The main legal point established in the judgment is that there is a marked distinction between infertility and impotency, and in the absence of material showing the impotency of the wife to render the consummation of the marriage impossible, the provisions of Section 12(1)(a) of the Hindu Marriage Act are not attracted.

(A.R. Joshi, J.)

1. The appellant/wife challenged the judgment and decree passed by the Family Court, Pune allowing the M.J. Petition No.565/1992 of the respondent/husband. The appellant/wife is the earlier respondent in the said M.J. Petition and present respondent/husband was the original petitioner who filed the petition for nullity of the marriage and alternatively for a decree of divorce on various grounds. For the sake of clarity, the parties are being referred to as the “wife and husband” while deciding the present Family Court Appeal preferred by the wife.

2. Heard rival arguments canvassed on the earlier dates. Perused the record and proceedings including the depositions of the witnesses examined by the rival parties. This is an appeal filed by the wife challenging:

“ - the judgment and decree of nullity under Section 12 of the Hindu Marriage Act on the ground of impotency under Section 12(1)(a),

- and also the judgment and decree of divorce on the ground of cruelty and desertion under Section 13(1)(ia)(ib) of the Hindu Marriage Act.”

3. M.J. Petition No.565/1992 was filed by the husband for nullity and alternatively for divorce. M.J. Petition No.272/1993 was filed by the wife for restitution of conjugal rights. Both the petitions were jointly heard and decided by a common judgment and order dated 31.10.1994 passed by the Family Judge, Pune. By the said common judgment, the marriage between the parties was annulled and also alternatively divorce was granted to the husband. The petition for restitution of conjugal rights preferred by the wife was dismissed.

4. It is rather a disturbing state of affair that there is laws delay. This Family Court Appeal has reached final hearing after about 18 years of the dissolution of marriage. The spouses then in the year 1992 were 42 years (husband) and 45 years (wife), when the petitions were filed. However, presently both the parties have become or about to become senior citizens.

5. Coming to the arguments advanced on behalf of the wife, following points – as emphasized in the Family Court Appeal and during the arguments, are summarized to have proper perspective of the present matter. The said points are as under:

(i) there is an error committed by the trial Court in holding that the marriage between the spouses was not consummated due to impotency of the wife;

(ii) there is an error in holding that the wife treated the husband in cruel manner inasmuch as she denied her company to the husband and thereby caused desertion and separation from him by not cohabiting with him at his places of service;

(iii) it is erroneous for the trial Court to hold that the wife is impotent merely because she could not give birth to any child even after more than 16 years of wedlock;

(iv) it is erroneous on the part of the trial Court to hold that the wife had practiced mental cruelty on the husband by alleging that he was staying with another woman during the subsistence of his first marriage and out of such relations that another woman gave birth to a child, and subsequently wife took back the said allegations;

6. Prior to analyzing the material available before the Family Court for deciding the Petition of the husband and the petition of the wife, the relevant law under which the impugned judgment and decree was passed by the Family Court is mentioned and then the material available so also the findings of the Family Court will be critically examined.

7. The Family Court had annulled the marriage between the parties by decree of nullity on the ground of impotency of wife under Section 12(1)(a) of the Hindu Marriage Act, 1955. Said section reads as under:-

“12. Voidable marriages. – (1) 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; or

(b) …...

(c) …...

(d)