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High Court Of Delhi
RITA NIJHAWAN - Appellant
Versus
BAL KISHAN NIJHAWAN - Respondent
L.P.A. 117 of 1970
Decided On : 02/21/1973
HINDU MARRIAGE ACT, 1955 - SECTION 12(1)(A) - SECTION 10(1)(A) AND (B) - NULLITY OF MARRIAGE - JUDICIAL SEPARATION - IMPOTENCY - CRUELTY - DELAY IN FILING PETITION - CONDONATION OF CRUELTY - APPROBATE AND REPROBATE - UNNECESSARY AND IMPROPER DELAY - MENTAL CRUELTY - SEXUAL WEAKNESS - SEXUAL INTERCOURSE - CONSUMMATION OF MARRIAGE - MEDICAL REPORT - OPINION OF DOCTORS - EVIDENCE - BURDEN OF PROOF - STANDARD OF PROOF - REASONABLE APPREHENSION OF DANGER TO HEALTH - INTENTION TO INJURE - FRUSTRATION AND MISERY - SOCIAL DISPARITY - UNHAPPY MARRIAGE - MATRIMONIAL OFFENCE - IRRETRIEVABLE BREAKDOWN OF MARRIAGE - IRRECONCILABLE DIFFERENCES - DIVORCE - DISSOLUTION OF MARRIAGE.
Fact of the Case:
The appellant-wife filed a petition under Section 12(1)(a) of the Hindu Marriage Act, 1955, seeking annulment of her marriage with the respondent-husband on the ground of impotency or, in the alternative, for a decree of judicial separation under Section 10(1)(a) and (b) of the Act, on the ground of desertion and cruelty. The appellant alleged that after the marriage, the parties stayed together for about 10 days and though the respondent tried for sexual intercourse with her, he could not consummate the marriage as he could not get proper erection and got discharged before he could perform the act. The respondent denied the allegations and claimed that the parties enjoyed harmonious relations and led a happy married life till 1965 when there was an abrupt and unfortunate turn at the instigation of her parents who were unduly flared up by the rightful demand of the respondent for the return of his loan with them. The trial court dismissed the petition, and the High Court affirmed the findings of the trial court on issues of impotency, cruelty, and delay in filing the petition.
Finding of the Court:
The Supreme Court held that the appellant had failed to prove that the respondent was impotent at the time of marriage and continued to be so until the institution of the proceedings. The court found that the evidence on record fell short of proving impotency, as it was not possible to hold that the birth of a son was the result of fecundation ab extra. The court also held that the appellant had successfully proved that the respondent had treated her with such cruelty as to cause a reasonable apprehension in the mind of the appellant that it would be harmful and injurious for the appellant to live with the respondent. The court found that the respondent's sexual weakness and inability to have normal sexual intercourse with the appellant amounted to cruelty, and that the appellant was entitled to a decree of judicial separation under Section 10(1)(b) of the Act.
Issues: 1. Whether the respondent was impotent at the time of his marriage with the petitioner and continued to be so until the institution of this petition? 2. Whether the respondent has treated the petitioner with cruelty as alleged in the petition and if so with what effect? 3. Whether the respondent has deserted the petitioner for a continuous period of more than two years? 4. Whether there has been unnecessary and improper delay in instituting this petition?
Ratio Decidendi: 1. Impotency, under Section 12(1)(a) of the Hindu Marriage Act, 1955, requires a strict standard of proof, and the burden of proving that the respondent was impotent at all material times, from the time of marriage until the institution of proceedings, lies on the petitioner. 2. The birth of a child during the marriage is not conclusive evidence that the marriage has been consummated, and the possibility of fecundation ab extra must be considered. 3. Cruelty, under Section 10(1)(b) of the Hindu Marriage Act, 1955, includes conduct that causes danger to life, limb, or health (bodily or mental) or gives rise to a reasonable apprehension of such danger. 4. Sexual weakness or inability to have normal sexual intercourse, if it results in frustration and misery for the other spouse, can amount to cruelty. 5. Delay in filing a petition for judicial separation or annulment of marriage may be a bar to relief if it is unnecessary, improper, or culpable, but the court must consider the circumstances of each case and the reasons for the delay. 6. Condonation of cruelty requires cohabitation under one roof, and where there is no normal sexual intercourse between the parties, there can be no condonation.
Final Decision: The Supreme Court set aside the judgments of the courts below and granted a decree for judicial separation under Section 10(1)(b) of the Hindu Marriage Act, 1955, in favor of the appellant against the respondent. The parties were directed to bear their own costs throughout.
( 1 ) THIS letters patent appeal is directed against the order of the learned single judge, dated May 14, 1970, affirming the order of the Additional District Judge, Delhi, dated May 15, 1969, by which the application of the pertitioner/appellant wife under Section 12 (l) (a) of the Hindu Marriage Act, 1955, (hereinafter to be called the Act) for annulment of the marriage with the respondent-husband by a decree of nullity on the ground of importency or in the alternative for grant of a decree for judicial separation under Section 10 (1) (a) and (b) of the Act, on the ground of desertion and cruelty, was dismissed.
( 2 ) THE marriage of the parties took place in Delhi on April 14,1954. At the time of the marriage the appellant was about 16 years and the respondent was about 30 years. It was alleged in the petition that after the marriage the parties stayed in Delhi for about 10 days and though the respondent tried for sexual intercourse with the appellant but could not consummate the marriage as he could not get proper erection and got discharged before he could perform the act. The respondent had some inferiority complex and could not perform the Act. Thereafter the respondent was transferred to Gwalior and the parties lived there but the respondent was not capable of doing the act of sexual intercourse there also. After a year of stay in Gwalior, the respondent was transferred to Dholpur where they stayed for two years and there also the respondent was not able to perform the act of sexual intercourse. It was further alleged that the petitioner was at the time of her marriage unaware of the sex life and for that reason was not able to understand that the respondent was not able to do sexual intercourse because of his impotency. In 1957 the appellant s cousin sister Shashi came to stay with them at Dholpur and from her she came to know the facts about true married life. She complained to the husband who promised that he would get himself treated by some hakims for this purpose and started taking some medicines. The respondent was thereafter transferred to Bhopal where the parties lived for three years. At Bhopal the respondent was getting medicines from Delhi and he got somewhat better and the petitioner got preg- nant although there was no normal and complete sexual intercourse between the parties as there was some penetration. The petitioner bore a son from the husband who was born in February, 1959. It was maintained that this was only a temporary phase and the respondent was again not able to perform the act of sexual intercourse. By this time the appellant and her parents had also come to know and though the respondent was asked to get himself treated, he refused to do so and on thcontrary started treating her with cruelty. The respondent was thereafter transferred to Rangat in Andaman where the parties stayed for about a year. Thereafter he was transferred to Port Blair and the parties stayed there upto 1962. It is alleged that it was only on the persuasion of the respondent and the assurance given by him that he will treat himself and become potent that the appellant went to Nasik in the end of 1962. Thereafter the respondent was transferred to Bombay in 1963 when she came to reside with her parents. It is alleged that in 1963 when the appellant was sure that it was impossible for her to live with the respondent and she could not tolerate the cruelty any more, she joined the institute of catering Technology, Bombay and passed her examination of Hotel Management in the year 1966. During this period the respondent was posted at Kanpur and the appellant went there and stayed for about 4 or 5 days but the respondent had become from had to worse. Even in 1964 the appellant went and lived with the respondent but found that the position had not improved. Prayer was accordingly made for the necessary reliefs.
( 3 ) THE respondent denied the allegations. It was denied that the respondent suffered from any complex mu
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