Madras High Court

A.C.Sudhakar vs Vinaya on 10 March, 2022

                                                                           C.MA.No.500 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED 10.03.2022

                                                       CORAM

                        THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
                                            and
                           THE HONOURABLE MR.JUSTICE V.SIVAGNANAM

                                                 C.M.A.No.500 of 2022


                     A.C.Sudhakar
                                                                                 .. Appellant

                                                      vs.

                     Vinaya                                                     ...Respondent



                     Prayer: Civil Miscellaneous Appeal filed under Section 19 of the Family
                     Courts Act, to set aside the judgment and decree dated 17.12.2021 in
                     H.M.O.P.No.1133 of 2015 on the file of the Principal Family Judge,
                     Coimbatore, by allowing this Civil Miscellaneous Appeal.


                                      For Appellant     : Mr.N.Manoharan




                     1/12


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                                                                               C.MA.No.500 of 2022


                                                      JUDGMENT

[Judgment of the Court was made by V.SIVAGNANAM, J.]

This Civil Miscellaneous Appeal arises against the order of the

Family Court, Coimbatore, passed in H.M.O.P.No.1133 of 2015 on

17.12.2021.

2.The appellant/Husband is the respondent and respondent/Wife is

the petitioner in H.M.O.P.No. 1133 of 2015 on the file of the family

Court, Coimbatore.

3.The respondent/wife filed H.M.O.P.No.133 of 2015 for divorce

against the appellant to dissolve the marriage held on 29.06.2014 on the

ground of cruelty before the Family court, Coimbatore. She also filed a

petition in M.C.No.187 of 2015 for maintenance. The Family Court

allowed the divorce petition, aggrieved by this granting of divorce the

appellant/husband filed this appeal.

https://www.mhc.tn.gov.in/judis C.MA.No.500 of 2022

4. The case of the respondent/wife is that the marriage between the

appellant and the respondent was solemnized on 29.06.2014 at TRS

Kalyanamandapam, Salem as per the Hindu Customs. After the marriage

they lived at Salem. According to the respondent/wife, the first night

ceremony was not conducted. Subsequent days also the

appellant/husband did not incline to consummate the marriage. After one

week the respondent came to know that the appellant is impotent and he

is unable to enjoy the sex pleasure and he had no normal genital organ

and non co-operative in sexual intercourse. Therefore, the marriage could

not be consummated. The respondent/wife decided to take him to the

doctor for consultation of curing impotency. But, he refused. The

appellant/husband frequently took the respondent to various high class

bars and consumed alcohol in her presence. Whenever, she objected, he

quarreled with her. The appellant's parents also encouraged the attitude

of the husband and tried to convince her, as, it is only pressure in his life.

Finally, she was driven out of the house on 23.01.2015. Therefore, filed

the petition for divorce.

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5.The appellant/husband filed counter and contested the case and

denied the allegation made in the petition. But, any how in the counter he

inclined to grant divorce to the petitioner/wife in H.M.O.P.No.113 of

2015.

6.In the Family Court, the respondent/wife examined herself as

(P.W.1) and also examined one Rajkumar as (P.W.2) and filed eight

documents which was marked as (Ex.P.1) to (Ex.P.8). The

appellant/husband examined himself as (R.W.1) and one J.Kalaiyarasan

as (R.W.2) and filed ten documents which was marked as (Ex.R.1) to

(Ex.R.10).

7.The Family Court considering the oral and documentary

evidence, granted divorce and declared the marriage held on 29.06.2014

is dissolved. Another M.C.No.187 of 2015, the Tribunal awarded

maintenance to the wife at the rate of Rs.30,000/- per month payable

before the 7th day of every month by the appellant/husband. The

appellant/husband aggrieved by the decree of divorce alone filed this

appeal.

