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2009 DIGILAW 889 (MP)

VINAY KUMAR CHIMANLAL SAHU v. JAYA VINAY KUMAR

2009-07-31

K.S.CHAUHAN, KRISHN KUMAR LAHOTI

body2009
JUDGMENT K. S. CHAUHAN, J. ( 1 ) THIS appeal under Section 28 of the Hindu Marriage Act, 1955 has been preferred by the appellant being aggrieved by the judgment and decree dated 29. 07. 2005 passed by the II Additional District judge, Hoshangabad in Hindu Marriage Case No. 39-A/2002, whereby the application filed by appellant under Sections 11 and 13 of the hindu Marriage Act (treating it as application under Section 12 of the act) has been dismissed. ( 2 ) THE admitted facts are that the marriage of the appellant was performed with the respondent on 13. 03. 2001 at village Kesla, Tahsil itarsi, District Hoshangabad and now they are living separately since 2001. ( 3 ) THE facts of the case are that after the marriage the respondent stayed with the appellant only for two days but the marriage could not be consummated because she was in her periods. Thereafter on 16. 03. 2001 she went to her maternal house and when she returned she made an excuse that she has some problems of her kidneys, therefore, again marriage could not be consummated. On 08. 04. 2001 and 20. 12. 2001 the appellant took respondent to a Gynecologist Dr. R. K. Shrivastava who after conducting certain tests opined that respondent is incapable of conceiving and physically incapable of performing sexual intercourse. Since the marriage has not been consummated owing to the impotency of the respondent, he is entitled to get decree of nullity under Section 12 of the Hindu marriage Act, 1955. ( 4 ) THE respondent submitted written statement denying the allegations made by the appellant mainly contending that she never told the appellant that she was in periods or was having the kidney problems. She never refused to cohabit with him. He has performed sexual intercourse several times with her. It was also pleaded that the appellant is a rich person and earns Rs. 5 lacs annually. It was also pleaded that during the pendency of the suit he has performed second marriage with another lady Kesar Bai @ Guddi and is residing with her, therefore, the suit is not maintainable and deserves to be dismissed. ( 5 ) ON the basis of the pleadings of the parties the trial Court framed the issues. Both the parties adduced evidence. ( 5 ) ON the basis of the pleadings of the parties the trial Court framed the issues. Both the parties adduced evidence. After appreciating the evidence, trial Court found that the appellant has failed to prove his case and dismissed the petition. Being aggrieved by the impugned judgment and decree, the instant appeal has been filed on the grounds mentioned in the memo of appeal. ( 6 ) LEARNED counsel for the appellant submitted that the court below has not appreciated the evidence in proper perspective. Dr. R. K. Shrivastava (AW-3) Gynecologist has given the medical evidence. The case of the appellant is supported by medical evidence hence the finding of the court below is contrary to record. Learned counsel further submitted that the respondent has refused to live with him and is living separately since 2001. The trial Court has committed an illegality in dismissing the petition hence the appellant is entitled to get decree of nullity. ( 7 ) RESPONDENT was served and was being represented by her counsel but on the date of hearing learned counsel of respondent did not appear to argue the matter. ( 8 ) THE main point for consideration in this appeal is that whether the court below has committed an illegality in dismissing the petition filed by the appellant for nullity of marriage. ( 9 ) THE relevant provision of Section 12 (1) (a) of the Hindu marriage act, 1955 runs as follows: 12 (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:- (a) that the marriage has not been consummated owing to the impotence of the respondent. (b ). . . . . . (c ). . . . . . (d ). . . . . . . . . . . ( 10 ) ACCORDING to appellant Vinay Kumar (AW-1), the respondent is impotent. He has deposed that the marriage was performed on 13. 03. 2001. The respondent lived with him for 2 days but the marriage was not consummated because she told that she was in periods. Thereafter she went to her parental house and returned therefrom after sometime but again she told that she is having some kidney problems and doctor has opined not to perform sexual intercourse. 03. 2001. The respondent lived with him for 2 days but the marriage was not consummated because she told that she was in periods. Thereafter she went to her parental house and returned therefrom after sometime but again she told that she is having some kidney problems and doctor has opined not to perform sexual intercourse. Thus, second time also, the marriage was not consummated. On 08. 04. 2001, he carried her to Dr. R. K. Shrivastava (AW-3), gynecologist who told him that she is unable to conceive child. On perusal of the medical prescriptions he opined that respondent is impotent. Thereafter on 20. 08. 2001 he carried her to nagpur where the doctors also opined that she is impotent. Since the fact of impotency has been concealed by the respondent and her family members, therefore, he wanted to annul the marriage. Medical prescriptions and reports Ex. P-1 to Ex. P-7 have been filed in support of his evidence. This witness in cross examination stated that he tried to commit sexual intercourse several times with the respondent but on account of excuses and refusal by respondent the marriage was not consummated. Dr. Shrivastava has opined that the respondent is incompetent to perform complete sexual intercourse. ( 11 ) THUS according to the evidence of this witness marriage was not consummated on account of impotency of the respondent. ( 12 ) KAMAL Kumar (AW-2) has also supported the evidence of Vinay kumar (AW-1) to the extent that he also went along with appellant when respondent was carried for treatment to Dr. R. K. Shrivastava. ( 13 ) THUS from his evidence it reveals that appellant carried respondent for check up and treatment. ( 14 ) DR. R. K. Shrivastava (AW-3) has deposed that on 08. 