Sahil Bansal vs Vasudha
2013 Latest Caselaw 1286 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                       Matrimonial Appeal No.4 of 2013

                                          Decided on : 15th March, 2013

SAHIL BANSAL                                              ...... Appellant
                         Through:   Mr. Alok Kumar & Neeraj Gupta,
                                    Advocates.

                           Versus

VASUDHA                                               ...... Respondent
                         Through:   Ms. Manali Singhal, Ms. Monika Singhal
                                    and Mr. Prakhar Nishant, Advocates.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal under Section 28 of the Hindu Marriage Act

against the judgment dated 21.1.2013 passed by the learned Additional

District Judge (West) by virtue of which the petition filed by the appellant

herein under Section 12 (1) (a) of the Hindu Marriage Act (in short 'the

Act') for annulment of marriage on the ground of non-consummation of

marriage was dismissed.

2. Briefly stated the facts of the case are that the appellant filed a

petition bearing No.535/2012 stating that he got married to the

respondent on 16.7.2011 at Arya Samaj Mandir, Lucknow, Uttar Pradesh

according to Hindu rites and ceremonies and the marriage was thereafter

registered with the Registrar, Hindu Marriage, U.P. on 18.7.2011. The

status of the parties before the marriage and at the time of filing the

petition is given as under :-

                          Status      Age (in years) Place of residence

Wife:                   Scientology        22        141, First Floor,
Before marriage                                      Sunder Nagar, New
                                                     Delhi-110003
Wife:                   Scientology        23                -do-
At the time of
filing of petition
Husband:                  Hindu            21        31/43, Punjabi Bagh,
Before marriage                                      New Delhi-110026
Husband:                  Hindu            22                -do-
At the time of
filing of petition

3. It was further alleged that the marriage between the parties has not

been consummated on account of impotence of the respondent qua the

petitioner. The ground of non-consummation of marriage given by the

respondent is that as she had converted into 'Scientology' before

marriage and, therefore, the marriage could not be consummated. Since

the marriage had not been consummated and a final decision in this

regard was taken by the respondent and communicated to the appellant on

27.7.2011, the appellant was constrained to file the present petition. It

may be pertinent here to mention that it was also stated in the petition that

on 28.7.2011, the respondent had gone to her parents' house and

thereafter, she never returned to the matrimonial home.

4. I have been informed that although no formal notice was served on

the respondent but the respondent had appeared before the trial court on

being approached by the appellant. It was also stated that prior to this,

the appellant and the respondent had jointly filed a Criminal Writ Petition

No.1023/2011 against the State of NCT of Delhi & the parents of the

respondent as they were apprehending some danger from them.

5. During the hearing of that petition, it transpired on 2.9.2011 that

as the parties had not consummated the marriage, they had undertaken

before the High Court that they would get their marriage annulled.

As a consequence of this statement, on 2.9.2011, the petition was

dismissed as withdrawn as having become infructuous.

6. The learned trial court dismissed the petition on 21.1.2013 for

annulment of marriage on the ground of impotency vide impugned order

by holding since non-consummation of marriage was not on account of

physical impotence of the respondent, therefore, there was no locus to

maintain the petition. The exact observations of the trial court are

recorded as under :-

"21. The impotence in the legal as well as medical parlance would mean an incapacity to have sexual intercourse and nothing more and nothing less. It would not cover cases where out of choice, due to religious reasons or due to conversion to another religion, opposite party is of the view that marriage should not be consummated. Furthermore, in the statement as made by the respondent on oath on the very first date, it is not that she had admitted herself to be impotent. All that she has stated is that a decree should be passed.

22.In order to pass any decree in the Court, it is not sufficient that the opposite party makes a statement that a decree should be passed, but the relevant/essential ingredients of the provision under which the petitioner has come and the entitlement of the petitioner to a decree would still have to be seen and considered by the Court.

