IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.K. ABDUL REHIM & R. NARAYANA PISHARADI, JJ.
Mat.Appeal No.491 of 2018
Dated this the 1st day of August, 2018
AGAINST THE JUDGMENT IN OP 1971/2017 of FAMILY COURT, THRISSUR DATED 28-02-2018
APPELLANT / PETITIONER : SANU
BY ADVS.SRI.NOBEL RAJU SRI.C.R.JAYAKUMAR SMT.P.K.VINAYA
RESPONDENT / RESPONDENT : SANDEEP
R1 BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)
J U D G M E N T
R. Narayana Pisharadi, J.
The appellant is the wife and the respondent is the husband. The challenge in this appeal is directed against the order passed by the Family Court, Thrissur dismissing O.P.No.1971 of 2017 filed by the appellant.
2. O.P.No.1971 of 2017 was filed by the appellant under Section 12(1)(a) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) for granting a decree of declaration that her marriage with the respondent is null and void. Her plea was that her marriage with the respondent was solemnised on 10.04.2017, but they lived together only for five days and that the marriage was not consummated because the respondent had no inclination towards her.
3. The respondent was set ex parte in the case before the Family Court. The appellant filed affidavit in lieu of oral evidence. The Family Court found that there is no plea raised by the appellant that the marriage was not consummated for the reason that the respondent was impotent and therefore, the ingredients of Section 12(1)(a) of the Act were not satisfied. Accordingly the Family Court dismissed the case.
4. We have heard the learned counsel for the appellant and also the respondent.
5. During pendency of the appeal, the parties herein have filed a joint petition as I.A.No.2445 of 2018 under Section 13B of the Act for dissolution of marriage by a decree of divorce. They have also filed an application as I.A.No.2446 of 2018 for waiving the period of six months which is provided under Section 13B(2) of the Act.
6. In Amardeep Singh v. Harveen Kaur, AIR 2017 SC 4417, the Supreme Court has held as follows:
18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA, Rule 3, CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to re-unite the parties have failed and there is no likelihood of success in that direction by any further efforts; iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; iv) the waiting period will only prolong their agony.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.”
7. In the instant case, the marriage between the appellant and the respondent was solemnised on 10.04.2017. They are living separately from the date 15.04.2017. The application under Section 13B of the Act was filed on 12.07.2018. Therefore, it is evident that a period of one year and six months has not been completed from the date on which the parties are living separately and that the first condition mentioned above in Amardeep Singh (supra) is not satisfied . Therefore, we have no other option but to dismiss the applications I.A.Nos.2445 of 2018 and 2446 of 2018. We do so.
8. However, the respondent has filed an affidavit before this Court on 19.07.2018 admitting that he was impotent towards the appellant and he failed to perform his duties towards her as a husband. The second paragraph of this affidavit filed by the respondent reads as follows:
“I got married with the appellant on 10.04.2017 as per Hindu Customs and rituals. It is submitted that though the marriage was arranged one, we could not consummate our marriage since I was impotent towards the appellant and failed to perform my duty as husband in this regard. I admit my relative impotency towards the appellant as contended by the appellant.”
9. Section 12(1)(a) of the Act reads as follows:
12. Voidable marriages.- (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;”
10. A bare perusal of the aforesaid provision would show that mere non-consummation of marriage is not sufficient for granting a decree for annulment of marriage. Non-consummation of marriage shall be due to the impotence of either spouse.
11. A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility (See Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari, AIR 1970 SC 137). Incapacity for sexual intercourse is an essential ingredient of impotency. Impotency in the law of divorce means incapacity to perform the act of sexual intercourse, that is to say, inability to copulate. Impotency is the lack of ability to perform full and complete sexual intercourse. Such an inability may arise from a variety of causes including mental and physical disability. When a husband abstains from or fails to attempt intercourse with his wife, the inference of incapacity is even stronger, and the onus is on him to rebut that presumption (See Jagdish Kumar v. Sita Devi, AIR 1963 Punjab 114). Invincible and persistent repugnancy on the part of the spouse to the act of consummation amounts to impotency (See Rangaswami v. Aravindammal, AIR 1957 Mad 243). Impotency means physical or psychological and incurable incapacity to consummate the marriage. It means the incapacity to perform full and natural intercourse. It may be due to an organic defect or due to invincible repugnance or hatred for 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. It may be pathological or psychological, permanent or temporary (See Beena v. Varghese, 2000 (1) KLT 684).
12. In the instant case, what is admitted by the respondent is “relative impotency”. What is meant by the expression “relative impotency”? Simply stated, relative impotency denotes a situation where a person is incapable of sexual intercourse with a particular person though he/she is capable of normal sexual intercourse with another person. A person may generally be capable of performing sexual act yet he may be incapable of it vis-a-vis a particular person. The incapability may be either physical or mental. It sometimes happens that a person is capable of having sexual intercourse, but incapable of performing it with the particular individual. In such a case the person must be regarded as impotent in relation to that particular individual regardless of his potency in general. It is possible that a man is impotent in respect of one woman though he can perform sexual act with other women. A man may be impotent vis-a-vis his wife, though he may not be impotent vis-a-vis to any other woman.
13. Relative impotency is a ground recognised by the courts to annul the marriage (See Suprabha Joel v. Joel Soloman : AIR 1997 Bom 171, Vandana Subhash v. Subhash Benjamin: 1(1995) DMC 183, Vincent Adolf v. Jume Beatrice : AIR 1985 Bom 103, Kamla v. Jagdish Prasad: MANU/RH/0464/1985, Shantabai alias Gourabai v. Tarachand: AIR 1966 MP 8, Bawi v. Nath: AIR 1970 J&K 130 and Suvarna v. G.M. Achary : AIR 1979 AP 169).
14. The appellant has pleaded and proved that the parties lived together only for a period of five days after the marriage. She has also pleaded and proved that the marriage was not consummated as the respondent had no inclination towards her. Now, the respondent has admitted that he was impotent qua the appellant. In these circumstances, it appears that there is sufficient evidence to find that the marriage between the appellant and the respondent was not consummated due to the relative impotency of the respondent. Therefore, a decree for annulment of marriage can be granted in the case.
15. We are conscious of the fact that we have deviated from the normal procedure in deciding an appeal. Normally, an appeal shall be decided by the appellate court by re-appreciating the evidence adduced by the parties in the trial court and the appellate court shall reach an independent conclusion on the basis of such evidence. However, in the special facts and circumstances of this case, we would be justified in deviating from the normal procedure by relying upon the contents of the affidavit filed by the respondent before this court to grant a decree for annulment of marriage. The parties have been living separately from 15.04.2017 onwards. It is an admitted fact that there was non-consummation of marriage. Marriage without sex is an anathema (See Rita v. Balkrishan : AIR 1973 Delhi 200). There is no point in prolonging the agony of the parties by remanding the case to the trial court to give opportunity to the parties to adduce further evidence in the case. We also take note of the fact that the parties had filed a joint petition under Section 13B of the Act, but we have dismissed the application purely on technical grounds. It is an admitted position that the relationship of the appellant and the respondent has irretrievably broken down. There is no need to prolong the agony of the parties.
16. Consequently, we allow the appeal and set aside the impugned order passed by the lower court. The marriage between the appellant and the respondent is annulled under Section 12(1)(a) of the Hindu Marriage Act, 1955 by declaring it as null and void.
The parties shall suffer their respective costs in the appeal.