Murikinati Sahitya Reddy vs Sura Rajasekhara Reddy
2023 Latest Caselaw 3037 AP

      THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
                                        AND
      THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                            F.C.A. No.27 OF 2022

JUDGMENT: (Per Hon'ble Sri Justice T. Mallikarjuna Rao)

1. The Family Court Appeal, under section 19 of the Family

   Courts      Act,    1984,     is    filed    by     the   appellant/petitioner,

   challenging        the   Judgment           dated    11.04.2022,   passed      in

   F.C.O.P. No.11 of 2022 by the learned Judge, Family Court-

   cum-VII Additional District & Sessions Court, Anantapur,

   dismissing the petition filed under Section 12(a) of Hindu

   Marriage Act, 1955 by the petitioner, seeking to declare the

   marriage dated 14.12.2018 between the petitioner and the

   respondent as null and void.

2. We will refer to the parties as they are arrayed in the original

petition.

3. In a nutshell, the petitioner's case is as follows:

(a) The petitioner and the respondent are the wife and

husband, and their marriage was performed on

14.12.2018 at Anantapur. At the nuptial night, the

petitioner entered with utmost pleasure, but the

respondent represented the petitioner that he was strained

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and he wants some rest. Thus, the marriage was not

consummated at that time.

(b) The petitioner further contends that the respondent stayed

at her parents' house until 06.01.2019, during which time

he denied the petitioner sexual intercourse. Subsequently,

the respondent left for Germany, leading the petitioner to

reside at her parents' house in Hyderabad. Later on, the

petitioner herself travelled to Germany, where she secured

employment. During this period, the respondent openly

declared his impotence, asserting that his family members

were aware of this even before the marriage took place.

(c) It is further stated in the petition that, upon her request,

the respondent consulted a doctor in Germany on

14.05.2020 regarding a penetration problem. Following

continuous observation, it was revealed that the

respondent suffered from a penetration problem and hypo

plastic testicles. Finally, the petitioner left the

respondent's company on 05.12.2020 and returned to

India, and the respondent also returned to India on

19.12.2020. Numerous attempts at reconciliation took

place between the petitioner and the respondent. The

respondent openly admitted his impotence and declared

himself unfit for married life. Consequently, both parties

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mutually agreed to pursue a divorce without disclosing the

reasons behind it. They jointly filed F.C.O.P.No.190 of

2020 before the competent court seeking mutual divorce.

However, the petition was dismissed on the ground that

both parties had hastily filed for divorce without adhering

to the statutory requirement of a one-year separation

period. Subsequently, the petitioner filed F.C.O.P. No.11 of

2022 under Section 12(a) of the Hindu Marriage Act,

seeking a declaration that the marriage held on

14.12.2018 be declared null and void.

4. The averments in the petition have not been controverted by

the respondent by pleadings as he has chosen to remain

exparte in F.C.O.P.

5. On behalf of the petitioner, PW.1 and 2 got examined and

marked Ex.A.1 to Ex.A.7 were marked. No oral or documentary

evidence was let in on behalf of the respondent.

6. After hearing the petitioner's counsel, the trial court dismissed

the F.C.O.P. Aggrieved by the Judgment, and this appeal is

filed.

7. A memo was filed on behalf of the petitioner/appellant stating

that a notice had been served to the respondent in the appeal

through E-Mail and registered post with acknowledgement; the

respondent gave a response through E-mail on 06.12.2022 and

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attached his response dated 13.12.2022 stating that he has no

objection to granting a divorce. The respondent filed an

affidavit along with a memo dated 25.04.2023, wherein he said

that he received the notices in F.C.A. (Family Court Appeal)

sent on behalf of the appellant and that he is not interested in

the marriage with the appellant, he does not want to contest

the appeal, and he has no objection for dissolution of their

marriage.

8. We have heard arguments of Sri S.S. Prasad, learned Senior

Counsel appearing Smt. C. Sindhu Kumari, learned counsel for

the appellant.

