@JUDGMENTTAG-ORDER
1. C.M.A. No. 2313 of 1998 and C.R.P. No. 1691 of 1999 arise out of a common order dated 8-7-1998 passed by the Family Court, Visakhapatnam in O.P. No. 532 of 1995 and M.C. No. 162 of 1997 respectively. Since the appeal and the revision arise out of a common order passed by the Court below, they are also being disposed of by this common order.
2. For the purpose of convenience, the parties are addressed as husband and wife.
3. Appellant in the CMA and petitioner in the CRP is the husband and the respondent is the wife. The husband instituted O.P. No. 532 of 1995 on the file of the Family Court, Visakhapatnam u/s 12(1)(a) of the Hindu Marriage Act seeking to declare his marriage with the wife as nullity on the ground of non-consummation of the marriage due to impotency of the wife. Whereas, the wife instituted M.C. No. 162 of 1997 u/s 125 of Cr.P.C. on the file of the Court below seeking maintenance from the husband.
4. The material averments in O.P. No. 532 of 1995 filed by the husband before the Court below, in brief, are as under:
5. The marriage of the husband with the wife took place on 1-8-1993 at Visakhapatnam as per the Hindu rites and customs. Thereafter, the wife joined the society of the husband and a nuptial function was arranged at the residence of the husband. According to the husband, as the wife was not co-operating for consummation of the marriage on the date of nuptial function, he was carried with the impression that the wife has got certain inhibitions about the consummation and thought of persuading her later.
6. The husband claimed that he made efforts to convince the wife for consummation of the marriage but she was not showing any interest and therefore, he informed his mother about the disinterest shown by the wife for consummation of the marriage. The husband averred that with the assistance of his mother, he got the respondent examined by Dr. K. Kamala of Krishna Maternity Hospital on 15-4-1994, the doctor opined that the wife needs certain surgical treatment and advised the wife to undergo the same. The husband alleged that on 8-5-1994, the wife left his society without his consent and though he made desperate efforts to bring her to his fold, the wife was indifferent and stayed back with her parents. According to the husband, his family members sent mediators to the parents'' house of the wife and requested them to get the wife medically treated so that they could save their marriage. However, as the wife was showing reluctance and had developed hatred towards the husband, a legal notice was also issued by him requiring the wife to come and join his society. Despite receipt of the said notice, the wife remained indifferent and stayed back with her parents. Thus, the husband moved the Court below by filing the O.P. seeking a declaration to declare his marriage with the wife as a nullity for non-consummation of the marriage owing to the impotency of the wife.
7. The wife filed her counter in the O.P. denying the allegations made by the husband. Though she admitted the marriage with the husband, but stated that at the time of marriage her parents presented Rs. 20,000/- in cash along with other articles to the husband. However, she complained that she was tortured and ill-treated by the husband and his parents to bring more dowry. She stated that unable to bear the ill-treatment and harassment meted out to her at the hands of the husband and his parents, she had no option but to leave the matrimonial home. Insofar as the allegation of the husband that she is impotent, the wife stated that like other women, she is normal, hale and healthy and capable of giving conjugal happiness to the husband. But she alleged that, as the husband is not interested in her, has created an alibi to drive her out of the home. She, therefore, pleaded that there are no merits in the petition filed by the husband and the same is liable to be dismissed.
8. The wife also filed a separate case for maintenance in M.C. No. 162 of 1997 against the husband u/s 125 of Cr.P.C. for grant of maintenance at the rate of Rs. 500/- per month alleging that the husband is duty bound to maintain her, despite having sufficient means he neglected her without any reasonable cause. She narrated various instances about the ill-treatment and harassment meted out to her at the husband''s house and the manner in which she was driven out of the house. She further submitted that she is staying in her parents house and has no independent source of income and therefore, sought an amount of Rs. 500/- from the husband per month towards her maintenance.
9. The husband filed his counter in the maintenance case refuting the allegations made by the wife. It is alleged by the husband that as the marriage between them was not consummated owing to the impotency of the wife, she cannot be treated as ''wife'' and as such she is not entitled for any maintenance. He also disputed the allegation of the wife that he has sufficient property and sought dismissal of the Maintenance Case.
