Impotence is inability to consummate the marriage and to be a ground for nullity, such inability must exist at the time of marriage and continue to exist at the time of the institution of the suit

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : HINDU MARRIAGE ACT
FAO 581/2002 & CM 1377/2002
Date of Decision: May 7, 2013
RAVI LUTHRA ….. Appellant
Through : Mr.I.P.Singh, Advocate
versus
REKHA ….. Respondent
Through : Mr.S.K.Duggal, Advocate
CORAM:
HON’BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.
1. Present is an appeal under Section 28 of the Hindu Marriage Act
(hereinafter referred to as `the HMA’) filed by the appellant/husband against
the impugned judgment/decree dated 9th September, 2002 by which the
petition of the respondent/wife under section 12(1)(a) of the HMA has been
decreed and the marriage between the parties has been annulled by a decree
of nullity on the ground of impotency of the appellant/husband.
2. Briefly the facts relevant for the disposal of the appeal are as under:-
The marriage between the parties was solemnized on 11th February,
1997 at Delhi according to Hindu rites and ceremonies. At the time of
marriage, respondent/wife was 23 years of age and appellant/husband was
34 years of age. Respondent/wife had alleged that her marriage was not
consummated due to impotency of the appellant/husband. It was alleged
that on the first night of marriage, respondent/wife fully cooperate with
appellant but because of feeble erection in the male organ he could not
consummate the marriage. Thereupon, appellant/husband started saying
that he was feeling tired and then parties went to sleep. In the morning, the respondent/wife enquired from him as to why he could not do the sexual
intercourse. The appellant/husband replied that it was a new experience for
him and that everything would be all right in due course of time. The same
thing was repeated for about a week and the appellant continued giving
assurances to respondent/wife that everything would be alright in due course
of time. For full one week, the appellant/husband could not consummate the
marriage owing to his impotence. It was alleged that appellant/husband was
able to produce only a very feeble erection and some little ejaculation
without penetration and then it would be followed by complete collapse
leaving behind a trial of agony and frustration for the respondent/wife. It
was alleged that on 17th February, 1997, respondent/wife had told her elder
sister Seema that appellant was not able to consummate the marriage who in
turn had told the same to her mother. Both of them advised her to have
patience and to wait for few more days.
3. On 14th March, 1997, appellant/husband went for tour and returned
back on 30th March, 1997. Even thereafter there was no consummation of
marriage and appellant/husband had assured that everything would be all
right and he would get himself treated. She had further alleged that on 5th
April, 1997, appellant/husband had picked up a quarrel with the respondent
without any reason. On 8th April, 1997, respondent/wife was dropped at her
parental home. It was alleged that appellant/husband again went to tour and
came back on 15th April, 1997. On 18th April, 1997, they had gone to
Vaishno Devi. On 21st April, 1997, they had come down to Jammu where
appellant had quarreled with her. On 23rd April, 1997, her parents had
taken the respondent with them. It was alleged that during the period
respondent had stayed in the matrimonial home, appellant was not able to
consummate the marriage owing to impotency. The respondent/wife had
prayed for annulment of marriage on the ground of impotency of appellant.
4. The appellant/husband had filed written statement admitting his
marriage with respondent/wife. He had denied the allegations of impotency.
According to him, parties to the marriage were having sexual intercourse
regularly as long as they lived together and the allegations that he was
undergoing treatment was baseless. The appellant had alleged that he had
always been willing to live and stay with the respondent/wife but the
respondent/wife was not willing due to the instigation of her brother-in-law
and other family members.
5. On the pleadings of the parties, following issues were framed:-(i) Whether the marriage between the parties has not been consummated
owing to the impotency of the respondent as alleged?
(ii) Whether the petitioner is entitled to the relief claimed?
(iii) Relief.
6. In support of her case, respondent/wife had examined herself as PW 1,
her mother Smt.Ashok Kumari as PW 2 and Dr.Anil Mehta as PW 3. To
substantiate his defence, appellant/husband had examined himself as RW-1
and his father Shri Tilak Raj Luthra as RW-2.
