Court:ANDHRA PRADESH HIGH COURT
Bench: JUSTICE Umesh Chandra Banerjee, CJ., B. Subhashan Reddy & Chelameswar
KOLA EMMANUEL Vs. NALLIPOGU SUNANDA On 23 February 1998
The word ‘impotence’ is not related to a particular gender like male only. It relates to either gender. The criterion is the practical impossibility of consummation of marriage on account of impotency of either the husband or the wife. Incapability of copulation on the part of either of the spouses either due to structural defects in the organs of generation or due to some other cause resulting in non-consummation of marriage is impotence and the said word is equally applicable to both husband and wife.
This referred case, arising out of O.P. No. 151 of 1994 on the file of the District Judge, Ongole, filed under Section 18 of the Indian Divorce Act, 1869, came up for confirmation of the decree of nullity by this Court under Section 17 thereof.
2. We refer to the parties as arrayed before the Court below. The petitioner is the husband and the respondent is his wife. They are Christians and their marriage was solemnised on 20.10.1993. It is the case of the petitioner that respondent had left him on 22.11.1993 and did not return thereafter. The petitioner has sought the annulment of his marriage with respondent on the ground that the respondent was impotent and that even though he had tried several times to consummate the marriage, the same could not be done, for the reason of impotency of the respondent.
3. In response to the notice on the petition for annulment of the marriage, the respondent had appeared through her Counsel, but thereafter remained exparte. The petitioner was examined as PW1 and his evidence was accepted by the Court below and a decree of nullity of marriage was granted holding that the respondent was impotent within the meaning of Section 19(1) of Indian Divorce Act, and the matter has been referred to this Court for confirmation. Before this Court too, the respondent-wife has chosen to remain exparte.
4. When the case came up before the previous Full Bench, a question was framed as to “whether the word ‘impotency’ can be referred to woman and what degree of proof it requires ?”.
5. The word ‘impotence’ is not related to a particular gender like male only. It relates to either gender. The criterion is the practical impossibility of consummation of marriage on account of impotency of either the husband or the wife. Incapability of copulation on the part of either of the spouses either due to structural defects in the organs of generation or due to some other cause resulting in non-consummation of marriage is impotence and the said word is equally applicable to both husband and wife. It should not be misunderstood with the word ‘sterility’. There were several decided cases, in which the husbands were petitioners, alleging impotence on the part of their wives and we need not refer to plethora of precedents. Suffice it to refer to the case decided by the Supreme Court in Digvijay Singh v. Pratap Umari, AIR 1970 SC 137, wherein it was held :
“A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.”
6. With regard to degree of proof, it is no doubt true that in a case of this nature, the Court should adopt caution to see as to whether there is sufficient material to declare the marriage a nullity on the ground of impotency of the respondent. We do not see any undue advantage taken by the petitioner-husband merely because the respondent remained exparte. In fact, the respondent had engaged the Advocate who had filed vakalat, but thereafter because of no further instructions from the respondent, the respondent was set exparte. In case of this nature, the best witness to speak about impotency is the spouse and the petitioner was examined as PW 1 and he stated categorically with regard to his endeavour to have sexual intercourse with the respondent and the respondent’s resistance of his acts and ultimately leaving the matrimonial home on 22.11.1993. For a period well over a month, inspite of the petitioner’s readiness and presuation to have coitus with the respondent, the respondent had not shown any inclination to have the coitus and in fact, had shown aversion to the same and the only conclusion can be that she was incapable of copulation which resulted in non-consummation of marriage which is a sufficient ground under Section 19(1) of the Act to declare the marriage a nullity. The degree of proof which lay on the petitioner has been satisfactorily discharged.
7. In view of what is stated above, we order :
(1) that the word ‘impotency’ can be attributed to both husband and wife; and
(2) that the decree of nullity of marriage in favour of the petitioner as proposed by the Court of the District Judge, Ongole is confirmed.
8. Referred Case is accordingly allowed.
Decree of nullity confirmed.
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