Anuradha Alias Chanchal Kumari vs Santoshnath Khanna [Citation: ILR 1977 Delhi 739, 1978 RLR 111]

Introduction:

The law revolves around society, and society is a vast area to cover, to read, and understand. There are arguments and fights between relations of all kinds. But there is a relationship where the law could help to get dejected, to break the relationship if not likable, which is a relationship between man and wife. Law provides us with various ways to get separated, which include annulment, judicial separation, or divorce. The law also provides us with multiple grounds for divorce like adultery, desertion, insanity, conversion, renunciation, cruelty, venereal disease, the presumption of death. Denying sex to a spouse for a long time is considered mental cruelty and a ground for divorce. With this case, let’s see how. 

Facts

1. The appellant, a widow who lost his first partner, married the respondent’s husband and had divorced his former wife. The wedding was performed in November 1968. When the parties split, they lived together until March 1969. There was no child born of the couple. The wife objected in June 1969 on the grounds of the husband’s impotence and argued the marriage should be broken on the grounds of cruelty and a decree for the judicial separation.
2. Whereas the respondent/husband denied the grounds of the petitioner. 
3. The court of the first instance disbelieved the testimony on behalf of the partner and ruled that the husband’s impotence was not proven by medical evidence. He also found no evidence of the cruelty and that a woman had not unloaded the burden of proof. The appeal was thus denied.
4. But since the Hindu Marriage Act was amended in 1976, cruelty has since been defined in compliance with clauses (a) of subsection (1) of Article 13 of the Act, which can justify a divorce order. Section 39 of the amending act says that if the Hindu Marriage Act is a petition or proceeding that all pleas and prosecutions for matrimonial causes or matters pending before any court at the outset of the amending act shall be dealt with and determined by such court.

Issues

1. Whether the respondent/husband was impotent at the time of the marriage and continued to be one until this petition’s institution?
2. Whether the respondent/husband has treated the petitioner/wife with cruelty and, if so, with what all effects?

Contentions of the Parties

Petitioner

1. The wife is an appellant, file an application under Order 6 Rule 17 and section 151 of the Code of Civil Procedure for amendment of the petition.
2. The amendment sought is that a decree of nullity of marriage may be granted on the ground of impotency or, in the alternative, a decree of divorce on the ground of physical and mental cruelty.
3. Groundless and unsubstantiated allegations of adultery against the wife were formed, which amounted to mental cruelty (in the sense of un-satisfaction in the matter of sex which lead to mental cruelty and that there was a sexual incompatibility between both the parties).
4. The amended application was then received and admitted by the court of law. 
5. The petitioner stated that the husband/respondent was impotent at the time of marriage, and he continued to be the same till the institution of the proceedings.
6. They also mentioned that so much mental torture had been given to the wife by the husband and his parents and again due to the husband’s continuous impotence that it was not safe for the wife to live with the husband.

Respondent

1. The husband denied the grounds and was against them, stating that he is not impotent. 
2. He also denied that there was no consummation of the marriage, and he asserted that the same had been consummated.
3. The husband also claimed that it was not correct to say that he was or was already impotent at the time of marriage and that he was totally powerful and had not only married the present spouse (appellant) but his former divorced wife. He also argued that he was an ordinary potent individual.
4. The petitioner asserted that he had suffered a lot of mental torture and is in deep agony by the incredibly passionate behavior of his wife/ appellant.
5. He also stated that the wife had some other illicit connections in Delhi, which was why she did not want to live with him.

Applicability of Law

1. The first appeal was under section 28 of the Hindu Marriage Act, 1955.
2. Section 12(1) (a) of the Hindu Marriage Act.
3. Section 13 (1) (I a) of the Hindu Marriage Act.

Findings of the Court 

1. The court stated in favor of the respondent, commenting that her husband is not impotent and that cruelty has not been proved.
2. A particular kind of impotence is known as “Impotentia quoad hunc vel ham”. That is to say, incapacity to perform coitus with a specific individual. A party is impotent if their mental or physical condition makes consummation of the marriage a practical impossibility.
3. Also, the court has failed to draw the correct legal inference from the parties’ pleadings, the evidence recorded, and the circumstances of the case.
4. From the statements given by the husband, it is undeniably seen that the wife is so excessively passionate that it is impossible for any normal human being to satisfy her excessive lust and that she had an illicit connection with other persons in Delhi.
5. During the cross-examination, it was found out that according to the petitioner/wife, the husband is impotent, and the statements made by her were convincing. 