10. In the wake of the above averments, the Court below (Family Court) framed the following points for consideration insofar as O.P. No. 532 of 1995 is concerned, viz.,
1) Whether the petitioner is entitled to have marriage avoided as the marriage was not consummated due to the impotency of the respondent?
2) Whether the petitioner himself is guilty of avoiding the company of the respondent warranting to dismiss the petition u/s 23 read with Section 12(1)(a) as contended by the respondent ?
Insofar as M.C. No. 162 of 1997 is concerned, the Court below framed the following point for consideration, viz.,
Whether the petitioner left the family house without any reasonable excuse, if not, whether she is incapable of maintaining herself, and if so to what amount the maintenance she is entitled to ?
11. The Court below clubbed both the matters and permitted the parties to lead common evidence and accordingly evidence was recorded in O.P. No. 532 of 1995 treating the same as evidence in M.C. No. 162 of 1997 also. On behalf of the husband, P.Ws. 1 to 4 were examined, P.W.1 being the husband himself. P.W.2 is one Dr. K. Kamala who works in a Private Nursing Home, P.W.3 is the mother of P.W.1 (husband) and P.W.4 is one D.V.S.S. Rama Murthy, Professor of Urology in K.G. Hospital, Visakhapatnam. Exs.A.1 to A.5 were also marked on behalf of the husband. On behalf of the wife, she examined herself as R.W.1 and got marked Exs.B.1 to B.4. One Dr. Sarada Acharya, is examined as Court witness by the Court below as C.W. 1 and Ex.C.1 was marked through her.
12. On the basis of the oral and documentary evidence, the Family Court came to the conclusion that the allegation made by the husband against the wife that she is impotent and is not capable of giving conjugal happiness to him, is false. On the contrary the Court found that on account of the cruelty meted out to the wife, she withdrew from the society of the husband and therefore, dismissed O.P. No. 532 of 1995 holding that the husband is not entitled to the relief prayed for. Insofar granting maintenance to the wife is concerned, the Court below upon considering the evidence on record held that the wife has reasonable ground for staying away from the society of the husband, and as she has no independent source of income, the Court below awarded an amount of Rs. 400/- per month towards maintenance for the wife to be paid by the husband, by common order dated 8-7-1998, against which the present appeal and revision are filed by the husband.
13. We have heard Sri A. Srinivasa Sarma, counsel for the appellant/petitioner-husband and Smt. Anjana Devi, counsel for the respondent-wife.
The points that arise for our consideration are :
1) Whether the Court below is justified in dismissing the O.P. No. 532 of 1995 filed by the husband u/s 12(1)(a) of the Hindu Marriage Act seeking annulment of his marriage with the wife on the ground of non-consummation of the marriage between them owing to the impotency of the wife?
2) Whether the Court below is justified in allowing the maintenance case in M.C. No. 162 of 1997 filed by the wife by granting her Rs. 400/- per month towards maintenance?
14. Under the Scheme of the Hindu Marriage Act, 1955, Section 13 provides various grounds for dissolution of marriage by a decree of divorce by either party to the marriage. Sub-section (2) of Section 13 of the Act entitles a wife alone to present a petition for dissolution of her marriage, by a decree of divorce on the grounds enumerated thereunder. Likewise, Section 12 of the Act deals with voidable marriages and it reads thus :
12. Voidable marriages:-(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 marriage has not been consummated owing to the impotency of the respondent; or
(b) That the marriage is in contravention of the condition specified in clause (ii) of Section 5; or
(c) That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required u/s 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act 2 of 1978, the consent of such guardian was obtained by force; or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent; or
(d) That the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) x x x
Section 11 of the Act which deals with void marriages on a petition presented by either party thereto against the other party, the marriage between them be so declared as null and void if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. Section 9 of the Act lays down that either party to a marriage to apply by a petition to the District Court for restitution of conjugal rights if the other party has, without reasonable excuse, withdrawn from the society of the petitioner.
15. In the instant case, the sole ground on which the husband sought to declare his marriage with the wife as nullity by a decree of divorce is ''impotency'' of the wife, in terms of Section 12(1)(a) of the Act, on account of which the marriage between them is not consummated.
