How the honorable family court may view and judgment may be passed?
Querist :
Anonymous
(Querist) 13 October 2011
This query is : Resolved
Dear Experts,
Following are the facts of the case:
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Petitioner allegations:
Marriage took place in august, 2004 under hindu customs. Wife last separated on 30,apr,2006. I filed a divorce petition in family court july, 2007 under cruelty and desertion grounds. The cruelty side is, she is not allowing consummation and belittling me and my family in front of others and desertion side is, she is not willing to stay with me and each time I request her to join she never shows interest to join with me out of 18 months till the separation, she stayed only for 4 months and these 4 months were not continuous days (only sum of her stay with me).
Husband (petitioner) Cross-examination:
I told in the cross-examination that after the final separation on 30-4-2006, I have not approached her to comeback, but sent a legal notice before filing a divorce case. She is responsible for non-consummation, as she was not ready to co-operate with me, this fact I didn't disclose to elders because I wanted to solve this problem mutually with discussions with wife. Also, told that i'm not impotent and ready to face medical test to prove my potency.
Respondent (wife) allegations:
In her counter to my divorce petition, she says, I am impotent and knowingly, I and my mother suppressed this fact and so amount to biological and mental cruelty and her pleading is that divorce be granted on her grounds but not on the petitioner grounds. She also counter-claimed for Rs. 50 Lakh as damages for suppression fact of impotency before marriage. Also, she said, she stayed with me more than a year. Immediately after marriage stayed for 9 days and left for her parent house. Again from 15-04-2004 to 26-01-2005(42 days) and left for parent's house. Again from May, 2005 to till final separation on 30-4-2006 (1 year).
Respondent (wife) cross-examination:
She said, she came to know of (realized) my impotence only after I (petitioner) filed for divorce i.e in 2008 january, by that time it was already 18 months, since separation. She came to this conclusion, after discussing with her parents and grand-father and because petitioner filed for divorce and since no consummation happened. She said, she never discussed anything regarding my impotency with elders. She never approached any doctor nor asked husband to visit any doctor. She also said that even if husband proved to be potent after the medical test also she is not willing to join with him. She also said, during her 1 year stay with me her parents never visited her matrimonial house as she was happy with her husband and never complained anything to her parents. She also said, she has not filed any civil or criminal cases against me except maintenance after I filed for divorce.
Now, she filed a IA petition for my impotency test, which is allowed by family court. The current stage of divorce case is all (petitioner/respondent)evidences are closed only the report from this medical test is remaining to pronounce the judgment.
Currently I'm without job for the last 2 years and studying MBA (student) with no scholarship. Relied on mother for the current sustenance and to pay fees.
My questions are:
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case (a):
If medical test proves that I'm potent, then I have not doubt in my mind that I will get divorce on my grounds. But, what will be the quantum of maintenance awarded, she filed for maintenance u/s 18 HAMA?
case (b):
If medical test proves that I'm impotent what might be the judgment be? will the divorce be granted on her allegations? Will the court not view that she never faced problems with husband's impotency and brought this ground only as a counter to husband's divorce petition and also when said she is willing to join husband irrespective of the result of potency test?
how much maintenance be granted, in this situation.
Please comment and advice.
Thank you.
Shonee Kapoor
(Expert) 13 October 2011
If you are impotent, the judgement would be in her favor and she would get hefty maintenance and alimony.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Sankaranarayanan
(Expert) 13 October 2011
yes i do agree with mr shonee kapoor.
The maintenance is being allotted by the order of the court on basis of records
ajay sethi
(Expert) 13 October 2011
the crux of the issue is whether you are impotent or not . let the medical test report be available . based on the test reports court will decide the issue .
Sirajmohmedkhan Janmohamadkhan vs Hafizunnisa Yasinkhan & Anr on 14 September, 1981
It is held :
" we find ourselves in complete agreement with the view taken by the learned Judge of the High Court. We hold that where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations, this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife's refusal to live with her husband and the wife would be entitled to maintenance from her husband according to his means"
http://indiankanoon.org/doc/1317023/
Querist :
Anonymous
(Querist) 13 October 2011
Sir,
Thank you for your comments
Also, I would like to know, will the court not take my just contentions as below.
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(1) Wife realized that I'm impotent after about 4 years of marriage, that too after I filed for divorce (so it is an after thought).
(2) She has mentioned in her petition that she was necked out and that was the reason for separation. The separation was not due to my impotency, in fact she said during her stay with me for 1 year, she was happy with me and never felt that impotency was causing her any cruelty (mental or biological).
(3) As told by her, the reason for her leaving my company is because I have necked her out. But, she didn't mention anywhere the circumstances surrounding the act of necking out. After necking out, in cross examination, she told that she has not taken any action either legally or mutually. (So, it shows her disinterest to lead her life with me for no reason)
With the above points, has there any merit in her contention that my impotency causing her any trouble (cruelty). Is it not showing her voluntary retreat to lead marital life with me and also the fact that she just made allegation of impotency without any medical report or lack of any of her attempt and the steps she has taken to made such an allegation. Is it not showing that voluntarily, she would have not tried for consummation? Is it not showing that she conveniently wants to exploit the situation to extract huge money (alimony, maintenance)?
prabhakar singh
(Expert) 13 October 2011
(1)may
(2)let it be
(3)let there be this too as it is
The point is whether or not your potency is a question and ground in her petition and what is the mode she can prove it.
Guest
(Expert) 13 October 2011
excellant singh sir
