Impotency of the husband can be considered a sufficient reason for the wife to reside separately and claim maintenance under Section 125 of Cr.P.C.

ORDER :

1. Challenge in this revision petition is to the order dated 12.10.2022, passed in M.J.C. No. 06 of 2021, whereby learned Family Court, Jashpur, District-Jashpur allowed the application under Section 125 of Cr.P.C. and awarded maintenance of Rs.14,000/- per month to the respondent-wife.

2. Learned counsel for applicant-husband submits that order passed by the learned Family Court awarding maintenance to respondent-wife is per-se illegal. Learned Family Court without recording the finding that applicant neglected or refused to maintain his respondent-wife has passed the order awarding maintenance. The reason which was taken into consideration for living of respondent-wife separately in the pleading is that applicant herein is impotent. It is contention of learned counsel for applicant-husband that impotency is not a ground mentioned under Section 125 of Cr.P.C. to be sufficient cause for wife to reside separately and in support of his contention he placed reliance upon the decision of Allahabad High Court in case of Bundoo vs. Smt. Mahrul Nisa and Another, 1978 Cri. L.J. 1661.

3. Learned counsel for respondent-wife opposes the submission of learned counsel for applicant and would submit that learned Court below considering the entirety of facts and circumstances of the case, nature of evidence brought on record documentary as also the oral, has passed the impugned order in accordance with law, which does not call for any interference. She submits that ground of impotency can also be one of the sufficient reason for wife to reside separately from her husband. In support of her contention, she placed reliance upon the decision of Hon'ble Supreme Court in case of Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkhan and Another, (1981) 4 SCC 250.

4. I have heard learned counsel for the parties and perused the documents placed on record.

5. Perusal of the application filed under Section 125 of Cr.P.C. would show that applicant-wife has filed an application stating that she was deprived of her conjugal rights. Applicant-husband has made such situation and forced her to leave her place of residence and after marriage applicant-husband had not established physical relations with her and further pleaded that on account of non-establishment of physical relation between them, her life is made to hell. Though this ground of impotency was refused by applicant-husband in his reply before the Family Court, however, the reply to the legal notice submitted by applicant-husband, in Para 5 & 6 there is categorical admission of applicant-husband, that he has informed about his physical in-competency before the marriage and has not suppressed this fact. Reply to the legal notice submitted by applicant-husband is marked as Ex.PA-6. Learned Family Court has taken note of this fact of admission of in-competency by applicant-husband in reply to the legal notice and came to conclusion that there was sufficient reasons for respondent-wife herein to reside separately.

6. Conjugal rights of the parties to the marriage is foundation of marriage. Deprivation of the same by either of them will be cruelty on other partner and therefore, there is provision under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and if any parties deprived of his/her partner of conjugal rights, it may be one of the ground to seek divorce. If the married person is not having the conjugal relationship with his/her partner which makes him/her entitled to take divorce meaning thereby to separate from his or her partner. For the reasons as discussed above that the impotency of applicant-husband as admitted by him would be sufficient reason for the respondent-wife to reside separately.

7. Hon'ble Supreme court has considered the identical issue in case of Sirajmohmedkhan (supra) and while considering the decision of the High Court have held that the observations made in case of Bundoo (supra) are in the nature of obiter dictum, in support of the argument of M