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Shakuntla Kumari Vs. Om Prakash Ghai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 130 of 1979
Judge
Reported inAIR1983Delhi53; 19(1981)DLT64
ActsHindu Marriage Act, 1955 - Sections 13(1)
AppellantShakuntla Kumari
RespondentOm Prakash Ghai
Advocates: S.L. Bhatia,; C.L. Itorora,; F.C. Bedi,;
Cases ReferredIn Bipinchandra Jaisinghhai Shah v. Prabhavati
Excerpt:
hindu marriage act (1955) - sections 13(1) (ia) & 13(1) (ib)--to prove desertion all essential ingredients of desertion have to be fulfillled--willful denial of sexual relationship when the other spouse is anxious amounts to mental cruelty.; in the instant case, the facts are that the appellant who was a music teacher in a college at meerut was married to the respondent 1969. they lived together intermittently till 6th july, 1971. the appellant was averse to sexual intercourse and between november, 1969 to july 1971, they had sexual intercourse only four or five times. however, from 6th july, 1971 to 11th march, 1972, they lived together continuously but since the appellant was still averse to sexual intercourse, respondent arranged for her medical treatment. the appellant, however,.....leila seth, j. (1) this appeal by the wife is directed against the judgment and decree of the additional district judge, delhi dated 21st march, 1979 granting a decree for divorce to the husband under section 13(1)(ia) and (ib) of the hindu marriage act, 1955 (to be referred to in brief as 'the act'). (2) the appellant, shakuntala was married to om prakash ghai, the respondent herein at meerut on 16th november, 1969. she was at the time, employed as a music teacher in raghunath girls intermediate college, meerut city. he was working in delhi as an assistant in the lok sabha sceretariat. they lived together intermittently till 6th july, 1971. (3) during this period, according to om prakash ghai, they 'cohabitated only about four to five times'. from the context, it is clear that what he.....
Judgment:

Leila Seth, J.

(1) This appeal by the wife is directed against the judgment and decree of the Additional District Judge, Delhi dated 21st March, 1979 granting a decree for divorce to the husband under section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 (to be referred to in brief as 'the Act').

(2) The appellant, Shakuntala was married to Om Prakash Ghai, the respondent herein at Meerut on 16th November, 1969. She was at the time, employed as a music teacher in Raghunath Girls Intermediate College, Meerut City. He was working in Delhi as an Assistant in the Lok Sabha Sceretariat. They lived together intermittently till 6th July, 1971.

(3) During this period, according to Om Prakash Ghai, they 'cohabitated only about four to five times'. From the context, it is clear that what he means is that they had sexual intercourse about tour or five times. His case is that. Shakuntia was reluctant to have sexual intercourse and always complained of excessive pain and nervousness at the time of intercourse and weakness thereafter. She resisted to the extent of 'raising a hue and cry and 'weeping'. As such, intercourse was neither complete nor satisfactory and he was upset.

(4) From 26th July, 1971 to 11th March, 1972. they resided together continuously at Delhi. Since Shakuntla was still averse to sexual intercourse, Om Prakash arranged for her to be medically treated. She was examined by a number of doctors but did not follow up the treatment and left for Meerut on 11th March, 1972. The excuse for her departure being that her parents had suffered a fall from a cycle. She did not return to the matrimonial home thereafter. However on 1st April, 1972, Shakuntla came to Delhi and' contacted Om Prakash from her sister's home. When Om Prakash went to fetch her she refused to accompany him and instead abused him.

(5) On 5th June, 1972, Om Prakash sent her a legal notice (Exhibit R. N. 5/C10). In this it is alleged that on one pretext or the other, she had not resigned her job as promised, despile the fact, that more than two and half years had elapsed since marriage it was thus clear that she had no intention of coming to reside permanently with Om Prakash at Delhi and was guilty of desertion. It is also mentioned therein, inter alia, that Om Prakash had tried to get her medically examined and treated for her incapacity to have proper sexual intercourse. But she was not willing to undergo competent medical treatment at Delhi. She was called upon to resign her job and come to Delhi within a month. It was also stated that if no reply were received, it would be presumed that she has no intention of living with Om Parkash at Delhi. The receipt of this notice is admitted, yet Shakuntala failed to reply.

(6) Thereafter, on 15th February, 1973, Om Prakash filed a petition under section 12(1)(a) of the Act for annulment of the marriage on the ground of impotency. It was asserted therein that Shakuntala was impotent at the time of marriage and continued to be so until the institution of the proceedings.