04. 2001 he examined respondent and found that her vagina was not developed and there was no uterus. He advised for Sonography test. Since the mensuration of the respondent was not started, hence, there was no possibility of conceiving the child. The medical report is Ex. P-2. This witness in cross examination has specifically stated that if the respondent is to be treated in the best hospital of the world even then she can not be a fully competent woman. Thus this witness supports the version of appellant. ( 15 ) APPELLANT has also produced documents Ex. P-1 to Ex. The medical report is Ex. P-2. This witness in cross examination has specifically stated that if the respondent is to be treated in the best hospital of the world even then she can not be a fully competent woman. Thus this witness supports the version of appellant. ( 15 ) APPELLANT has also produced documents Ex. P-1 to Ex. P-7 which are prescriptions, sonogrphy report and other reports conducted time to time. Thus the oral evidence of appellant finds support by the medical evidence. ( 16 ) RESPONDENT Smt. Jaya (NAW-1) has stated that the marriage was consummated and the appellant committed sexual intercourse with her several times. She is not suffering from any disease and has not gone for her treatment to any doctor with appellant. Since the appellant has married with another lady Kesar Bai @ Guddi, therefore, she does not want to live with him. ( 17 ) JAINARAYAN Nayak (NAW-2) is the father of respondent Smt. Jaya. He has also stated that his daughter is not suffering from any disease and she has not taken any treatment. He has also supported the fact that appellant has performed second marriage with one Kesar bai @ Guddi. ( 18 ) THUS according to respondent and her father she is not suffering from any disease but their evidence is not acceptable for want of any medical evidence in this regard. There is no reason to disbelieve the evidence of appellant which is duly supported by documents and medical evidence. ( 19 ) WE have to consider whether on such evidence the appellant is entitled for decree under Section 12 (1) (a) of the Hindu Marriage Act or not? ( 20 ) THE expression consummation has to be understood as in common parlance and means 'ordinary and complete intercourse'. ( 21 ) IN the case of Digvijay Singh vs. Pratap Kumari, AIR 2003 P and H 327 it has been held that a party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. ( 22 ) IN the case of Shewanti v. Bhawrao, AIR 1971 MP 168 it has bee held that impotency contemplated in the section does not signify sterility or incapacity of conception but incapacity to have sexual intercourse. ( 22 ) IN the case of Shewanti v. Bhawrao, AIR 1971 MP 168 it has bee held that impotency contemplated in the section does not signify sterility or incapacity of conception but incapacity to have sexual intercourse. ( 23 ) IN the case of Jyotsnaben v. Pravinchandra Tulsidas, AIR 2003 Guj 222 it has been held that the true test of impotency is the practical impossibility of consummation. The natural, inherent disabilities of a spouse leading to non-consummation could lead to a decree of dissolution. ( 24 ) IN the case of Samar Roy Chowdhury v. Smt. Snigdha Roy chowdhury, AIR 1977 Calcutta 213 it has been held that the question of curability of impotency is not a relevant consideration for the purpose of the decision under Section 12 (1) (a) as amended in 1976. If it is found that there was no consummation of marriage due to the impotency of the respondent the petitioner is entitled to a decree. In the same case it has also been held that sexual intercourse or consummation is sometimes referred to as vera copula. Vera copula consists of erection and intromission, that is, of erection and penetration by the male of the woman. Full and complete penetration is an essential ingredient of ordinary and complete intercourse. The degree of sexual satisfaction obtained by the parties is irrelevant. Thus where the respondent wife was suffering from the disease of vaginismus and the coitus or complete penetration was not possible, held, the petitioner was entitled to a decree. ( 25 ) IN the light of the aforesaid pronouncements and in the facts and circumstances of this case, it is fully established that the marriage was not consummated on account of incapability and impotency of the respondent. Thus, the appellant has proved his case and is entitled to get decree under Section 12 (1) (a) of the Hindu marriage Act. The court below has committed an illegality in dismissing his petition. Hence, the finding of the court below is not sustainable in law and deserves to be set aside. ( 26 ) CONSEQUENTLY, the appeal succeeds and is allowed. The judgment and decree dated 29. 07. 2005 passed by the court below is hereby set aside. The marriage performed on 13. 03. Hence, the finding of the court below is not sustainable in law and deserves to be set aside. ( 26 ) CONSEQUENTLY, the appeal succeeds and is allowed. The judgment and decree dated 29. 07. 2005 passed by the court below is hereby set aside. The marriage performed on 13. 03. 2001 in between the parties is hereby dissolved by a decree of nullity on the ground of impotency under Section 12 (1) (a) of the Hindu Marriage Act. Parties are directed to bear their own costs. The counsel fee be quantified as per schedule. Decree be drawn up accordingly. .