oath. Under the circumstances, medical evidence about the physical condition of (he respondent was available and could have been produced. The burden of producing this evidence was admittedly on the appellant and he cannot avoid his responsibility in this regard by filing an application for re-examining the respondent at the instance of the Court. There is nothing on record to indicate that why Dr. Mrs. Kalyani was not examined and why no papers of physical finding in relation to the respondent were produced. Apparently therefore it was a case where the application for medical examination of the respondent was made to cover up the deficiency in the appellant's own case. Non-production of Dr. Mrs. Kalyani in evidence might justify an adverse inference against the appellant. In this view of the matter, the learned District Judge was correct in his approach and in not drawing any adverse inference against the respondent.
9. The question requiring consideration is whether on the evidence available on record a case for grant of a decree on the ground of impotency of the respondent can be said to have been made out. The appellant has himself admitted in his deposition that the respondent never refused to submit herself (o sexual intercourse. That the parties stayed together from 7-3-88 till 11-6-89 is also clear from his evidence. The appellant has also accepted that he learnt about the physical incapacity of the respondent on the first day of the marriage. If (his was so, how could they lived happily for 15 months, as is apparent from the letters Exs. D-l and D-2. These letters do not indicate any strain in the relationship between the parties. They, on the contrary, indicate a happy married life. Then, there is no reason why the appellant could not produce Dr. Mrs. Kalyani who had examined the respondent. That Dr. Mrs. Kalyani had examined the respondent is admitted by the respondent but she has denied that Dr. Mrs. Kalyani ever examined her for determining her impotency. According to her, she was suffering from fever and therefore Dr. Mrs. Kalyani had treated her. Apparently therefore there is no evidence whatsoever indicating that the appellant faced any difficulty in maintaining sexual relationship with the respondent.
10. As regards physical deficiance, the appellant has in para 5 of his application, stated that the vagina of the respondent was not well developed and ovaries were absent. According to him, the respondent was not capable of enganging herself in sexual intercourse because her vagina was not developed. In his evidence (Para 2) he has only stated that respondent's vagina was not developed. This evidence is wholly insufficient to hold that the respondent was impotent. What is meant by the aforesaid statement is also not clear. Though development of external genital is necessary, the conclusion whether the respondent has a 'developed external genital or not will have to be reached by this Court on the basis of data furnished by evidence lawfully adduced. The bare statement of the appellant that the respondent's vagina was not-well developed does not indicate anything and therefore, does not satisfy requirements of the aforesaid provision. What is to be determined in all such cases is the practical impossibility of consumation of marriage which cannot be done by the mere statement of the appellant. There is therefore no difficulty for this Court to hold that the appellant has failed to make out any case for grant of decree of nullity of marriage.
11. Appeal fails and is dismissed.