9. We have given our thoughtful and anxious consideration to the

submission made by the petitioner's counsel.

10. Learned counsel for the appellant/petitioner contends that the

trial Court ought to have allowed the petition as the

respondent remained ex parte, and the averments made in the

petition and the evidence of the petitioner are un-rebutted. The

trial Court failed to see that Ex.A3-Report of the Doctor

establishes that the respondent is not fit for marital life.

11. Now, the points for consideration are:

I. Whether the appellant has succeeded in proving that her marriage with the respondent is not consummated owing to the impotence of the respondent?

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II. Whether the Judgment of the Family Court needs any interference?

POINTS NO.I AND II:

12. There is an amendment effected to section 12(1)(a) of amending

Act 68 of 1976 by virtue of which clause (a) of section 12(1) of

the Hindu Marriage Act has been recast to the following effect:

"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 marriage has not been consummated owing to the impotence of the respondent".

By virtue of section 39 of the Amending Act, 68 of 1976,

what should be examined by the Court is whether the

petitioner has succeeded in showing that the marriage has not

been consummated owing to the impotence of the respondent.

Thus, two ingredients must be established in order to get a

decree under cl.(a)., they are (1) the marriage has not been

consummated, and (2) the absence of consummation is

because of the impotence of the respondent.

13. Before adverting to the respective contentions put forward by

the parties, it would be relevant to go through the settled case

law relating to the impotency to appreciate the case facts.

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14. The Hon'ble Supreme Court in Digvijay Sinhji v. Pratap

Kumari1 , has held as follows:

"5. 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, 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."

15. The Division Bench of the Delhi High Court in Rita

Nijhawan v. Balkishan Nijhawan2 at para 22 observed as

follows:

"Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman's mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifies woman's brain, develops her character and trebles her vitality. It must be recognised that nothing is more fatal to marriage than disappointments in sexual intercourse."

16. The petitioner is examined as PW.1. In the deposition of PW.1,

she set out on oath the case she had set out in the petition.

17. To prove her marriage with the respondent, she relied on

Ex.A.1-wedding card and Ex.A.2-Marriage photograph of the

petitioner and the respondent. Her evidence shows that their

marriage was performed on 14.12.2018 at Police Convention

1 (1969) 2 SCC 279: A.I.R. 1970 SC 137 2 A.I.R. 1973 Del 200

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Hall, Anantapur and the respondent stayed at petitioner's

parents house till 06.01.2019; the respondent did not allow the

petitioner for sexual intercourse on the ground that they shall

first complete devotional trip; later, the respondent left to

Germany and the petitioner also left India and went to

Germany on 01.04.2019; the petitioner got job at Germany and

was working as Base QA Engineer; the respondent openly

proclaimed that he is impotent and the same was suppressed

and got married the petitioner; the marriage was not

consummated, on the request of the petitioner, the respondent

consulted a doctor at Germany on 14.05.2020 due to

penetration problem; after continuous observation of the

respondent; finally, the petitioner left the company of the

respondent on 05.12.2020; the respondent also returned to

India on 19.12.2020; several reconciliations took place between

them; the respondent openly accepted his impotence and

proclaimed that he is unfit for married life; thus, a conclusion

was arrived to go for mutual divorce without disclosing

anything; she and respondent filed F.C.O.P. No.190 of 2020 on

the file of Family Court, Anantapur, seeking to grant divorce.

To establish the fact, the petitioner relied on Ex.A.3-Office copy

of the petition in F.C.O.P. No.190 of 2020; Ex.A.5-Terms and

conditions filed in F.C.O.P. No.190 of 2020. She also relied on

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Ex.A.6-Undertaking letter dated 05.07.2021 given by the

respondent to the petitioner, stating that he is not fit for

marital life. At the intervention of the elders, he and the

petitioner concluded getting a divorce by mutual consent.