(7) On 28th January, 1974, Shakuntala filed a reply chalienging inter alia, the jurisdiction of the court and asserting that complete sexual intercourse had been taking place. She further asserted that Om Parkash has been harassing her to bring in more cash and jewellery and to continue working so that he could benefit monetarily thereby. That despite giving him her entire salary, he was ill treating her. in these circumstances, he was not entitled to any relief nor had ally cause of action been made out.

(8) On 26th September, 1974, the court decided the prelimirrary objection with regard to jurisdiction and held that the court had territorial jurisdiction to entertain the case.

(9) On 24th November, 1976, Om Prakash filed another petition under section 13(l)(ia) and 13(l)(ib) of the Act for dissolution of the marriage by a decree of divorce on the ground of cruelty and/ or desertion for a continuous period of not less than two years immediately preceding the presentation of the petition. Subsequently on 14th April, 1977 he filed an amended petition. In addition to the allegations made earlier, he asserted that Shakuntala had deserted him on 11th March, 1972, taking away all the jewellery and clothes with the intention of not returning to the petitioner.

(10) He also asserted that she had written two letters, dated 15th January, 1973 and 19th February, 1973 to the Secretary, Lok Sabha. Government of India, New Delhi where he was employed, in order to malign him. As a result, he suffered great mental agony. The lack of satisfactory sexual relationship had also upset him greatly; this was in addition to the fact that Shakuntala was not willing to come and stay with him at Delhi permanently and undergo competent medical treatment. All this amounted to cruelty.

(11) A reply was filed by Shakuntala, in which she pleaded, that the petition was liable to be stayed under section 10/151, of the Code of Civil Procedure, in view of the earlier petition, and the relief was not available to him as he had filed a frivolous petition imputing impotency. This entitled her to live separately and, thereforee, there was no question of desertion or cruelty on her part. Further, Om Parkash wanted Rs. 30,000.00 as financial help for the marriage of his sisters, and since this was not granted, he filed the petition in retaliation. With regard to the letters written to the Secretary, Lok Sabha. she asserted that they were only for the purpose of getting maintenance.

(12) The two petitions were eventually ordered to be heared together and the evidence led was common. The first issue framed wate: 'Whether the respondent was impotent on the date of marriage and continued to be so as alleged If 'not to what effect ?' It appears that Shakuntala was examined by a Medical Board on 22nd September, 1976. Dr. (Mrs.) V. Padubudri, Assistant Medical Professor, Maulana Azad Medical College, New Delhi, who was on the Board, proved the report. The report indicates that there was no history of pregnancy or abortion. It notes that the uterus is retroverted. Apart from that, there appeared to be no other physical defect and the vagina admitted of a two finger examination.

(13) On the facts, the trial court came to the conclusion that sexual intercourse had taken place and as per this medical evidence there was no defect in the respondent to suggest that she was impotent. It, thereforee, decided this issue against Om Prakash, and dismissed his petition for annulment of marriage.

(14) The other two issues pertained to cruelty and desertion The trial court, on the pleadings and evidence came to the conclusion that both cruelty and desertion had been established. A decree of divorce dissolving the marriage was granted.

(15) Shakuntala has filed this appeal and Om Prakash has filed a cross-objection praying that the marriage be declared null and void.

(16) Mr. S. L. Bhatia, learned counsel appearing for the appellant has urged that the conclusion of the trial court with regard to cruelty is erroneous. He contends that since the petition under section 12(])(a) of the Act has been dismissed by the trial court, It is established that the appellant is not impotent. Admittedly the parties had sexual intercourse a few times and, thereforee, there was no denial of sexual intercourse which could amount to cruelty. Learned counsel also submitted that the letters written to the Secretary, Lok Sabha. did not amount to cruelty, as they were written only with a view to obtain maintenance and not with a view to malign or prejudice Om Prakash's career prospects.

