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Showing contexts for: impotency section 12 in Usharani Lenka And Panigrahi Subash ... vs Panigrahi Subash Chandra Dash @ Sahoo ... on 19 August, 2003Matching Fragments
5. The husband has taken the ground of adultery and cruelty on the part of the wife. The wife, on the other hand, has taken the ground of ill treatment and dowry demand on the part of the husband and his family members. Section 12 of the Hindu Marriage Act (hereinafter referred to as "the Act") contemplates the grounds of voidable marriage. Sub-section (1)(a) of Section 12 of the Act says that any marriage solemnized, whether before or after the commencement of the Act, shall be voidable and may be annulled by a decree of nullity if that marriage has not been consummated owing to the impotence of the wife. Sub-section (1)(d) of Section 12 of the Act stipulates that the marriage would be voidable and can be annulled by a decree of nullity if the respondent-wife was at the time of marriage pregnant by some person other than the husband. In the present case, the husband has alleged that the wife was probably pregnant by some other person and she terminated that pregnancy just before the marriage. He also alleged that the wife had permanent gynaecological problem for which she refused to have sexual relationship with him, as a result, the marriage was never consummated. Although he made all these allegations, he could not produce any evidence except his own statement. In his statement before the learned Judge, Family Court he stated that on the 4th night when he approached the wife for sexual intercourse, she bluntly refused and on subsequent nights also all his attempts to consummate the marriage failed because the wife refused to have sexual intercourse with him; He also stated that he noticed some bleeding from the private part of his wife and suspecting recent abortion, he insisted for medical examination, but the wife refused to undergo any medical examination. The wife (O.P.W. 1) in her statement, denied the above noted allegations and claimed that she has no gynaecological problem and she had not undergone any abortion before her marriage with the husband. According to her she is sexually fit and she never refused the company of the husband, but a false story has been created by the husband to cover up their act of ill treatment and demand of dowry. She specifically alleged in her statement that soon after the marriage, the husband and his family members demanded cash dowry of Rs. 1 lakh and when that demand was not fulfilled, they ill-treated her and even threatened to kill her and to save her own life, she had to leave the matrimonial home and stay with her parent. There is absolutely no evidence on record to indicate that the wife was pregnant by some other person before her marriage with the husband or that she had undergone any kind of abortion before the marriage. There is also no specific evidence that the wife had any gynaecological problem rendering her unfit for sexual intercourse. On the contrary during the course of trial of civil proceeding, the learned Judge, Family Court, Cuttack sent her to S.C.B. Medical College for examination by a Gynaecology Specialist and the said Specialist after examination reported that the wife is not suffering from any gynaecology problem and that she is sexually healthy. In such situation, the bald statement of the husband cannot be accepted to infer sexual impotency of the wife or her pregnancy by some person other than the husband. Such inference is supported by the High Court of Madhya Pradesh in (1993) 1 DMC 27 M.P., Harprasad Santore v. Anita Santore. In that case the husband claimed annulment of the marriage on the ground that the wife's vagina was not well-developed and she was not fit for sexual intercourse. The High Court held that, bare statement of the husband does not satisfy the requirements of the provisions of Section 12(1)(a) of the Act and refused to grant decree of nullity of marriage. In the present case, there is only the bald statement of the husband and such statement can never be taken to be sufficient to satisfy the requirements of Section 12(1) (a) and (d) of the Act.