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2012 DIGILAW 1077 (MP)

Bharti Mourya v. Sudhir Bahadur Mourya

2012-10-19

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT Saxena, J. -- 1. Since the judgment challenged in these two appeals is one and the same, both the appeals are taken up together for final disposal by this common and one judgment. 2. Both the appeals are filed against vise versa by the parties, having been aggrieved by a judgment and decree dated 29th September, 2009 given in Case No.11-A/07 (HMA), by the Principal Judge of the Family Court, Gwalior, dismissing claimof the wife preferred under section 9 of the Act for restitution of her conjugal rights vis-a-vis counter claim preferred by the husband on other side for dissolution of marriage under section 13 of the Act. 3. The facts leading to the present case may be summarised as under : The marriage between the appellant Smt. Bharti and respondent-Sudhir was solemnized on 5th May 1992 as per Hindu rites and customs. It is alleged that the respondent-husband Sudhir expelled his wife Smt. Bharti from his house on the part of her failure to bring dowry. Despite repeated efforts from her side, respondent-husband did not permit her to live with him. On the contrary, he decided to file a petition under section 13 of the Act for taking divorce, which was dismissed by the trial Court vide judgment dated 15.10.2001 against which an appeal (F.A. No.234/01) was preferred. Same was dismissed by this Court vide judgment dated 25th November 2005 by this Court, holding that the respondent-husband failed to make out a case with valid and legal reasons for dissertation of his wife. The appellant (wife of respondent), by submitting a petition under section 9 of the Act, now, in turn, prayed for restitution of conjugal rights before the trial Court. 4. By filing written statement, respondent-defendant denied all the allegations contained in the petition. In counter-claim, appellant asserted that in year 1997 after the matrimonial disputes arising between the couple, the respondent-husband filed a petition for divorce and Civil Suit No.31-A/1997 was registered. During pendency of the case on 26th May 1997, the parties entered into compromise and consented to live with each other. Subsequently, thereafter the defendant filed another petition under section 13 of the Act for divorce which was registered as Civil Suit No.191-A/2000, on the ground of cruelty against his wife, but the prayer for divorce was disallowed. During pendency of the case on 26th May 1997, the parties entered into compromise and consented to live with each other. Subsequently, thereafter the defendant filed another petition under section 13 of the Act for divorce which was registered as Civil Suit No.191-A/2000, on the ground of cruelty against his wife, but the prayer for divorce was disallowed. Against the said judgment and decree, he preferred an appeal (First Appeal No.234/2001) which too, was dismissed by the judgment and decree dated 25th November 2005 of this Court. After two years of dismissal of the petition of divorce filed by the respondent-husband, the present petition under section 9 of the Act for restitution of conjugal rights was filed by the appellant-wife. The defendant by filing counter-claim submitted that the appellant was unable to procreate a child and was suffering from some bodied disabilities which proved the fact, therefore, it was prayed that under the provisions contained in section 5(ii)(b) and in section 12(1)(b) of the Act, a decree for dissolution/nullification of marriage may be passed in his favour. 5. In reply to the counter-claim filed by the respondent-husband, the appellant-wife denied all allegations, as mentioned. She submitted that the parties to the case (Civil Case No.31-A/1997) entered into compromise and pursuant thereto she went with her husband and started residing with him. She stated that she and her husband made sincere efforts for birth of a child and her husband also caused her treatment but despite all efforts, she could not procreate a child. So, her husband, at the instigation of her mother started maltreating her and ultimately on 8th August 2000 she was expelled of her matrimonial house. She stated that she is ready and willing to reside with her husband and perform her conjugal duties. Therefore, she prayed to dismiss the counter-claim preferred by her husband and to pass a decree of restitution of conjugal rights in her favour. 6. The learned trial Judge on the pleadings of the parties and documents on record framed the following issues for adjudication of the case : 1. Whether, the petitioner-wife after maltreating by her husband on illegal demand of dowry, was expelled of her matrimonial house by her husband? 2. 6. The learned trial Judge on the pleadings of the parties and documents on record framed the following issues for adjudication of the case : 1. Whether, the petitioner-wife after maltreating by her husband on illegal demand of dowry, was expelled of her matrimonial house by her husband? 2. Whether, the respondent levelled a false imputation of procreation of a child and on the false ground that she was unable to give a birth to a child, the respondent intended to contract second marriage? 3. Whether a decree for restitution of conjugal rights under section 9 of the Act may be passed in favour of petitioner-wife? 4. Whether a decree of divorce under section 13 of the Act for dissolution of marriage can be passed in favour of respondent-husband? 