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Divorce on Nonconsummated Marriage – SC

Supreme Court of India




CITATION: 1970 AIR  137   1970 SCR  (1) 559  1969 SCC  (2) 279

ACT : Hindu  Marriage Act 1955 (Act 25 of 1955), s.  12-Conditions for  divorce on grounds of impotence, invincible  repugnance to  sexual act and inability to consummate  marriage  though neither party proved impotent.

HEADNOTE : The  appellant married the respondent according  to  Hindu rites  on  April  20, 1955.  Thereafter  the  parties  lived together   for three  years  but  the marriage   was  not consummated.  The appellant filed an application before  the District Judge at Delhi on March 15, 1960 under s. 12 of the Hindu Marriage Act, 1955, praying that the marriage  between himself and his wife, the respondent, being voidable may  be annulled  by a decree of nullity.  He averred that his wife had  an invincible and persistent repugnance to the  act  of consummation and that she was impotent.  The District  Judge and  later  the High Court concurrently found  that  neither impotence  nor invincible and persistent repugnance  to  the sexual act were proved against the respondent.  In  further appeal to this Court,

HELD  :  (i)  Though  it is not  usual for  this  Court  to interfere on questions of fact, nevertheless, if the  Courts below ignore or misconstrue important pieces of evidence  in arriving  at  a  finding,  such  finding  is  liable  to  be interfered with by this Court. [563 B] Earnest  John White v. Kathleen Olive White,  [1958]  S.C.R. 1410, referred to.

However  in  the instant case the Courts below has  neither ignored nor mis-construed important pieces of evidence when they  came  to the conclusion that  the  appellants  case, regarding  the impotency of the respondent,  could  not  be believed. [563 C]

(ii)The case of G.v.G. L.R. (1924) A.C. 3491 could not help the  appellant in the face of the High Courts finding that invincible repugnance to the sexual act on the part of the respondent was not proved. [563 G-564 A]
(iii)The  case of G.v.G. [L.R. (1912) P.D.  173  also, could  not  help  the appellant.  In  that  case  the  Court without going into the question which party was impotent was satisfied  that  the  couple  could  not  consummate   their marriage  in the present or in the future and should not  be tied up together for their lives in misery.  The position in the  present  case was entirely different.  Neither  of  the Courts below  had  found that the  marriage  could  not  be consummated  in  future and they had not also  accepted  the appellants plea that the respondent had always resisted his attempts to consummate the marriage. [564 B-564 E] The appeal must accordingly be dismissed.


CIVIL APPELLATE JURISDICTION: Civil Appeal No. 905 of  1968.
Appeal by special leave from the judgment and order dated  – August 25,  1966 of the Punjab High Court  (Circuit  Bench) Delhi in F.A.0. 132-D of 1961.

I.   N. Shroff and Anand Prakash, for the appellant.
S.   T.  Desai I. M. Lal, S. R. Agarwal, Champat Rai and  E.C. Agarwal, for the respondent.

The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, is  directed against  the judgment dated August 25, 1966 of the  Circuit Bench -of the High Court of Punjab at New Delhi,  confirming the  judgment of the District Judge, Delhi,  dismissing  the petition  filed  by the appellant under s. 12 of  the  Hindu Marriage Act, 1955 (Act XXV of 1955) (hereinafter called the Act).

At the conclusion of the hearing of this appeal on April 28, 1969  we had indicated our conclusion that  no interference with the judgment of the High Court was called for and that the appeal is dismissed without any order as to costs.  The detailed  reasons for our decision were to be  given  later. Accordingly  we  hereby give our reasons for coming  to  the said conclusion.

