HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- SECOND APPEAL No. – 239 of 2016
Appellant :- Smt. Sulekha
Respondent :- Ashok Kumar
Hon’ble Pramod Kumar Srivastava,.
Citation:AIR 2016(NOC)452 ALL
1. Heard learned counsel for the parties on admission of second appeal and perused the records.
2. Matrimonial Petition No. 3077/2010, Ashok Kumar v. Smt. Sulekha was filed by husband against his wife for declaring their marriage void. In said petition, it was pleaded that it was arranged marriage when petitioner Ashok Kumar had entered into second matrimony after divorce with his first wife. He married with opposite party Sulekha on 7.1.2010 and thereafter started living with her. But opposite party was not able to have intercourse as her vaginal passage was closed and she was not able consummate marriage and discharge her duties of a wife. In spite of many efforts, physical relationship could not be established between the parties. Before her marriage with petitioner, opposite-party had also married earlier but she had never informed the petitioner about her physical problems and concealed true facts. Therefore, petitioner had filed petition for declaration of their marriage void under Sections 12 (1)(a) and 12 (1)(c) of Hindu Marriage Act.
3. Opposite-party had filed written-statement in original case, in which she pleaded that petitioner is aged about 45 years and had three children from his first wife, he wanted to marry the opposite-party for taking care of his children and for managing house hold affairs. Petitioner had no importance of physical disabilities of opposite-party and of her being able to be mother. Sometimes after marriage, petitioner had started treating her with cruelty. His petition is liable to be dismissed.
4. Trial court had framed issues, accepted evidences of the parties and then court of Additional Civil Judge (Senior Division)[/ Judge Small Cause], Ghaziabad had passed judgment dated 22.5.2013, by which petition for dissolution of marriage was dismissed. Trial court had discussed the fact as to whether opposite-party/wife was able to have physical relationship with petitioner and was able for sexual intercourse. Learned Civil Judge had held that only medical expert opinion can prove as to whether opposite party-wife is able to have physical intercourse or not, and since applicant had not arranged medical examination of opposite party, therefore his statement in that regard cannot be accepted to be true. In absence of such medical examination, his case is not proved that his petition is dismissed.
5. Against the judgment of trial court, petitioner had preferred Civil Appeal No. 129/2013, which was heard and allowed by the judgment dated 23.1.2016 of Additional District Judge, Court No. 7, Ghaziabad. By this judgment, judgment of trial court dated 22.5.2013 was set aside and marriage of parties was annulled. In this judgment, lower appellate court had independently appreciated evidences of the parties and considered this fact that petitioner-husband had made application for medical examination of opposite-party/wife in Gynecology Department of Medical College for examination for ascertaining as to whether she is able to have sexual intercourse in physical relationship or not, but it was the opposite party-wife who had not co-operated and declined such test; so her medical examination could not be performed. Lower appellate court had also appreciated the fact that in written-statement and her statement, the opposite-party/wife had stated that she had informed that before this marriage that she was not able to give birth to children and become mother, but she had not specifically denied that she was unable to have physical sexual relationship. After appreciating the evidences, lower appellate court had held that opposite-party/wife had a blind vagina and was not able to consummate and have physical relationship. It was also held by lower appellate court that although petitioner had knowledge that opposite party was not able to become mother, but he had married for physical comfort, and he had no knowledge of the impotency of his wife. The court had held that being not able to have physical relationship and intercourse, and having blind vagina comes within category of impotence. With these findings, lower appellate court had set aside the findings of trial court, allowed the appeal and annulled the marriage of the parties.
6. Against the judgment of lower appellate court, present second appeal has been preferred by opposite party-wife of the original petition.
7. Learned counsel for the appellant contended that since petitioner-respondent (husband) had already three children from his earlier marriage, so he had re-married only for taking care of his children and not for sexual satisfaction. He also contended that this finding of lower appellate court is incorrect that appellant-wife was not fit for co-habitation because there was no such medical report. He contended that judgment of first appeal is based on presumption and not on facts; therefore appeal should be admitted for being allowed.
8. Learned counsel for the respondent refuted the contentions of the appellant side and contended that the document 27-C of original record is medical certificate which proves that appellant-wife was unable to have physical or sexual relation with her husband-respondent. He also contended that appellant-wife was not sexually fit to perform his duties of a wife, and it is not denied that she had not informed this fact to petitioner-respondent before the marriage. He also argued that during proceedings of the trial court, appellant-wife had refused for getting herself medically examined; then the fact of her impotency and inability in sexual acts could be proved by medical certificates and other evidences, as has been proved. His contention was that there is no error or illegality in judgment of lower appellate court. The finding of fact given by lower appellate court is not infirm or erroneous. Therefore, appeal should be dismissed.
