Latest Judgments on Divorce in India by Divorce Lawyers.

Monday, August 7, 2017

Divorce on Ground of Desertion.

Divorce on Ground of Desertion under Hindu Marriage Act.

In explanation to sub-section (1) of Section 13, Hindu Marriage Act, Parliament has thus explained desertion: “The expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” [4] In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and reasonable cause. It is a total repudiation on the obligations of the marriage.[5]

For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions are required: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). In actual desertion, it is necessary that respondent must have forsaken or abandoned the matrimonial home. Suppose, a spouse every day, while he goes to bed resolves to abandon the matrimonial home the next day but continues to stay there, he had formed the intention but that intention has not been translated to action. He cannot be said to have deserted the other spouse.[6] On the other hand, if a spouse leaves the matrimonial home for studies or business and goes to another place for some period, with the clear intention that, after completion of studies or work he would return home but is not able to return because of illness or other work. In this case the factum of separation is there but, but his intention to desert is lacking, therefore this will not constitute desertion.

Similarly, two elements are essential so far as the deserted spouse in concerned: (1) the absence of the consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention . If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. For instance, if husband leaves his wife to her parent’s house, it is not desertion as husband’s consent is present. Again, a pregnant wife who goes to her father’s place for delivery without the consent of the husband cannot be treated in desertion.[7] Desertion is a matter of inference to be drawn from the facts and circumstances of each case.[8] The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that both should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.. However it is not necessary that the intention must precede the factum. For instance, a husband goes abroad for studies, initially he is contact with wife but slowly he ceases that contact. He develops attachment with another woman and decides not to return. From this time onwards both factum and animus co-exist and he becomes a deserter. A mere separation without necessary animus does not constitute desertion.[9] Both factum of physical separation and animus deserendi must be proved.[10] It is also necessary that there must be a determination to an end to marital relation and cohabitation. There is nothing like mutual desertion under the Act. One party has to be guilty.

Examples of desertion

v The husband left his wife at her parent’s house for 7 to 8 years uncared; his conduct amounted to desertion. [11]

v Party taking unreasonable attitude resulting in separation is guilty of desertion.[12]

v The wife left the matrimonial home for paucity of accommodation and the husband refused to live separately from the members of his family due to meager income. The act of wife amounted to desertion.[13]

v Wife not intending to live with husband on any condition.[14]

v Wife took no step to disprove charge of desertion.[15]

v Husband filing application for restitution of conjugal rights and wife filing for judicial separation on the ground of cruelty constitute desertion.[16]

v Notice issued by wife to the husband expressing her intention not to return to the matrimonial home constitutes desertion commencing from the date of notice.[17]

v The wife became a Brahma Kumari and declined to perform her marital obligation

Case Laws or Citation for Divorce on Desertion .

No decree of divorce could be granted on the ground of desertion in the absence of pleading and proof. Learned counsel for the appellant submitted that even in the absence of specific issue, the parties had led evidence and there was sufficient material for the Family Court to return a verdict of desertion having been proved. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the matter despite the fact that there was no specific issue framed or insisted to be framed.

There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognised position of law in matrimonial matters that no-one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong.

In the instant case the appellant herself pleaded that there had not been cohabitation between the parties after the marriage. She neither assigned any reason nor attributed the non-resumption of cohabitation to the respondent. From the pleadings and evidence led in the case, it is apparent that the appellant did not permit the respondent to have cohabitation for consummating the marriage. In the absence of cohabitation between the parties, a particular state of matrimonial position was never permitted by the appellant to come into existence. In the present case, in the absence of cohabitation and consummation of marriage, the appellant was disentitled to claim divorce on the ground of desertion.

Supreme Court of India

Savitri Pandey vs Prem Chandra Pandey

Author: Sethi

Bench: R.P. Sethi, Y.K. Sabharwal

CASE NO.:

Appeal (civil) 20-21 of 1999

PETITIONER:

SAVITRI PANDEY

Vs.

RESPONDENT:

PREM CHANDRA PANDEY

BENCH:

R.P. Sethi & Y.K. Sabharwal

JUDGMENT:

SETHI,J.

Alleging cruelty and desertion against the husband, the appellant- wife approached the Matrimonial Court under Section 13 of the Hindu Marriage Act (hereinafter referred to as “the Act”) praying for dissolution of her marriage with the respondent by a decree of divorce. She also prayed for direction to the respondent to return her ornaments given to him at the time of marriage. The Family Judge allowed the petition and dissolved the marriage of the parties on the ground of desertion by the husband. The appellant was also granted a decree of Rs.12,000/- towards the price of the scooter, allegedly given at the time of the marriage and payment of Rs.500/- per month as permanent alimony. Both the husband and the wife preferred appeals against the order of the Family Court as the wife was not satisfied with the part of the order refusing to grant a decree in her favour in respect of properties claimed by her and the husband was aggrieved by the order of dissolution of the marriage by a decree of divorce. Both the appeals were disposed of by the impugned order holding that the appellant-wife herself was a defaulting party and neither the allegations of cruelty nor of desertion were proved. The order passed under Section 27 of the Hindu Marriage Act and for permanent alimony was also set aside. The grievance of the appellant-wife is that the High Court was not justified in setting aside the findings of fact arrived at by the Family Court and that she had proved the existence of cruelty and desertion against the respondent. It is contended that as the appellant-wife was proved to have been living separately, it was to be presumed that the respondent had deserted her.

The facts of the case giving rise to the filing of the present appeals are that marriage between the parties was solemnised on 6.5.1987. The appellant-wife lived with the respondent-husband till 21st June, 1987 and according to her the marriage between the parties was never consummated. After 21st June, 1987 the parties started living separately. The appellant alleged that her parents spent more than Rs.80,000/- with respect to the ceremonies of the marriage and also gave several articles in the form of ornaments, valuables, cash and kind as per demand of the respondent. The respondent and his family members allegedly made further demands of Colour TV, Refrigerator and some other ornaments besides hard cash of Rs.10,000/-. The father of the appellant obliged the respondent by giving him Rs.10,000/- in the first week of June, 1987 but could not fulfil the other demands of his parents. The respondent and his family members were alleged to have started torturing the appellants on false pretexts. Aggrieved by the attitude of the respondent and his family members, the appellant states to have filed a petition under Section 13 of the Act seeking dissolution of marriage by a decree of divorce along with prayer for the return of the property and grant of permanent alimony. The respondent also filed a petition seeking divorce and grant of other reliefs. However, on 14.5.1996 the respondent filed an application for withdrawal of his matrimonial case which was allowed on 19.5.1996. The appellant had alleged that the respondent was having illicit relations with a lady residing in Gaya at Bihar with whom he was stated to have solemnised the marriage. The allegations made in the petition were denied by the respondent and it was stated that in fact the appellant-wife was taking advantage of her own wrongs.

On the basis of the pleadings of the parties, the following issues were framed:

“1. Whether the defendant has treated the petitioner with cruelty? If so, its effect?

Whether the petitioner is entitled to relief under Sec.27 of the Hindu Marriage Act? If so, its effect?
Whether the defendant is entitled to any relief? If so, its effect?
To what relief, parties are entitled?”