5. Relief and cost. 7. The learned trial Judge after framing the aforesaid issues in the light of the averments and pleadings and having gone through the statements and documents filed by the parties, dismissed the petition under section 9 of the Act as well as counter-claim under section 13 of Act, hence, these two appeal before our bench. 8. The appellant’s case is a case of non-procreation of a child and the respondent-husband discovered only after the marriage. The respondent was never told by the appellant-wife nor her parents that she was suffering from such bodied ailment. The respondent tried to discuss regarding the problems he was facing with the appellant and her parents, and especially her father, who by profession is a Government doctor in district Jhabua, but they objected strongly. On the other hand, it was alleged by them that due to cruel treatment by the respondent, same made her nervous to the extent. Thus, the respondent filed a petition against the appellant for dissolution of marriage under section 13(1)(iii) of the Hindu Marriage Act, 1955 hereinafter referred to as “the Act” before the Court of District Judge. The trial Court vide its order 15.10.2001, dismissed the petition filed by the respondent for the grant of decree of divorce. Being aggrieved by the said order, the respondent filed an appeal before the High Court. The High Court vide order dated 25.11.2005 dismissed the appeal filed by the respondent holding that there is insufficient material on record to establish the cause which come within the scope of concept of desertion. Being aggrieved by the said order, the respondent filed an appeal before the High Court. The High Court vide order dated 25.11.2005 dismissed the appeal filed by the respondent holding that there is insufficient material on record to establish the cause which come within the scope of concept of desertion. Aggrieved by the said order, the respondent filed this appeal before this Court. The appellant filed a counter appeal. It is stated in the counter affidavit that the appeal is devoid of any merit inasmuch as the trial Court has rejected the pleas of the respondent on the ground that he has not made out any case for grant of divorce. It was submitted that the respondent even before the marriage was having intimacy with the appellant and at that juncture he did not find any abnormality in her. It was also stated that the respondent has not made out any case seeking divorce on the ground of causing cruelty to him inasmuch as he has failed to prove any instance leading to causing such cruelty to him by the appellant. It was submitted that she is willing to reside with her husband but the trial Court has wrongly rejected her petition. It was also submitted that from the evidence and pleadings, it appears that the respondent was having sex with the appellant without any problem and there is no truth in the allegation made by the respondent. The other allegations mentioned in the divorce petition have not been proved at all and therefore it is prayed that the appeal filed by the respondent deserves to be rejected. 9. Heard the learned counsel appearing for the appellant-wife and the learned counsel appearing for the respondent-husband. Also perused the pleadings, annexures filed along with the appeal and the orders passed by the trial Court and the grounds of appeal. 10. According to the learned counsel appearing for the appellant, the evidence which has been brought on record by the respondent is wholly insufficient to infer that she is suffering from the said abnormality. Therefore, it is submitted that in view of the above fact, no inference can be drawn that the appellant was suffering from such kind of disease as to make her unfit for marriage and for procreation of children and that the respondent has not been discharged of the burden as required by the statutory provision. Therefore, it is submitted that in view of the above fact, no inference can be drawn that the appellant was suffering from such kind of disease as to make her unfit for marriage and for procreation of children and that the respondent has not been discharged of the burden as required by the statutory provision. Learned counsel contended that the words used in sub-clause (iii) of section 13(1) to the effect that “mental disorder of such a kind and to such an extent that the respondent cannot reasonably be expected to live with the appellant” must be given full effect as it is a well accepted principle of statutory interpretation that a Court must make every effort to give effect to all words in a statute since Parliament cannot be held to have been wasting its words or saying something in vain. It was further submitted that in order to make out a ground for divorce under section 13(1)(iii) of the Act, the conduct complained of should be grave and weighty so as to come to the conclusion that the respondent spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. It was argued that the trial Court, after examining the evidence, has come to the conclusion that the acts complained of are not such as would constitute for desertion and in any event the grounds for divorce under sections 13(1)(iii), 12(1)(b) and 5(ii)(b) of the Act are not made out. 11. Answering the contention raised by the learned counsel for the appellant, learned counsel for the respondent, submitted that this is a wholly untenable argument and has to be rejected by this Court. It is submitted that the trial Court has committed illegality in refusing to entertain the claim of the respondent despite finding sufficient materials. It is further submitted that the Court below has rejected the relief of the appellant for obtaining restitution which proves the fact that she is unable to plead her case. Therefore, it is prayed that the appeal filed by him may be allowed passing the decree against the appellant for divorce. 