Judgment

1. The court authorized a divorce ruling dissolving marriage between both the parties on the basis referred to by Article 12(1)(a) of the Hindu Marriage Act, as well as by Article 13(1)(a).
2. The court relied upon the mentioning in Halsbury’s Laws of England[1]. It is mentioned a party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. 
3. In Rayden on Divorce[2], It is said if at the time of a wedding one of the parties is and remains unable, by reason of any structural defect in the organ of generation, to perform the wedding or permit it to consummate, or particularly incurable, which renders complete sexual intercourse impractical, or incurable mental or moral impairment leading the person to inability to carry out sexual intercourse.

Case Laws

1. In Jagdish Kumar v. Smt. Sita Devi[3] it was held that the husband’s knowing refusal arises from incapacity, nervousness, or hysteria and that he demonstrated his impotence qua his wife. Even after a fair trial had been given by the wife if the husband utterly failed in his primary marital duty, he should be regarded as impotent under section 12(1)(a) right from the time of his marriage till the institution of the proceedings for annulment of marriage.
2. In Mrs Rita Nijhawan v. Mr Bal Krishan Nijhawan[4], it was held that if either of the party to marriage being a healthy, physical capacity refused to have sexual intercourse, the same would amount to cruelty. It would not make any difference in law whether the denial of sexual intercourse or because of any willful refusal by the husband; in any case, it would either case the result was the same, namely frustration and misery to the wife due to denial of normal sexual life and hence cruelty.
3. In A. Kuppuswami Gounder v. Alagammal[5], it was held that making unfounded allegations of adultery against a chaste wife would amount to cruelty. 
4. In Dr N.G. Dastane v. Mrs S. Dastane[6], it was held that the standard of proof required in trying the matrimonial case was as in civil case based on probabilities and evidence required is not beyond reasonable doubt as in criminal cases. So, there is no doubt that the appellant has established her case on the possibilities of the case.

Indian Laws on Impotency

Hindu Marriage Act [Section 12 (1) (A): Voidable marriages]

(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,

(a) that the marriage has not been consummated owing to the impotence of the respondent;

Dissolution of Muslim Marriage Act [Section 2 (V) read with 2 (Ix) (C)]

Grounds for decree for dissolution of marriage. A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds,

(v) that the husband was impotent at the time of the marriage and continues to be so 

Special Marriage Act [Section 24 (1) (ii)]

(1) Any marriage solemnized under this act shall be null and void [and may, on a petition presented by either party to that against the other party, be so declared] by a decree of nullity if—

(ii) The respondent was impotent at the time of the marriage and at the time of the suit’s institution.

Indian Divorce Act [Section 18 Read with Section 19 (1)]

18. Petition for a decree of nullity. Any husband or wife may present a petition to District Court 26, praying that his or her marriage may be declared null and void.

19. Grounds of a decree. Such decree may be made on any of the following grounds

(1) That the respondent was impotent at the time of the marriage and at the time of the institution of the suit;

(2) That the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity;

(3) That either party was a lunatic or idiot at the time of the marriage;

(4) That the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force. Nothing in this section shall affect the 27 [jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.

Parsi Marriage and Divorce Act [Section 30]

30. Suits for nullity: In any case in which consummation of the marriage is from natural causes impossible, such marriage may, at the instance of either party to that, be declared to be null and void.

Conclusion

In the present case, we say how denying sex to a spouse for a long time is considered mental cruelty and a ground for divorce. There were questions as to whether the respondent/husband was impotent at the time of the marriage and continued to be one until this petition’s institution or that a husband has treated the wife with cruelty and its after-effects. A particular kind of impotence is known as Impotentia quoad hunc vel ham. That is to say, incapacity to perform coitus with a particular individual and this finding can be recorded if the circumstances of the case so justify even if the spouse may be generally potent. The learned Judge in the above-discussed case has failed to draw the correct legal inference from the pleadings of the parties, the evidence recorded, and the circumstances of the case. The court was also unable to fully appreciate that the failure to perform sexual intercourse and making unfounded allegations either before or during the proceedings also amounts to mental cruelty constituting a matrimonial offense. The case, therefore, required a better and closer examination.

References:

[1] 3rd Edition, Vol. 12, para 228

[2] 8th Edition, para 62 on page 108

[3] AIR 1963 P H 114

[4] 1973 Dlt 222(3)

[5] AIR 1961 Mad 391

[6] AIR 1975 SC 1534, (1975) 2 SCC 326