It may be noticed that no issue with regard to alleged desertion was insisted to be framed. With respect to the issue of cruelty, the Family Court concluded that no evidence had been led to prove the allegations. The Court, however, held: “but it is proved that the respondent had deserted the petitioner, hence the petitioner will get or is entitled to for a decree of divorce”. On appreciation of evidence led in the case, the Division Bench of the High Court held: “We also do not find any evidence that the wife has been treated with cruelty by the husband. We are also of the view that there is no evidence that petitioner is deserted.”

We have heard the learned counsel for the parties and perused the record.

Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.

“Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held:

“For the office of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a different between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus ort it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.”

Following the decision in Bipinchandra’s case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.

To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.

No evidence was led by the appellant to show that she was forced to leave the company of the respondent or that she was thrown away from the matrimonial home or that she was forced to live separately and that the respondent had intended animus deserendi. There is nothing on record to hold that the respondent had ever declared to bring the marriage to an end or refuses to have cohabitation with the appellant. As a mater of fact the appellant is proved to have abandoned the matrimonial home and declined to cohabit with the respondent thus forbearing to perform the matrimonial obligation.

In any proceedings under the Act whether defended or not the court would decline to grant relief to the petitioner if it is found that the petitioner was taking advantage of his or her own wrong or disability for the purposes of the reliefs contemplated under Section 23(1) of the Act. No party can be permitted to carve out the ground for destroying the family which is the basic unit of the society. The foundation of the family rests on the institution of a legal and valid marriage. Approach of the court should be to preserve the matrimonial home and be reluctant to dissolve the marriage on the asking of one of the parties.

For upholding the judgment and decree of the Family Court, Shri Dinesh Kumar Garg, the learned counsel appearing for the appellant submitted that as after the decree of divorce the appellant had remarried with one Sudhakar Pandey and out of the second marriage a child is also stated to have been born, it would be in the interest of justice and the parties that the marriage between them is dissolved by a decree of divorce. In support of his contention he has relied upon judgments of this Court in Anita Sabharwal v. Anil Sabharwal [1997 (11) SCC 490], Shashi Garg (Smt.) v. Arun Garg[1997 (7) SCC 565], Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226] and Madhuri Mehta v. Meet Verma [1997 (11) SCC 81].

To appreciate such a submission some facts have to be noticed and the interests of public and society to be borne in mind. It appears that the marriage between the parties was dissolved by a decree of divorce vide the judgment and decree of the Family Court dated 8.7.1996. The respondent-husband filed appeal against the judgment and decree on 19.1.1997. As no stay was granted, the appellant solemnised the second marriage on 29.5.1997, admittedly, during the pendency of the appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts. The facts of the cases relied upon by the learned counsel for the appellant are distinct having no proximity with the facts of the present case. In all the cases relied upon by the appellant and referred to hereinabove, the marriage between the parties was dissolved by a decree of divorce by mutual consent in terms of application under Section 13B of the Act. This Court while allowing the applications filed under Section 13B took into consideration the circumstances of each case and granted the relief on the basis of compromise. Almost in all cases the other side was duly compensated by the grant of lumpsum amount and permanent provision regarding maintenance.

This Court in Ms.Jorden Diengdeh v. S.S. Chopra [AIR 1985 SC 935] suggested for a complete reform of law of marriage and to make a uniform law applicable to all people irrespective of religion or caste. The Court observed:

“It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases. …. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situation in which couples like the present have found themselves.

Marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses. This Court in V. Bhagat v. Mrs.D.Bhagat [AIR 1994 SC 710] held that irretrievable breakdown of the marriage is not a ground by itself to dissolve it.

As already held, the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of the Constitution for dissolving the marriage.

At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. In a vast country like ours, the powers under the Act are generally exercisable by the District Court and the first appeal has to be filed in the High Court. The distance, the geographical conditions, the financial position of the parties and the time required for filing a regular appeal, if kept in mind, would certainly show that the period of 30 days prescribed for filing the appeal is insufficient and inadequate. In the absence of appeal, the other party can solemnise the marriage and attempt to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf.

There is no merit in these appeals which are dismissed with costs throughout.

…………………..J.

(R.P. SETHI) …………………..J.

(Y.K. SABHARWAL)

Annulment of Marriage on grounds impotency in India.

Annulment of Marriage on grounds impotency in India.

the decision in G. v. G.(1) holding that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto, though no reason for nonconsummation was manifest or apparent.In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non-consummation of the marriage. The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that "quoad hunc et quoad hunc, these people cannot consummate the marriage."

Section 12(1) in The Hindu Marriage Act, 1955

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

In appeal I am of the same opinion as the learned Subordirite Judge on both these issues and here are my reasons.

'Point I.' Impotence as a ground for dissolution of marriage is a medico-legal problem and I shall consider it now under both these heads.

Impotence is defined as lack of ability to perform sexual act and sterility is defined as lack of ability to procreate children. Questions of impotence and sterility arise when divorce is sought (a) because, marriage cannot be consummated (i.e., one of the parties is incapable of complete sexual intercourse), (b) if incapacity for consummation can-not be surgically remedied, or, the defective party is unwilling to submit to a surgical operation; or (c) if the incapacity existed before marriage. (Sterility, by itself, offers no ground for divorce). Impotence is attributed to injury to head, neck, or loins.

If a marriage is once consummated; nullity cannot be given on ground of subsequent impotency. Impotency must be present at time "Of marriage and suit: Kishore Sahu v. Mrs. Snehprabha Sahu, AIR 1943Nag 185 (SB) (L).

Proof of impotence, that is physical unfitness for consummation, must be proved or there must be facts from which this can be inferred; Edward Charles Dawson v. Matty Dawson, AIR 1916 Mad 675 (2) ,(FB) (M). Non attainment of puberty by a woman is no ground as the fact does not in any manner preclude the consummation of marriage: 29 Mad LJ 183: (AIR 1916 Mad 675 (2)) (M). Loathsome and incurable syphilis of wife, resulting in her incapacity to consummate marriage entitles husband to a decree for nullity on- ground of her impotency: Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 464 (N); E. A. Wylie V. Mrs. R. Section Wylie, AIR 1930 Oudh 83 (O), Syphilis to amount to impotency must be incurable, even though the disease is not an absolute'bar to compulation. But where woman is discharged from hospitals as cured, with a negative blood test, syphilis cannot be said to be incurable and the marriage cannot be dissolved. But see AIR 1930 Oudh 83 (O).

Madras High Court

T. Rangaswami vs T. Aravindammal

Equivalent citations: AIR 1957 Mad 243

JUDGMENT Ramaswami, J.

1. This is an appeal directed against the order and decree of the learned Subordinate Judge of Tiruchirapalli in O. P. No. 186 of 1952.

(1a) This O. P. was filed under Section 5 of the Madras Hindu (Bigamy Prevention and Divorce) Act VI of 1949 Clause (h) which provides that either party to a marriage solemnised before or after the commencement of this Act..... may pray that the marriage be dissolved on the ground that the other party was impotent at the time of marriage and continued to be so until the presentation of the petition. This Act has been repealed and replaced by the Hindu Marriage Act 1955, Section 12(a). The Clause (h) of Section 5 of Act VI of 1949 is identical in language with Clause (a) if Section 12 of the Hindu Marriage Act 1955. Therefore no vested right has been taken away and no new right has accrued.

