Back
1987 Supreme(Gau) 32
GAUHATI HIGH COURT
K. N. SAIKIA, Ag. C.J. R.K. MANISANA AND S. N. PHUKAN, JJ.
Best Morning Khongathohrem -Appellant
Versus
Nirmalendu Deb -Respondent
Divorce Suit No. 1 (SH) of 1987
Decided On : 02-06-1987
Vasectomy, resulting in sterility, does not constitute impotency as a ground for nullity of marriage under Section 19(1) of the Indian Divorce Act, 1869. However, non-disclosure of vasectomy by the husband, depriving the wife of her hope of bearing children, amounts to fraud, justifying a decree of nullity under the saving provision of Section 19.
Headnote:
NULLITY OF MARRIAGE - SECTION 19 OF THE INDIAN DIVORCE ACT, 1869 - GROUNDS FOR NULLITY - IMPOTENCY - STERILITY - FRAUD - INTERPRETATION AND APPLICATION - [S. 19, INDIAN DIVORCE ACT, 1869]
Fact of the Case:
Petitioner sought a decree of nullity of marriage on the grounds of respondent's impotency due to vasectomy and fraud by not disclosing the same before marriage. The respondent did not contest the suit.
Finding of the Court:
1. Vasectomy does not render a man impotent but makes him sterile. It does not result in the person's physical incapacity to copulate or to perform the sexual act, but his physical incapacity to procreate. Vasectomy, therefore, cannot be said to cause impotency of the person. 2. Sterility is not impotency both for husband and wife. The fact that a wife is incapable of conceiving a child is no ground for a decree of nullity. The test is the capacity to consummate and not the capacity to conceive. 3. The respondent's non-disclosure of the vasectomy amounted to fraud as it deprived the petitioner of her hope of bearing children, which is a natural inclination of a woman. 4. The respondent obtained the consent of the petitioner by fraud, and the Court has jurisdiction to make a decree of nullity of the marriage on the basis of the facts and circumstances.
Issues: 1. Whether vasectomy renders a man impotent, making the marriage null and void under Section 19(1) of the Indian Divorce Act, 1869? 2. Whether the respondent's non-disclosure of the vasectomy amounted to fraud, justifying a decree of nullity under the saving provision of Section 19 of the Act?
Ratio Decidendi: 1. Vasectomy is a mode of sterilization that results in sterility, not impotency. Impotency, as a ground for nullity of marriage, means the inability to perform sexual intercourse, not merely the inability to procreate. 2. Sterility is not necessarily associated with impotency. The two expressions denote lack of two different powers, and resultant incapacities are also different. 3. Fraud in matrimonial law is limited to such fraud as procures the appearance without the reality of consent. Misrepresentation or concealment of facts which if known to one of the parties might have prevented his or her marriage does not invalidate a marriage provided that there were free consents for the marriage. 4. In the instant case, the respondent's non-disclosure of the vasectomy amounted to fraud as it deprived the petitioner of her hope of bearing children, which is a natural inclination of a woman.
Final Decision: The Court confirmed the decree nisi of nullity of marriage granted by the Additional Deputy Commissioner under Section 20 of the Indian Divorce Act, 1869.
SAIKIA, Actg. C.J. :- In this reference the decree nisi granted by the Additional Deputy Commissioner, Jaintia Hills District Jowai dated 28-8-86 in Divorce Suit No. 1 of 1986 declaring the marriage between the petitioner and the respondent null and void under S.19 of the Indian Divorce Act, 1869, for short the Act, has come up for confirmation under S.20 of the Act.
2. The petitioner Smt. Best Morning Khongthohrems case is that she was married to respondent Sri Nirmalendu Deb, then a widower, on 28-12-77 at the Church of Epiphany, Mawlynnong village according to the Christian rites. The ceremony was solemnised by Rev. Huxly B. Syngoh who issued the marriage certificate, Ext. I. After the marriage the parties lived and co-habited together at the Government quarter, Civil Hospital Compound, Jowai, where the respondent was posted as Pharmacist, for more than 6 years, but they had no issue. In the month of May, 1983 the respondent informed the petitioner that there was no possibility of her bearing any child from him as he had already undergone vasectomy operation prior to their marriage. The petitioner considered herself to have been cheated by the respondent in not disclosing this information prior to their marriage and, accordingly she left the respondents house and had since been living with her parents at Mawlynnong village. She filed a petition on 2-7-86 for declaration that her marriage with the respondent was null and void by reason of, what she called, respondents incompetency to enter into the pretended marriage by reason of his impotency on account of the said vasectomy operation, and on ground of cheating.
3. The petitioner examined herself and another witness. The respondent appeared before the Court and stated that he did not want to contest the suit. The petitioners case was amply corroborated by her witness No. 1 U.Y. Khonglam who also said that since 1983 the petitioner had been living with her parents and she was working there as a school teacher.
4. We have carefully perused the evidence on record and found no collusion or Connivance between the parties in the matter of filing the divorce suit. The learned Additional Deputy Commissioner granted the decree of nullity of the marriage on the basis of the evidence on record. The question is whether the decree nisi can be confirmed ?
5. Section 18 of the Act deals with petition for decree of nullity and reads :
"Any husband or wife may present a petition to the District Court or to the High Court, praying that his or her marriage may be declared null and void."
Section 19 prescribes the grounds of decree :
"Such decree may be made an any of the following grounds :-
(i) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force.
Nothing in this Section shall affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud."
6. The petitioner, as already stated, sought the decree of nullity of the marriage on the ground that the respondent was incompetent to enter into the marriage by reason of his impotency at the time of his marriage with the petitioner and continued to be so at the time of the institution of the suit, because of the vasectomy he underwent before the marriage and on the ground that he cheated the petitioner into marrying him by not disclosing that fact before the marriage. The question then is whether vasectomy on the male renders him impotent so as to provide a ground for a decree under S.19(1) declaring her marriage null and void ? The respondent did not controvert th