(17) I shall first deal with these two letters. The first letter is written on 15th January, 1973 after the lawyer's notice dated 5th June, 1972 had been received by Shakuntala. She did not reply to the lawyer's notice. But six months thereafter wrote to the Secretary, Lok Sabha. Government of India, New Delhi. The subject matter is indicated as : 'Grievances Family Govt. Servant Shri Om Prakash Ghai, Clerk. Question Branch Lok Sabha New Delhi'. It is asserted' therein that the parents of Om Prakash are 'very greedy persons' and have been instigating him to make 'monetary and other demands' of her parents. The demands had been met by her parents but there was no limit to the demands. In this connection, Om Prakash on several occasions abused her and threatened to drive her out of his residence at Delhi. About nine months ago she had been abused and maltreated by Om Prakash at the instance of his parents and driven out of his house 'in three clothes'. She is living with her parents and Om Prakash has totally neglected to maintain her. She requested that maintenance of Rs. 300 per month, amounting to roughly 50 p:r cent of Om Prakash's total salary, be paid to her. The next letter dated 19th February, 1973 is in the nature of a reminder.

(18) As noticed above, the contention is that these complaints did not amount to cruelty as they were written only with a view to obtain maintenance. The averments in these letters have, thereforee. to be examined in this light.

(19) If the only intention of Shakuntala in writing these letters was to obtain maintenance, it would appear to me that it was not necessary for her to make all these allegations. All that she had to state was that she was not being maintained. There was no need for her to assert that there had been limitless monetary demands by Om Prakash and his parents and/or threats and abuses. Nor was it necessary to state that she had been driven out of the house by Om Prakash after being maltreated and abused. It is one thing, to ask an employer to make a financial provision and quite another to make wild unsubstantiated allegations.

(20) A false complaint of this nature to an employer would certainly amount to mental cruelty. It would bring down the employee, in the eyes of his employer, and would reflect on his career and promotional opportunities. This would certainly play on his mind and effect his mental peace.

(21) Apart from this, the Ministry of Home Affairs memorandum No. F25jl6l59-EsttA dated 1st September, 1959, provides that where a Government servant is reported to have acted in a manner 'unbecoming' of Government servant, departmental action can be taken against him without invoking any of the conduct rules. Neglect of a wife, by a Government servant is conduct unbecoming a Government servant and can be regarded as a good and sufficient reason to justify action under rule 11 of the Central Civil Services (Classification) Control and Appeal Rules, 1965.

(22) A Government servant is expected to maintain a reasonable and decent standard of conduct in his private life and not bring discredit to his service by his misdemeanours. In fact, in the present case, Shri D. C. Pandey, Under Secretary, Lok Sabha Secretaria,. deposed that. the Deputy Secretary called Om Prakash on receipt of this complaint. He made enquiries but when Om Prakash informed the Deputy Secretary that he was taking the matter to court, action was postponed.

(23) Om Prakash has deposed that he was perturbed when he came to know of the complaints made to the Secretary, Lok Sabha'. He suffered mental agony as he felt that he might be punished even to the extent of losing his job. He was writing a thesis foi his Ph.D. but could not complete it due to the fact that he felt mentally disturbed. Though it is true, that he has admitted in cross-examination that the authorities did not take any action against him on the basis of these complaints and he had been promoted on 1st December, 1974, but this was due to the fact that the matter was subjudice. In fact, he had been asked to submit a copy of the judgment in the case, where after the matter would be examined.

(24) The conduct of Shakuntala in writing these letters has to be seen in the totality of the other facts. She had not given up her job at Meerut. Despite the fact that the earnings from her job were petty and Om Prakash was persuading her to quit. Her case, with regard to monetary demands is unsubstantiated. She was not willing to live permanently with her husband at Delhi. Nor was she willing for a normal sexual relationship.

(25) A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill health on the part of one of the spouses, it may or may not amount to cruelty depending on the circumstances of the case. But willful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married,

(26) In the present case it appears that Shakuntala had some abhorrence or fear of the sexual act. She has denied this and staled that sex was normal and that she required no treatment, nor, in fact. was any provided by her husband. This denial is, however, belied by corporation and did not like to have sexual relationship. He also proscribed Om Prakash himself.

(27) Dr. (Mrs.) J. Singh, the Medical Officer, Central Government Health Scheme Dispensary, Laxmi Bai Na'gar, New Delhi has stated that she examined Mrs. Ghai on 22nd June, 1971. She found the patient suffering from psycho-neurosis and prescribed treatment and referred her to psycihtrist. Dr. V.P. Varshney, Psychiatrist of the Central Government Health Scheme, Psychiatry Centre, East Kidwai Nagar, New Delhi, proved the history sheet and stated that Dr. B. G. Kachru had examined Shakuntala on 24th June, 1971. Dr. B. G. Kachru has deposed that he examined Shakuntala and atocording to the history sheet she complained of weakness and exhaustion and did not like to have sexual relationship. He also prescribed certain medicines.