2. The petitioner T. Rangaswami is seeking divorce' on the ground of alleged impotence and alleged desertion. He married the respondent Ara-vindammal, who is his own niece on 13-9-1945. After living for sometime together, the respondent has been living before the presentation of the petition with her parents for a considerable time. The case for the respondent is that she is not as alleged either on the date of the marriage or On the date of the petition and that she is not the deserting party and that on the other hand she has been driven out of the house and that her husband wants to get rid of her in order to re-marry.

In the course of the enquiry this respondent produced a certificate issued by Srimati G. Poriniah, Lady Doctor, regarding her potence and this Lady Doctor has been examined also as R. W. 3. The medical evidence puts it beyond doubt that this respondent is suffering neither from organic nor atonic impotence permanent or temporary. This evidence is corroborated by the respondent examined as R. W. 1 and her father examined as R. W. 2.

This was not in any way displaced by the evidence of the petitioner examined as P. W. 1 and his mother as P. W. 3. Before the learned Subordinate Judge the issue of desertion was not pressed with any seriousness as noted by him in paragraph 6 of his order and in fact there were no materials to make out the ground of desertion put forward as a second string to the bow by the petitioner. This petition was therefore dismissed with costs. Hence this appeal,

3. In appeal I am of the same opinion as the learned Subordirite Judge on both these issues and here are my reasons.

4. 'Point I.' Impotence as a ground for dissolution of marriage is a medico-legal problem and I shall consider it now under both these heads.

5. Impotence is defined as lack of ability to perform sexual act and sterility is defined as lack of ability to procreate children. Questions of impotence and sterility arise when divorce is sought (a) because, marriage cannot be consummated (i.e., one of the parties is incapable of complete sexual intercourse), (b) if incapacity for consummation can-not be surgically remedied, or, the defective party is unwilling to submit to a surgical operation; or (c) if the incapacity existed before marriage. (Sterility, by itself, offers no ground for divorce). Impotence is attributed to injury to head, neck, or loins.

6. Potence in case of males means power of erection of the male organ 'plus' discharge of healthy semen containing living spermatozoa and in the case of females means (1) development of external and internal genitals and (2) ovulation and menstruation.

7. Causes of impotence: (*Apply to males only. --*Apply to females only; those unmarked, apply to both sexes):--

1. Organic: 1. 'Nervous Lesions*': Diseases of, or injury to, brain or cord. 2. 'Malformation or absence of parts* male organ may be absent, non-developed, ill-developed, or two or more in number: adherent to scrotum or abdomen; fibrous or cartilaginous; hypospadias; congenital phimosis, anorchidisni, cry-ptorchidism; diseases of or accidents to or operations on the male organ, testicles or ducts (perinaeum).

*Atersia or narrowness of vulva, absence of uterus, tough hymen or vagina. (Though according to law, a boy under 14 is impotent, in fact, he is not always so). Also -- Obesity, 3. 'Inflammations or Cicatricial' contractions*. 'Vaginismus'. Krauroses vulvae; internal piles, tight stricture. 4. Tumorous*:--Elephantiasis; 'hernia', big hydrocele.

"Psychial* 1. Absence of voluptuous thoughts. 2. 'Repugnance' towards individuals, 'fear', 'timidity', 'excessive passion'. (For this reason, a man may be potent towards one woman and impotent towards another.

Atonic.* (Therefore, often temporary impotence). 1. 'From general diseases' and 'conditions': -- Old age, too frequent coitus, wasting diseases (diabetes); anaemia; uraemia, cholaema, rhumatism, diptheria, Heart diseases, chronic nephrities, acute fevers, parotitis. 2, 'From Over-indulgence in drugs': lead, potassium Iodide, opium, cannabis indica and other narcotics; alcohol, tobacco, thyroidin. 3. 'From chronic irritation of genital passages -- due to gonorrhoea, stricture, masturbation vaginismus.

8. This information can be gathered from standard text-books, English and Indian, on the subject like Glaister's Medical Jurisprudence and Toxicology (1953), 9th Edn., Chapter XII, p. 358 ff; Taylor on Sexual Disorders (2nd Edn,), Chapter VIII, page 98ff, (atonic); Organic impotence, Chapter IX, p. 105 ff; Forel's Sexual question and Psychic Impotence, pp. 85, 219; Mody's Medical Jurisprudence and Toxicology (12th Edn.), Chapter XIII, p. 284ff; Ray's Medical Jurisprudence and Treatment of poisoning (6th Edn.) page 23lff; Kanmth's Medical Jurisprudence. (MLJ publication.)

9. In regard to the legal aspect it would be interesting to examine analogous laws. Under the Hindu Law concerning impotence as affecting the status and continuance of marriage, the following extracts from the standard commentaries are sufficient;

Mayne's Hindu Law (11th Edition), para 105 (page 143):

"As the great and primary object of marriage is the procuring of the male issue, physical capacity is an essential requisite so long as mere selection of a bridegroom is concerned; but a marriage with an eunuch is not an absolute nullity.....It has now been held by the High Courts of Madras and Allahabad 'in decisions of questionable correctness the under the Hindu Law an impotent person can be lawfully married" Amirthammal v. Vallimayil Am-mal, ILR 1942 Mad 807: (AIR 1942 Mad 693) (FB) (A); Bhagavati Saran Singh v. Parameshwari Nandan Singh, ILR 1942 All 518: (AIR 1942 All 267 (2)) (B); Kaura Devi v. Indra Devi, ILR 1943 All 703; (AIR 1943 All 310) (C).

The views expressed by the learned Editor of the 10th Edition of Mayne's Hindu Law have been dissented from in the Madras and Allahabad decisions, 'Mulla's Hindu Law (llth Edition) page 537:' "It has been held by the Calcutta High Court that the marriage of a female with a male who is impotent and is not able to consummate the marriage is nullity" Ratan Moni v. Nagendra Narain, 48 Cal WN 689: (AIR 1949 Cal 404) (D).

'Raghavachariar's Hindu Law' (3rd Edition) page 51:

"Marriage does not exist solely for sexual intercourse and a marriage with an impotent person cannot be held invalid though one of the chief objects of marriage, viz., begetting of children is defeated thereby". Purushotam Das v. Bai Mani, ILR 21 Bom 610 (E). See also Kanahi Ram v. Biddya Ram, ILR 1 All 549 (F). See contra 48 Cal WN 689: (AIR 1949 Cal 404) (D).

10. 'Muslim Law:' Under Muslim taw impo-tency as a ground for divorce was available even before the passing of the Dissolution of Muslim Marriages Act VIII of 1939. Under the Act which has accepted all principles of Muslim Law with slight changes in the. procedure and conditions, a Mahomedan wife --- in the converse case of the husband he being simply left to his -ordinary power of divorce is entitled to seek divorce on the ground of impotency of the husband subject to the following conditions:

(i) that the impotence existed at the time of marriage; Feroze-din v. Mt Wazir Eegam, AIR 1926 Lah 218 (G); Mt. Altafan v. Ibrahim, AIR 1924 All 116 (H) confirmed in Mohamed Ibrahim v. Altafan, AIR 1925 All 24 (I).