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The appellant had married the respondent according to  Hindu -rites on April 20, 1955.  After the marriage the  parties lived together for about three years at various places such as  Delhi,  Alwar, Bombay and Europe and, according  to  the appellant,   during  this  period  the marriage   was  not consummated.  The appellant filed an application before  the District  Judge at Delhi, on March 15, 1960 under s.  12  of the  Act praying that the marriage between himself  and  his wife,  the respondent, being voidable, may be annulled by  a decree of nullity.  In brief, the case of the appellant  was that  since  his marriage he had made frequent attempts  to consummate  it,  but, due to an  invincible  and  persistent repugnance  on the  part of the respondent to the  act  of consummation, he had failed to achieve it and, as such,  the marriage  had  remained unconsummated. He  further  averred that  his wife, the respondent, was impotent at the time  of the marriage and continued to be so until the filing of  his petition.  According to him the impotency of the  respondent was responsible for the non,consummation of the marriage. The  respondent-wife  contested the application  on  various grounds.   She emphatically denied that she had  shown  any repugnance whatever to the act of consummation of  marriage. She further stated that she had lived with the appellant for about three years and had also accompanied him on his  visit to England and the  Continent and, during that period she was always  ready and  prepared to give full access to the, petitioner to  her person for  consummating the  marriage.   She specifically averred  that the consummation could not take place  because the appellant was suffering from some physical disability or impotency   and   that he  never  made   any attempt   at consummation. She repudiated the allegation that  she  was either impotent at the time of the marriage of that she  was impotent at the time of institution of the proceedings.  She reiterated that the appellant was physically and emotionally unable to consummate the marriage and he had made  a  false excuse of impotency of the wife as being the cause for non- consummation  of the marriage. She further stated that  the appellant   was  physically  and  sexually   impotent and, consequently, unable to perform the normal sexual  functions and,   in  view  of  this,  he had  never   expressed  his willingness, by his conduct or behaviour, to consummate  the marriage,  even  though  the parties lived  together  for  a number of years and had occupied the same bed in  the same room.

It will therefore be seen that while the appellant filed the application on the ground that the respondent was  impotent, the  respondent,  in  turn,  had alleged  that it  was  the appellant  who was impotent.  The material provision of  the Act  under which the application was filed by the  appellant is s. 12(1) (a) 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;

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.

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Both the appellant and the respondent have been examined  by doctors and their oral evidence and reports are on record.

Though the  impotency of the appellant  does  not  strictly arise  for  consideration  in  a  petition  filed  by him, nevertheless  the  trial Court framed issues  even  in that regard : Issues Nos.  1 and 2, which are material,  are  as follows :        1. Whether the respondent was impotent at the        time  of the marriage and has continued to  be        so till the filing of the present petition ?        2.Is    the   petitioner  impotent    and        consequently  unable  to perform  the  normal        sexual  function with the respondent ? If  so,        what is the effect thereof ?

The  learned  District Judge, after a consideration  of  the evidence  on record, ultimately held that the appellant  had failed to prove that the respondent was at any time impotent and, as such, decided issue No. 1 against the appellant.  He further  held, on issue –No. 2 that the facts of the  case, on  the  contrary, showed that because of some physical  or psychological  cause, it was the appellant who was not able to  consummate the marriage with the respondent.   In this view  the  petition  filed  by the  husband-appellant  was dismissed.

On  appeal  by the appellant, the  learned  Judges  of  the Circuit  Bench of the Punjab High Court differed  from  the finding  of  the  trial Court on issue No.  2. The  learned Judges,  however, held that it had not been proved that  the appellant was impotent, but, on the material issue regarding the impotency of the respondentwife, the learned Judge were of   the   view  that  there  were   various   factors  and circumstances  throwing  a serious doubt on  the  allegation made by the appellant. The High Court held that it -had not been established by the appellant that non-consummiation  of the marriage was due to the impotency of the respondent.  It further  held  that  on the state of  evidence it  did  not believe  that  the  respondent-wife had been  proved  to  be impotent.  The High Court also declined to believe the case of  the appellant that the respondent had persisted  in  her attitude of exhibiting repulsion to the sexual act.

It  is not really necessary for us to deal elaborately with the  evidence in the case on the basis of  which  concurrent findings  have been recorded by the District Court  and  the High  Court,  rejecting the case of the appellant  that  his wife,  the  respondent,  was impotent at  the  time  of  the marriage and continued to be so until the institution of the proceedings.