(28) Thereafter on 22nd December, 1971. Shakuntala was examined by a gynaecologist Dr. (Mrs.) Puri attached to St. Stephen's Hospital, Tis Hazari, Delhi. She had earlier been examined by another doctor of the same hospital on 17th December, 1971. She was suffering from ammenorrhoea. It appears that she had not menstruated for six months prior to the date of the examination. The doctor advised dilating and curating as Shakuntala was not pregnant. However. Dr. (Mrs.) Puri admitted that Shakuntala was capable of sexual intercourse provided everything else was normal.

(29) Om Prakash has deposed that his father had talked to Shakuntala's father, at the end of 1970, about the fact that she was completely reluctant to have sexual intercourse. Shakuntala's father informed him that in this connection she was being treated by Dr. Mathew, Medical Superintendent, Cantonment Board Hospital, Meerut. Since her frigidity had not been cured, Om Prakash had taken her to Dr. (Mrs.) J. Singh on 22nd June, 1971 and subsequently to the Psychiatrist, on 24th June, 1971, who examined her. Thereafter Shakuntala left on 7th July, 1971 for Meerut. On 26th July, 1971 Om Prakash brought her back. There was no improvement in her attitude towards sex. She still complained of being repulsed by the sex act. By December, 1971, as she had not menstruated for more than six months, she thought she might have become pregnant, Om Prakash expressed surprise as sexual relationship had been very limited. According to him it did not go beyond the rubbing of the genital orga:ns. On examination at St. Stephen's Hospital, Tis Hazari, Delhi, (17/22nd December, 1971), it was found that Shakuntala was neither pregnant nor had menstruated for some time. Om Prakash mentioned this fact to his cousin M.L. Ghai who advised that she be shown to a specialist. As such an appointment was arranged with Dr. (Mrs.) Oman, Medical Superintendent of St. Stephen's Hospital. But Shakuntala flatly refused to pet herself further medically examined. Mr. M. L. Ghai has corroborated these facts. On 11th March, 1972, Shakuntala left for Meerut and did not return to the matrimonial home thereafter. On 1st April, 1972, she returned to Delhi and stayed with her sister in Farash Khana. When Om Prakash, who had been informed about her arrival, went to fetch her, she refused to return with him and to be further medically treated at Delhi. Thereafter she went back to Meerut.

(30) It is apparent from what has been set out above, that Shakuntala though not impotent, was psychologically averse to sexual intercourse. Further, though at first, she was willing to be medically treated for her frigidity, later on flatly refused to continue the treatmentt or be examined by a specialist.

(31) Hysterical and psychological repulsion to sexual intercourse may not in every case amount to willful denial of sex by one spouse lo another. But in the present case Shakuntala's attitude in refusing to see a specialist and continue her treatment for frigidity would appear to be a willful act depriving her husband of a harmonious sexual relationship.

(32) The correspondence between the parties soon after marriage also indicates that Om Prakash was very anxious that Shakunlala give up her job at Meerut and come and stay with him at Delhi and look after her health and home. There is no indication in these letters that anything was amiss because of unpleasantness due to monetary demands. In fact. Om Prakash was very anxious that they lead a haimonious life together. But unfortunately, Shakuntala was not willing to make the effort.

(33) It would, thereforee, appear to me that in the facts of this case, refusal by Shakuntala to fulfill her matrimonial obligations. coupled with the unsubstantiated complaints made to the Secretary. Lok Sahha by her amount to treating Om Prakash with cruelty.

(34) The next question that has to be examined is whether Shakuntala deserted Om Prakash for t prescribed statutory period.