23.Furthermore, Section 23 of HMA clearly provides that in any proceeding under this Act whether defendant or not, if the Court is satisfied that ................ (c) the petition (not being a petition presented u/S 11 of the Act) is not presented or prosecuted in collusion with the respondent ...................... but not otherwise, the Court shall decree such relief accordingly.

24.Going through the contents of the petition in the proceedings, through and through, what is made out is not a case of impotence of the respondent but one of her conversion to other religion due to which she does not want to have sexual relations with the petitioner and to consummate the marriage.

25.These like averments as made in the present petition cannot by any stretch of imagination be covered within the provision of Section 12(1) (a) HMA and no case as such is being made out to pass a decree of nullity on the ground that marriage has not been consummated owing to impotence of the respondent.

26.On the other hand, on the contrary, the Act does make another provision for such like situation where one spouse converts into another religion and provides for the remedy for such like situation in the form of one of the ground for a divorce."

7. On account of this order, the petitioner was permitted to withdraw

the petition with liberty to file a fresh petition under the appropriate

provisions of law within seven days and the petition for annulment of

marriage on the ground of impotence under Section 12 (1) (a) of the Act

was dismissed.

8. Feeling aggrieved, the appellant has preferred the present appeal.

The learned counsel for the respondent has appeared in response to an

advance notice having been served on her.

9. One of the points which has been urged by the learned counsel for

the appellant is that the finding arrived at by the trial court that non-

consummation of marriage has to be only on account of physical

disability of either of the party for annulment of marriage under Section

12 (1) (a) of the Hindu Marriage Act, is not correct. It has been

contended by the learned counsel for the appellant that there are number

of judgments to the effect that non-consummation of marriage need not

be only on account of impotence and it is not necessary that the

impotence must be on account of physical disability of either of the

parties. It may be due to psychological or mental reasons to perform

sexual intercourse with a particular person on account of various reasons.

In this regard, the learned counsel for the appellant has drawn the

attention of the court to the Full Bench judgment of the Kerala High

Court passed in case titled Antony vs. Fransisca; 1988 (2) KLT 135

wherein it has been observed as under :-

"Reason or impotency may be physical or mental. In this case, refusal on the part of the respondent to have sex with the petitioner was not due to mere obstinacy or caprice but because she hates sex and believes that it is sinful. Though there is no physical obstacle for intercourse; she is mentally determined not to have sex. In other words, there is a paralysis of her will to have intercourse."

10. A similar view has been taken by our own High Court as early as

in case titled Sucharita Kalsie vs. Rajinder Kishore Kalsie; 1975

Rajdhani Law Reporter 52. Relevant paras are reproduced hereunder :-

"(20) The wife stated in her petition that the petition had not been made in collusion. She also affirmed this in her statement on oath. Her own case as disclosed in the evidence was that the husband was impotent qua her. He was unable to have erection and, therefore, could not cohabit with her. The fact remained that the marriage was not consummated. The husband himself admitted that because of an aversion in his mind he became funky whenever he thought of having sexual intercourse with the wife. He clearly stated that he consulted the doctors and they found that he was otherwise potent.

............................

(24) In G vs. G., 1912 P. 173, it was held that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be

consummated by the parties thereto, though no reason for non-consummation was manifest or apparent. In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non-consummation of the marriage. The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that-"quoad hunc et quoad hunc, these people cannot consummate the marriage." The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery.

(25) I, therefore, come to the conclusion that even when an individual is generally potent but is impotent with respect to his own spouse and is unable to consummate marriage he has to be regarded as impotent for the purposes of Section 12(a) of the Act. In impotence cases the emphasis is on consummation. A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility (Halsbury-P. 228)."

11. Mr. Bali, the learned senior counsel appearing for the respondent

has not disputed this proposition of law urged by the learned counsel for

the appellant. Even this court is of the view that the non-consummation

of marriage need not be necessarily on account of the physical disability

of either of the parties. It could be on account of mental impotency qua a

particular person. Inability of a person to perform sexual intercourse may

be attributed or directed against a particular person which, in a given

case, may happen to be a spouse.

