IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.508 of 2009

Prakash Kishore, son of Raj Kishore Prasad, resident of village- Chamhera
Rasalpur, P.O. Oriyawa, Police Station- Ekangersarai, District- Nalanda. …. …. Appellant/s

Versus

Smt.Putul Devi, D/o Mahendra Singh, resident of village- Amnaur, Purwari
Patti, P.O. & P.S. Amnaur, District- Saran at Chapra. …. …. Respondent/s

Appearance :
For the Appellant/s : Mr. Ashutosh Kumar
Mr. Nachiketa Jha

For the Respondent/s : Mr.

CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA

ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 15 17-06-2014 No one appears on behalf of the respondent despite Counsel having entered appearance and filed Vakalatnama.

The Appeal assails judgment and decree dated 02.06.2009 of the Principal Judge, Family Court, Nalanda at Biharsharif, dismissing Matrimonial Case No. 55 of 2007 filed by the Appellant seeking divorce from the respondent.

Learned counsel for the Appellant submits that the respondent was impotent. The marriage was therefore never consummated. Continuous denial of sexual relations justifies divorce. The respondent additionally deserted the Appellant since 2007. The non-appearance by the respondent is evidence that she has no more interest in the matter. The marriage has become virtually dead. Divorce should therefore be granted.

The Learned Family Judge held that the Appellant had failed to establish impotency and infertility of the respondent or that she did not have female organs thus incapable of sexual relations. The onus to prove the same lay with the appellant which he had failed to discharge. The two Doctors on whose prescriptions the Appellant sought to rely had not been examined. The respondent had denied being examined by the doctors alleging that the prescriptions were fake and forged. The Appellant had denied to have the respondent medically examined for her physical incapacity to have sexual intercourse even while the respondent had asserted that she had established physical relations with the appellant and was willing for fresh physical examination also.

The parties were married on 18.05.1997. The respondent resided in the matrimonial home for three days. She came back to the matrimonial home after the second marriage in April 1998 and stayed for five days. The Appellant claims denial of physical relations on both occasions. There is nothing on record either in his pleadings or in the evidence/cross examination with regard to any objection taken by him in this regard or that he shared the same with any one close to him. On the contrary, the respondent is acknowledged to have returned to the matrimonial home in March, 2000 and stayed there till September 2000 before returning to her father’s house. During this period also, the Appellant claims to have been denied physical relations but again the pleadings and evidence do not reflect any objection raised by him or shared with another. This becomes important in view of the assertion of the respondent for establishment of physical relations throughout. On 27.04.2007 the respondent was brought back to the matrimonial home by her father. The divorce case was then filed in the year 2007 itself.

To our mind, the conduct of the appellant and the documentary evidence placed by him are sufficient to infer that physical relations were in fact established between the parties on more than one occasion after the marriage. It stands to reason according to prudent and normal human behaviour, and it is difficult to accept that the Appellant had such extraordinary patience to wait for ten long years from his marriage in 1997 till filing of the Divorce Suit in 2007 without demur or having complained against denial of sexual relations, the foundation and bedrock of a marriage, in the hope that one day he would succeed in persuading the respondent.

In his evidence, the Appellant states that his marriage was solemnized forcibly to the respondent because her father was a police official in the District. But in his cross- examination, he admits having married her voluntarily. Even if we were to ignore the fact that the two doctors, Dr. Rajendra Prasad and Dr.(Smt) Neelam Prasad have not been examined and the respondent has denied having been examined by them, the prescriptions issued by them placed by the Appellant as evidence itself demolishes his entire case. The prescription by Dr. Rajendra Prasad who is an MBBS and not a Gynecologist prescribes a blood test and injection in the waist for pain and Dispirin tablets. These having nothing to do with the issue of impotency. There is nothing to suggest that the respondent was examined for whether she had female organs or not, capable and/or incapable of having physical relations. Dr. (Smt) Neelam Prasad is stated to be a Gynecologist and her prescription recording treatment for infertility in a marriage of 1997 completely demolishes the entire case of the Appellant. The appellant urges infertility confusing the same with impotence. Naturally there were physical relations between them but the respondent was unable to conceive. She was then taken for fertility treatment. If there had been no physical relations between them there was no occasion for the appellant to take the respondent for infertility treatment.

Female impotence deals with difficulties women face with sex. It is also referred to as sexual dysfunction. As against men, for whom impotence means an inability to get an erection or maintain it for the desired period of time, impotence in women includes low sexual desire, low arousal, difficulty or inability to reach orgasm and problems with lubrication. If the appellant considered the respondent impotent unable to have physical relations it was a fact especially in his knowledge. The onus therefore lay upon him under Section 106 Of the Indian Evidence Act to prove the same. His refusal to have the respondent medically examined in view of her denial convinces us to draw adverse inference against the appellant. The importance of medical evidence in such cases was noticed in (2003) 4 SCC 493 (Sharda v. Dharmpal) observing as follows :

76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by a spouse against the other spouse seeking divorce on such a ground, is correct or not……”
Denial of sexual relations in a marriage may constitute cruelty by itself as a ground for divorce under Section 13 of the Hindu Marriage Act,1955(hereinafter called the Act) it being the foundation or bedrock of a marriage. But, inability to conceive despite physical relations cannot amount to cruelty and is not one of the grounds under Section 13 for divorce. The application for divorce appears to have been fueled by the respondents inability to conceive. Even otherwise inability to conceive cannot always be exclusively attributable to the female. The appellant has led no evidence for his own medical examination and his ability to procreate. In such cases medical evidence is crucial.

Impotency is a ground under Section 12 (1) (a) of the Act to have a marriage declared voidable and not for divorce.. The onus to prove the same lay on the appellant. His evidence on the contrary itself militates against his plea. In (1969) 2 SCC 279 (Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari) it was observed :

“5…..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.”
Under Section 13 of the Act desertion without reasonable cause can be a ground for divorce if instituted one year after the spouse leaving the matrimonial home. In the present case, the suit for divorce has been filed in 2007 itself when according to the Appellant the parties had last resided together as man and wife on 27.04.2007.

In her written statement, the respondent had contended harassment for dowry and also supported it in her cross-examination. The fact that she may have filed a criminal prosecution under Section 498A I.P.C. only after the institution of the divorce case by the Appellant , in which the cognizance has also been taken and the Appellant is on bail, can not take away the factum of the allegation at this stage. In that background also, it cannot be said that the respondent deserted without reasonable cause.

In the entirety of the present discussion, we find no reason to interfere with the order under Appeal.

The Appeal is dismissed.

(Navin Sinha, J)

Md. Ibrarul/- (Jitendra Mohan Sharma, J)