(35) Om Prakash has averred that Shakuntala left Delhi on 11th March, 1972, on the pretext that her parents had been injured as a result of a fall. This is, in fact, corroborated by a letter written on 17th March, 1972 by Shakuntala to Om Prakash. She states therein that though her mother's condition has improved, she is still in pain. On 20th March, 1972, Om Prakash wrote to Shakuntala asking her for the keys of the trunk as she had taken both sets of keys with her. He required them to take out the table lamp etc. from the trunk. Shakuntala replied to Om Prakash and mentioned that she was not too well but would come to Delhi when she was better and would phone from Farash Khana. However, she makes no mention of the keys in her letter. On 28th March, 1972 Om Prakash again wrote lo Shakuntala asking for the keys. He also suggested to her that she should consult good lady doctor in connection with difficulties of menstruation,

(36) On 1st April, 1972, Shakuntala came to her sister's house at Farash Khana, Delhi and phoned Om Prakash at about 11.30 a.m. 0m Prakash went there in the evening to bring her horns. At that time, she asked him to leave and finally informed him that she would not return with him, nor get herself medically treated. Thereafter 0m Prakash broke open the lock of the trunk and found that all the valuables, sarees and ornaments had been removed. It their became apparent to him that Shakuntla had preplanned the whole thing and had no intention of returning when she left on 11th March, 1972.

(37) Om Prakash filed the petition under section 13(1)(1b) of the Act, as above noticed, on 24th November, 1976. The matrimonial

Offence of desertion as set out in section 13(l)(ib) of the Act is, 'deserted the petitioner for a continuous period of Dotless than two years immediately preceding the presentation of the petition'.

(38) The Explanationn to section 13 provides that 'the expression 'desertion' means the desertion of the petitioner by the oilier party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions...'

(39) Basing his argument on the Explanationn, Mr. S. L. Bhatra, appearing for the appellant, Shakuntala, contended that the living apart was not without the consent or against the wishes of Om Prakash, and there was reasonable cause. He submitted that as Om Prakash had filed a petition for annulment of marriage on 15th February, 1971 about 11 months later, he made it impossible for Shakuntala to return. thereforee, in any case the living apart thereafter was not against his wishes. Further, the position for annulment of marriage was based on a false allagation of impotency which amounted to cruelty and, thereforee, Shakuntala had a reasonable cause of staying away. He farther submitted that the statutory period of two years having not elapsed when the petition for annulment of marriage was filed, Shakuntala cannot be held guilty of desertion.

(40) Mr. Bedi, appearing for Om Prakash, however, urged that though the argument appears attractive, it is devoid of force, in the facts and circumstancees of this case.

(41) He submitted' that Shakuntala has not asserted in court that she was prevented from returning to the matrimonial home despite a desire to do so because of the annulment proceedings. In fact, he urged that the desertion commenced on 11th March, 1972, when Shakuntala left with ail her belongings and both sets of keys of the trunk. True, Om Prakash was not aware of this and it became apparent to him only in April, 1972. But, it is clear that she did not have any intention of returning. thereforee, he contended that the desertion which started in March, 1972 continued till date. The notice dated 5th June, 1972, as above-mentioned, also asked her to resign her job and return within a month to the matrimonial home. An adverse inference should bs raised against Shakuntala for her failure to reply to this notice, especially as it was stated therein that it would be presumed that she had no intention of living with Om Prakash at Delhi, if no reply were received.

(42) In Order to decide this point it is necessary to see what the essential ingredients of desertions are :

(i) the de facto separation, (ii) the animus deserandi i.e. the intention of the deserting spouse to bring co-habitation permanently to an end, (iii) the absence of reasonable cause on the part of the deserting spouse for withdrawing from co-habitation, (iv) the absence of consent of the deserted spouse. All these factors must coexist for a continuous period of two years.

(43) In the present case, cohabitation clearly ceased on 11th March, 1972. The factum of separation has been established as also the intention of the appellant to remain permanently separated. At the time when Shakuntala left the matrimonial home, i.e. 11th March, 1972, as seen in retrospect from April. 1972, it is clear that it was without the consent of Om Prakash. He had consented only to her going temporarily to see her parents who had been injured and not to separate permanently. In April, 1972, as noticed above, Om Prakash became aware that she had no intention of returning to the matrimonial home and that she had taken steps in this direction on 11th March, 1972. thereforee, at least from April, 1972 there was no consensual separation and cohabitation come to an end. Shakuntala does not appear to have had any reasonable cause for leaving with Om Prakash at that time. So the separation was not justified. Thus, the four essential ingredients of desertion were satisfied.

(44) This state of affairs lasted till 15th February, 1973 when 0m Prakash filed a petition under section 12(l)(a) of the Act for annulment of the marriage on the ground of impotency. On that date the statutory period of two years had not elapsed to make the matrimonial offence of desertion complete.