Mr.  Shroff,  learned  counsel for  the  appellant,   found considerable  difficulty in satisfying us that the  finding recorded  by the two Courts on this aspect was erroneous  or not supported by the evidence. No doubt, there was a feeble attempt made by the learned counsel to urge that the evidence of the  respondent that  she  had always been ready and willing  to  allow  her husband to consummate the- marriage should not be  believed. When the two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention. The  reliance placed by Mr. Shroff on the decision of  this, Court  in Earnest John White v. Kathleen Olive White()  is misplaced.   In  that decision, it has been laid  down that though it  is not usual for this  Court  to  interfere  on questions of fact, nevertheless, if the Courts below  ignore or  misconstrue important pieces of evidence in arriving  at their finding, such finding is liable to be interfered with by  this Court.  We are satisfied that the Courts below,  in the  instant  case, have neither  ignored  nor misconstrued important  pieces  of  evidence  when  they  came  to -the conclusion   that  the appellants  case,   regarding  the impotency of the respondent, could not be believed. On  the findings that both the appellant and the  respondent were  not impotent and the marriage had not been  admittedly cosummated,  counsel urged that the conclusion to  be  drawn was  that such consummation was not possible because  of  an invincible  repugnance on the part of the  wife.   Counsel further  urged that  taking  into  account  the   practical impossibility of consummation, the application filed by  the appellant should be allowed.

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So far as the charge of invincible repugnance to the sexual act on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other  hand, lack  of proper approach by the appellant  for consummating the   marriage  might have  been  responsible   for non- consummation.  It is the further view of the High Court that the  evidence  of  the appellant that he  went  on  making attempts  on  several  occasions  for  consummation  of  the marriage cannot be believed.

Mr.  Shroff  referred  us to the decision of  the  House  of Lords(2 )in G. v. G. That was an action by a husband against his  wife for a decree of nullity of marriage on the  ground of  impotency.  It  was established that  the husband  was potent and  had made frequent attempts  to  consummate  the marriage; but he could not succeed owing to the  unreasoning resistance  of the wife.  The wife was declared, on  medical examination,  not to suffer from any structural  incapacity. Under  those circumstances the House of Lords held that  the conclusion to be drawn from the evidence was that the wifes refusal was due to an invincible repugnance to the  act  of  consummation and, as  such,  the husband  was entitled  to  a decree of nullity.  This decision  does  not assist the  appellant, as we have already referred  to  the finding  of the High Court disbelieving the evidence of  the appellant on this aspect.

Mr.  Shroff  next  relied on the decision  in  G.  v.  G.(1) holding  that  a  Court would be justified  in annulling  a marriage if it was found that the marriage had not been  and could  not be consummated by the parties thereto, though  no reason for  nonconsummation was manifest or  apparent.   In that  decision both the husband and the wife were  perfectly normal and each charged the other as being responsible  for non-consummation  of  the  marriage.  The  Court  held that without  going into the question as to who was  the  guilty party, it  was  evident  that the  marriage  had  not been consummated  and  could not be consummated in  future  also. Accordingly  the Court annulled the marriage for the  reason that it was satisfied that          quoad hunc  et quoad hunc,  these  people        cannot consummate the marriage.

The  Court  further held that the two people should  not  be tied  up together for the rest of their lives in a state  of misery.   The  position in the case before  us is  entirely different.   Neither of the two Courts have found  that  the marriage  cannot be consummated in future and they have  not also  accepted the appellants plea that the respondent  had always resisted his attempts to consummate the marriage. When once the finding has been arrived at that the appellant has not established that the respondent was impotent at  the time  of  the  marriage and continued to  be  so  until  the institution of the proceeding, the inevitable result is  the dismissal  of the appellants application under S.  12(1)(a) of  the  Act.  The result is that the appeal  fails  and  is dismissed.  There will be no order as to costs.

G.C.        Appeal dismissed.

(1) L.R. [1912] P.D. 173.565

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