A decree of nullity under Section 12(1)(a) requires proof of impotence; non-consummation alone is insufficient for annulment of marriage.

2. Mr. S.K. Mishra, learned counsel appears for the appellant and Mr. S.K. Behera, learned counsel appears for the respondent.

3. This appeal filed under Section 19 (1) of the Family Courts Act, 1984 is directed against the Judgment dated 24.12.2020 delivered in Civil Proceeding No.93 of 2018 by the Judge, Family Court, Nayagarh. By the said Judgment, the marriage solemnized between the parties on 22.04.2015 has been annulled.

4. Mr. Mishra, learned counsel, at the outset, has submitted that the finding of the Judge, Family Court, Nayagarh is grossly perverse, in as much as, without any evidence as regards the impotency, the suit instituted under Section 12 (1)(a) of the Hindu Marriage Act has been decreed.

5. Mr. Mishra, learned counsel has taken us to the relevant finding in the Judgment, based on which the suit has been decreed. It has been observed by the Judge, Family Court that in the written statement, the appellant (the Opposite Party in the Civil Proceeding) has only pleaded the fact of non-consummation of marriage. In sequel and on appreciation of the evidence, it has been observed that “It is also well evident from the cross examination of O.P (OPW.l) that she has not kept any marital relationship in order to save their life being advised by her mother in-law. Even OPW.l has categorically stated in said para-3 of her cross examination that there was no marital relationship between them during her stay at Champa. As such, the O.P has adduced self-contradictory evidence which is a departure from her version in para-3 of her affidavit evidence. In para-2 of her written statement it is specifically stated that, the petitioner has withdrawn from consummation through marital intercourse out of fear and apprehended death. The OPW.l has also supported her pleadings as set out in the written statement that she was not having any marital life with the petitioner either in her matrimonial house or at his work place i.e. Champa at Chhatisgarh. Thus, the affidavit evidence (examination in chief) of the OPWl gained no corroboration whatsoever to negative the contentions of the petitioner as regards non-consummation of their marriage. Moreover, absolutely no evidence has been led from the side of the O.P that their marriage has not been consummated owing to the impotency of her husband (petitioner). As such, the plea taken in this regard is found to be misconceived. Accordingly, the second point formulated for determination is answered in affirmative.”

6. At the beginning of the Judgment, the Judge, Family Court had formulated three points inter alia, the point No.2 reads as under:

“ii) Whether the marriage between the parties has not been consummated and is voidable and to be annulled by decree of nullity?”

7. Mr. Mishra, learned counsel has submitted that on two grounds the Judgment is unsustainable. One is that the burden of proof has been illegally shifted to the appellant herein who was the Opposite Party in the Civil Proceeding and the second one is that admittedly, there is no evidence of impotency. In this regard, Mr. Mishra, learned counsel has placed his reliance on a decision of this court in Jagannath Muduli vs. Nirupama Behera : 2008 (II) OLR/387. In that report, it has been clearly enunciated that under Section 12 (1) (a), a marriage, if not consummated owing to impotence is liable to be annulled. The word ‘impotence’, means a practical impossibility to perform sexual act in complete and perfect manner. Full and complete sexual penetration is an essential ingredient for ordinary a