Indian Kanoon - Search engine for Indian Law

13. Now in the light of the submission made by the learned Counsel for the parties, two questions would emerge for consideration, firstly whether the appellant is impotent for leading marital life and secondly whether there was any cruelty on the part of the respondent-wife.

14. For deciding the first question, it is necessary to know the meaning of impotence, which is as under:

"The word impotence is obsolete. Previously it was used as a blanket term to denote that male is not sexually fit. Now, the word impotence is no more used. Today, scientifically accepted term is ERECTILE DYSFUNCTION, which means inability to get erection/or inability to perform sexual intercourse".

16. In the light of the definition "Erectile Dysfunction", it is necessary to refer to the medical evidence as well as the certificates issued by the doctors. According to Ex.Al report of the Parklane Medical Diagnostics, which conducted prolactin test, normal range in males shall be in between 1.58 to 23.12 ng/ml and the prolactin on the part of the appellant- husband is 17.31. From this it is clear that the appellant-husband's prolactin level is normal and hence it cannot be said that he is unable to perform sexual intercourse. According to Ex.A2 Clinical Pathology report of semen analysis, the normal sperm count should be between 40-150 mln.spm/ml; total sperm count of the appellant-husband is 65 mln.spm/ml. The impression, according to the said report, is "Normospermia". From the said report it cannot be said that the appellant-husband is suffering from infertility. No doubt Ex.A7 is the prescription issued by R.W.4-Dr. V. Rajagopal, wherein it is mentioned that the appellant-husband requires counselling/therapy. From this alone, it cannot be inferred that the appellant- husband is totally unable to perform sexual intercourse with his wife and there is Erectile Dysfunction. From the evidence of R.Ws.4 and 5, it is not possible to come to a conclusion that the appellant-husband is suffering from Erectile Dysfunction and he is unable to perform sexual intercourse. The evidence of R.W.4-Dr. V. Rajagopal is that it is highly impossible to say by physical examination whether a particular man is potent or impotent and the premature ejaculation means a person who attains a climax and ejaculates prematurely without spending sufficient time in the intercourse. According to the evidence of R.W.4, premature ejaculation is one form of sexual dysfunction, but that does not mean that there is total Erectile Dysfunction of the appellant-husband to perform sexual intercourse. In cases of premature ejaculation normally the doctors suggest counselling. Accordingly R.W.4 referred the appellant- husband to R.W.5-Dr. M.S. Reddy, Psychiatrist. According to the evidence of R.W.5, in case of impotency there will not be any erection or minimal erection and a person will not be able to penetrate. In case of premature ejaculation there will be erection but coitus cannot prolong to certain extent that the person feels satisfied. He further deposed that non-consummation of marriage was likely due to impotency and sometimes due to premature ejaculation. He further certified that from a perusal of Exs.A.2 to A6 he cannot say whether a person has sexual dysfunction. Of course, he has stated in his evidence that though Exs.A2 to A6 are showing normal reading, they do not disclose that the appellant- husband is potent. From this alone, this Court cannot come to a conclusion that the appellant-husband is suffering from total Erectile Dysfunction and he is unable to perform sexual intercourse. From the evidence of R.W.5, it is clear that the behaviour of a person with impotency may be on account of various circumstances like if he feels that the other partner is not co- operating he may show hostile reaction towards the partner or if he is trying to suppress information there can be a tendency to exaggerate problems of a partner trying to show that she could be the reason for his impotency. That is why R.W.5 conducted counselling and there are cases and cases where the husbands and wives have led happy marital life. It is only after counselling R.W.5 can come to the conclusion whether a person is totally unable to perform sexual act or not. In the instant case, as there was no total counselling of both appellant and respondent, it cannot be held that the appellant-husband is unable to perform sexual intercourse. The Court below had not appreciated the entire medical evidence in its right perspective. No doubt R.W.3 recorded that hymen of the respondent-wife is intact. But as already observed, simply because hymen of the respondent-wife is intact, it cannot be said that the respondent-wife is virgin. Intact hymen may be on account of various circumstances as already stated supra. Hence, this Court is of the view that the finding arrived at by the Court below that the appellant-husband is suffering from Erectile Dysfunction and he is unable to perform sexual intercourse cannot be sustained and liable to be set aside. In view of this finding, we are not going to deal with the aspect whether the marriage was consummated or not.

21. From the above decisions, it is clear that where the relationship between the parties is irretrievably broken and because of the non-co-operation and hostile attitude of the respondent-wife, the appellant- husband was subjected to serious traumatic experience, it can safely be termed as 'cruelty' within the purview of Section 13(1)(ia) of the Hindu Marriage Act. In the instant case, there is no dispute that the respondent and her parents are saying that the appellant cannot perform sexual intercourse. In our considered view, no husband even if he is unable to perform sexual intercourse would like to be called that he is suffering from Erectile Dysfunction. In view of our finding that there is absolutely no material to come to the conclusion that the appellant-husband is unable to perform sexual intercourse, it can safely be inferred that the acts of the respondent-wife and her parents towards the appellant-husband would definitely amount to cruelty, particularly, immense mental cruelty within the meaning of Section 13(l)(ia) of the Hindu Marriage Act. In this state of affairs where the relationship between the appellant-husband and respondent-wife is irretrievably broken and as both the spouses are willing to give a quietus to their marital status, we have no hesitation to come to the conclusion that the attitude of the respondent-wife and her parents would definitely amount to cruelty. In this view of the matter, the question whether marriage was consummated or not loses its importance. The adamant attitude of the respondent-wife during in- camera proceedings also adds strength to our conclusion because she wanted a declaration that the marriage between the spouses is a nullity. Hence, this Court is of the considered view that the entire attitude of the respondent-wife clearly amounts to mental cruelty within the. meaning of Section 13(l)(ia) of the Hindu Marriage Act and as such the appellant is entitled for divorce.

22. In the result, we hold that the finding of the Court below that the appellant is suffering from Erectile Dysfunction and unable to perform sexual intercourse is not correct and consequently we set aside the declaration of the Court below that the marriage between the spouses is null and void.

23. However, in view of our finding that the acts of the respondent calling the appellant "sexually incompetent" would amount to cruelty within the meaning of Section 13(l)(ia) of the Hindu Marriage Act, 1955, we hereby dissolve the marriage between the appellant and respondent taken place on 5.5.1999.