16. The word ''impotency'' has not been defined in the Hindu Marriage Act, 1955. But it is a ground to avoid a marriage if it is established that at the time of the marriage either of the spouses was incapable of effecting the consummation either due to structural defect in the organs of generation rendering complete sexual intercourse impracticable or due to some other cause. However, the burden of proving the impotency of the respondent lies on the petitioner. In order to obtain a decree of nullity of the marriage on the ground of impotency as enumerated u/s 12(1)(a) of the Act, the petitioner has to establish that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings. However, it must be noted that when impotency is alleged as a ground to declare the marriage between the parties as nullity, positive evidence has to be adduced by the petitioner, particularly in the form of expert medical testimony.
17. We shall low advert to the evidence adduced by the husband in order to find out whether he has successfully substantiated his allegation that the wife is impotent on account of which their marriage is not consummated.
18. In his petition (O.P. No. 532 of 1995), the husband stated that the marriage was performed on 1-8-1993 at Visakhapatnam as per Hindu customs and rites and immediately after the marriage, the wife joined his society. He alleged that though a nuptial ceremony was arranged for consummating the marriage, the wife was reluctant and showing indifference for the consummation of the marriage. He claimed that he along with his mother (P.W.2) took the wife to Dr. K. Kamala (P.W.2) to get the wife treated, but the wife has been unresponsive. He also alleged that the wife left his society without any reasonable cause and he understood that the wife''s intention is only to frustrate the marriage.
19. The husband in his evidence as P.W. 1 also deposed the above facts. He also examined three other witnesses, P.Ws. 2 to 4. P.W.2 is one Dr. K. Kamala, who examined the wife in the first instance and issued Ex.A. 1. She deposed that on examining the wife, she found that the wife had a thick hymen and there was lot of tenderness and therefore, per vaginal examination could not be done and advised that the wife be referred to K.G. Hospital. She deposed that it is difficult to say whether the wife is impotent or not. P.W.3 is the mother of P.W. 1 (husband). According to her, P.W. 1 expressed that there was no sexual happiness with his wife as the wife is indifferent for consummation of the marriage. She testified that she took the wife to P.W.2 who examined her and prescribed some medicines and referred to K.G. Hospital for further treatment and opined that operation may be needed. P.W.3 stated that the wife did not use the medicines. Thereupon, she sent a word to the parents of the wife, and the brother of the wife came to their house and took the wife. P.W.4 is one Dr. D. V. S. S. Rama Murthy. He deposed that he examined the husband and found no abnormality or any deformity with him.
20. The Court below has also made efforts to get the wife examined by an independent doctor. Accordingly, one Dr. Sarada Acharya, examined the wife as per the direction of the Court below and she is examined as Court witness (C.W.1). She deposed that on examining the wife, she found that the wife is normally built and well nourished. The sexual condition of the wife is normal and she is fit for leading conjugal life and no operation is required. C.W.1 also categorically deposed that the wife is not impotent. Ex.C.1 is the certificate issued by C.W.1.
21. Thus, on a careful analysis of the evidence adduced by the husband, it is difficult for us to believe the version of the husband that the wife is impotent and left his society without any reasonable cause. We are, therefore, inclined to hold that the allegation of the husband that the wife is impotent and not capable of giving conjugal happiness to him seems to be far from reality and not supported by medical evidence.
22. Insofar as the other allegation of the husband that the wife left his society without any reasonable cause, the same is falsified by the testimony of his own mother examined as P.W.3. P.W.3 deposed that following the complaint of his son (P.W.1) that the wife is not inclined for consummation of the marriage, she took the wife to P.W.2 for examination and on examining her, P.W.2 referred the wife to King George Hospital and also prescribed some medicines. As the wife did not use the medicines, she sent a word to the parents of the wife and the brother of the wife came and took her to her parents house. Therefore, the reason for the wife leaving the house of the husband is only on account of P.W. 3 sending a word to the parents of the wife to take her to their house.
23. The wife examined herself as R.W.1. In her evidence, she deposed that she is like any other normal woman and is not impotent. She also narrated various instances of ill-treatment and harassment meted out to her in the house of the husband demanding her to bring more dowry. She further deposed that the doctor who examined her stated that she is fit for leading a marital life and has asked her to get her husband also for counseling. A telegraphic message was sent to the husband to participate in the counseling on the date mentioned therein as is reflected through Ex.B.1. The wife asserted that the husband failed to turn up. She further deposed that her mother-in-law asked her parents to take her to their house and therefore, her brother came to the husband''s house and took her away and she did not leave the house of the husband on her own.