(ii) that the wife had no knowledge of it at the time of marriage; (AIR 1924 All 116 (H) supra).

(iii) that the defect had not since been removed, Badardim v. Mt. Allah Rakhi, AIR 1937 Lah 383 (J).

According to the Act VIII of 1939 the material date is the date of marriage and not the date of consummation. It would mean that if a husband is potent at the time of marriage but becomes impotent be fore the date of consummation the wife will not be entitled to Judicial divorce. It was necessary even before the Act to prove that the impotency existed all through the period of marriage and remained incured since the time of marriage, (Pir Bux v. Muha mmad Unnissa, AIR 1927 All 100 01); AIR 1937 Lah 383 (J);

An impotent person is defined by the Mahomedan Law as one who is unable to have a connection with a woman, though he has the natural organs; and a person who is able to have connection with ah enjoyed woman, but not with a virgin, or with some women but not with others whether the disability be by reason of disease, or weakness or original constitution, or advanced age or enchantment, is still to be accounted impotent with respect to her with whom he cannot have connection. Bailie's Mahomedan Law, Vol. I, page 347; AIR 1924 All 116 (H). This definition seems to hold good under the Act. Under Shia Law the wife was not entitled to separation if the impotency was only special in her case or what is called 'ad hoc' in English Law. The Act does not make any difference and it appears provisions of the Act would be applicable to all schools of Muslim Law.

A man, may, however, be nominally or temporarily potent due for instance to the use of certain medical drugs or other cause; or he may be potent as regards some women and not potent as regards his wife: AIR 1924 All 116 (H). For detailed exposition (see R. B. Sethi Muslim marriage and its dissolution (1955) p. 97 and foll; R. K. Wilson Anglo-Muhammadan Law Fifth Edn. p. 145).

11. Section 30 of the Parsi Marriage and Divorce Act III of 1936, which has not amended section 28 of Act XV of 1865, runs as follows:

"In any case in which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party thereto, be declared to be null and void". It will be noticed that under this Act impotency is not a ground for divorce but for declaring the marriage null and void (See Parsi Marriage and Divorce Act by Wadia and Katpitia, 1939 Edn. page 60).

12. Under the Special Marriage Act, 1954, impotency is not a ground for divorce, but only a ground for nullity of marriage. Section 24 states:

"(1) Any marriage solemnized under this Act shall be null and void and may be declared by a decree of nullity; -

(2) If the respondent was impotent at the time of the institution of the suit". (see page 104 of D. H. Chaudhari's Special Marriage Act, 1954).

13. Under the Hindu Marriage Act, 1955, also, impotency is not a ground for divorce but a ground for nullity. Section 12 states:

"Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds namely--

(a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; ......

(See Commentaries of Hindu Marriage Act XXV of 1955 by K. P. Saxena, page 159).

14. Under the Indian Divorce Act IV of 1869, impotency is not a ground for divorce but a ground for nullity of marriage under sections 18 and 19 of that Act. -

Section 18 states:

"Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void." -

Section 19 states:

"Such decree may be made on any of the following grounds:

1. that the respondent was impotent at the time of the marriage and at that time of the institution of the suit;......"

15. The following case-law under Section 19 of the said Act is apposite:

Capacity for sexual intercourse must exist at-least 'in posse' at the time of marriage. Permanent and incurable impotency such as to render complete and natural sexual intercourse between parties practically impossible is a ground for annulment of marriage. Impotency means physical and incurable incapacity to consummate marriage. Incapacity may result from loathsome and incurable syphilis: 'Birendra Kumar v. Hemlata Biswas', AIR 1921 Cal 459 (K).

Wife's invincible repugnance to act of coitus rendering her incapable of sexual intercourse entitles husband for declaration of nullity of his marriage, Burden of proof is on time and is increased by delay on his part. But delay by itself is not an absolute bar unless the respondent has thereby in any way suffered: Bull v. Mrs. Bull, AIR 1938 Cal 684 (P) When husband is impotent as regards his wife only, decree for nullity can be granted H. v. H., AIR 1928 Bom 279 (Q); Wilson v. Wilson, AIR 1931 Lah 245 (R); AIR 1943 Nag 185 (L); (Attempt to consummate, reducing wife to state of hysteria, making consummation impossible). See also Section v. B. 16 Bom 639 (S):

No presumption can be drawn from the fact that the wife was unwilling to live with husband that she was impotent; Emmanuel Singh v. Kamal Saraswati, AIR 1934 Pat 870 (1) (FB) (T).

Courts have wide discretion in ordering physical examination of the party suffering from the disease and always do so, subject to such conditions as will afford protection from violence to natural delicacy and sensibility. Where a party refuses to attend for medical inspection, the court may probably draw an unfavourable inference: AIR 1921 Cal 459 (K); H. v. H., 30 Bom LR 523 at p. 527: (AIR 1928 Bom 279 at p. 280) (Q); Intract v. Intract, (1933) P 190 (U), under the (U.K. ) matrimonial causes Rules (of Rule 24)there is specific provision for medical inspection).

In regard to the nomination of doctors and their certificates -- See Agnes Sumathi Ammal v. D. Paul, AIR 1936 Mad 324: 70 Mad LJ 32 (FB) (V), Coral Indira Gonsalves v. J. F. Iswariah, (W).

The burden of proof is heavy on the petitioner as it involves a slur on the manhood or womanhood of the other party: 29 Mad LJ 183: 30 Ind Gas 565: (AIR 1916 Mad 675 (2)) (FB) (M). Impotency means incapacity to consummate the marriage and that therefore in the circumstances the respondent must be deemed to be impotent so far as the petitioner was concerned at the time of the marriage and at the time of the institution of the suit and the marriage between the petitioner and the respondent must be declared mill and void: Kanthy Balavendran v. Section Harry; (FB) (X); 30 Bom LR 523 at p. 527: (AIR 1928 Bom 279 at p. 280) (Q); ILR 16 Bom 639 (S) (A case under Parsi Divorce and Marriage Act): AIR 1931 Lah 245 (R); AIR 1943 Nag 185 (FB) (L); Ramesh v. Kusum, AIR 1949 Bom 1: ILR (1949) Bom 190: 50 Bom LR 426 (Y) (See AIR Manual Civil and Criminal Vol. IV (1947) p. 3488 and foil, and Manchanda The Law and Practice of Divorce (Eastern Law House (1945) p. 206 and foil. In regard, to both these very useful publications, a new edition is long over-due. (16) In England impotence has always been a ground for nullity only but not a ground for divorce. The law on the subject has been summed up by Tolstoy Jin his "Law and Practice of Divorce and Matrimonial Causes" (Second Edition) at page 94 and following as follows:

"Impotence is inability to consummate the marriage and to be a ground for nullity, such inability roust exist at the time of marriage (Note one) and continue to exist at the date of the petition. Sterility unaccompanied by impotence is no ground for nullity. (Note Two) if he or she be otherwise 'apta viro'.