12. In all such contingencies, I feel that a person can take advantage of

Section 12 (1) (a) of the Act for non-consummation of marriage on

account of impotence. Therefore, in the light of this legal position, I feel

that the trial court has erroneously assumed that non-consummation of

marriage in a given case has to be necessarily on account of physical

incapacity so as to fall within the purview of Section 12 (1) (a) of the Act.

I feel it is not a correct interpretation of Section 12 (1) (a) of the Act that

there could be annulment of marriage only because of physical

impotence.

13. The second submission which has been made by the learned

counsel for the appellant is that the trial court has erroneously assumed

that there is collusion between the parties. Although, no finding of

collusion has been returned by the trial court but the very reading of the

order gives an impression as if the parties were in collusion and in

violation of Section 23 (c) of the Act and this has weighed with the

learned trial court in denying the benefit of grant of annulment of

marriage. In this regard, the learned counsel for the appellant has drawn

the attention of the court to the judgment in case titled Maria alias Omini

vs. K. Ignatius alias Ronnie; AIR 2000 Madras 202 wherein relevant

paragraph regarding collusion is reproduced as under :-

"14. Collusion defined in the shorter Oxford English Dictionary as "Secret agreement or understanding for purpose of trickery or fraud -- underhand scheming or working with another deceit, fraud, trickery." A shared desire for divorce, or the readiness of one of the spouses to consent to the grant of the divorce desired by the other spouse does not necessarily result in collusion. It is only in cases where the parties resort to underhand scheming or trickery to achieve the commonly desired goal can it be said that there is collusion. When the facts necessary for claiming the relief have been shown to genuinely exist, the conduct of other party in acknowledging the existence of those facts docs not result in collusion. Relief cannot be denied when the facts entitling the petitioner to relief have been shown to the Court to genuinely exist. The real does not become unreal because the other party to the marriage honorably acknowledge the reality. Collusion occurs when what is not true is sought to be pleaded as true by the spouses with intent to mislead the Court into granting a relief to which the parties would not be entitled if the true facts had been revealed to the Court. Even assuming that respondent herein was also desirous of the marriage being declared null and void that desire, having regard to the facts proved in this case, does not show collusion. Consent by itself does not amount to collusion."

14. He has also drawn the attention of the court to Sucharita Kalsie vs.

Rajinder Kishore Kalsie; 1975 Rajdhani Law Reporter 52 case, wherein

it has been observed as under :-

"(15) In my opinion, the contention of the wife's counsel is not without force. It seems that the learned Additional District Judge approached the case with great suspicion in his mind. He doubted everyone who came into the witness box. It is true that under Section 23(c) the Court has to be satisfied that the petition is not presented or prosecuted, in collusion with the respondent whether it is a defended or undefended petition.

(16) In Halsbury's Laws of England 3rd ed., Vol.12 P.301, it is said :

„But the fact that both spouses desire a divorce does not make them guilty of collusion, provided they have not entered into any agreement obnoxious to the Court.‟

(17) The same principle should apply to a decree for nullity. In this case there was no evidence before the court of any agreement between the parties. It is one thing to say that the petitioner has failed to establish her case, that she has failed to prove impotence and, therefore, refuse her a decree. It is quite another thing to accuse a party of collusion.

(18) 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.

(19) Collusion is not to be inferred merely from the fact that the case is unusual. In Kishore Sahu v. Snehprabha Sahu, AIR 1943 Nag. 185 (S.B.), it was said:

„The suspicion if it was to be acted upon, must in our opinion, be founded on something more tangible than a vague uneasiness that an unusual case may not be true.‟"

15. Section 23 of the Hindu Marriage Act reads as under :-

"23. Decree in proceedings.- (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that -

(a) any of the grounds for granting relief exists and the petitioner [except in cases where the relief is sought by him on the ground specified in sub- clause (a), sub- clause (b) or subclause

(c) of clause (ii) of section 5] is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) ........................

