Impotency – Annulment of Marriage – Hindu Marriage Act S.12(1)(a) – Tripura Family Courts Rules
Here is a case where the High Court of Guwahati held that:
Oral evidence of wife which alone can be basis for a decree for annulment of marriage [A marriage annulment is a legal procedure that dissolves a couple’s marital status by establishing that a valid marriage never existed. In effect, it nullifies the marriage.] under Hindu Marriage Act, if the same inspires confidence and there is no good reason to discard the same. And an adverse inference can be drawn from conduct of husband in avoiding medical tests.
[Debashis Chakraborty Vs. Smt. Mausumi Bhattacharjee]
Petition for ‘annulment of marriage’: Ground is non-consummation of marriage owing to impotency [chronic inability to attain or sustain an erection for the performance of sexual act. sterility, esp. in the male.] of husband hence medical test of husband directed. Only allegation of newly wed bride is that marriage could not be consummated owing to impotence of husband. The husband raised a plea of financial predicament to undertake journey to appear before medical expert.
The Hon’ble Court observed that The expenses incurred in obtaining opinion of expert as provided in Rule 18(3) of Tripura Family Courts Rules(2002) do not include the expenses of the parties for undertaking journey to appear before the expert. It is the expenses which may be incurred in examining the expert for obtaining opinion. In other words, if the expert is required to attend the Court, all the expenses would be borne by the Court from the fund allocated by the State Government. There is, however, a rider below Rule 18(3), which provides that if the expert is a public servant, the Family Court shall issue a Court certificate as issued by other Courts to official witnesses. The experts already in the Government service shall not, however, be entitled to get any remuneration for their opinion and they shall be duty bound to help the Family Court. Thus a plain reading of the said provision would give an impression that the appellant husband who was directed to appear before the expert in the Hospital at Kolkata was not entitled to the expenses for undertaking journey to Kolkata. His prayer for fund from the Family Court is liable to be rejected. The husband being a Class one gazetted officer is earning a handsome salary. Such a plea of financial predicament raised by him is not acceptable. This conduct of the husband indicates that he was not interested to clear the charge coming from his own wife that he was sexual impotent. And a newly married wife cannot be expected to tell her mother that her husband is impotent. No collusion between husband and wife and nothing to show that the husband and wife were on bad terms. Sole testimony of wife cannot be discarded for want of corroboration. Quality not quantity would determine sufficiency of evidence as provided by S.134 of Evidence Act. Proposal of wife for separate living not sufficient enough to forbid husband from cohabitation if proposal was not dragged to serious acrimony [bitterness, animosity, spitefulness, asperity, spite.] There was nothing to show that the husband and wife were on bad terms. Expert opinion about impotency is important, though it is not always mandatory if other sufficient evidence is on record. Decree of nullity of marriage can be passed. And compensation or permanent alimony can be given in case of nullity of marriage. The Court may either direct a gross sum or monthly or periodical sum as permanent alimony and maintenance.
[hope the above article helps the common man to understand the sensitivity of the situation by looking at the observation of court about the behaviour and conduct of the parties and the importance of adducing quality evidence.]