Indian Kanoon - Search engine for Indian Law

FCA.100-96.doc

14. Placing reliance on the same authority V. v. S. (supra), the learned Advocate Mr. Karnik for the husband argued on the aspect of relative impotency. During the arguments, he submitted that the wife was suffering from relative impotency so far as the husband inasmuch as she refused cohabitation with him on the pretext of having another place of abode due to her service. During the arguments, learned Advocate Shri Karnik invited our attention to the observations of the Division Bench of this Court in V. v. S. (supra). Said observations are reproduced with advantage as under :-

16. There is no doubt that even the relative impotency can be a ground for dissolution of marriage at the option of the aggrieved spouse. However, in the context of Section 12(1)(a), the marriage should be voidable and can be annulled by a decree of nullity only if the petitioner-husband succeeds in proving that the marriage was not consummated at all owing to the impotency of the wife. Be that as it may, in the present case there is no pleading nor any proof that the marriage in fact has not been "consummated" much less owing to the impotency of the wife or for that matter her relative impotency. The pleading and evidence at best would support or substantiate the fact that the wife was incapable of giving birth to a child.

23. At the cost of repetition, it must be mentioned that there are no specific pleadings in the divorce petition filed by the husband specifically mentioning the ground of relative impotency of the wife and as earlier mentioned there is only a mention that after the marriage when the wife came to reside with him, it was noticed by him that she was not interested in giving physical satisfaction to him and then it was perceived by him that she was incapable of giving such physical satisfaction. Moreover, it was tried to be argued on behalf of the husband that due to such alleged relative impotency of the wife for not giving physical satisfaction, cruelty was practiced on him, thus, attracting the provisions of Section 13(1)(i-a) of the Hindu Marriage Act for dissolution of marriage. Notably, the evidence adduced by the husband is focused on the fact that the wife was not capable of procreating a child. The fact of relative impotency is the bare allegation of the husband, which has not been substantiated. Further, the evidence suggests that the wife was given treatment for giving birth to a child and not for curing the problem of relative impotency as such.

FCA.100-96.doc Indisputably, even after the stated unsuccessful medical treatment given to the wife, the parties continued their relationship. That would mean the husband condoned the so called cruelty caused to him due to the relative impotency of the wife. Taking any view of the matter, therefore, the husband has not substantiated the ground of cruelty owing to the relative impotency of the wife.