(bb) .....................

(c) [the petition (not being a petition presented under section 11)] is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

[Provided that nothing contained in this sub- section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub- section (1) of section 13.]

[(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.]"

16. The learned counsel for the respondent has supported the

submissions made by the learned counsel for the appellant to contend that

the Apex Court in case titled Saroj Rani vs. Sudarshan Kumar Chadha;

1984 AIR (SC) 1562 has observed that a decree obtained by consent of

the parties could never be termed as a collusive decree. In this regard, the

learned counsel has drawn attention of the court to paragraph 7 of this

judgment which is reproduced as under :-

"7. The matter thereafter came up before a Division Bench of Punjab and Haryana High Court and Chief Justice Sandhawalia for the said court on consideration of different authorities came to the conclusion that a consent decree could not be termed to be a collusive decree so as to disentitle the petitioner to decree for restitution of conjugal rights. It may be mentioned that before the Division Bench of behalf of the appellant-wife, counsel did not assail the factual finding of the Trial Court that there was no co-habitation after the decree for restitution of conjugal rights nor did he press the first ground of defence namely that the appellant could not take advantage of his 'wrong' because of having refused cohabitation in execution of the decree. However, the ground that the decree for restitution of conjugal rights was in a sense collusive decree was pressed before the Division Bench. In view of the Full Bench decision of the Punjab and Haryana High Court in the case of Joginder Singh v. Smt. Pushpa wherein the majority of the Judges of the Full Bench held that a consent decree in all cases could not be said to be a collusive decree and where the parties had agreed to

passing of a decree after attempts had been made to settle the matter, in view of the language of Section 23 of the court had tried to make conciliation between the parties and conciliation had been ordered, the husband was not disentitled to get a decree.

Section 23 sub-section (2) provides as follows:-

„(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties:

[Provided that nothing contained in this sub- section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub- section (1) of section 13.]‟"

17. The learned counsel has further contended that in a given situation

in case a petition under Section 9 of the Act is filed for restitution of

conjugal rights and the respondent-spouse in the petition, on the very first

date consents to join matrimonial home and give the company to the

petitioner, in such a situation, a decree for restitution of conjugal rights on

consent will be passed by the court as the respondent/spouse has not

contested the grant of decree. It has been urged that in such a case if the

decree is passed, it could not be said to be collusive although apparently,

it may seem as if a collusive decree is passed in violation of Section 23

(c) of the Act.

18. I have carefully considered the submissions. In the instant case,

the trial court has, though not specifically observed that the petition was

collusive or that the conduct of the respondent was collusive, but it seems

from the language and the tenor of the order that it is a collusive petition

for annulment of marriage. This view seemed to have been formed

because the respondent/wife appeared without the issuance of notice. It

was observed by the court that a joint writ petition was filed in the High

Court in which there was no averment that the marriage could not be

consummated. On the contrary, it had been observed that both of them

were living together at Punjabi Bagh.

19. I do not subscribe to this view of the trial court. This is on account

of the fact that the marriage admittedly had taken place on 16.7.2011, it

was registered on 18.7.2011 and there is an averment made in the petition

that the respondent had left the matrimonial home on 28.7.2011. The

respondent is alleged to have left the matrimonial home for good and

never returned back thereafter. Therefore, the total period, according to

the petition during which the respondent is stated to have lived with the

appellant is only for about 12 days. There is no dispute about the fact that

a joint petition was filed before the High Court against the State of NCT

of Delhi in which the parents of the respondent were made as a

party/respondents and the same came up for hearing before the High

Court on 22.7.2011. Obviously, since the marriage in the instant case

was apparently contracted between the parties without the consent of the

parents of the respondent, therefore, it seems that the parties were fearing

for their lives. Though apparently, they were living at Punjabi Bagh

when they sought some police protection but it has been averred in the

petition under Section 12 of the Act that the respondent/wife left for good

on 28.7.2011 meaning thereby that it is well possible that though she may

be living separately somewhere else but in order to seek court redressal,

both of them were shown to be living at one place as otherwise, it would

not have made a sense to urge that they have contracted marriage against

the will of their parents and that is why they are seeking police protection.