At one time it was necessary to wait three years before asking for relief and it was the practice of the Court to adjourn the case to give the parties an opportunity for further attempts. If this failed, then impotence was presumed. This is no longer the practice and there is now no minimum period to get over prior to the presenting a petition for nullity.

To consummate a marriage, ordinary and complete sexual intercourse must take place. Partial intercourse or intercourse which, is so imperfect as scarcely to be natural is insufficient (Note Three). In determining whether intercourse is ordinary and complete the word 'consummate' must be construed as it is understood in common parlance and in the light of social conditions known to exist. (Note Four).

The inability to consummate may be due to a physical defect which is incurable, or to one which is curable but which the respondent refuses to have cured, (Note Five) or to mental or moral disability, (Note Six). In the latter case, it sometimes happens that a' person is capable of having intercourse, but incapable of performing it with the particular individual, i.e., impotent 'quoad hunc' or 'quoad hanc'. This is sufficient to found a decree of nullity, as what matters is ability to have intercourse in general (Note seven).

Provided there are no circumstances which constitute a bar to relief, e.g., knowledge of the defect at the date of marriage, the impotent party can himself petition for nullity and his right to do so is not conditional on repudiation of the marriage by the other party.

Generally speaking, a spouse who does not attempt or fails in his attempts at sexual intercourse will have the burden of proving that he or she is capable and the burden is heavier in the case of a, man. (Note eight). The Matrimonial Causes Rules 1950, Rule 24 provides for a medical inspection of the parties in the case of nullity for impotence or wilful refusal to consummate. (Rule 24), but the Court may grant a decree though the respondent refused to submit to the inspection (Note nine). In fact, the respondent's refusal may incline the court to draw the inference that the petitioner's allegations are true.

The birth of a child is not conclusive evidence that the marriage has been consummated as it is well established that fecundation 'ab extra' can take place (Note ten).

In a proper case the court will order a petitioner who alleges that the respondent is incapable of consummating the marriage to give particulars of the nature of the incapacity alleged. (Note Eleven.) Evidence of non-access is admissible, if given in nullity suits for incapacity."

(Note one) Brown v. Brown, (1828) 1 Hag ECC 523 (Z), (Respondent becoming impotent subsequently is no ground for nullity) Napier v. Napier, (otherwise Goodban) 1915 P 184 at p. 190 (Z1). 'Note two: L. v. L. (1922) 38 TLR 697 (Z2); so that voluntary sterilisation before marriage is no ground for relief: Baxter v. Baxter, (1943) AC 274 (Z3); overruling J. v. J.,(1947) P158 (Z4); R.v. R. (otherwise F) 1952-1 All ER 1194 (Z5); (penetration but no ejaculation). But see also Grimes v. Grimes, (1948) P. 323 (Z6); White v. White, (1948) P. 330 (Z7).

'Note Three': D. v. A., (1845) 1 Rob ECC 279 (Z8); Snowman v. Snowman, (1934) P: 186 (Z9); Clarke v. Clarke, (1943) 112 LJ P. 1 (Z10); B. v. B., (1955) P. 42 (Z11); R. v. R., (1952) 1 All ER 1194 (Z12). 'Note Four': (1948) AC 274 (Z3).

'Note Five': L. v. L. (1882) 7 PD 16 (Z13); G. v. G., (1908) 25 TLR 328 (Z14); S. v. S. (otherwise C) (1954) 3 All ER 736 (Z15);

'Note Six': G. v. G., (1871) 2 P and D 287 (Z16) excessive sensibility); P. v. L., (1873) 3 PD 73n (Z17) (hysteria); 1952-1 All ER 1194 (Z5); (1954) 3 AH ER 736 (Z15); Lewis v. Hayward, (1866) 35 LJ P and M 105 (Z18); G. v, G. (1924) AC 349 (Z19).

'Note Seven': (1924) AC 349 (Z19). 'Note eight': Kay v. Kay., (1934) 152 LT 264 (Z20); (1866) 35 LJ P and M 105 (Z18). 'Note Nine': (1933) P. 190 (U) where the authorities are dissented. (1908) 25 TLR 328 (Z14); W. v. W., (1912) P. 78 (Z2J); S. v. S., (1908) 24 TLR 253 (Z22); B. v. B., (1901) P. 39 (Z23); W. v. S., (1905) P. 231 (Z24); Section v. B., (1905) 21 TLR 219 (Z26). Note Ten: Clarke v. Clarke, (1943) 112 LJ P. 41 (Z26); (Child born though marriage not consummated) (1934) P. 186 (Z9); L. v. L., (1949) P. 211 (Z27); (artificial insemination).

'Note Eleven': Wise, v. Wise, (1944) P. 56 (Z28). 'Note Twelve': Farnham v. Farnham, (1937) P. 49 (Z29); Burgess v. Burgess, (1937) P 60 (Z30). For detailed discussion in standard commentaries see Vol. 12 Halsbury's Laws of England (1955); Simmonds Edn. Para 426 and Foll, at page 228 and foll; Latery on Divorce Fourteenth Edn. (1952) p. 194 and foll. Rayden on Divorce, Fifth Edn. (1949) p. 70 & foll. Phillips practice of the Divorce Division Fourth Edn. (1951) p. 39 and foil; Jackson The Law relating to the Formation and Annulment of Marriage pp. 69-73 and 103-108 and 203-315 Etc. (1951).

17. In America unless as in many states it is made so by Statute, ante-nuptial impotency is not a ground for divorce. The American law on the subject is found in two authoritative publications. In 19 Corpus Juris, page 40, Section 71, it is stated thus:

'Impotency is an incurable incapacity that admits neither copulation nor procreation, the copulation contemplated being copula vera and not partial, imperfect, or unnatural. It must be incurable and render complete sexual intercourse 'practically impossible. Thus absence of conceptive power or barrenness does not constitute impotency if there is complete power of copulation." ill. Griffeth v. Griffeth, 162 111 368 (Z31), J. G. v. H. G. (1870) 33 Md. 401 (Z32); Minu Payne v. Payne, 46 Minn. 467 (Z33); PaLuckenbach v. Luckenbach, 39 Pa Co 520 (234); Tenn Williams v. Williams, 1 Tenn. Civ A 538 (Z35); Alia - Anonymous 35 AL A 226 (236); Berdolt v. Berdolt, 56 Nebr. 792 (Z37); S. v. S., 1922 Mass 194 (Z 38); Grosvenor v. Grosvenor,' 194 111 652 (Z39).

17a. American Jurisprudence, Sections 140 and 141, has the following to say:

"Section 140. Capability of consummation is an implied term in every marriage contract. It is so essential that on discovery of the entire incapacity of one of the parties for that duty of wedlock, the other may have a decree annulling the marriage. Underthe canaon law as administered in England, impotency existing at the time of the marriage was ground a divorce a 'vinculo matrimonii". In this country in the absence of a statute so providing, impotency on the part of either spouse is not a ground for divorce, as the grounds for divorce are only those specified by the statutes.