18. The petitioner got examined her mother as PW.2. She

reiterated almost all the averments of the petition in her chief

affidavit. As the respondent did not contest the matter, their

evidence remained unchallenged.

19. The copy of the Judgment in F.C.O.P. No.190 of 2020 vide

Ex.A.7 shows that the Family Court dismissed the F.C.O.P. by

observing that the petition for mutual consent was filed on

23.12.2020 and both the petitioners lived together in Germany

upto 05.12.2020. Both parties failed to observe the statutory

mandate for one-year separate living, and both parties

hurriedly filed the divorce petition. They are not entitled to

divorce on mutual consent without a statutory requirement of

separate living for one year as mandated in section 13B of the

Hindu Marriage Act.

20. The Family Court dismissed F.C.O.P. No.11 of 2022 on the

ground that the petitioner did not mention the ground of

impotence in F.C.O.P.No.190 of 2020, and the ground

mentioned in the petition appears to have been created for the

present plea. The petitioner has explained why she has not

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pleaded in F.C.O.P. No.190 of 2020 regarding the penetration

problem of the respondent. It is argued on behalf of the

petitioner that when such a plea is presented and not disputed

by the respondent, the Family Court should not have doubted

the petitioner's case for not including that ground in F.C.O.P.

No.190 of 2020. It is further contended that there was no need

to create a ground of impotence, as after the expiration of the

one-year period stipulated under Section 13B of the Hindu

Marriage Act, they could approach the Family Court to seek a

divorce.

21. It is evident from the records that the respondent was also

willing to pursue a divorce, as both the petitioner and the

respondent filed a petition for mutual divorce in F.C.O.P.

No.190 of 2020. However, the Family Court seemingly

overlooked the fact that the respondent did not contest

F.C.O.P. No.11 of 2022, despite specific allegations being made

against him. It is well to remember that ordinarily, no man

admits his mental or physical incapacity unless it is a fact.

Impotence is generally regarded as a stigma. It is a slur on

manhood, masculinity, and virility. The Family Court has also

not considered when there is no truth in the petitioner's

contention, indeed, the respondent would have contested the

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matter regarding the severe nature of the allegations in the

petition.

22. The other ground taken by the Family Court to dismiss the

petition is that the petitioner failed to prove the Ex.A.3 report,

which shows that the respondent was examined on 26.09.2020

by Dr.Lakshman Bellamkonda. He observed that the

respondent had a penetration problem.

23. No doubt, the petitioner has not examined the Doctor to prove

the report. We don't think that the learned Family Court Judge

was right in drawing an adverse inference because of the non-

examination of the Doctor by the petitioner. The unchallenged

evidence of PW.1 shows that the marriage is not consummated

due to the impotence of the respondent. It is quite possible

that the consummation between the spouses might not have

been affected owing to several reasons and not necessarily due

to the impotence of one spouse on the other. Impotence can be

due to psychological inhibition or physical incapacity.

24. In some cases, a person may be capable to perform sexual

intercourse but incapable of performing with a particular

individual. In such a case, he must be regarded as impotent

about the specific individual regardless of his potency in

general. The petitioner has made allegations in accordance

with section 12(1)(a) of the Hindu Marriage Act. An averment of

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impotence not disputed by the other side is sufficient to

support the decree of nullity. The Family Court ignored the fact

that the petitioner's case was not disputed by the respondent.

The petitioner stated in her petition that the petition had not

been made in collusion. She also affirmed the same in her chief

examination on oath. Collusion cannot be inferred merely from

the fact that the respondent does not appear. In the present

case, there are no circumstances giving rise to any suspicion

or collusion. The unchallenged evidence of PW.1 remained that

the marriage was not consummated. This admitted fact need

not be further established.

