IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.K. ABDUL REHIM & R. NARAYANA PISHARADI, JJ.
Mat.Appeal No.491 of 2018
Dated this a 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 a mother and a respondent is a husband. The defence in this interest is destined opposite a sequence upheld by a Family Court, Thrissur dismissing O.P.No.1971 of 2017 filed by a appellant.
2. O.P.No.1971 of 2017 was filed by a appellant underneath Section 12(1)(a) of a Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) for extenuation a direct of stipulation that her matrimony with a respondent is nothing and void. Her defence was that her matrimony with a respondent was solemnised on 10.04.2017, nonetheless they lived together usually for 5 days and that a matrimony was not done given a respondent had no desire towards her.
3. The respondent was set ex parte in a box before a Family Court. The appellant filed confirmation in lieu of verbal evidence. The Family Court found that there is no defence lifted by a appellant that a matrimony was not done for a reason that a respondent was insufficient and therefore, a mixture of Section 12(1)(a) of a Act were not satisfied. Accordingly a Family Court discharged a case.
4. We have listened a schooled warn for a appellant and also a respondent.
5. During pendency of a appeal, a parties herein have filed a corner petition as I.A.No.2445 of 2018 underneath Section 13B of a Act for retraction of matrimony by a direct of divorce. They have also filed an focus as I.A.No.2446 of 2018 for waiving a duration of 6 months that is supposing underneath Section 13B(2) of a Act.
6. In Amardeep Singh v. Harveen Kaur, AIR 2017 SC 4417, a Supreme Court has hold as follows:
18. Applying a above to a benefaction situation, we are of a perspective that where a Court traffic with a matter is confident that a box is done out to relinquish a orthodox duration underneath Section 13-B(2), it can do so after deliberation a following: i) a orthodox duration of 6 months specified in Section 13-B(2), in serve to a orthodox duration of one year underneath Section 13-B(1) of subdivision of parties is already over before a initial suit itself; ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA, Rule 3, CPC/Section 23(2) of a Act/Section 9 of a Family Courts Act to re-unite a parties have unsuccessful and there is no odds of success in that instruction by any serve efforts; iii) a parties have honestly staid their differences including alimony, control of child or any other tentative issues between a parties; iv) a watchful duration will usually lengthen their agony.
19. The waiver focus can be filed one week after a initial suit giving reasons for a request for waiver.
20. If a above conditions are satisfied, a waiver of a watchful duration for a second suit will be in a choice of a endangered Court.”
7. In a present case, a matrimony between a appellant and a respondent was solemnised on 10.04.2017. They are vital alone from a date 15.04.2017. The focus underneath Section 13B of a Act was filed on 12.07.2018. Therefore, it is clear that a duration of one year and 6 months has not been finished from a date on that a parties are vital alone and that a initial condition mentioned above in Amardeep Singh (supra) is not confident . Therefore, we have no other choice nonetheless to boot a applications I.A.Nos.2445 of 2018 and 2446 of 2018. We do so.
8. However, a respondent has filed an confirmation before this Court on 19.07.2018 revelation that he was insufficient towards a appellant and he unsuccessful to perform his duties towards her as a husband. The second divide of this confirmation filed by a respondent reads as follows:
“I got married with a appellant on 10.04.2017 as per Hindu Customs and rituals. It is submitted that nonetheless a matrimony was organised one, we could not unqualified a matrimony given we was insufficient towards a appellant and unsuccessful to perform my avocation as father in this regard. we acknowledge my relations impotency towards a appellant as contended by a appellant.”
9. Section 12(1)(a) of a Act reads as follows:
12. Voidable marriages.- (1) Any matrimony solemnised, possibly before or after a derivation of this Act, shall be voidable and might be annulled by a direct of zip on any of a following grounds, namely:-
(a) that a matrimony has not been done overdue to a unfitness of a respondent;”
10. A unclothed examination of a aforesaid sustenance would uncover that small non-consummation of matrimony is not sufficient for extenuation a direct for nullification of marriage. Non-consummation of matrimony shall be due to a unfitness of possibly spouse.
