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2017 Supreme(UK) 213
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Rajiv Sharma, Sharad Kumar Sharma, JJ.
Ameet Bhuvan - Appellant
Versus
Smt. Swati Bhaskar - Respondent
First Appeal No. 111 of 2014
Decided On : 10-07-2017
For the Appellant : Mr. S.K. Posti
For the Respondent: Mr. D. Barthwal
Refusal to undergo a potency test can lead to adverse inferences and impotency can be established through medical tests and conduct.
Headnote:
Section 19 - Family Courts Act - 11, 12, 25, 27 - The court discussed the validity of the judgment passed in a suit invoking Sections 11, 12, 25, and 27 of the Hindu Marriage Act, 1955, and the relief sought for permanent alimony and property settlement. The court analyzed the impotency claim, refusal to undergo potency test, and financial status of the husband.
Fact of the Case:
The plaintiff sought to declare the marriage void under Section 11 of the Hindu Marriage Act, claiming impotency of the husband. The husband denied the allegations and contended that the plaintiff was unwilling to have a physical relationship. The court framed issues related to impotency, refusal to undergo potency test, and grant of alimony and property settlement.
Finding of the Court:
The court found that the husband's refusal to undergo the potency test and the evidence presented established his impotency. The court awarded permanent alimony to the plaintiff based on the husband's financial status.
Issues: Impotency, refusal to undergo potency test, grant of alimony, property settlement
Ratio Decidendi: The refusal to undergo a potency test can lead to adverse inferences. The court may award alimony based on the financial status of the parties. Impotency can be established through medical tests and the conduct of the parties.
Final Decision: The court upheld the judgment and decree passed by the lower court, dismissing the appeal.
Sharad Kumar Sharma, J.
This is husband’s appeal invoking Section 19 of the Family Courts Act, questioning the validity of the judgment dated 09.10.2014 passed in Suit No. 342 “Smt. Swati Bhaskar vs. Ameet Bhuwan”. By the judgment impugned the Suit filed by the plaintiff-respondent, invoking Sections 11, 12, 25 and 27 for declaring the marriage to be void, as well as, she has simultaneously sought a relief for the grant of permanent alimony under Section 25 of the Hindu Marriage Act and settlements of the property by invoking Section 27 of the Hindu Marriage Act, 1955.
2. The plaintiff-respondent on 13.05.2013 instituted the Suit for following relief :
¼d½ ;g fd fgUnw fookg vf/kfu;e 1955 dh /kkjk 12 dh 'kfDr;ksa dk iz;ksx fd;k tkos rFkk i{kdkjksa dk fookg laca/k 'kwU;dj.kh; fookg dh vkKfIr ds fy, vkKIr djrs gq, i{kdkjksa dk fookg laca/k fnukad 14-02-2013 ‘kwU; ,oa ‘kwU;dj.kh; ?kksf”kr djrs gq, fujLr dj fn;k tkos rFkk fgUnw fookg jftLVkj gSnjkckn dks bl fujLrhdj.k dh lwpuk izsf”kr dh tkosA
¼[k½ ;g fd fgUnw fookg vf/kfu;e 1955 dh /kkjk 25 dh ‘kfDr;ksa dk iz;ksx fd;k tkos rFkk izfroknh dks vknsf’kr fd;k tkos fd og orZeku okn dh frfFk ls vadu 25]000@& :i;s izfrekg thou fuokZg esa okfnuh dks vnk djsa rFkk blds dkj.k cusA fodYi esa vadu 20]00]000@& :i;s dh /kujkf’k ,d eq’r okfnuh dks vnk djsa] rkfd okfnuh viuk Hkj.k&iks”k.k dj ldsA
¼x½ ;g fd fgUnw fookg vf/kfu;e 1955 dh /kkjk 27 dh ‘kfDr;ksa dk iz;ksx fd;k tkos rFkk izfroknh dks vknsf’kr fd;k tkos fd og okn&i= dh lwph esa of.kZ lkeku okfnuh dks ekuuh; egksn; ds vkns’k ls 15 fnu ds vUnj okfil djs vkSj bldk dkj.k cusA
3. For the purposes of declaring marriage to be void under Section 12 of the Act, she contended that the marriage held on 14.02.2013 since could not be consummated, hence may be declared as void. According to the plaintiff-respondent their marriage was solemnized on 14.02.2013 at Hyderabad, in accordance with the Hindu customs and rituals and subsequently, it was registered before the Registrar of Marriage on the same day. The marriage between the parties to the Suit was settled on the basis of the publication and subsequent correspondences made on telephone between the families, in which they have projected while negotiation were being held, it revealed the defendant happens to be a person belonging to a higher income group and has a sufficient income from various other allied businesses in which he was involved. The marriage was settled by way an engagement ceremony held on 13.02.2013 and solemnized on 14.02.2013 at Hyderabad.
4. The ground for seeking dissolution of marriage by the plaintiff was that after the marriage held on 14.02.2013, the same was not consummated, as the appellant has shown reluctance in entering into any physical relationship with the plaintiff-respondent. When the same was objected by him, it revealed to her later that he was physically impotent and not in a position to have sexual relationship with the plaintiff-respondent.
5. On being faced with questions about the incapacity to enter into any physical relationship. The husband got outraged and became angry and misbehaved on 21.04.2013. As the marriage between the parties has not being consummated, she filed a Suit for declaring the marriage to be void under Section 11 of the Hindu Marriage Act. She also claimed maintenance of Rs. 25,000/- per month out of the total income of the appellant. As projected by wife that he was earning Rs. 90000/- per month she submitted that she may be granted a one time permanent alimony to the tune of Rs. 20.00 lacs so that she may be able to maintain herself in life.
6. The appellant appeared and filed his written statement. In his written statement, he made efforts to deny the allegations about impotency and his incapacity to enter into physical relationship. It was rather contended that it was the plaintiff-respondent who has expressed her unwillingness to have physical relationship. It was not due to any impotency. He further denied that at no point of time
