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1996 Supreme(Bom) 540
IN THE HIGH COURT OF BOMBAY
M.L. Dudhat Mrs. R.P. Desai, JJ.
Capt. Suprabha Joel Gaikwad (Nee Miss Suprabha David Ghatge) .....Appellant.
Versus
Dr. Joel Soloman Gaikwad..... Respondent.
Family Court Appeal No. 72 of 1992, decided on 3-10-1996.
Advocates appeared :
Nitin P. Deshpande, for appellant.
Dilip Bodke, for the respondent.
Headnote:Divorce Act, 1869
Sections 18 and 19-Husband Impotent-Divorce petition under Sections 18 and 19 by wife-Dismissal being not impotent-Wife flied appeal-Evidence not properly appreciated third woman was relatively Impotent-Relations Impotency causes the result of Divorce is valid. -In this, case, it is an admitted position that the relationship of the appellant and the respondent has irretrievably broken and there are no chances of their coming together and enjoy the matrimonial life once again. It is also an admitted position that both the appellant and respondent want divorce and put an end to the matrimonial alliance. The only difference is that the appellant- wife wants to put an end to the matrimonial relationship on the ground of impotency on the part of the respondent husband, while the respondent husband wants to put an end to the matrimonial relationship on the ground of adultery on the part of the wife, the appellant. Taking an overall view of the matter, according to Court opinion it is desirable to put an end to this incompatible relationship of this husband and wife to avoid further mental agony to both the parties. Since both the parties want to separate if the divorce on the ground of relative impotency is granted there will be no stigma attached either to respondent husband or to the appellant wife and in view of the fact that appellant petition for nullity of the marriage being earlier in point of time, there is no need to confirm the decree of divorce under Section 20 of the Indian Divorce Act, 1869. as granted by the District Court on the ground of adultery on the part of the appellant-wife. Hence, taking on overall view of the matter. Court in allowing the appeal filed by the Appellant and set aside the judgment and decree dated 30th November. 1991 passed by the Family Court, Pune in P.S. No. 600 of 1990 and pass decree of divorce under Sections 18 and 19(1) on the ground of relative impotency of the respondent husband and declare that the marriage solemnized between the appellant and respondent is a nullity. There shall be no order as to costs.
Sections 18 and 19-Petition by wife on the ground of Impotency -Family Court held that respondent was not impotent-Since the marriage between appellant and respondent was consumed therefore not entitled to get decree of divorce-Husband filing petition under Section 10 of the Act alleging wife was guilty of adultery. Since both the parties want to separate if the divorce on the ground or relative impotency is granted there will be no stigma attached either to respondent husband or to the appellant wife and in view of the fact that appellants petition for nullity of the marriage being earlier in point of time there is no need to confirm the decree of divorce under Section 20 of the Indian Divorce Act. 1869 as granted by the District Court on the ground of adultery on the part of the appellant wife. Hence taking an over all view of the matter, the Court is allowing the appeal filed by the Appellant and set aside the judgment and decree dated 30th November. 1991 passed by the Family Court. Pune in P.A. No. 600 of 1990 and pass decree of divorce under Sections 18 and 19(1) on the ground of relative impotency of the respondent husband and declare that the marriage solemnized between the appellant and respondent is a nullity.
2.Few facts which are material from the point of view of dismissal of this appeal are as under:
It is the case of the petitioner-wife that she was Captain and respondent was a Doctor. They were married according to Christian religion at Calcutta on 19th November, 1989. The said marriage, according to the petitioner, was an arranged marriage. After the marriage, they went to honeymoon at Mahableshwar for a period of four days. However, during the period of Honeymoon, she had no sexual contact with the respondent-husband. According to her, there is a defect in the respondent's male organ, due to which he is impotent. She has further contended that during the course of her marital life, there was no sexual contact between the petitioner and the respondent till the date of filing of the divorce petition. On the other hand, respondent-husband by his written-statement, though, admitted the marriage having been performed according to the Christian religion, he denied that there was no sexual contact between the petitioner-wife and himself. He denied the allegation made by the appellant-wife to the effect that he was impotent. He has also denied all other allegations, such as that petitioner-wife has suffered physical and mental cruelty at his hands. At this stage, we may observe that after filing of the aforesaid written-statement, the respondent-husband, by adding para 14 to his written-statement, the respondent-husband, apart from making the allegation against the petitioner-wife that she was leading an adulterious life, he also stated that because of the bad behaviour on the part of the petitioner-wife, her adulterious life, tremendous mental and physical tension suffered by the respondent, he could not perform sexual intercourse with his wife. He has also stated that the said impotency of the respondent-husband is only relative impotency towards the petitioner-wife only. The said amendment application (Exhibit 20) made by the respondent-husband was granted by the Family Court on 11th January, 1991. There was, it appears, another application vide Exhibit 21 filed by the respondent-husband stating in it that he had made the application Exhibit 20 in haste and, therefore, the same be cancelled. On the said application, no order is passed by the learned Family Court and, therefore, as the record of the case stands, only the amendment application filed by the respondent-husband on 11-1-1991 is granted by the Family Court and till today there is no order passed by the Family Court to cancel the same.
3.After considering the rival contentions and after scanning the evidence, the Family Court held that, respondent-husband is not impotent. It also held that the marriage between the appellant and the respondent was consummated and, therefore, held that the appellant is not entitled to get the decree of nullity under sections 18 and 19 of Indian Divorce Act, 1869. It is this judgment and decree passed by the Family Court, which is the subject-matter of this first appeal before us.
4.At this stage, we also wish to mention that after the dismissal of the aforesaid petition filed by the wife, respondent-husband also filed Marriage Petition No. 1 of 1992 before the District Court, Pune. The said petition was filed by the respondent-husband for divorce under section 10 of Indian Divorce Act, 1869 i.e. on the ground that the appellant-wife was guilty of incestuous adultery with respondent No. 2 in that petition viz. Om Prakash Sharma, a retired Mi