9. A perusal of records reveal that parties are living separately for about several years and there appears no chances of reconciliation and their reunion. In her written-statement, appellant had levelled charges of cruel animal bahaviour as well as of unnatural sexual acts against her husband. Then she had also levelled allegation that during her illness her husband-respondent used to have physical relationship with her sister by using force. Thus, it appears that parties are living separately for more than several years, and after their several wild allegations were inflicted by appellant-wife against her husband-respondent that had worsen the situation and made the possibility of matrimonial relationship impossible.
10. Apart from it, appellant had been trying to prove that her husband-respondent had married with her for taking care of his children and not for physical relationship, and he had not importance for physical inability of appellant to have sexual relations; but these facts could not be proved by her. Even this fact was not specifically pleaded in written-statement of appellant that she was not impotent or had informed the petitioner about her physical disability to consummate.
11. Rules 3, 4 and 5 of Order VIII CPC reads as under:
“3. Denial to be specific– It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
4. Evasive denial– Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance, Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
5. Specific denial– (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :”
12. So far the allegation of impotency of appellant-wife and her inability to have physical and sexual relationship is concerned, this fact is specifically mentioned in petition/plaint but were not specifically denied in written-statement filed by opposite party/appellant. In her statement, opposite-party/appellant had vaguely end evasively denied the facts of petition/plaint on this point, but had nowhere specifically pleaded that she is physically and sexually fit and has been able to makes consummation of the marriage possible, or have sexual relationship with husband. Such non-specific denial technically amounts to admission on part of opposite party-defendant on these points. Rule-3 of Order VIII CPC provides it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. Under Rule-4 such evasive denial shall not be sufficient to be taken up as denial. On this ground alone, main allegation of alleged impotency and inability of appellant to have physical relationship should have been taken to be admitted by the lower court. Absence of specific denial of such facts should be treated as their non-denial and admission. Since there is no pleading of defendant-appellant that she was not impotent or was able to have physical relationship with her husband. There is no averment in her written statement that she had informed petitioner about her physical inability to consummate; therefore, in absence of such pleading her oral evidence could not be accepted on these points.
13. Apart from it, the lower appellate court had considered those points also, which were ignored by trial court. The learned Additional District Judge had considered the facts that request of petitioner-husband for medico legal examination of defendant-wife could not be materialized because of non-cooperation of wife-appellant herself who had declined to undergo such examination. Respondent-husband had given other evidences, which were appreciated by the lower appellate court in light of other circumstances, and on the basis of which finding was given by first appellate court that appellant-wife was not able to have physical relationship with husband, and she is impotent.
14. While the appellant filed the application on the ground that the respondent was impotent and material facts relating to marriage were concealed. The concerning provision of the Act under which the application was filed by the appellant is Section 12(1)(a) and (c) of Hindu Marriage 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; ; or
(b) * * *; 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 of 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;
* * *”
15. In Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari, (1969) 2 SCC 279 Hon’ble Apex Court had held 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.”
16. There is the evidence of the respondent that he went on making attempts on several occasions for consummation of the marriage but had never been successful due to repugnance to the sexual act by appellant due to her physical condition that made consummation impossible. It was never specifically denied in pleading (written-statement) of appellant that the husband was potent and that he had made frequent attempts to consummate the marriage; but could not succeed owing to the physical inability of the wife. Under those circumstances the conclusion to be drawn from the evidence was that the wife’s refusal was due to physical inability of consummation and, as such, the husband was entitled to a decree of nullity. It is evident that the marriage had not been consummated and parties could not cohabit in future also. Therefore the marriage should be annulled for the reason that these people cannot consummate the marriage. The two people should not be tied up together for the rest of their lives in a state of misery.
17. In these circumstances, and also the fact that there has been long separation between the parties, during which appellant had been levelling wild allegations of infidelity on her husband, there appears no possibility of compromise. Such allegations and acts of appellant after their separation amounts to cruelty, which may be a ground of divorce but these grounds surfaced after separation of the parties, but cannot be out rightly ignored at the time of consideration of circumstances.
18. The only question to be determined in this matter was as to whether petitioner-respondent is entitled for relief of annulment of his marriage with respondent on ground of impotency and that his consent for marriage was obtained by fraud as to any material fact or circumstance concerning the respondent. This was not a question of law, but has been a question of fact that can be decided on basis of pleadings evidences, as has been done by lower court. The findings of lower appellate court in this regard are not infirm or perverse. So the same cannot be interfered in second appeal by re-appreciation of evidences.
19. On examination of reasonings recorded by the learned first appellate court in first appeal, I am of the view that its judgment is well reasoned and based upon proper appreciation of entire evidences on record. No perversity or infirmity is found in the finding of fact recorded by the first appellate court to warrant interference through this appeal. No question of law, much less a substantial question of law, is involved in the case before this Court. None of the contentions of learned counsel for the defendant-appellant can be sustained.
20. In view of the above this second appeal is dismissed.
Order Date :- 14.03.2016