Hindu Marriage Act, 1955- Case law- Section 10(1) and Section 12(1)(a)- Rita Nijhawan vs. BalakishanNijhawan
Bench: Justice T.V.R. Tatachari and Rajinder Sachar
Facts:
- The parties got married to each other in 1954.
- Balakishan, herein the Respondent attempted sexual intercourse with Rita Nijhawan, herein the Appellant at the beginning of the marriage, but failed to consummate as he could not get proper erection in order to perform the act.
- The Respondentstarted getting treatment on advice of the Appellant but there were no positive results. However, after prolonged treatment, the Appellant got pregnant as sexual intercourse became possible.
- However, according to the Appellant, Respondent’s potency was temporary and he could not consummate after the birth of the child also.
- The Appellant filed a petition before the Additional District Judge Delhi under Section 12(1)(a) of the Hindu Marriage Act, 1955 (hereinafter called as the “Act”), for annulment of the marriage with the Respondent by a decree for judicial separation under Section 10(1)(a) and (b) of the Act on the ground of desertion and cruelty.
Issue:
What is the meaning of “impotency” in matrimonial cases? Whether “birth of a child” can suffice as evidence of potency to deny relief of divorce?
Contentions of the Appellant:
- Appellant was unaware of the impotency of the Respondent at the time of their marriage.
- During the birth of their child, the Respondent became potent. However, it was a temporary phase as he was not able to perform the act of sexual intercourse post the birth of the child.
- The Respondent replied to aletter of the Appellant wherein he admitted his sexual impotency and assured the appellant that he will get himself treated.
- Respondent refused treatment and also treated the appellant with cruelty.
Contentions of the Respondent:
- The parties enjoyed harmonious relations and led very happy married life till 1965.
- The Appellant’s parents instigated the Appellant against the Respondent when he demanded his money back from her parents.
- It was denied that there was any necessity of treatment for any sexual deficiency or disability of the Respondent and that he treated the Appellant with cruelty.
- The parties had full and complete sexual life and the birth of the child is sufficient proof of Respondent’s potency.
Background:
The Appellant presented an appeal before a single-judge Bench of Delhi High Court, which affirmed the order of the Additional District Judge of dismissal of the petition of the Appellant. Aggrieved by the order of the Learned Single Judge, the Appellant approached the Division Bench which pronounced its judgment given below.
Judgment:
The Division bench of the High Court observed that a party will be in law deemed to be impotent, if he/she is incapable of consummation due to partial or imperfect intercourse. The party alleging impotency has the burden to prove that the husband was impotent at all material times, that is, from the time of solemnization of marriage till the institution of proceedings in court, so as to obtain a decree of annulment of marriage in terms ofSection 12(1)(a) of the Act.Consummation of marriage even once during the stipulated period can result in denial of such relief of nullity of marriage.
In regard to the present case, the Court held that the Appellant presented evidence of sexual weakness of the Respondent but failed to prove impotency of the Respondent at all material times with absolute certainty since there have been occasions when marriage was consummated with proper intercourse.Also, birth of a child is not conclusive evidence that the marriage has been properly consummated, although it is one of the factors to be considered while granting the relief to the Appellant.
However, the Court passed a decree of judicial separation in favour of the wife under Section 10(1)(b) of the Act, ruling that impotency of the Respondent has left the Appellant miserable and dissatisfied and forcing her to suffer this cruelty would cause inevitable damage to her physical and mental health.
