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Showing contexts for: impotency section 12 in Rekha Mathur vs Manish Khanna on 16 July, 2015Matching Fragments
Through: Mr. Rajesh Khanna & Mr. Kushal Raj Gupta, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI VIPIN SANGHI, J. (OPEN COURT)
1. With the consent of learned counsel, I have heard their respective submissions in this appeal and proceed to dispose of the same at this stage.
2. The present matrimonial appeal is directed against the judgment dated 24.08.2012 passed by the learned ADJ-01 (East), Karkardooma Courts, Delhi in HMA No.450/2010. The appellant has preferred the aforesaid composite petition invoking Section 13(1)(ia) and Section 12(1)(a) of the Hindu Marriage Act, 1955 (HMA) against the respondent. The learned ADJ passed a decree of divorce on the ground of cruelty under Section 13(1)(ia) of the HMA in favour of the appellant and, at the same time, the relief sought under Section 12(1)(a) of the HMA, on the ground of impotency of the husband, was rejected. The appellant wife is aggrieved, insofar as the petition was dismissed on the ground of impotency under Section 12(1)(a) of the HMA.
10. A perusal of the impugned judgment shows that the learned ADJ was also conscious of the fact that two separate and independent causes of action, i.e. one under Section 12(1)(a), and the other under Section 13(1)(ia) of the HMA had been clubbed in the same petition by the petitioner/ appellant. The learned ADJ has consciously dismissed the petition on the ground of impotence under Section 12(1)(a), while granting a decree of divorce under Section 13(1)(ia) of the HMA.
11. Reliance placed by learned counsel for the respondent in Ganga Bai (supra), which has been followed in Sanjay Chahal (supra), is misplaced. These are cases where some finding returned by the original Court was sought to be assailed in appeal, and the appeal was not directed against the judgment & decree deciding the proceeding one way or another. However, in the present case, the petition of the petitioner/ appellant under Section 12(1)(a) of the HMA has been rejected by the impugned judgment. Merely because the appellant/ petitioner sought to prefer a composite petition, and the petition for divorce has been allowed, it would not mean that so far as the dismissal of the petition under Section 12(1)(a) of the HMA is concerned, the appellant would be remediless.
20. Firstly, apart from making the aforesaid averments in his written statement, the respondent did not lead any evidence to substantiate the same. Thus, there was no basis for the Court to accept the ipsi dixit of the respondent. Secondly, a reading of Section 12(1)(a) and Section 12(2) shows that the ground of impotence of the respondent, which has resulted in the marriage not being consummated, is an absolute ground, which enables the petitioner to avoid the marriage and seek a decree of nullity. Section 12(2) sets out circumstances in which a petition to seek nullity of marriage on grounds set up in Sections 12(1)(c) and 12(1)(d) would not be entertained. However, in relation to the grounds set up in clause (a) of Section 12(1) of the HMA, there are no such limitations. Pertinently, the respondent has not established, as a matter of fact, that his incapacity was known to the appellant/ petitioner even prior to the marriage. To say that a normal sexual life was never the basis of marriage, is altogether against the very grain of a marriage.
21. The respondent failed to contest the petition seeking annulment of the marriage under Section 12(1)(a). He also avoided getting himself examined by a Medical Board to be constituted by the Medical Superintendent of Dr.Ram Manohar Lohia Hospital, as directed by this Court vide order dated 02.09.2014. The relevant extract from the said order reads as follows:
"1. The appellant instituted a petition for grant of divorce against the respondent on the grounds of cruelty and impotency under Sections 13(a)(ia) and 12(1)(a) of the Hindu Marriage Act. The learned Trial Court granted the decree of divorce to the appellant on the ground of cruelty but rejected the second ground of impotency. The appellant has challenged the judgment dated 24th August, 2012 insofar as the learned Trial Court has dismissed the additional ground of dissolution of marriage on the ground of impotency under Section 12(1)(a) of the Hindu Marriage Act.