Also, from the facts that impotence is canonical disability cognizable only the ecclesiastical courts and that we have no such courts, it follows and it is generally so held, that in the absence of statute on the subject, our courts have no jurisdiction to grant a divorce on this ground. It is well settled both in England and in this country that impotency does not render the marriage void but merely voidable, and the marriage is regarded as valid unless avoided by some court having jurisdiction during the life of both parties.

At the present time statutes exist in the several States either authorizing divorces for impotency or conferring jurisdiction on some court to annul the marriage therefor".

"Section 141....it is well settled that if, by reason of malformation or organic defect existing at the time of marriage, there cannot be natural and perfect coition -- vera copula -- between the gardes, the case comes within the legal definition of impotency. If, however, there is a probability of capacity to accomplish the sexual act, no decree will be granted. (1870), 33 Md. 401-3 Am Ren & 183 (Z32).

The origin of the incapacity is immaterial. It may proceed from malformation of the sexual parts or from absence of necessary organs. On the part of the husband, it may arise from the excessive abnormal proportions of his sexual organs or from genital weakness produced by self-abuse. On the part of the wife, it seems not essential that there be any structural defect. Excessive sensibility rendering sexual intercourse practically impossible on account of the pain it would inflict or an invincible re-pugnance to sexual intercourse resulting in a paralysis of the will may be sufficient: S. v. S., 192 Mass 194 (Z38).

Universal impotency does not seem to be essential. Impotency quoad hoc, as it is termed, is sufficient; that is, if the defendant is entirely incapable of sexual intercourse with the plaintiff, though not with other persons, if such a thing is possible, a decree of nullity may be granted. This view is said to be reasonable, for the marital relation is with the plaintiff; and if the defendant is incapable of consummation with the plaintiff, the incomplete con-tract ought to be dissolved, whatever may be the defendant's powers with respect to other persons. On principal, therefore, relative and not absolute Impotency would seem to be sufficient.....": Vandonberg v. Vandonberg, 197 N Y S 641 (Z40).

18. To sum up, a marriage will be avoided or dissolved on the ground of impotence, on the petition of either party if it is proved that at the time of the marriage one of the parties is and continues to be Incapable of effecting or permitting its consummation either of some structural defect in the organs of generation which is incurable and renders complete sexual intercourse impracticable or of some incurable mental or moral disability resulting in the man inability to consummate the marriage with the particular woman or in the woman to an invincible repugnance to the act of consummation with the particular man.

19.Though in practice the terms, "declare the marriage null and void" and "dissolution of marriage" are used interchangeably, in strict reality, it is only voidable and void and non-existent marriages which can be declared null and void, and the contract of marriage made void ab initio; in regard to a valid marriage, it can only be annulled or dissolved provided one or more-specified grounds for divorce have been made out.

While in the case of 3 void marriage the decree merely 'declares' status, in the case of a voidable marriage the decree changes status. The children of a void marriage for instance unless saved by legislation (e.g., Section 26, Special Marriage Act, 1954) are never legitimate (Jackson ibid 61), But there is the further distinction between void and voidable marriages in that in the case of a voidable marriage till it is annulled by a decree parties are husband and wife and children begotten of such marriages are legitimate and secondly whereas in the case of a voidable marriage it can be avoided only on a presentation of a petition by either party thereto, a marriage which is null and void may be declared to be so even at the instance of a stranger whose interest are affected by such a marriage.

20.In the case of dissolution of marriage on the ground of impotence, the following issues as pointed out in Chandhr's useful publication on the Special Marriage Act, p. 108, arise for consideration:

(a) Was the respondent impotent at the time of the marriage?

(b) If so, what was the nature of impotency?

(d) What was the cause or what were the causes of this impotency?

2. (a) Was the respondent impotent on the date when the suit or petition was instituted?

(b) What was the nature of the impotency?

(d) What was the cause or what were the causes of such impotency?

3. Was the marriage ever consummated, either at the time of the marriage or thereafter?

4. Is there no collusion between the petitioner and the respondent?

5. Has the petition been brought in good faith

and has there been full, free and frank disclosures

of all material facts?

Besides these, additional issues arising out of the pleadings will have to be framed.

21.In regard to proof of impotency, the rules of evidence are not different in the case of impotency than elsewhere. Impotency that is physical unfit-ness for consummation, must be proved or there must be facts from which this can be inferred. The proof must be, as used to be expressed in the Ecdeciastical courts in England not suspicio probablis but has to be Vehetnens proesumptio.

22.There is no minimum standard of proof necessary. Even" uncorroborated testimony of the petitioner is sufficient if it can be believed. In cases of this nature, corrboration can only be obtained from the evidence 'of the other party to the marriage. Under Section 120 of the Evidence Act, the other party to the marriage is a competent witness.

23. The conduct of the parties subsequent to the marriage would be important. Did they peak lot the impotency to anybody? Was it mentioned to any friend or relation or to their parents? If, not, why not? Would it be natural not to do so? Or was there no opportunity? It would not be natural for everybody to speak these matters to another. A reserved or shy or a reticent person would not. On the other hand, other types almost certainly would. Whether the parties to the case fall within the one class or the other, it is for the trial, judge to discover: (AIR 1943 Nag 185) (L).

24. Impotency may be established by medical examination of the parties. The doctor who examined either party or both the parties, may be examined as witness.

Where the respondent relies on a doctor's certificate that ho was able to have sexual intercourse and was potent that day, the certificate must be strictly proved by examining the doctor who issued it. Certificates like these, do not prove themselves. The doctor giving the certificate has to state what tests he carried out to arrive at his conclusions and must stand cross-examination and convince the Court that his conclusion about the potency is correct: (W).

25. There is of course need of caution in dealing with the evidence of impotency to avoid such after events as in some of the old cases happened, when the person pronounced impotent had issue in a later marriage: (ILR 16 Bom 639) (S)

26. No presumption can be drawn from the fact that the wife was unwilling to live with her husband that she was impotent: (AIR 1934 Pat 67a (1) (FB) (T).

27. Bearing these principles in mind if we examine the facts of this case, we find that neither organic impotency nor atonic impotency quoad this petitioner has been made out. Therefore this issue has been rightly decided by the learned Subordinate Judge.

28. Point 2: The five essential factors which must be establsihed to succeed in a petition for divorce on the ground of desertion are as stated in Phillip's Practice of the Divorce Division Fourth Edn. (1951) P-19 and foll, that

(a) the spouses must have parted or terminated all joint life;

(b) The deserting spouse must have an intention to desert the other spouse;

(d) the desertion must have been without cause;

(e) this State of affairs must have continued for at least three years immediately preceding the presentation of the petition.

29. In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserting spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial home, In such cases the actual abandoning of the matrimonial home is not the act of the person against whom the allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behaviour of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has arisen in these circumstances are sometimes called "constructive" desertions'.

30. This desertion may be terminated in the following ways;

(i) By resumption of cohabitation between the spouses.

(ii) By the desertion becoming a separation of the spouses by agreement.

(iii) By the deserted spouse refusing a genuine offer made by the deserting spouse to resume cohabitation.

(iv) By the deserting spouse becoming insane.