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8.The learned counsel for the appellant submitted that the

allegation of impotency is not proved before the Family Court. The wife

did not plead any specific date of knowledge about the husband's

impotency. The respondent/wife did not adduce any medical evidence or

by examining doctor to prove the impotency of the husband. The

allegation of non consummation of marriage is false. The

respondent/wife specifically pleaded that the parents and sister of the

husband were aware of his impotency but not examined them as

witnesses. The trial Court failed to consider the evidence of R.W.1 and

R.W.2 and reiterated the other grounds raised in the grounds of appeal

and to set aside the order of the Family Court.

9.We have considered the matter in the light of the submissions

made by the counsel for the appellant and perused the records.

10. Admittedly, the marriage between the appellant and the

respondent solemnized on 29.06.2014 at TRS Kalyanamandapam, Salem

as per the Hindu Customs after that they living together in husband's

house at Salem.

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11. The contention of the respondent/wife is that the marriage was

not consummated, the husband is physically incapable of having sexual

relation with the respondent/wife and she found the appellant was

impotent and unable to discharge his marital obligations. She could not

persuade herself to live with him and thus inflict on herself a life of

perpetual torture.

12.The respondent/wife before the Family Court deposed what she

had stated in the petition. The appellant/husband denied the allegation

attributed by the wife upon him. But, the undisputed fact is that the

husband refused to go for medical test to prove his potentiality. The

refusal of the husband to go for medical test to prove his potentiality lead

to the inference of his impotence by the Family Court. Apart from this,

the appellant in his counter expressed his willingness to dissolve the

marriage. Under these circumstances, the Family Court granted divorce

in favour of the respondent/wife.

13. In the above context, while dealing with the similar case, the

observations of the Delhi High Court in Rita Nijhawan v. Balkishan

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Nijhawan case reported in [AIR 1973 Delhi 200] are to be noted, and in

that case, the parties have been judicially separated by the Delhi High

Court holding as follows :

22. In Rita Nijhawan V. Balkishan Nijhawan MANU/DE/0031/1973: AIR1973 Delhi2000(Sachar, J.) while dealing with a case of annulment of marriage under the Hindu Marriage Act on the ground of impotency very poignantly and pithily observed as follows:

Thus the law is well settled that if either of the parties to a marriage being a healthy physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any difference in law whether denial of sexual intercourse is the result of sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any willful refusal by the respondent.

Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and

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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 women’s mind and body. The result being that if she does not get proper sexual satisfaction, it will lead to depression and frustration.

31.While dealing with a case under the Hindu Marriage Act, 1955, a Division Bench of the Karnataka high court in Dr.Srikant Rangacharya Adya V.Smt.Anuradha MANU/KA/0114/1980 dwelling on the aspect of impotency and its impact on the wife observed as follows:

In these days it would be an unthinkable proposition to suggest that the wife is not an active participant in the sexual life and therefore, the sexual pleasure to the wife is of no consequence and therefore cannot amount to cruelty. 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 has an extremely favourable influence on a women’s mind and

https://www.mhc.tn.gov.in/judis C.MA.No.500 of 2022

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 relation when happy and harmonious vivifies woman’s brain, develops her character and trebles her vitality. It must be recognized that nothing is more fatal to marriage then disappointments in sexual intercourse.

From the evidence on record, it is evidenced by the respondent that the

appellant had not discharged his marital obligation thus it is clear that

the marriage has broken down beyond repaired. Refusal to have sexual

intercourse due to physical incapacity may amount to mental cruelty. The

concept of cruelty differs from person to person depending upon the

cultural background. The prudent and appropriate way to adjudicate the

case would be evaluate it on its peculiar facts and circumstances of the

case on hand. In this case, from the evidence of the respondent, it is clear

that the appellant/husband refused to have sexual intercourse due his

physical incapability. Definitely, it will amount to mental cruelty of the

respondent and granted divorce. We find no reason to interfere with the

https://www.mhc.tn.gov.in/judis C.MA.No.500 of 2022