IMPOTANCY AS A GROUND FOR DIVORCE
What is marriage ?
24.1 Marriage as Sacrament -- "Probably, no other people have endeavoured to idealize the institution of marriage as the Hindus have done. Even in the patriarchal society of the Rig Vedic Hindus, marriage was considered as a sacramental union. And it continued to be so in the entire Hindu period, and even in our contemporary world most Hindus regard their marriage as a sacrament. We find the following passage in the Manu Smruti :
I hold your hand for Saubhagya (good luck) that you may grow old with your husband, you are given me by the just, the creator, the wise and by the learned people.
24.2 Manu enjoins on the wife that she should become a paturnuvrate i.e., she should follow the same principles as her husband. According to the Rig Veda :
Be thou mother of heroic children, devoted to the Gods, be thou queen in the father-in-law's household. May all Gods unite the hearts of us two into one.
24.3 Wife is also ardhangini (half of Man). According to the Saptatha Brahmana. The wife is the half of the husband. "Man is only half, not complete till he marries." The Taittiriya Samhatta is to the same effect, "half is she of the husband that is wife". From this notion of unity of" personality of husband and the wife, mutual fidelity of husband and wife is implied. Manu declared that mutual fidelity between husband and wife is the highest dharma. Manu further said that once a man and woman are united in marriage, they must see that there is no difference between them, and that they remain faithful to each other.Gujarat High Court Jyotsnaben Ratilal vs Pravinchandra Tulsidas on 18 January, 2003
Equivalent citations: AIR 2003 Guj 222, (2003) 2 GLR 1395 b
26. What is meant by impotent:
Impotence means the incapacity to perform full and natural sexual intercourse. It may be due to an organic defect or due to invincible repugnance or hatred for sexual intercourse in general or with reference to a particular person or due to some loathsome and incurable disease like syphilis which incapacitates the individual from having sexual intercourse. It need not be due to physical incapacity and may be caused by the mental or physical condition which would render normal intercourse impossible though such mental condition may not amount to unsoundness of mind, insanity or idiocy."
(Re.Mayne's Hindu Law & Usage, 13th Edition, at Page 207)
27. "A person is impotent if his physical or mental condition makes consummation of marriage a practical impossibility. Impotency may arise on account of physical defect or mental condition such as total repugnance to be sexual act. It may be well arise qua a person qua the other spouse quoad hune or hane. In other words, invincible and persistent repugnancy on the part of the respondent to the act of consummation amounts to impotency."
(Re. : Paras Diwan "Law of Marriage and Divorce, 4th Edition. Page No.
286.)
27.1 Impotency : Non-consummation of Marriage owing to Impotence under Modern Law.
"In the modern law there is still a controversy on the question whether the marriage of impotent person should be null and void or merely voidable. The reason seems to be this : Just as under Hindu law so under some other systems, impotency related to the physical capacity of the parties or incapacity to consummate the marriage, and if this capacity was lacking marriage was treated as null and void. The notion was that if at the time the solemnization of the marriage any party lacked capacity to consummate the marriage, no marriage could come into existence. In short, the physical capacity was as much a basic requirement or marriage as mental capacity."
(Ref. Page 285 Paras Diwan, "Law of Marriage and Divorce" 4th Edition.
27.2 "A party is impotent of his or her physical or mental makes consummation of marriage a practical impossibility, invincible and persistent repugnancy on the part of the respondent to act of consummation amounts to impotency? Impotency means inability to perform sexual act or inability to consummate the marriage."
Gujarat High Court
Jyotsnaben Ratilal vs Pravinchandra Tulsidas on 18 January, 2003
Equivalent citations: AIR 2003 Guj 222, (2003) 2 GLR 1395 b
Essential Ingredient of Impotency
"The essential ingredient of impotency is the incapacity for accomplishing the act of sexual inter course and in the context it means not partial or imperfect, but a normal and complete coltus. This incapacity may arise either from a structural defect in the organs of generation which is incurable and renders complete sexual intercourse impracticable or from some incurable mental or moral disability vis-a-vis the other spouse resulting in inability to consummate marriage."
