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1996 DIGILAW 263 (GAU)

Manoj Kumar Mitra v. Sumita Mitra

1996-12-13

J.N.SARMA

body1996
This appeal has been filed against the judgment and order dated 29.9.95 passed by Shri PN Bhuyan, Additional Deputy Commissioner, Karbi Anglong, District Diphum Misc Case No.3 of 1991 granting divorce between the plaintiff respondent and the defendant opposite party. 2. The respondent is the wife and she filed an application before the Additional Deputy Commissioner, Diphu for divorce under the Hindu Marriage Act, 1955 on the ground of cruelty and the other ground was that the husband was not capable of natural sexual intercourse and that the marriage was never consummated. The parties are Hindus and they were married according to Hindu rites. On 31.5.89 at the time of marriage the bride was aged about 17 and the groom was aged about 41. The bride agreed to the marriage only on the ground that he father had 5 daughters and in order to relieve her father she agreed to the marriage. Accordingly both of them were married and thereafter on 22.8.91 this application was filed for divorce under section 13 of the Hindu Marriage Act, 1955. Written statement was filed on behalf of the husband. A large number of witnesses were examined on behalf of the parties and exhibited documents in the form of letters between the husband and the wife. The learned Additional Deputy Commissioner having relied on the admission of the defendant husband and on the other materials on record decreed the suit for divorce. The admission of the husband in the deposition is as follows: "... It is a fact that the marriage was not consummated due to ray incapacity as stated in the para 1-0 of the petition of this case. I have no medical proof. I am of sound health and I do not consider it to produce medical certificate of my incapability..." Taking into consideration this admission of the husband the suit was decreed. Hence this appeal. 3. I have heard Mr. DK Bhattacharyya, learned Advocate for the appellant and Mr. NM Lahiri, learned Advocate for the respondent. 4. Mr. Bhattacharyya contends that the judgment passed by the learned Additional Deputy Commissioner is nullity in the eye of law inasmuch as section 19 of the Act requires that every petition under this Act shall be presented to the District Court within the local limits of ordinary original civil jurisdiction. It is submitted by Mr. 4. Mr. Bhattacharyya contends that the judgment passed by the learned Additional Deputy Commissioner is nullity in the eye of law inasmuch as section 19 of the Act requires that every petition under this Act shall be presented to the District Court within the local limits of ordinary original civil jurisdiction. It is submitted by Mr. Bhattacharyya that the learned Additional Deputy Commissioner is not a District Court nor it is a Court of ordinary original civil jurisdiction and as such it was not competent to entertain this application under section 19 of the Act and if there is lack of jurisdiction of the Court the judgment rendered by such Court would be nullity in the eye of law. It may be stated here that this objection was never taken up by the present appellant before the Court and this objection has. been taken before this Court only. Admitted position is that the Court of Deputy Commissioner in the district of Karbi Anglong is the Court of ordinary original civil jurisdiction. There is no dispute with regard to this. This apart the Rules of 1937 was adopted in the year 1952, in Karbi Anglong. Rule 1A of Administration of Justice and Police and Khasi and Jaintia Hills. 1937 (Rules for the) provides as follows: "The Governor may, when he thinks fit, appoint an Additional Deputy Commissioner either generally, or for the trial of a particular case, or particular cases, civil and criminal, and may direct that such Additional Deputy Commissioner shall, for the general or special purpose aforesaid, exercise all or any of the powers of the Deputy Commissioner." The above matter came up for consideration before a Division Bench of this Court reported in AIR 1969 304 wherein also this Court pointed out that the Additional Deputy Commissioner in such a district can entertain an application for probate. Section 270 of the Succession Act provides that probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge and that being the position the Additional Deputy Commissioner can be deemed to be a District Judge for the purpose of granting of probate. The same principle will apply in the present case. Accordingly, the objection of Mr. Bhattacharyya shall stand rejected. The same principle will apply in the present case. Accordingly, the objection of Mr. Bhattacharyya shall stand rejected. As regards the marriage it can be said that if there is ho consummation and peaceful conjugal life and if there is no sexual intercourse between the husband and the wife in the natural course, then in that case there is no marriage between the parties. Section 12 of the Act has undergone important amendments. Prior to 1976 Amendment, clause (a) of sub-section (1) of section 12 read "The respondent was impotent at the time of marriage and continued to be so until the institution of the proceeding". The case earlier to 1976 concentrate on the duration of impotency. By the Amendment of 1976, the stretch has been shifted to the capacity to consummate the marriage, rather than the duration of impotency. Impotency simply means inability to perform the sexual act, in this case there is the admission of the husband. 5. In view of the above there is no infirmity in the order passed by the learned Additional Deputy Commissioner. Accordingly this appeal shall stand dismissed.