12. We have given our thoughtful and anxious consideration to the rival submissions made by the respective counsel appearing on either side. Therefore, it is prayed that the appeal filed by him may be allowed passing the decree against the appellant for divorce. 12. We have given our thoughtful and anxious consideration to the rival submissions made by the respective counsel appearing on either side. The respondent filed a petition for divorce under sections 13(1)(iii), 12(1)(b) and 5(ii)(b) of the Act. It is also his case that on account of the abnormalities that the appellant was suffering from, procreation of child is not possible, which is a good ground for nullifying the marriage because to beget children from a wedlock is one of the principal aims of Hindu Marriage and therefore the respondent could not be reasonably expected to live with the appellant. Section 5(ii)(b), 12 and 13(1)(iii) of the Act are reproduced hereunder : “5. Conditions for a Hindu marriage. -- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely : (i) xxx xxx xxx (ii) at the time of the marriage, neither party -- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; 12. Voidable marriages. -- (1) 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 : xxx xxx xxx (b) that the marriage is in contravention of the conditions specified in clause (ii) of section 5.” 13. Divorce. -- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party -- (ii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation : In this clause, -- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or (iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. Explanation : In this sub-section, 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 the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (I-A) Either party to a marriage, whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground -- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground -- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation : This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.” 13. In this case, following questions are involved for consideration, during the course of hearing before this Court : (A) Can it said to be a sufficient ground for passing a decree under section 12(1)(b) of the Act for dissolution of marriage alleged to be performed in contravention of the condition specified in clause (ii) of section 5 of the Act? (B) Whether the dissolution of marriage by a decree of divorce on the ground of desertion is sustainable in law? (C) Can it be a ground for restitution of conjugal rights in cases where the parties to the marriage are living separately for a long time and the possibility of Union of parties is rare? 14. (B) Whether the dissolution of marriage by a decree of divorce on the ground of desertion is sustainable in law? (C) Can it be a ground for restitution of conjugal rights in cases where the parties to the marriage are living separately for a long time and the possibility of Union of parties is rare? 14. Smt. Bharti Mourya (PW1) in her affidavit filed before the trial Judge as examination-in-chief and cross-examination, stated that she was married with respondent on 5th May 1992 at Gwalior. After sometime of marriage, respondent (her husband) started torturing her for illegal demand of Rs.50,000/- and one motorcycle and expelled her from the house on 21st August 2000 in the event of refusal of his demand after asking to contract a second marriage. She deposed that she was compelled to leave her matrimonial house by her husband, who filed a divorce petition on the false ground. The petition was finally decided as dismissed by an order dated 25th November 2001 in F.A. No.234/2001 by this Court. It is submitted that her husband alleged a false imputation that she is unable to procreate a child. The ground taken by her husband that her behaviour is not good towards her husband and his relatives is also denied. She stated that her husband without reasonable cause deserted her. In her cross-examination, she denied the claim and suggestions put forth byher husband. The appellant filed the petition under section 9 of the Act for restitution of conjugal rights stating therein that her husband Sudhir Bahadur expelled her because she could not procreate a child. She is ready and willing to reside with her husband and perform her conjugal duties. Therefore, she prayed to pass the decree of restitution of conjugal rights in her favour. 