7. After considering the evidence of the parties and hearing learned
counsel for the parties, the learned Additional District Judge has held that
marriage between the parties was not consummated owing to impotency of
the appellant/husband. Learned Additional District Judge has also observed
that appellant/husband had refused to get himself medically examined and it
was only at the instance of this court that he volunteered himself for medical
examination. Even the medical report Ex.PW 3/1 was against the
appellant/husband. The learned Additional District Judge decreed the
petition under section 12(1)(a) of the HMA.
8. Aggrieved with the same, present appeal is filed.
9. Learned counsel for the appellant/husband has contended that burden
was on the respondent/wife to prove that appellant/husband was impotent.
It is contended that the respondent has failed to discharge the burden. The
stand of the appellant/husband is that their marriage was consummated on
the first night and thereafter it had been consummated so long as
respondent/wife had lived with him. It is contended that respondent/wife
has also filed a criminal case against the appellant/husband on account of
harassment for dowry. It is contended that had the allegations about
impotency been true, she ought to have filed petition under section 12(1)(a)
of the HMA first instead of dowry harassment case. It is contended that
present case is an afterthought. The medical evidence relied upon by the
trial court Ex.PW 3/1 is not proper. It is contended that the method adopted
by the Medical Board of LNJP hospital is not fool proof. It is further
contended that a person’s penile erection is affected by his being in tension
as well and that appellant/husband had told at the time of his medical
examination that he was in tension. It is further contended that appellant/husband was not given enough privacy to demonstrate sustained
penile erection. It is contended that `pipe test’ was not conducted upon
him. It is contended that the said test is the sure test to ascertain impotency.
It is contended that the only evidence on the point is the testimony of
respondent/wife and her mother which cannot be believed being the
interested witnesses.
10. On the other hand, the contention of learned counsel for the
respondent/wife is that respondent/wife in her evidence has narrated in detail
how her marriage had not been consummated. Her evidence on material
points is not shaken in the cross-examination. It is contended that
respondent/wife as well as her mother PW-2 have stated that on 6th May,
1997 a meeting had taken place where mother of appellant/husband was also
present and in the said meeting, appellant/husband had admitted before them
that he was impotent. It is contended that appellant/husband has not denied
that no meeting had taken place. It is contended that ‘pipe test’ as is alleged
is not the sure test. It is further contended that in any event no contention
was ever raised by the appellant/husband at appropriate stage that ‘Pipe
Test’ is a sure test to ascertain impotency. It is contended that
appellant/husband had refused for medical examination before the trial
court. It is contended that evidence of respondent clearly establishes her
case. There is no perversity/illegality in the impugned judgment/decree.
11. The material provision of the Act under which the wife had filed the
application is Section 12(1)(a) of the Act which is as follows:-
“12(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:-
(a) that the respondent was impotent at the time of the marriage and
continued to be so until the institution of the proceeding:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”
12. The Supreme Court in Digvijay Singh Vs.Pratap Umari: (1970)1 SCR
559, while deciding the issue of `Impotency’ has observed as under:-
“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 the marriage and continued to be so until the institution of the
proceedings.”
13. A three Judge Bench of this court in Manjula and S.Desmukh Vs.
Sijresh Deshmukh : AIR 1979 Delhi 93, while deciding matrimonial
reference has discussed the ‘impotency’ as under:-
“19. Impotence is inability to consummate the marriage and to be a ground
for nullity, such inability must exist at the time of marriage and continue to
exist at the time of the institution of the suit. For this purpose sexual
intercourse has been defined as ordinary and complete intercourse, not
partial and imperfect intercourse. If so imperfect as scarcely to be natural, it
is no intercourse at all, but recent cases suggest that modern surgery has
introduced the need of further scrutiny. Though it has been held that full
penetration without ejaculation on at least one occasion amounts to
consummation, but more recently another judge decided that penetration for
a short time. without any ejaculation, did not amount to consummation. See
R.v.R. (otherwise F) (1952) 1 All. E.R. 1194 and W(orsc K) v. W; (1967) 1
W.L.R. 1554 See Latey on Divorce (1973) 15th ed. p. 225.
20. Impotency means incapacity to consummate she marriage. and not
merely incapacity for procreation. The test is consummation and capacity to
consummate.”
