Madhya Pradesh High Court
Geeta Devi vs Harish Kumar @ Purshottam And Ors. on 19 December, 1995
Equivalent citations: II(1996)DMC551
Author: Tej Shanker
Bench: Tej Shanker
JUDGMENT Tej Shanker, J.
1. This appeal Under Section 28 of the Hindu Marriage Act has been filed against the judgment and decree dated 1.11.91 passed by the Seventh Additional Judge to the Court of District Judge, Gwalior, decreeing the claim of the respondent Harish Kumar for annulment of the marriage Under Section 12(1)(a) of the Hindu Marriage Act (hereinafter referred to as the Act).
2. The petitioner, Harish Kumar, alleged that he and respondent No. 1, Smt. Geetadevi, were married on 10.12.1980 and respondent No. 1 came to Gwalior. On that date as well as on next day other customs were performed. Ultimately on 15.12.1980 the brother of respondent No. 1 took her after Vidai. In the night of 10.12.80 at about 12 hours there was noise of firing. The relations of the respondents disclosed that dacoits had reached there and an encounter was going on. On the next day at the time of Vida the ornaments were not sent on account of fear. In the night of 11.12.80 and subsequent nights till 14.12.80 respondent No. 1 remained sleeping and did not wake inspite of efforts. He thought that she might have been tired. But on 6.1.81 though she pretended that she was sleeping, he found that she did not have female organs and consequently she was not fit for cohabitation. He disclosed this fact in the morning to his father and the news spread in whole of the house. She was taken to a Specialist Lady Doctor and was also admitted in the hospital. After investigation it transpired that there was no possibility of cohabitation. She did not have uterus. She had only a hole for urination. On 18.1.81 her brother Padamchand took her. The fact that defendant No. 1 had no female organs and she was naturally deficient was known to her from before. He was kept in dark and was not disclosed this fact. Thus, the marriage was performed by practising fraud. He came to know this fact for the first time on 6.1.81 and thereafter when she was medically examined. He was, therefore, entitled to get the marriage annulled. The defendant wife in her written statement denied the allegations made by the petitioner except the factum of marriage. She asserted that when his brother Padamchand came to take her demand of Rs. 40,000/- was made and she was not sent. The allegations made by the petitioner are false and concocted. All the articles including cash amounting to Rs. 25,000/- were taken by he petitioner, his father and brother at the time of Vidai of the Barat. On 12.12.80 i.e. on the first night there was cohabitation and the petitioner had been enjoying her society. She had stomach ache and hence a Lady Doctor was consulted. In case any certificate was got prepared it was fictitious and collusive. She was a complete female and was fit to perform her marital obligations. Learned Trial Court formulated issues that arose from the pleadings of the parties, took evidence, heard parties and after considering the entire material on record concluded that the plaintiff has proved his case. It, therefore, granted a decree for annulment of the marriage on the ground of impotency. Hence this appeal.
3. The learned Counsel for the appellant contended that the evidence on record does not prove impotency and the learned Court below committed an error in recording a finding in favour of the petitioner. He also urged that in case the Court comes to the conclusion that there is no sufficient evidence, a fresh opportunity be given to the appellant to adduce evidence as is necessary for the disposal of the case by remanding it to the learned Trial Court. He also pointed out that an application was moved by the appellant for her re-examination which was wrongly refused by the learned Trial Court.
4. Learned Counsel for the respondent urged that the fact that the appellant was impotent has been fully established from the material on record. This fact was within her knowledge and was suppressed. The factum that she never mensurated was also suppressed. All these facts go to show that the plaintiff had made out a case and the learned Court below was perfectly justified in granting decree.
5. The main ground on which the decree of annulment of marriage has been sought is the impotency of the wife. Section 12(1)(a) of the Hindu Marriage Act provides that a marriage may be annulled by a decree of nullity on the ground that it was not consummated owing to the impotence. The word "impotence" has been understood in matrimonial cases as meaning incapacity to consummate the marriage. In other words, it may be said that it means incapacity to have conjugal intercourse which is one of the objects of marriage. In such cases medical evidence has got an important role to play. It may be established that the wife has remained a vergin and was not subjected to intercourse. There may be cases where it may be complained that mental and physical condition makes consummation of the marriage a practical impossibility but the case in hand is not one of those cases. His specific allegation is that the wife does not possess female organs and as such cohabitation was not at all possible. The true test of impotence is the practical impossibility of consummation. There have been cases where it has been held that inspite of small size of vagina the wife is capable of intercourse and of giving birth to children and cannot be held to be impotent, if the Court on medical evidence is satisfied that the marriage is capable of consummation. Evidence of physical structural defect can safely be said to be sufficient to render the marriage invalid if it is shown that on this account sexual intercourse is not possible. In other words, the invalidity of a marriage if it cannot be consummated on structural defect is undoubted. In the background of this proposition it has to be found on the basis of the material as to whether it has been proved that the defendant wife is impotent or not. Petitioner Harish Kumar in his statement deposed that on 11.12.80 and 14.12.80 and he met respondent No. 1 and inspite of his efforts to make her wake up she did not get up. He thought that she was tired and hence he allowed her to sleep. On the next day same thing happened. On 6.1.81 he slept with Geeta and tried to have intercourse with her. He found that Geeta had only a hole at the place where intercourse is done. He could not succeed in having intercourse with her as there was no place for it. He disclosed this fact to his father in the morning. It was impossible to have intercourse with Geeta. In his cross-examination he further deposed that he had made several efforts to have intercourse with Geeta but he could not succeed. Geeta herself said that she was incapable of having intercourse. He further stated in para 12 of his statement that when he tried to have intercourse he found that it was not possible because she had no organ. In her statement on oath Geeta initially deposed that her husband had intercourse with her in the room. She further stated that her husband had intercourse