15. The respondent Sudhir Narayan Mourya has examined himself as DW1. It has further come out in his evidence that since 21st August 2000 he and his wife has been living separately and after more than seven years elapsed now there seems to be no chance of revival of their matrimonial relations. He stated that the appellant (his wife) is unable to procreate the child. It has further come out in his evidence that since 21st August 2000 he and his wife has been living separately and after more than seven years elapsed now there seems to be no chance of revival of their matrimonial relations. He stated that the appellant (his wife) is unable to procreate the child. He further stated that this fact was well known to her parents but despite knowing the same, they never disclosed it to him that their daughter is unable to give a birth to a child and performed the marriage with him. Thus, a fraud was played with him. He denied the allegation of raising illegal demand for Rs.50,000/- and motorcycle from his wife and also denied that he compelled her to give consent for contract a second marriage and on her refusal he expelled her from her matrimonial house. In cross-examination he admitted that after marriage, they lived four-five months and lived their matrominial life peacefully. In the year 1997, he filed a petition for divorce against his wife. However, during pendency, they entered into compromise and pursuant thereto, they lived for three years together. They admitted that they had no issue. 16. With regard to the plea taking the ground specified in section 5(ii)(b) of the Act, the respondent adduced the evidence of Dr. Vrinda Joshi (DW1). Dr. Vrinda Joshi (DW2) deposed that on 22nd August 2009, she medically examined Smt. Bharti and on her physical examination, she found that her secondary sexual organs were well developed. According to the doctor since cervix vagina and uterus were detached with each other due to conjanital malformation, which in normal cases were not found, she advised for altra sound. After ultrasound examination by Dr. Anoop Gupta, the witness was further examined on 18.10.2011 and after seeing the report (Ex.D-2) she stated that the size of uterus was 3.2 cm x 0.5 cm which is small than a normal size, but she stated that by medicine or during pregnancy the size of uterus may enlarge. In last para 8 of her chief examination, the witness stated that appellant informed that till 22nd August 2009, her menstruation was not started. The doctor further admitted that for procreation of child menstruation is basic element which was found absent in the case of Smt. Bharti. In last para 8 of her chief examination, the witness stated that appellant informed that till 22nd August 2009, her menstruation was not started. The doctor further admitted that for procreation of child menstruation is basic element which was found absent in the case of Smt. Bharti. As per doctor, the treatment for non-menstruation is possible in medical science after knowing the symptoms provided further that the symptoms response to such treatment. 17. Sudhir Bahadur Mourya (DW1) pleaded and deposed that after leaving from his house his wife did not make an effective efforts for her return. He admitted that his wife Smt. Bharti is unable to procreate the child and so he is not willing to resume their matrimonial life. This part of evidence of the respondent-husband clearly postulates that he compelled his wife to go out of his house and after that he did not make sincere efforts for her return. In his cross-examination and during reconciliation proceedings and hearing of appeals before this Court, he denied for her return on the sole ground that she is unable to procreate a child. In a case like present one reported as AIR 2004 SC 5111 (Shyam Sunder Kohli v. Sushma Kohli), the Hon’ble apex Court held : “The evidence on record indicates that the respondent had been forced to leave the matrominial home. We are in agreement with the findings that the case of the appellant, that he had made attempts to get her back, cannot be believed. On the ground of irretrievable break down of marriage, the Court must not lightly dissolve a marriage. It is only in extreme circumstances that the Court may use this ground for dissolving a marriage. In this case, the respondent, at all stages and even before us, has been ready to go back to the appellant. It is the appellant who has refused to take the respondent back. As stated above, the evidence shows that the respondent was forced to leave the matrimonial home. It is the appellant who has been at fault. It can hardly lie in the mouth of a party who has been at fault and who has not allowed the marriage to work to claim that the marriage should be dissolved on the ground of irretrievable break down. We, thus, see no substance in this contention.” 18. It is the appellant who has been at fault. It can hardly lie in the mouth of a party who has been at fault and who has not allowed the marriage to work to claim that the marriage should be dissolved on the ground of irretrievable break down. We, thus, see no substance in this contention.” 18. In the case of R. Lakshmi Narayan v. Santhi [ AIR 2001 SC 2110 ], the Hon’ble apex Court held : “Section 5 provides that a marriage may be solemnized between any two Hindus if the conditions specified in the section are fulfilled. Amongst the other conditions stated therein in sub-section (ii) it is laid down that at the time of marriage neither party is incapable of giving a valid consent to it in consequence of unsoundness of mind or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.The clause lays down as one of the conditions for a Hindu marriage that neither party must be suffering from unsoundness of mind, mental disorder, insanity or epilepsy and section 12(1)(b) refers that any marriage shall be voidable and may be annulled if the marriage is in contravention of the condition specified in clause (ii) of section 5. On a plain reading of the said provision, it is manifest that the conditions prescribed in that section, if established, dis-entitles the party to a valid marriage. The marriage is not per se void but voidable under the clause. Such conditions in the very nature of things call for strict standard of proof. The onus of proof is very heavy on the party who approaches the Court for breaking a marriage already solemnized. An objection to a marriage on the ground of mental incapacity must depend on a question of degree of the defect in order to rebut the validity of a marriage which has in fact taken place. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The Court will examine the matter with all possible care and anxiety. As noted earlier, the onus of bringing a case under this clause lies heavily on the petitioner who seeks annulment of the marriage on the ground of unsoundness of mind or mental disorder. The Court will examine the matter with all possible care and anxiety. It is not the case of the appellant that the respondent was incapable of giving valid consent to the marriage in consequence of unsoundness of mind at the time of marriage. From the facts found by the appellate Court it cannot be held that the respondent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and procreation of children. To draw such an inference merely from the fact that the spouses had no cohabitation for a short period of about a month, is neither reasonable nor permissible. To brand the wife as unfit for marriage and procreation of children on account of the mental disorder it needs to be established that the ailment suffered by her is of such a kind or such an extent that it is impossible for her to lead a normal married life. This is the requirement of the law as appears on fair reading of the statutory provisions. The appellate Court has also not specifically given such a finding. Merely giving a finding that the respondent was suffering from some mental disorder and she did not have cohabitation with her husband during the period they stayed together is not sufficient to comply with the condition prescribed under section 5(ii)(b) of the Act. We deem it relevant to note here that the observations in the judgment of the trial Court about the physical and mental condition of the respondent which have been noted earlier indicates the position that the requirement of section 5(ii)(b) are far from satisfied from the materials placed by the appellant. In the circumstances the High Court cannot be faulted for having dismissed the petition filed by the appellant under section 12(1)(b) read with section 5(ii)(b) of the Act. 19. Further, in the case of Alka Sharma (Smt.) v. Abhinesh Chandra Sharma [ 1991 JLJ 607 = AIR 1991 MP 205 ], this Court held : “12. In interpreting the provisions of section 5(ii)(b) of the Act such interpretation should be placed and be accepted which would pave way for a smooth marital relationship. 19. Further, in the case of Alka Sharma (Smt.) v. Abhinesh Chandra Sharma [ 1991 JLJ 607 = AIR 1991 MP 205 ], this Court held : “12. In interpreting the provisions of section 5(ii)(b) of the Act such interpretation should be placed and be accepted which would pave way for a smooth marital relationship. As has been noticed above section 5(ii)(b) as it originally stood before amendment, contained one of the conditions of a valid marriage that ‘neither party is an idiot or lunatic at the time of marriage’. The above expression was used in the light of the provisions of Indian Lunacy Act, 1912 where a lunatic under section 3(5) has been defined as a person who is idiot or of unsound mind. The Amendment Act 68 of 1976 introducing drastic amendment to section 5(ii)(b) substitutes the words ‘suffering from mental disorder of such a kind and/or to such an extent as to be unfit for marriage and for procreation of children’, and is a clear intention of the legislature that a person who is mentally not sound although he may not be idiot or lunatic, is disqualified from contracting a valid marriage. A party cannot be compelled to suffer marital life with a marriage partner who is not mentally sound and is only fit for procreation of children. It would be absurd to hold that it is only such a mentally ill spouse, who is both unfit for marriage as also unfit for procreation of children, is disqualified to marry. To me it appears that liberalized provisions of section 5(ii)(b), as exist after the Amendment Act 68 of 1976, make any one of the two conditions found wanting in a spouse due to mental disorder, a disqualification for contracting a valid marriage. In my opinion, the word ‘and’ between the expression ‘unfit for marriage’ and procreation of children’ should be read ‘and/or’ meaning thereby that they may both co-exist or any of them may exist as a pre-condition of a valid marriage. Reading the provision in the manner aforesaid, it becomes more intelligible and practicable in the marriage situations obtaining in individual cases. Reading the provision in the manner aforesaid, it becomes more intelligible and practicable in the marriage situations obtaining in individual cases. To say that a marriage partner that is, the wife or husband is fit for marriage although mentally unsound, only because he/she has capacity to produce children is to force one of the parties to the marriage to lead all his/her married life with a seriously abnormal or mentally unsound life partner. ‘Procreation of children’ is one of the principal aims for going through a marriage ceremony, but it is not all and the only aim of it. A married life may be successful where one or both the parties to the marriage are unable to procreate children, but mental fitness must be taken to be principal pre-condition for a valid marriage. The word ‘and’, therefore, cannot