Further, the order which has been placed on record is dated 2.9.2011

wherein for the first time, it was stated before the High Court that the

parties have decided to get the marriage annulled on account of non-

consummation of marriage. It has been contended by the learned counsel

for the respondent since there was no occasion for the parties to mention

about the non-consummation of marriage either before the High Court in

the averments or before any other forum, therefore, that was the reason

why these averments were not made in writing either before the High

Court or before any other authority.

20. I do not doubt the statement made by the learned counsel for the

respondent that as the period of stay between the parties was apparently

very short and there was hardly any occasion for the respondent to have

averred that the non-consummation of marriage between the parties was

on account of physical or mental impotence, therefore, no adverse

inference could be drawn against the parties or it could be assumed that

there was some kind of collusion in initiating the process of annulment of

marriage.

21. I also agree with the contention of the learned counsel that merely

because the respondent in a given case has been forthright to admit the

averments on the very first date, the court must assume that is 'collusion'.

It is necessary that the court ought not to presume that the decree is being

obtained by collusion. The expression of the view by Madras High Court

in Maria alias Omini's case (supra) seems to be correct expression of law

and deserves to be followed.

22. During the pendency of the present petition, it has been brought to

the notice of the court that the averments made in the petition show that

the respondent/wife, before as well as after the marriage, was professing

the faith of 'Scientology', which is stated to be an independent religion.

The learned counsel for the respondent has also placed on record some

literature pertaining to the aforesaid religion which need not be gone into.

During the course of hearing of this appeal, attention of the court was

drawn to Section 5 of the Hindu Marriage Act. The said Section lays

down as under :-

"5. Conditions for a Hindu Marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage ;

[(ii) at the time of the marriage, neither party-

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity;]

(iii) the bridegroom has completed the age of [twenty-

one years] and the bride, the age of [eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."

23. The very opening of the Section shows that a marriage, in order to

be a valid marriage under Hindu Marriage Act, has to be between two

Hindus. Admittedly in the instant case, the petition which has been filed

by the appellant has given the status of the respondent before and after

marriage to indicate that she was not a Hindu. During the pendency of

this petition, the parties have also filed affidavits in this regard in this

court. In the light of the fact that admittedly the respondent is not a

Hindu, in terms of the affidavit filed by her and the averment made by the

appellant in his petition for grant of divorce, I feel that this vital fact has

skipped the notice of the trial court and that of the parties and also that in

order to be a valid marriage, both the parties had to be necessarily be

Hindus. Since in the instant case, the respondent was not a Hindu,

therefore, the very marriage which had allegedly taken place between the

parties was void ab initio. Without going into other aspects of marriage

being annulled on account of non-consummation or their being collusion,

I feel that this ground in itself ought to have been a ground for annulling

the marriage under Section 12 (1) of the Act as being void marriage

because both the parties were not Hindus.

24. Having regard to the aforesaid facts, although the impugned order

passed by the learned Additional District Judge is not sustainable in law

because non-consummation of the marriage need not be on account of

physical disability but could be because of mental block for psychological

reasons also qua a particular person to that extent the order is liable to be

set aside. Further, I am also of the view that there is no reason to

presume collusion between the parties on account of the fact that merely

because the facts stated in the petition are admitted by the respondent

unless and until some other compelling circumstances are shown to exist

to draw such an inference. Accordingly, the order is set aside. However,

keeping in view the fact that as both the parties were not Hindus in terms

of Section 5 of the Hindu Marriage Act, therefore, the very marriage was

void ab initio and accordingly, the marriage between the parties is treated

as annulled by a decree. Let appropriate decree in this regard be drawn

and the appeal stands allowed in the above terms.

V.K. SHALI, J.

MARCH 15, 2013 'AA'