14. A Division Bench of Andhra Pradesh in Smt.Suvarna vs.
G.M.Achary: MANU/AP/0090/1979 held that impotency of spouse,
husband, in particular case, vis-à-vis, the other spouse is sufficient. Total
impotency need not be proved.
15. It is admitted position that marriage between the parties was
solemnized on 11.2.1997. The petition for annulment of marriage was filed
on 13.8.1997 i.e. immediately after six months of the marriage. It is also
admitted position that parties are living separately for the past 16 years. The
respondent/wife has categorically deposed that her marriage was never
consummated despite the fact that she has stayed with the appellant for
about 3 months i.e. uptil 23.04.1997. She had spent certain nights
exclusively with the appellant. She has deposed in detail in her evidence as
to how she cooperated with the appellant for having sexual intercourse with
him but the appellant was not in a position to consummate the marriage. She
has also deposed having told the said fact to her sister as well as her mother
few days after the marriage who assured her that everything would be alright with the passage of time. Her mother Smt. Ashok Kumari, PW-2, has also
deposed that the respondent had told her also that the marriage was not
consummated as the appellant was not capable of consummating the
marriage and she advised that she would wait and everything would be
normal after some time. She has also specifically deposed that even on
08.04.1997 respondent had come to her and told that even after 2 months of
marriage it has not been consummated. The respondent/wife in her evidence
has categorically deposed that on 06.05.1997 she along with her mother and
sister had gone to the matrimonial home and had a talk with the mother of
the appellant where respondent was also present wherein the matter was
discussed and appellant had admitted that whatever respondent was saying
was correct. There is no cross-examination of the respondent on above
deposition of respondent. Even her mother Smt. Ashok Kumar PW2 has
also deposed about the meeting having held on 06.05.1997. Even she has
not been cross-examined on the aforesaid aspect of the matter. The
appellant examined himself as RW-1 and in his evidence has deposed that
on 05.5.1997 the mother of the respondent had contacted him and they had
come to his house on the next day. He has not explained in his evidence as
to why the respondent’s mother and brother-in-law had come on the next
date of 05.5.97 or for what purpose they had visited his house. The father of
the respondent that is PW-1 has denied any meeting taken place in his house
on 06.5.97. In these circumstances it cannot be said that appellant and his
father are speaking the truth.
16. The stand of the appellant and his father PW-2 is that the brother in
law of the respondent was the main cause of separation of the parties.
However, they have not given the details in what manner he was
responsible. No specific details have come in their evidence on these serious
allegations. In the written statement it has been alleged that after marriage
when the parties had visited the house of elder sister of the respondent,
respondent had kissed the child of her sister and certain marks of lipstick had
come on the face of the child and on that very place her brother in law had
kissed the child. However, nothing is deposed by the appellant in his
evidence. On the other hand respondent has categorically deposed that she
had stayed with the appellant from 11.02.97 to 23.4.97 and thereafter she
visited her matrimonial home on 06.5.97 where the meeting took place. In
between the appellant had remained on tour also. During the period
appellant had remained with her, despite efforts made their marriage was not
consummated at all due to impotency of the appellant. Her evidence on
material points is not shaken in cross-examination. It may be noticed that respondent is 10th pass and comes from middle class family. She is also not
a earning woman. There is no reason why she would level false allegations
against the appellant. In evidence, appellant and his father RW2 has tried to
take a stand that brother-in-law of respondent is the main cause of
separation. Except making bare allegations there is nothing on record to
substantiate the same.
17. Considering the overall evidence, the evidence of the respondent is
reliable and inspires confidence whereas the evidence of the appellant is
vague. There is no impediment in law for acting upon the evidence of
respondent and her mother though they are interested witnesses. The
contention raised has no force.
Further the evidence of respondent stands corroborated with medical
evidence Ex.PW 3/1 on record i.e. report of medical examination of
appellant by the Medical Board of LNJP hospital which is proved on record
by Dr. Anil Mehra PW3, Chairman of the Board. As per said report,
appellant is not sexually potent.