be read only conjunctively, as is sought, to be done by the counsel for the wife. It is true that ‘and’ can, under given circumstances, keeping in view the subject and intention of the legislature, be read as ‘or’ and vice-versa, but I do not find any objection in reading ‘and’ as ‘and/or’. According to me, if ‘and’ is read only as ‘or’ the legislative intent cannot be fulfilled. If the word ‘and’ is read as ‘or’ a spouse suffering from such a mental disorder as would made her/him incapable of giving birth to children would be disqualified for marriage irrespective of the fact that he or she is otherwise fit for leading a life of a marriage partner with the other party. It may be noticed that under section 13(1)(iii) of the Act ‘mental disorder’ as a ground of divorce is only where it is of such a kind and degree that ‘the petitioner cannot be reasonably be expected to live with the respondent’. Assistance, according to me, can be taken of the above provision for understanding the expression ‘unfit for marriage’ used in section 5(ii)(b) of the Act, that is unfitness of the party suffering from mental disorder should be of such a type that the petitioner cannot reasonably be expected to run the risk of married life with the respondent. Understanding the word; unfit for marriage; in the above manner and in the light of the provisions of section 13(1)(iii) of the Act. Understanding the word; unfit for marriage; in the above manner and in the light of the provisions of section 13(1)(iii) of the Act. I am, therefore, of the opinion that mental disorder merely disabling ‘pro-creation of children’ may not be in a given case, a good ground for nullifying the marriage. We can envisage a spouse marrying at late age or a mental disorder of such a type where he or she is unable to complete a sexual act or a man or woman having no sexual organ for procreation of children but he or she may be otherwise completely fit as a marriage partner irrespective of a mental disorder disabling her/him from procreating children. In such a case permitting dissolution or nullification of marriage would break the marriage tie on an unsubstantial ground. In a given situation where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible it may furnish a good ground for nullifying the marriage because to beget children from a wedlock is one of the principal aims of Hindu marriage where Sanskar of marriage is advised for progeny and offspring. The word ‘and’, therefore, should be read as ‘and/or’ permitting the matrimonial Court in a given situation and given case of mental disorder to nullify a marriage if either of them or both the conditions exist making living of the parties together highly unhappy if not impossible. In my considered view, therefore, the word ‘and’ should not only be read as, ‘or’ but should be read as ‘and/or’ meaning ‘either or both’. 15. I am inclined to take the above view in interpretation of the word ‘procreate’ because mental fitness of a reasonable degree is laid down as a pre-condition, at the time of solemnising a valid marriage. The capacity or qualification of the spouse for the purpose of section 5(ii)(b) has, therefore, to be assessed or judged at the time of their marriage and not at any subsequent stage of their married life which is taken care of by the other provisions laying down grounds for seeking divorce under section 13 of the Act.” 20. The capacity or qualification of the spouse for the purpose of section 5(ii)(b) has, therefore, to be assessed or judged at the time of their marriage and not at any subsequent stage of their married life which is taken care of by the other provisions laying down grounds for seeking divorce under section 13 of the Act.” 20. Thus, on perusal of the evidence as discussed above, it clearly appears that Smt. Bharti and her husband made sincere efforts for birth of a child and her husband also caused her treatment but despite that she could not procreate a child. It is true that on medical examination, the Medical Expert Smt. Vrinda Joshi (DW2) opined on perusal of the Ultrasound Examination Report that the uterus of appellant-wife was of small size and that may be an obstruction to procreate a child. As per evidence of the doctor, it also appears that the menstruation of the respondent’s wife was not commenced till her examination in the Hospital which was another obstruction for procreation of a child. The doctor examining the appellant opined that these signs of impotency in the body of appellant-wife Smt. Bharti were curable in medical science provided the symptoms respond to such treatment. However, there is no pleading and proof that their marriage was not consummated on account of bodied abnormality as shown above on the part of wife. It is further nowhere proved that small size of uterus and absence of menstruation on the part of his wife was an obstruction for their consummation of their marriage. 21. 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...” 22. 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. 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 .....” 23. Capacity for sexual intercourse must exist atleast ‘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. 24. In the case of Yuvraj Digvijay Singh v. Yuvraj Pratap Kumari [ AIR 1970 SC 137 ], in which it has been held as follows : “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of marriage and continued to be so until the institution of the proceedings.” 