for about 15 or 20 times. She had felt pain initially but thereafter no pain was felt. But in her cross-examination she categorically stated that it was correct that for the first three days there was no opportunity for having intercourse. She further deposed that it was correct that when her marriage had taken place at that time she had only a place for urination and vagina was absent. She also stated that prior to her marriage she did not get any treatment of her private parts. At this stage I may mention that an application Under Section 151 was moved on her behalf for her re- examination which was rejected by the learned Court below. Much emphasis has been laid by the learned Counsel for the appellant on this application. He urged that the Court below committed an error in rejecting the application. A careful perusal of the statement clearly goes to show that there is no ambiguity. Re- examination can only be made or permitted to be made in accordance with principles of law. It cannot be permitted as of right. Attempt was made through this application to undo the fact which had been brought on record in the statement of witness which could not be permitted. A specific question was put to the witness about her knowledge with respect to vagina, uterus, cervix etc. She gave a categorical answer. Thus, it cannot be said that the Court below committed an error in rejecting the application. Her statement shows that she has not disclosed the truth because she denied an established fact inasmuch as she stated that she was never medically examined through Court. Dr. Arora never examined her. But it is absolutely incorrect as I shall show hereinafter. She also admitted that she did not mensurate till marriage. No treatment was done. She did not disclose this fact to her parents. She never tried to know as to why there was no mensuration. She admitted that she knew what was vagina, uterus. She, however, did not know what is cervix. The statements of other witnesses examined by either party cannot help in determining the fact as to whether the lady had female organs or not. Only the husband and lady can depose about it. The question as to who is to be believed can be determined with reference to the medical evidence on record. Before dealing with the medical evidence I may mention that if it was a fact that the lady was subjected to sexual intercourse, as stated by her, she could have obtained a medical report in this regard and the Doctor would have given an opinion that she was used to sexual intercourse but no effort whatsoever was made on her behalf. There is nothing on record to show that she ever tried to obtain such an evidence. An adverse presumption can, therefore, be made against her.
6. The record shows that she was medically examined and was also hospitalised earlier. She was also medically examined under the orders of the Court. There is also on record Ex. P. 3 which is a medical report. Efforts were made to examine Dr. Ratna Kaul but she appeared once and deposed that she could not give any statement in the absence of documents. Later on, she did not appear. However, report on record is Ex. P1. Dr. Smt. Kusum Arora examined the defendant under orders of the Court and she gave her report Ex. P. 1. She was Professor and Head of the Deptt. of Obst. & Gynaec, G.R. Medical College, Gwalior, at that time. She deposed that in 1981 Prof. Olyai was in her Department of Obst. and Dr. R. Kaul was also there. Ex. P. 3 was prepared in the Hospital. She also stated that on the basis of this Ex. P. 3, she could say that at that time vagina was not present. When she examined the lady she found that all secondary sex characters were present Vulva was normal. The length of vagina was 2". Cervix on the mouth of uterus was to felt in vagina. On P.R. examination she found small hypoplastic uterus was not felt in vagina. On P.R. examination she found small hypoplastic uterus was felt. Overies could be found on both sides after pressing in depth. She also got ultrasonography done. In her opinion intercourse was possible but she could not procreate. However, she also stated that vagina was 2" long but she could not say whether it was natural or artificial. Vagina could be prepared by operation or conservative method. She did not examine vaginal discharge. Absence of cervix meant that she must not have mensurated and this must have been right from the beginning. Geeta must be knowing it. She further said that it was correct that in the absence of cervix secretion which comes at the time of intercourse would not come. But in case of Geeta the vagina was normal. Hence there must have some secretion. It may be that in absence of sufficient secretion both parties may feel trouble. The vagina of Geeta was small than normal size. According to her observation intercourse was possible with Geeta. In intercourse there is a function of vagina alone. Thus, a careful perusal of the statement of this witness shows that she has not come forward with a specific statement as to whether the vagina was artificial or natural. She admitted that at the time of earlier examination Ex. P 3, the vagina was absent. It, therefore, means that the vagina must have been artificially prepared. The main function in intercourse is that of vagina according to her statement. Her statement if considered in the light of the statement of the lady herself mentioned above that she had only a hole to urinate clearly goes to show that she must not have a vagina at the time of marriage. In the same context it may be said that the fact that she did not get herself medically examined and obtain a report about her verginity or otherwise goes to show that the contention of the petitioner that intercourse was not possible inspite of his efforts has to be accepted. The learned Court below after considering the entire evidence and various authorities cited before it concluded that Geeta had no female organs physically and was not capable of sexual intercourse as well as for procreating children. She was impotent. After giving my anxious consideration to the entire material on record and in view of my discussion above. I entirely agree with the findings arrived at by the learned Trial Court. The plaintiff has successfully established that the defendant wife was impotent.
7. Before parting with I may mention that the contention of the learned Counsel for the appellant is that an opportunity be given to the appellant to adduce further evidence if it is found that the evidence is lacking. In view of the fact that there was ample opportunity with the defendant to have got herself examined and obtained medical opinion about her virginity or otherwise in support of her claim. She did not prefer to obtain the required evidence. It appears to me that no effort was made because according to her own statement she did not have female part and had only a hole for the purpose of urination. In this view of the matter, it is not a fit case which can be remanded as contended by the learned Counsel for the appellant.
8. In view of what has been said above, I find no merit in the appeal. It is accordingly dismissed with costs.