Sanu Vs. Sandeep - (High Court of Kerala) (01 Aug 2018)

When a husband abstains from or fails to attempt intercourse with his wife, inference of incapacity is stronger, and onus is on him to rebut the presumption

MANU/KE/1821/2018

Family

The Appellant is the wife and the Respondent is the husband. The challenge in this appeal is directed against the order passed by the Family Court, dismissing petition filed by the Appellant for granting of decree that her marriage with the Respondent is null and void. Her plea was that, her marriage with the Respondent was solemnised on 10th April, 2017, but they lived together only for five days and that, the marriage was not consummated because the Respondent had no inclination towards her. The Family Court found that, there is no plea raised by the Appellant that the marriage was not consummated for the reason that, the Respondent was impotent and therefore, the ingredients of Section 12(1)(a) of the Hindu Marriage Act, 1955 were not satisfied.

A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. Incapacity for sexual intercourse is an essential ingredient of impotency. Impotency in the law of divorce means incapacity to perform the act of sexual intercourse, that is to say, inability to copulate. Impotency is the lack of ability to perform full and complete sexual intercourse. Such an inability may arise from a variety of causes including mental and physical disability. When a husband abstains from or fails to attempt intercourse with his wife, the inference of incapacity is even stronger, and the onus is on him to rebut that presumption.

Appellant has pleaded and proved that the parties lived together only for a period of five days after the marriage. She has also pleaded and proved that the marriage was not consummated as the respondent had no inclination towards her. Now, the Respondent has admitted that he was impotent qua the Appellant. In these circumstances, it appears that there is sufficient evidence to find that, the marriage between the Appellant and the Respondent was not consummated due to the relative impotency of the respondent. Therefore, a decree for annulment of marriage can be granted in the case.

Normally, an appeal shall be decided by the appellate Court by re-appreciating the evidence adduced by the parties in the trial Court and the appellate Court shall reach an independent conclusion on the basis of such evidence. The parties have been living separately from 15th April, 2017 onwards. It is an admitted fact that there was non-consummation of marriage. Marriage without sex is an anathema. There is no point in prolonging the agony of the parties by remanding the case to the trial Court to give opportunity to the parties to adduce further evidence in the case. It is an admitted position that, the relationship of the Appellant and the Respondent has irretrievably broken down. There is no need to prolong the agony of the parties.

Consequently, appeal allowed and the impugned order passed by the lower court is set aside. The marriage between the Appellant and the Respondent is annulled under Section 12(1)(a) of the Hindu Marriage Act, 1955 by declaring it as null and void.

Tags : MARRIAGE CONSUMMATION DIVORCE GRANT