25. It is, therefore, apparent that a decree of nullity could be passed if it were established that the marriage had not been consummated owing to the impotency of the other party. 26. However, in the present case it would appear to us, that respondent Sudhir has neither properly pleaded nor proved non-consummation on account of impotency. There is no averment regarding non-consummation. As such, it is clear that no case has been made out with regard to section 12(1)(c) of the Act. 27. Impotency is the lack of ability to perform sexual intercourse in a complete and full manner. Partial and imperfect intercourse is not consummation. However, the burden of proof is on the petitioner, the respondent herein. This has not been discharged. 27. Impotency is the lack of ability to perform sexual intercourse in a complete and full manner. Partial and imperfect intercourse is not consummation. However, the burden of proof is on the petitioner, the respondent herein. This has not been discharged. The medical evidence, as noticed above, indicates that appellant was capable of sexual intercourse. Therefore, in the opinion of this Court, no ground for annulment of marriage on ground of mental disorder before/after marriage of such a kind or such an extent as to prove her unfit for marriage and procreation of child under section 5(ii)(b) and section 12(1)(c) of Act is made out. 28. The appellant-wife filed the petition under section 9 for restitution of conjugal rights stating that her husband Sudhir Bahadur expelled her because she could not procreate a child. She is ready and willing to reside with her husband and perform her conjugal duties. Therefore, she prayed to pass the decree of restitution of conjugal rights in her favour. She deposed that her husband alleged a false imputation that she is unable to procreate a child and she had bad behaviour with her husband and his relatives. Her husband without reasonable cause deserted her. Sudhir Narayan (DW1) in his cross-examination deposed that they had no issue because Smt. Bharti was unable to procreate a child. He made to her best treatment for procreation of children but no positive result came out. After her leaving from his house he did not make any effective efforts for her return.He admitted that his wife Smt. Bharti is unable to procreate the child so he is not willing to resume their matrimonial life. 29. Where a wife is compelled to leave her matrimonial house on imputation that she is unable to procreate a child and husband did not make an effort for return of his wife back to her matrimonial house in that case before passing a decree for restitution of conjugal rights between the parties, the Court must satisfy itself beyond reasonable doubts that the respondent-husband has without reasonable excuse withdrawn from the society of his wife. In that view of the matter, if a decree of conjugal rights is passed in favour of the appellant, where due to differences between the parties on account of non-procreation of children are so grave that the union of the parties does not seem possible, the Court has to consider the matter in its entirety. 30. In Sneh Prabha v. Ravinder Kumar [ AIR 1995 SC 2170 =1995 AIR SCW 3375], the Hon’ble apex Court held : “During that period efforts were made by this Court on several occasions to have the differences between the parties settled but with no success. At one point of time the parties had started living together as a result of conciliation by this Court and a daughter was born during that period but again they separated and there seems to be no chance of their living together. We have also tried to persuade the parties to live together, specially for the sake of their two grown up daughters, but there seems to be no possibility of their living together. Since the decree of restitution of conjugal rights has not been executed.” 31. Hence, in the light of the present scenario of the case, we find that the parties to the marriage are living separately for a long time and the possibility of union of parties is rare and therefore in that situation, a decree of restitution of conjugal rights would not be fruitful. However, the following human aspects which this Court should consider : (i) The appellant was 20 years of age when she got married. The marriage lasted for few years only when she was compelled to leave the matrimonial home; (ii) The parties have been living separately since 2000. Seven years have elapsed when they have never seen each other; (iii) When the husband has crossed the point of no return, a workable solution is certainly not possible; (iv) Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream; (v) Parties have been fighting the legal battle from the year 2007; (vi) The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife. 32. In this context, we affirm the judgment of the trial/Family Court. 32. In this context, we affirm the judgment of the trial/Family Court. The appeal filed by the appellant for grant of decree for conjugal rights under section 9 of the Act is dismissed. Simultaneously, the appeal filed by respondent-husband for annulment of marriage under section 12(1)(b) read with section 5(ii)(b) of the Act by seeking a decree of divorce on the ground of desertion under section 13(1)(ib) of the Act is also dismissed. However, considering the background facts of the case, a decree for judicial separation on the ground of desertion enumerated in section 10(1) of the Act, as an alternative relief, which provided in section 13A of the Act is granted. The parties shall bear their own expenses.