Gujarat High Court
Jyotsnaben Ratilal vs Pravinchandra Tulsidas on 18 January, 2003
Equivalent citations: AIR 2003 Guj 222, (2003) 2 GLR 1395 b
In the case of Rita Nijhawan v. Balkrishan Nijhawan, AIR 1973 Delhi 200 wherein honorable court held " It is well settled that imperfect and partial Intercourse would not amount to consummation of marriage."
Punjab-Haryana High Court Amar Jit vs Sunder Lal on 25 May, 1989
Equivalent citations: I (1990) DMC 68 wherein it was held "
7. It is settled law that while a person may be potent, he may be impotent qua a particular woman. In this case, assuming that the husband is potent, since he was not able to have sexual intercourse with his wife for five days soon after marriage, in spite of having access to her and opportunity to do so, it clearly goes to show that he is atleast impotent qua his wife Smt. Amarjit."
Hindu Marriage Act, 1955. Section 5 of the Hindu Marriage Act, 1955 provides conditions for solemnization of marriage between Hindus which reads as follows: -
. Conditions for a Hindu marriage.-
A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(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; or
(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
9. As per Section 7 of the Hindu Marriage Act, 1955, a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and if such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. A Hindu marriage under the Act must be solemnized in accordance with the customary rites and ceremonies of at least one of the two parties thereto.
10. Marriage solemnized contrary to clauses (i), (iv) & (v) of Section 5 of the Hindu Marriage Act, 1955 is void marriage in accordance with Section 11 of the Hindu Marriage Act, 1955. Section 12 of the Hindu Marriage Act, 1955 provides the marriages which are voidable. Section 12 of the Hindu Marriage Act, 1955 reads as follows: -
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:--
(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 was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 to 1978), the consent of such guardian was obtained by force 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.
(2) Notwithstanding anything contained in sub- section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
11. If the marriage is solemnized in violation of clause (iii) of Section 5 of the Hindu Marriage Act, 1955, same may be repudiatable at the instance of bride who has not completed the age of fifteen years at the time of her marriage in accordance with clause (iv) of sub-section (2) of Section 13 of the Hindu Marriage Act, 1955. Clause (iv) of sub-section (2) of Section 13 of the Hindu Marriage Act, 1955 reads thus,
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,--
(i) *** *** ***
(ii) *** *** ***
(iii) *** *** ***
(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 (68 of 1976)."
In case of marriage of bride who has not attained the age of 15 years at the time of her marriage, she has right to repudiate her marriage, even after consummation, after attaining that age but before attaining the age of 18 years.
25. Section 12, prior to its amendment in 1976, stated that the respondent was impotent at the time of the marriage and continued to be so until the Institution of proceeding. By the Amending Act of 1976 the substituted clause emphasises the element of non-consummation of the marriage owing to the impotence of the respondent. Medical evidence may establish that the petitioner wife has remained a virgin and the Court may presume that the requirements of the amended clause are satisfied. Clause (a) of Sub-section (1) makes it abundantly clear that a marriage solemnized whether before or after the commencement of the Act is voidable at the instance of either party on the ground of non-consummation of the same due to the Impotence of the other party to the marriage and may be annulled by a decree of nullity of marriage. The marriage of a female with a male who was impotent and who had not been able to consummate the marriage is a nullity.
Question of Delay
Delhi High Court in the case of Vinod Chandra Dube v. Smt. Aruna Dube, reported in AIR 1977 Delhi 24, wherein at Page 28, Para 32 it is observed as under :
"It is true that delay had to be explained by the petitioner before he could be granted relief. The onus of proving that delay is inexcusable is on the respondent to the petition who seeks to get it dismissed. In cases where the respondent is ex parte the Court may itself make the objection in obvious cases. But what seems to have happened in this case is that question of delay attracted the attention of the learned Judge when he was preparing the judgment and not earlier. He, therefore, dismissed the petition."
UNDER CONSTRUCTION.....................