(45) The questions, thereforee, posed are : Does the filing of this petition bring the desertion to an end Does it amount to consenting to live apart Further, does this action give the deserting spouse a good cause for not returning Does it prevent a possible reconciliation from taking place

(46) In Bipinchandra Jaisinghhai Shah v. Prabhavati, : [1956]1SCR838 , it has been observed that once it is found that one of the spouses has been in desertion, the presumption is that it has continued and it is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back.

(47) It is well settled that desertion is presumed to continue, so that the deserted spouse does not have to prove that he was at all times ready and willing to take the deserting spouse back. But this is only a presumption which is rebuttable by the facts of each case.

(48) In the present case, it would appear to me, that by filing a petition for annulment of marriage on the ground of impotency of the deserting spouse, Om Prakash make it clear that he was neither ready nor willing nor anxious to take the deserting spouse back. Indeed he wanted the marriage to be treated as if non-existent. If Shakuntala had an unilateral change of heart before March/April, 1974, and wanted to return to the matrimonial home, she could no longer do so. The doors had been closed before the dead line. The supervening consent and conduct of Om Prakash had taken care of that. Consequently the desertion had terminated. The fact that Shakuntala did not reply to the notice of 5th June, 1972 is not of relevance, as she was entitled to change her mind and bring the fact of separation to an end, at any time, before the expiry of the prescribed statutory period.

(49) In fact, Shakuntala had in her written statement to the petition for dissolution of the marriage on the ground of cruelty and desertion so stated :

'That the petitioner is not entitled to the relief claim as the petitioner filed a false and frivolous petition imputing the allegations of impotency on the part of the respondent thus entitling the respondent to live separately, thus the question of desertion or cruelty on the part of the respondent docs not arise. The petitioner is not entitled to relief claimed as he himself has committed cruelty by imputing false and frivolous allegations and has defamed the respondent.'

In view of the facts mentioned above, it would appear to me that the matrimonial offence of desertion has not been established. To this extent I do not agree with the decision of the trial court.

(50) Mr. F. C. Bedi next urged that the decision of the trial court holding that the appellant was not impotent is erroneous. He further contended that Om Prakash had only to establish lack of consummation of the marriage owing to impotency and not that Shakuntala was unpotent at the time of marriage and continued to be so until the institution of the proceedings.

(51) The petition under section 12(1)(a) of the Act was filed on 15th February, 1973. The provision of the Act at that time read as follows :

'12(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable, and may be annulled by a decree of nullity on any of the following grounds, namely : (a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding ; It was subsequently amended in 1976 with effect from 27th May. 1976. The amended provision provides : '12. (1)........................... (a) that the marriage has not been consummated owing to the impotence of the respondent.' Section 39 of the Marriage Laws (Amendment) Act, 1976 which is a special provision dealing with pending cases provides : '39. (1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such court (i) If it is a petition proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marria'ge Act as amended by this Act. (ii) If it is a petition or proceeding under the Special Marriage Act, then so far as may be, as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act. '(2). In every petition or proceeding to which sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the proceedings, in so far as such amendment is necessary to give effect to the provisions of sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be, for divorce.'

(52) It is, thereforee, apparent that at the time when the matter was heard in court, a decree of nullity could be passed if it were established that the marriage had not been consummated owing to the impotency of the other party.

(53) However, in the present case it would appear to me, that Om Prakash has neither properly pleaded nor proved non-consummation on account of impotency. There is no averment renon-consummation. in fact, in his pleadings he has asserted that between 16th November, 1969 and 20th June. 1971. he had sexual intercourse about 4 or 5 times. Sometimes, this was in an incomplete manner. The averment is not that sexual intercourse was incomplete on all occasions. No attempt was made to amend the pleadings. As such, it is clear that no case has been made out with regard to section 12(l)(a) of the Act.

(54) Impotency is the lack of ability to perform sexual intercourse in a complete and full manner. Partial and imperfect intercourse is not consummation. However, the burden of proof is on the petitioner, the respondent herein. This has not been discharged. Though Om Prakash has deposed that intercourse was not complete as there was only rubbing of the genital organs, this does not appear to be reliable in view of his own pleadings and the medical evidence. The medical evidence, as noticed above, indicates that Shakuntala was capable of sexual intercourse and the vagina admitted of a two finger examination.

(55) In the circumstances, the cross-objection is dismissed.

(56) In the result, both, the appeal and the cross-objection are rejected. The dissolution of the marriage on the ground of cruelty is upheld, but not on the ground of desertion. There will, however, be no order as to costs.


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