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KERALA HIGH COURT
C.K. Abdul Rehim and R. Narayana Pisharadi, JJ.
Sanu —Appellant
versus
Sandeep —Respondent
Mat. Appeal. No.491 of 2018
Decided on 1.8.2018
For the Petitioner:Sri. Nobel Raju, Sri. C.R. Jayakumar and Smt. P.K. Vinaya, Advocates
For the Respondent No.1:Sri. V.A. Johnson (Varikkappallil), Advocate
IMPORTANT POINT
Divorce—Impotency need not be due to physical incapacity and may be caused by mental or physical condition which would render normal intercourse impossible.
Headnote:(A) Divorce—Impotency of Spouse—Mere non-consummation of marriage is not sufficient for granting a decree for annulment of marriage—Non-consummation of marriage shall be due to impotence of either spouse—A party is impotent if his or her mental or physical condition makes consummation of marriage a practical impossibility—It may be due to an organic defect or due to invincible repugnance or hatred for sexual intercourse—It need not be due to physical incapacity and may be caused by mental or physical condition which would render normal intercourse impossible—It may be pathological or psychological, permanent or temporary. (Paras 7, 8, 10 and 11)
(B) Hindu Marriage Act, 1955—Sections 12(1)(a) and 13B—Voidable marriage—Divorce by mutual consent—Alleged impotency of husband—Respondent has admitted that he was impotent towards appellant and he failed to perform his duties towards her as a husband—It is possible that a man is impotent in respect of one woman though he can perform sexual act with other women—A man may be impotent vis-à-vis his wife, though he may not be impotent vis-à-vis to any other woman—Appellant has pleaded and proved that the parties lived together only for a period of five days after marriage—She has also pleaded and proved that marriage was not consummated as respondent had no inclination towards her—There is sufficient evidence to find that marriage between appellant and respondent was not consummated due to relative impotency of respondent—Decree for annulment of marriage can be granted—Relationship of appellant and respondent has irretrievably broken down—There is no need to prolong agony of parties—Marriage between appellant and respondent annulled under Section 12(1)(a) of Hindu Marriage Act, 1955 by declaring it as null and void.(Paras 12 to 16)
Result:Appeal allowed.
R. Narayana Pisharadi, J.—The appellant is the wife and the respondent is the husband. The challenge in this appeal is directed against the order passed by the Family Court, Thrissur dismissing O.P.No.1971 of 2017 filed by the appellant.
2. O.P.No.1971 of 2017 was filed by the appellant under section 12(1)(a) of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) for granting a decree of declaration that her marriage with the respondent is null and void. Her plea was that her marriage with the respondent was solemnised on 10.04.2017, but they lived together only for five days and that the marriage was not consummated because the respondent had no inclination towards her.
3. The respondent was set ex parte in the case before the Family Court. The appellant filed affidavit in lieu of oral evidence. The Family Court found that there is no plea raised by the appellant that the marriage was not consummated for the reason that the respondent was impotent and therefore, the ingredients of Section 12(1)(a) of the Act were not satisfied. Accordingly the Family Court dismissed the case.
4. We have heard the learned counsel for the appellant and also the respondent.
5. During pendency of the appeal, the parties herein have filed a joint petition as I.A.No.2445 of 2018 under Section 13B of the Act for dissolution of marriage by a decree of divorce. They have also filed an application as I.A.No.2446 of 2018 for waiving the period of six months which is provided under Section 13B(2) of the Act.
6. In Amardeep Singh v. Harveen Kaur : AIR 2017 SC 4417, the Supreme Court has held as follows:—
18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:
i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order 32A, Rule 3, CPC/Section 23(2) of the Act/section 9 of the Family Courts Act to re-unite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.”
7. In the instant case, the marriage between the appellant and the respondent was solemnised on 10.04.2017. They are living separately from the date 15.04.2017. The application under Section 13B of the Act was filed on 12.07.2018. Therefore, it is evident that a period of one year and six months has not been completed from the date on which the parties are living separately and that the first condition mentioned above in Amardeep Singh (supra) is not satisfied. Therefore, we have no other option but to dismiss the applications I.A.Nos.2445 of 2018 and 2446 of 2018. We do so.
8. However, the respondent has filed an affidavit before this Court on 19.07.2018 admitting that he was impotent towards the appellant and he failed to perform his duties towards her as a husband. The second paragraph of this affidavit filed by the respondent reads as follows:—
“I got married with the appellant on 10.04.2017 as per Hindu Customs and rituals. It is submitted that though the marriage was arranged one, we could not consummate our marriage since I was impotent towards the appellant and failed to perform my duty as husband in this regard. I admit my relative impotency towards the