31. Bearing these principles in mind if we examine the facts of this case, we find that though the wife is living now in her parents house, the deserting spouse must be deemed to be the husband. The wife who is stated to be a sturdy and healthy person and who even before marriage is closely related to the husband as his niece and who comes from a community where re-marriage is practically unknown end who would have had no possible motive to live as a grass-widow, is extremely unlikely to persist in living separately but for the fact that her husband is refusing all genuine efforts by her to resume cohabitation.

On the other hand, as pointed out by the learned Subordinate Judge, who had an opportunity of seeing the husband and the wife in the box, all the evidence and the circumstances pointed out to the anxiety of the husband to get rid of the wife once for all and to re-marry. Therefore, the desertion alleged has not been made out. This issue also has teen rightly found by the learned Subordinate Judge against the petitioner.

32. In the result, this appeal is dismissed and on account of the fact that the wife has not appeared in this court, without costs.

33. I must express my appreciation of the presentation of the case by Mr. K. Raman, who on account of the fact that the respondent was not appearing in this court, took the trouble to place the entire evidence and case, law before me, so that the respondent's case may not suffer by default.

Thursday, March 9, 2017

No decree for divorce on one isolated incident can be passed.

The Hon’ble Supreme Court held that :-

“We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.”

We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.

In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.

————————————————————————————

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.7114-7115 OF 2014

Suman Singh ….Appellant(s)
VERSUS
Sanjay Singh …Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.

1) These appeals are filed by the appellant (wife) against the final
judgment and order dated 23.05.2013 passed by the High Court of Delhi at
New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013 by which the
High Court dismissed the appeals filed by the appellant and confirmed the
judgment dated 14.12.2010 of the Principal Judge, Family Courts, Rohini
which had granted decree for dissolution of marriage in favour of the
respondent (husband) and, in consequence, also affirmed the order
dismissing the petition filed by the appellant (wife) for restitution of
conjugal rights.

2) Facts, in brief, to appreciate the controversy involved in the
appeals need mention infra.

3) The marriage between the appellant and the respondent was solemnized
on 26.02.1999 at Delhi as per the Hindu rites. The respondent-husband is
working as “Caretaker” in the Government of NCT of Delhi whereas the
appellant is a housewife. Out of this wedlock, one daughter was born on
15.06.2002 and the second daughter was born on 10.02.2006. Both daughters
are living with the appellant.

4) On 11.07.2010, the respondent (husband) filed a petition for
dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955
(hereinafter referred to as “The Act”) in the Family Courts, Rohini, Delhi
against the appellant (wife). The respondent sought decree for dissolution
of marriage essentially on the ground of “cruelty”.

5) In substance, the respondent, in his petition, pleaded 9 instances
which, according to him, constituted “cruelty” within the meaning of
Section 13(1)(i-a) of the Act entitling him to claim dissolution of
marriage against the appellant.

6) The first ground of cruelty was related to wife’s behavior on the
next day of marriage, i.e., 27.02.1999. It was alleged that the appellant
came out of the bedroom in night dress and that too late when the close
relatives of the respondent were sitting in the house. It was alleged that
she did not pay respect and wishes to the elders. (Para 9 of the plaint)

7) The second ground of cruelty was again about the appellant’s behavior
with the respondent on the eve of New Year. However, the year was not
mentioned. According to the respondent, he agreed to celebrate the new
year with the appellant on her parental house as the parents of the
appellant gave repeated calls. After reaching her parental house, most of
the time the appellant was busy with her family members and left him alone
in the drawing room. Even at the time of dinner, the family members of the
appellant did not behave properly. (Para 10).

8) The third ground of cruelty was that the appellant did not show any
inclination or enthusiasm to attend any important family function or
festivals at the respondent’s house whenever held. However, no details were
given about the date and the function held. The allegations are general in
nature (Para 11).

9) The fourth ground of cruelty was again about the indecent behavior of
the appellant towards the respondent’s family members. However, no details
were pleaded except making general averments (Para 12).

10) The fifth ground of cruelty was in relation to an incident which,
according to the respondent, occurred in July 1999. It was alleged that the
appellant, on that day, insisted that the couple should live separately
from the respondent’s parents (Para 13).

11) The sixth ground of cruelty was again general with no details. It was
alleged that the appellant was not interested in doing any household work
nor was interested in preparing meals and used to insist the respondent to
have his lunch from outside. (Para 14)

12) The seventh ground of cruelty was in relation to one incident which,
according to the respondent, occurred on Diwali day in the year 2000. It
was again about the behavior of the appellant with the family members of
the respondent which, according to the respondent, was rude (Para 16).
13) The eighth ground of cruelty was in relation to one isolated incident
which, according to the respondent, occurred on 15.04.2001. It was again
about the behavior of the appellant with the friends of the respondent who
had come to the respondent’s house. According to the respondent, the family
members did not like it (Para 17).

14) The ninth ground of cruelty was that one day in year 2010, the
appellant visited the respondent’s office and misbehaved with the
respondent in the presence of other officials (Para 27).

15) The respondent also alleged some instances in the petition. They,
however, again essentially relate to the appellant’s behaviour with the
respondent and his family members.

16) The appellant filed her written statement and denied these
allegations. The appellant also applied for restitution of conjugal rights
against the respondent in the same proceedings by filing petition under
Section 9 of the Act and inter alia alleged in her petition that it was the
respondent who has withdrawn from her company without there being a
reasonable cause. She also while denying the case set up by the respondent
justified her case for restitution of conjugal rights.

17) The Trial Court framed the following issues on the basis of pleadings
in the case:

Whether after solemnization of marriage, the Respondent has
treated the Petitioner with cruelty? OPP

Whether the Petitioner is entitled to the decree of
divorce as prayed? OPP

3. Relief

The following issues were framed based on the pleadings in the petition
under Section 9 of the Act:

Whether the Petitioner is entitled to the restitution of conjugal rights as
prayed? OPP
Relief

18) Parties adduced the evidence. By order dated 14.12.2012, the Family
Court allowed the petition filed by the respondent. It was held that the
grounds alleged by the respondent amounted to mental cruelty within the
meaning of Section 13(1)(ia) of the Act and the same having been proved by
the respondent, he was entitled to claim a decree for dissolution of
marriage against the appellant. Accordingly, the Trial Court granted decree
for dissolution of marriage in favour of the respondent and dissolved the
marriage. Since the decree for dissolution of marriage was passed against
the appellant, the petition filed by the appellant against the respondent
seeking restitution of conjugal rights was dismissed.

19) The appellant, felt aggrieved by the aforesaid order, filed first
appeals before the High Court. In appeals, the question was whether the
Trial Court was justified in granting decree for dissolution of marriage to
the respondent (husband) and, in consequence, was justified in dismissing
the petition for restitution of conjugal rights filed by the appellant
(wife).

20) By impugned judgment, the High Court dismissed the appeals and
affirmed the judgment/decree of the Trial Court. The appellant (wife), felt
aggrieved, has filed these appeals by special leave against the judgment of
the High Court.