11. A celebration is insufficient if his or her mental or earthy condition creates realisation of a matrimony a unsentimental stupidity (See Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari, AIR 1970 SC 137). Incapacity for passionate retort is an essential partial of impotency. Impotency in a law of divorce means inability to perform a act of passionate intercourse, that is to say, inability to copulate. Impotency is a miss of ability to perform full and finish passionate intercourse. Such an inability might arise from a accumulation of causes including mental and earthy disability. When a father abstains from or fails to try retort with his wife, a deduction of inability is even stronger, and a responsibility is on him to plead that hypothesis (See Jagdish Kumar v. Sita Devi, AIR 1963 Punjab 114). Invincible and determined repugnancy on a partial of a associate to a act of realisation amounts to impotency (See Rangaswami v. Aravindammal, AIR 1957 Mad 243). Impotency means earthy or psychological and incorrigible inability to unqualified a marriage. It means a inability to perform full and healthy intercourse. It might be due to an organic forsake or due to godlike detestation or loathing for passionate intercourse. It need not be due to earthy inability and might be caused by a mental or earthy condition that would describe normal retort impossible. It might be pathological or psychological, permanent or proxy (See Beena v. Varghese, 2000 (1) KLT 684).
12. In a present case, what is certified by a respondent is “relative impotency”. What is meant by a countenance “relative impotency”? Simply stated, relations impotency denotes a conditions where a chairman is unqualified of passionate retort with a sold chairman nonetheless he/she is able of normal passionate retort with another person. A chairman might generally be able of behaving passionate act nonetheless he might be unqualified of it vis-a-vis a sold person. The incompetence might be possibly earthy or mental. It infrequently happens that a chairman is able of carrying passionate intercourse, nonetheless unqualified of behaving it with a sold individual. In such a box a chairman contingency be regarded as insufficient in propinquity to that sold sold regardless of his potential in general. It is probable that a male is insufficient in honour of one lady nonetheless he can perform passionate act with other women. A male might be insufficient vis-a-vis his wife, nonetheless he might not be insufficient vis-a-vis to any other woman.
13. Relative impotency is a belligerent recognized by a courts to cancel a matrimony (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 valid that a parties lived together usually for a duration of 5 days after a marriage. She has also pleaded and valid that a matrimony was not done as a respondent had no desire towards her. Now, a respondent has certified that he was insufficient qua a appellant. In these circumstances, it appears that there is sufficient justification to find that a matrimony between a appellant and a respondent was not done due to a relations impotency of a respondent. Therefore, a direct for nullification of matrimony can be postulated in a case.
15. We are unwavering of a fact that we have deviated from a normal procession in determining an appeal. Normally, an interest shall be motionless by a appellate justice by re-appreciating a justification adduced by a parties in a hearing justice and a appellate justice shall strech an eccentric end on a basement of such evidence. However, in a special contribution and resources of this case, we would be fit in devious from a normal procession by relying on a essence of a confirmation filed by a respondent before this justice to extend a direct for nullification of marriage. The parties have been vital alone from 15.04.2017 onwards. It is an certified fact that there was non-consummation of marriage. Marriage though sex is an aversion (See Rita v. Balkrishan : AIR 1973 Delhi 200). There is no indicate in prolonging a anguish of a parties by remanding a box to a hearing justice to give event to a parties to cite serve justification in a case. We also take note of a fact that a parties had filed a corner petition underneath Section 13B of a Act, nonetheless we have discharged a focus quite on technical grounds. It is an certified position that a attribute of a appellant and a respondent has irretrievably damaged down. There is no need to lengthen a anguish of a parties.
16. Consequently, we concede a interest and set aside a impugned sequence upheld by a reduce court. The matrimony between a appellant and a respondent is annulled underneath Section 12(1)(a) of a Hindu Marriage Act, 1955 by dogmatic it as nothing and void.
The parties shall humour their particular costs in a appeal.