The Madras High Court recently comprising of a bench of Justice V. Bhavani Subbaroyan observed that Polycystic Ovarian Syndrome (PCOS / PSOS) cannot be termed as impotency. The marital dispute in relation to which the High Court was approached also led the bench to remark that the present generation does not take marriage seriously. (Annapoorani v. S. Ritesh)
Facts of the Case
The wife filed the present petition against the petition filed by the Husband before the Family Court. The husband’s petition was filed on the ground that the wife was suffering from Polycystic Ovarian Syndrome (PCOS) and was not fit for cohabitation or to give birth to a child.
Husband also filed an interlocutory application seeking for an amendment to include the provision of law from 12(1)(a) and 12(1)(a) and (c). The said petition seeking for amendment was pending before the Family Court for decision.
Contention of the Parties
Ms.S.P.Arthi, leaned counsel appearing for the petitioner vehemently contended that the petition filed before the Family Court by the respondent / husband cannot be sustained, as the same is pure abuse of process of Law. She would also state that the facts pleaded before the Family Court under Section 12(1)(a) of the Hindu Marriage Act cannot be sustained and ought to be rejected at the threshold. The main strength of the argument put forth by the said counsel is that 'PSOS' disorder is endocrine system disorder that affects the capacity of the reproduction in women and which is totally distinct and different from claiming to be impotence. Having the respondent / husband choose to invoke a petition under Section 12(1)(a) on the ground that the petitioner / wife is incapacitated for giving birth to a child, the respondent / husband also claim that the 'PSOS' is to be impotency and sought the declaration of the marriage that took place between the petitioner and the respondent on 01.07.2018 as null and void.
According to the learned counsel for the petitioner, the said claim made by the respondent / husband is absolutely incorrect and the said usage of terminology of impotency as against the petitioner / wife, cannot be sustained and on this ground, she prays for striking off the petition filed by te respondent / husband.
Courts Observation & judgment
At the outset, the Court remarked that the issue of 'PSOS' is now commonly prevailing among the present generation of women and that the term 'PSOS' by itself cannot be termed as 'impotence.
The Court noted,
"Impotency is different and unable to give birth to the child is different, owing to various physical and mental reasons".
The Court also observed that the husband did not plead that the wife's inability to give birth to a child is 'Impotency', however, he did seek for annulment of a marriage on the reason that there was no cohabitation and wife could not bear a child.
The Court also noted that his claim was that his wife/ petitioner could not bear a child for two reasons, viz., firstly, there is no cohabitation, secondly, the wife is suffering from 'PSOS' due to which the said wife suffers an improper menstrual cycle.
Significantly, the Court opined,
"It is a legitimate expectation of the husband to live with his wife and have cohabitation and bear children and if the same is not achieved owing to any physical and mental problem among the partners, it is quite logical that either of the parties will approach the court for seeking divorce on such allegations".
Turning to the facts of the Case, the Court observed that the Wife could not show that there was no cause of action disclosed by the averments made in the petition filed by the husband or that the cause of action disclosed by the averments made in the petition was not natural, but illusive.
Consequently, the Court opined that it is not as if there was no cause of action to approach the family court. Therefore, the bench held that no grounds were made out for the intervention of the High Court under Article 227 of the Constitution of India and dismissed the wife's civil revision petition.
“Under these circumstances, it could be seen that the petitioner has not made out any grounds seeking for intervention of this Court under Article 227 of the Constitution of India to strike off the petition in O.P.No.4784 of 2019 on the file of III Additional Family Court, Chennai. Accordingly, the Civil Revision Petitition does not even merit admission and the same is liable to be dismissed at the threshold and the same is dismissed.”
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