21) Heard Mr. D.N. Goburdhan, learned counsel for the appellant and Mr.
Gaurav Goel, learned counsel for the respondent.
22) Having heard the learned counsel for the parties and on perusal of
the record of the case, we are inclined to allow the appeals and while
setting aside the impugned order, dismiss the divorce petition filed by the
respondent(husband) against the appellant and, in consequence, allow the
petition filed by the appellant(wife) for restitution of conjugal rights
against the respondent (husband).

23) The word “cruelty” used in Section 13(1)(ia) of the Act is not
defined under the Act. However, this expression was the subject matter of
interpretation in several cases of this Court. What amounts to “mental
cruelty” was succinctly explained by this Court (three Judge Bench) in
Samar Ghosh vs. Jaya Ghosh [(2007) 4 SCC 511]. Their Lordships speaking
through Justice Dalveer Bhandari observed that no uniform standard can ever
be laid down for guidance, yet it is appropriate to enumerate some
instances of human behavior which may be considered relevant in dealing
with the cases of “mental cruelty”.

24) Their Lordships then broadly enumerated 16 category of cases which
are considered relevant while examining the question as to whether the
facts alleged and proved constitute “mental cruelty” so as to attract the
provisions of Section 13 (1) (ia) of the Act for granting decree of
divorce.

25) Keeping in view the law laid down in Samar Ghosh’s case (supra), when
we examine the grounds taken by the respondent in his petition for proving
the mental cruelty for grant of divorce against the appellant, we find that
none of the grounds satisfies either individually or collectively the test
laid down in Samar Ghosh’s case (supra) so as to entitle the respondent to
claim a decree of divorce.

26) This we hold for more than one reason. First, almost all the grounds
taken by the respondent in his petition were stale or/and isolated and did
not subsist to enable the respondent to seek a decree for dissolution of
marriage. In other words, the incidents of cruelty alleged had taken place
even, according to the respondent, immediately after marriage. They were
solitary incidents relating to the behavior of the appellant. Second,
assuming that one or more grounds constituted an act of cruelty, yet we
find that the acts complained of were condoned by the parties due to their
subsequent conduct inasmuch as admittedly both lived together till 2006 and
the appellant gave birth to their second daughter in 2006. Third, most of
the incidents of alleged cruelty pertained to the period prior to 2006 and
some were alleged to have occurred after 2006. Those pertained to period
after 2006 were founded on general allegations with no details pleaded such
as when such incident occurred (year, month, date etc.), what was its
background, who witnessed, what the appellant actually said etc.

27) In our view, the incidents which occurred prior to 2006 could not be
relied on to prove the instances of cruelty because they were deemed to
have been condoned by the acts of the parties. So far as the instances
alleged after 2006 were concerned, they being isolated instances, did not
constitute an act of cruelty.

28) A petition seeking divorce on some isolated incidents alleged to have
occurred 8-10 years prior to filing of the date of petition cannot furnish
a subsisting cause of action to seek divorce after 10 years or so of
occurrence of such incidents. The incidents alleged should be of recurring
nature or continuing one and they should be in near proximity with the
filing of the petition.

29) Few isolated incidents of long past and that too found to have been
condoned due to compromising behavior of the parties cannot constitute an
act of cruelty within the meaning of Section 13 (1)(ia)of the Act.
30) In our considered opinion, both the Courts below failed to take note
of this material aspect of the case and thus committed jurisdictional error
in passing a decree for dissolution of marriage.

31) We cannot, therefore, countenance the approach of the High Court
because it did not, in the first instance, examine the grounds taken in the
petition to find out as to whether such grounds constitute mental cruelty
or not? The finding, therefore, though concurrent does not bind this
Court.

32) We are not impressed by the submission of the learned counsel for the
respondent that an incident which occurred somewhere in 2010 when the
appellant visited the office of the respondent and alleged to have
misbehaved with the respondent in front of other officers would constitute
an act of cruelty on the part of the appellant so as to enable the
respondent to claim divorce. In the first place, no decree for divorce on
one isolated incident can be passed. Secondly, there could be myriad
reasons for causing such isolated incident. Merely because both exchanged
some verbal conversation in presence of others would not be enough to
constitute an act of cruelty unless it is further supported by some
incidents of alike nature. It was not so.

33) We are also not impressed by the submission of the learned counsel
for the respondent that since the appellant had made allegation against the
respondent of his having extra-marital relation and hence such allegation
would also constitute an act of cruelty on the part of the appellant
entitling the respondent to claim decree for dissolution of marriage.
34) Similarly, we are also not impressed by the submission of learned
counsel for the respondent that since both have been living separately for
quite some time and hence this may be considered a good ground to give
divorce.

35) In the first place, the respondent did not seek a decree of
dissolution of marriage on these grounds. Second, the grounds of cruelty
taken by the respondent in his petition does not include these grounds.
Third, even if some stray allegations were made by the wife in her
pleading/evidence as were relied upon by the learned counsel are of no
relevance because, as mentioned above, these ground were not pleaded in the
petition by the respondent for seeking a decree of divorce and nor were put
in issue; and lastly, the burden being on the respondent, the same could be
discharged by the respondent by pleading and then proving. It was not so
done. It is for these reasons, we cannot accept the aforementioned two
submissions for affirming the decree of divorce.

36) This takes us to the next question as to whether the appellant was
able to make out any case for restitution of conjugal rights against the
respondent.

37) Having perused her petition and evidence, we are of the view that the
appellant is entitled for a decree for restitution of conjugal rights
against the respondent.

38) In our considered view, as it appears to us from perusal of the
evidence that it is the respondent who withdrew from the appellant’s
company without there being any reasonable cause to do so. Now that we have
held on facts that the respondent failed to make out any case of cruelty
against the appellant, it is clear to us that it was the respondent who
withdrew from the company of the appellant without reasonable cause and not
the vice versa.

39) In view of foregoing discussion, the appeals succeed and are allowed.
The impugned judgment is set aside. As a result, the petition filed by the
respondent (husband) under Section 13(1) of the Act seeking dissolution of
marriage is dismissed. As a consequence thereof, the marriage between the
parties is held to subsist whereas the petition filed by the appellant
against the respondent under Section 9 of the Act seeking restitution of
conjugal right is allowed. A decree for restitution of conjugal right is,
accordingly, passed against the respondent.

40) We hope and trust that the parties would now realize their duties and
obligations against each other as also would realize their joint
obligations as mother and father towards their grown up daughters. Both
should, therefore, give quite burial to their past deeds/acts and bitter
experiences and start living together and see that their daughters are well
settled in their respective lives. Such reunion, we feel, would be in the
interest of all family members in the long run and will bring peace,
harmony and happiness. We find that the respondent is working as a
“Caretaker” in the Government Department (see Para 4 of his petition). He
must, therefore, be the “Caretaker” of his own family that being his first
obligation and at the same time attend to his Government duties to maintain
his family.

……………………………………..J.
[R.K. AGRAWAL]

….………………………………….J.
[ABHAY MANOHAR SAPRE]
New Delhi;

Pages

Monday, August 7, 2017

Divorce on Ground of Desertion.

Annulment of Marriage on grounds impotency in India.

Thursday, March 9, 2017

No decree for divorce on one isolated incident can be passed.

Judgements on Divorce Cases

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