24. As indicated above, on a careful scrutiny of the evidence on record, we are inclined to hold that the husband has also failed to prove the allegations made against the wife about she leaving his society without any reasonable cause. On the contrary, it has come in evidence of the as R.W.1, that the doctor who examined her opined that she is not impotent and she did not leave the house of the husband on her own but was sent to her parents house at the instance of P.W.3. In the light of this evidence, it appears to us the husband has not only failed to prove the allegations made by him against the wife but has used this as a ground to get rid of her.
25. Section 23 of the Hindu Marriages Act provides for Decree in proceedings. It enumerates thus:
Decree in proceedings :--(1) In any proceeding under this Act whether defendant or not, of the Court is satisfied that-
(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in Sub-clause (a), Sub-clause (b) or Sub-clause (c) of clause (iii) of Section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and
(b) where the ground of the petition is the ground specified in clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and
(bb) x x x
(c) x x x
(d) x x x
26. It must be noted that Section 23 of the Act is based on equitable principle that he who comes to the Court must come with clean hands. In other words, a wrongdoer should not be permitted to take advantage of his or her own wrong or disability while seeking relief from the Court. Before granting any decree on any proceeding under the Act, the Court shall be satisfied about the following pre-conditions viz., a) ground for relief exists; b) absence of connivance or condonation, c) absence of collusion, d) no unnecessary or improper delay, and e) absence of legal bar. The Court must be satisfied before granting any relief that the ground for relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief. The Court is bound to take the conduct of the petitioner into consideration and if the petitioner has by his own misdeeds forced his spouse to leave him, he cannot be allowed to take advantage of his own wrong.
27. In the instant case, on a careful scrutiny of the evidence of record, it is evident that the husband has not been able to prove that the wife is impotent. On the contrary, it appears to us that in order to avoid her, he attributed impotency on the part of the wife. As discussed by us, even the other allegation made by him that the wife left his society without any reasonable cause is also falsified by the testimony of his own mother examined as P.W.3. It is manifest from the above that as the petitioner is taking advantage of his own wrong and disability and sought the assistance of the Court to grant the relief sought by him. The Court below on a consideration of the evidence on record has rightly dismissed the O.P. No. 532 of 1995 filed by him. We, therefore, see no merits in C.M.A. No. 2313 of 1998.
28. Insofar as the grant of maintenance amount to the wife by the Court below, counsel for the husband submitted that the Court below in an erroneous appreciation of the evidence on record granted an amount of Rs.400/- per month towards maintenance to the wife. Counsel further submitted that the wife left the society, of the husband without any reasonable cause and as the marriage between the parties is not consummated, she is not entitled for maintenance.
29. We are not inclined to accept the said submission. In the foregoing paragraphs, we have elaborately discussed the evidence adduced by the husband and held that the husband failed to prove his allegation that the wife is impotent and has also failed to substantiate his claim that the wife left his society without any reasonable cause. On the contrary, the wife was sent to her parents house at the instance of P.W.3 who is the mother of the husband, but not on her own.
30. Though the husband pleaded that he has no properties, but it is stated before us that he is a mechanic owning a workshop and earns sufficient amount per month. The husband himself has admitted in his evidence that an amount of Rs. 10,000/- is kept in fixed deposit by the parents of the wife and the FDR receipt is with him only. Since the wife has no independent source of income to maintain herself and the husband and his mother are instrumental for the wife leaving the matrimonial home. The Court below granted an amount of Rs. 400/- per month from the date of petition to the wife towards her maintenance to be payable by the husband. Having regard to the facts of the case and in view of the fact that the wife has no independent source of income to maintain herself, the amount of Rs. 400/- per month granted by the Court below to the wife towards her maintenance is just and proper and no interference is required by this Court. We, therefore, see no merits in CRP No. 1691 of 1999.
31. In the result, C.M.A. No. 2313 of 1998 and C.R.P. No. 1691 of 1999 are dismissed. However, in the circumstances, without costs.