18. In cross-examination, Dr. Anil Mehra PW3 has stated that the
appellant was given two chances to demonstrate. He has stated that the
penile erection of a person is affected by psycogonic factors such as fear,
anxiety, tension and unfavourable circumstances and lack of privacy. He
has further stated that the appellant volunteered to get himself examined. He
was not under fear. However, he stated that he was under tension. In further
cross-examination, he stated that good privacy such as a room was provided
by curtain partition and toilet was also there. He has further stated that the
curtain partition was there in the room. He has further stated that it was not
necessary to examine the female where male potency was concerned. He
has also stated in the cross-examination that the method adopted was not the
only method to ascertain the potency or impotency of the male. He has
denied the suggestion that he was influenced by the parents of the
respondent. In these circumstances, the contention of the appellant that the
appellant was not given adequate privacy at the time of medical examination
cannot be said to have any force.
19. The other contention of the appellant is that the `pipe test’ is the
conclusive test and the said test was not conducted on him. In this regard it
is noticed that the allegations are of 1997. The respondent had moved an
application for medical-examination of appellant before the learned trial
court on 15.7.1999. Initially, the appellant had refused. His statement dated 27.4.2000 to that effect is there on trial court record. Thereafter, with the
intervention of this court, the respondent had moved an application before
the ld.trial court on 19.11.2001 for his medical examination by referring him
to any hospital. Thereupon the aforesaid application was allowed on
21.12.2001 and the appellant was directed to approach the Medical
Superintendent of L.N.J.P. Hospital for medical examination for his potency
after completion of requisite formalities. It was also ordered that appellant
would get himself identified from respondent after giving her a notice. In
compliance of the said order, the appellant had undergone medicalexamination by the Medical Board consisting of five doctors of aforesaid
hospital vide report dated 2.2.2002. Perusal of trial court record shows that
on 9.8.2002 an application under Order 13 Rule 2 CPC was filed by the
appellant before the learned trial court for taking on record the “Penile
Doppler Study” dated 22.7.2001 i.e. the report of his medical examination
from Apollo Hospital. No explanation was given before the ld. trial court as
to why the alleged report was being filed at belated stage. The said
application was rejected by the trial court vide order dated 9.9.2002 by
observing that no good cause was given for production of said report. In the
present appeal an application under Order 41 Rule 27 of CPC has been filed
for taking into consideration the said report dated 22.7.2001 of Apollo
Hospital and for summoning of the doctor who had examined the petitioner
to prove the said report. In the aforesaid application the reasons given are
that the learned ADJ had taken the copy of report on record and appellant
thought that it would be read in evidence. Later he learnt that report was to
be filed in original and the concerned Doctor had to be summoned for
proving the said report as such the appellant could not do needful before
learned trial court. The reasoning given is contrary to record. Further the
appellant was represented in trial court through an advocate. The reasons
given in the application are not justified one. Further the alleged report of
Apollo Hospital is dated 22.7.2001 whereas the appellant had moved an
application before the learned trial court for his medical examination from
any hospital on 20.11.2001. There is no mention of report of Apollo
Hospital therein. The order of his medical examination from LNJP Hospital
was passed on 22.12.2001. The appellant never brought to the notice of
court that he had already been examined by Apollo Hospital. The report
from LNJP Hospital was received by the learned trial court on 5.2.2002.
Even then he did not inform the court about his alleged medical examination
from Apollo Hospital. No intimation was given to respondent prior to
alleged examination. There is no identification of appellant before the
concerned doctor of Apollo Hospital before his alleged examination. The appellant had been keeping the alleged report for about one year and
thereafter had produced at the stage of final arguments by moving an
application under Order 13 Rule 2 of CPC. In these circumstances, doubt is
created about alleged report. Further, the provision of Order 41 Rule 27
CPC cannot be utilized for filling up lacunas.
20. Assuming the report dated 22.7.2001 of Apollo Hospital is taken into
consideration, that by itself cannot prove that appellant is potent qua the
respondent. It is well settled that a person may be potent in general but he
may be impotent qua a particular woman. In the present case, evidence on
record clearly establishes that appellant has not been able to consummate the
marriage with the respondent, as such, he is held to be impotent qua her.
In view of the above discussion, the appeal stands dismissed.
There is no order as to costs.
Sd/-
VEENA BIRBAL, J
May 7, 2013

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