25. The learned Family Judge entertained a doubt about the

petitioner's plea regarding the impotence of her husband. The

petitioner has specifically pleaded regarding Ex.A.6-

undertaking letter dated 05.07.2021 given by the respondent

stating that he is not fit for matrimonial life, and the said

petitioner's case is not disputed by the respondent. It is settled

law that the best evidence in a case is the admission of the

opposite party. According to section 58 of the Evidence Act,

admitted facts need not be proved. There is no doubt that

admission in pleadings or judicial admissions by themselves

can be the foundation of the parties' rights, as held by the

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Supreme Court in the case of Nagindas Ramdas Vs.

Dalpatram Inchharam3 in para No.26 as under:

"....Admissions, if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."

The Judgment of the Family Court does not disclose the

proper reasons why it had entertained doubt about the

petitioner's case.

26. The learned Family Judge has failed to draw legitimate

inferences from the facts on record and has not considered

that the respondent had chosen not to appear. The family

court failed to consider that there is no rule of law requiring

that in a petition of this nature, the evidence of the spouse

must receive independent corroboration before it can be

accepted as sufficient to justify the passing of the decree.

Section 134 of the Indian Evidence Act enshrines the well-

settled and recognized maxim that evidence has to be weighed

and not counted. The Hindu Marriage Act does not depart from

this rule. It does not lay down, in respect of cases falling under

3 A.I.R. 1974 SC 471

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it, any standard of proof other than arising from the Evidence

Act.

27. In T.Rangaswami Vs. T.Aravindammal4, the Madras High

Court held that:

In regard to proof of impotency, the rules of evidence are not different in the case of impotency than elsewhere. Impotence is physical unfitness for consummation which must be proved, or there must be facts from which this can be inferred. There is no minimum standard of proof necessary. Even uncorroborated testimony of the petitioner is sufficient if it can be believed. Under section 120 of the Evidence Act, the other party of the case is a competent witness.

28. The sole testimony of the petitioner/wife, the only material

evidence as to the incompetency of the respondent/husband,

cannot be discarded when it inspires confidence and there is

nothing to show that they were on bad terms. The evidence of

the petitioner that the marriage was not consummated due to

the husband's impotence was not refuted, and the impotence

of the respondent was admitted in writing by him.

29. The Family Court observed that the conjoint reading of letters

addressed by the respondent to the Court and notice copy of

the respondent dated 12.02.2022 causes doubt in the mind of

the Court about the service of notice to the respondent. We are

of the view that when such a doubt is entertained by the

Family Court, it should have taken appropriate measures to

4 1956 S.C.C. OnLine Mad 223

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clarify its doubt instead of dismissing the petition by ignoring

the fact that it has passed an ex parte order against the

respondent.

30. On the facts of this case, we are unable to appreciate the

finding of the Family Court that the petition is filed hurriedly

with baseless grounds without any substantial material.

31. In these circumstances, to refuse the relief on the ground of

non-examination of the Doctor would not be a practical and

realistic approach, and it would be unreasonable and

inhuman.

32. For the said reasons, in our opinion, the evidence of PW.1

should have been accepted by the Family Court in the facts

and circumstances of the case. We are of the view that the

petitioner's case, based on section 12(1)(a), as amended by the

1976 Act, has been clearly established. Accordingly, the points

are answered.

33. As a result, the appeal is allowed by granting a decree for

divorce in favour of the appellant-wife and against the

respondent-husband. The Judgment passed in F.C.O.P. No.11

of 2022, dated 11.04.2022, on the file of the Judge, Family

Court-cum-VII Additional District & Sessions Court,

Anantapur, is set aside. In the facts and circumstances of the

case, the parties will bear their own costs throughout.

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34. Consequently, miscellaneous petitions pending, if any, shall

also stand closed.

___________________________ U. DURGA PRASAD RAO, J

___________________________ T.MALLIKARJUNA RAO, J

Dt.11.05.2023 MS/SAK

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THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

F.C.A. No.27 OF 2022 Date:11.05.2023 MS/SAK