The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.52 of 2021 Milan Sahoo @ Mudei …. ..… Appellant Mr. S.K. Mishra, Adv. -Versus- Manoranjan Mudei ………… Respondent Mr. S.K. Behera, Adv. CORAM: JUSTICE S. TALAPATRA JUSTICE SAVITRI RATHO ORDER 02.02.2023 Order No. 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2.
Legal Reasoning
Mr. S.K. Mishra, learned counsel appears for the appellant and Mr. S.K. Behera, learned counsel appears for the respondent. 3. This appeal filed under Section 19(1) of the Family Courts Act, 1984 is directed against the Judgment dated 24.12.2020 delivered in Civil Proceeding No.93 of 2018 by the Judge, Family Court, Nayagarh. By the said Judgment, the marriage solemnized between the parties on 22.04.2015 has been annulled. 4. Mr. Mishra, learned counsel, at the outset, has submitted that the finding of the Judge, Family Court, Nayagarh is grossly perverse, in as much as, without any evidence as regards the impotency, the suit 2 instituted under Section 12(1)(a) of the Hindu Marriage Act has been decreed. 5. Mr. Mishra, learned counsel has taken us to the relevant finding in the Judgment, based on which the suit has been decreed. It has been observed by the Judge, Family Court that in the written statement, the appellant (the Opposite Party in the Civil Proceeding) has only pleaded the fact of non-consummation of marriage. In sequel and on appreciation of the evidence, it has been observed that “It is also well evident from the cross examination of O.P (OPW.l) that she has not kept any marital relationship in order to save their life being advised by her mother in-law. Even OPW.l has categorically stated in said para-3 of her cross examination that there was no marital relationship between them during her stay at Champa. As such, the O.P has adduced self-contradictory evidence which is a departure from her version in para-3 of her affidavit evidence. In para-2 of her written statement it is specifically stated that, the petitioner has withdrawn from consummation through marital intercourse out of fear and apprehended death. The OPW.l has also supported her pleadings as set out in the written statement that she was not having any marital life with the petitioner either in her matrimonial house or at his work place i.e. Champa at Chhatisgarh. Thus, the affidavit 3 evidence (examination in chief) of the OPWl gained no corroboration whatsoever to negative the contentions of the petitioner as regards non-consummation of their marriage. Moreover, absolutely no evidence has been led from the side of the O.P that their marriage has not been consummated owing to the impotency of her husband (petitioner). As such, the plea taken in this regard is found to be misconceived. Accordingly, the second point formulated for determination is answered in affirmative.” 6. At the beginning of the Judgment, the Judge, Family Court had formulated three points inter alia, the point No.2 reads as under: “ii) Whether the marriage between the parties has not been consummated and is voidable and to be annulled by decree of nullity?” 7. Mr. Mishra, learned counsel has submitted that on two grounds the Judgment is unsustainable. One is that the burden of proof has been illegally shifted to the appellant herein who was the Opposite Party in the Civil Proceeding and the second one is that admittedly, there is no evidence of impotency. In this regard, Mr. Mishra, learned counsel has placed his reliance on a decision of this court in Jagannath Muduli vs. Nirupama Behera: 2008 (II) OLR/387. In that report, it has been clearly enunciated that under 4 Section 12 (1) (a), a marriage, if not consummated owing to impotence is liable to be annulled. The word ‘impotence’, means a practical impossibility to perform sexual act in complete and perfect manner. Full and complete sexual penetration is an essential ingredient for ordinary and complete intercourse. 8. 'Impotence' has been understood in the matrimonial cases as incapacity to consummate marriage meaning incapacity to have conjugal intercourse which is one of the primary objects of marriage. A person is considered as impotent if he or her mental or physical condition makes consummation of a marriage practically impossible. It has been enunciated by the Apex Court in the case of Digbijoy Singh v. Pratap Kumari: AIR 1970 SC 137 that impotence is to be proved by the medical evidence and it has to be shown that the marriage has not been consummated for that incapacity. In that event, the marriage becomes voidable under Section 12 (1) (a) of the Hindu marriage Act. Similarly, a person, incapable of consummating the marriage can be called impotent if his or her mental health or physical condition makes the consummation practically impossible. The expression 'consummation' is in common parlance understood mean perfect and complete intercourse. 5 9. Per contra, Mr. Behera, learned counsel appearing for the respondent has submitted that the word ‘impotence’ as appearing in Section 12(1) (a) should include the deprivation of consummation as well. According to Mr. Behera, learned counsel, the analogy as provided by the Judge, Family Court, Nayagarh may not be interfered with in as much as analogy has been drawn on the basis of admission of the appellant herein. She has admitted categorically that after marriage, she never allowed the respondent to consummate the marriage on advice of her mother-in-law. 10. We have gone through the evidence of the appellant and the respondent meticulously. So far the statement of the appellant as R.W.1 is concerned, the Judge, Family Court has correctly extracted the statement both from her written statement and from the cross examination where she had clearly stated that she did not allow the respondent to consummate the marriage. However, she has stated that she had done so on advice of her mother-in-law. 11. The solitary question that now falls for our consideration is that whether deprivation of consummation of marriage can be taken as the ground for annulling the marriage. For that purpose, let us refer to Section 12 of the Hindu Marriage Act, which deals with voidable marriages. Section 12 provides that any marriage solemnised, whether 6 before or after the commencement of Hindu Marriage Act, 1955 shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely: (a) the marriage has not been consummated owing to the impotence of the respondent; or (b) the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 was required under section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 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) the respondent was at the time of the marriage pregnant by some person other than the petitioner. [Emphasis Added] 12. It appears that the marriage was solemnized on 22.04.2015 and the said suit was instituted in the year 2018. It has been recorded in the Judgment itself that the petition was a combined petition under Section 12(1) (a) read with Section 13(1)(ia) and (ib) of the Hindu 7 Marriage Act, 1955. Whether such composite suit can be entertained by the court, should have been one of the issue for determining the suit. But no such issue or point was formulated by the Judge, Family Court. There is one school of thought who hold that a combined petition can be filed but the dominant school of thought is that such composite suit cannot be entertained, for the simple reason that the suit for nullity is for annulling the marriage itself and the decree of divorce can only emanate if the marriage is legally acknowledged. Nullity eradicates the marriage. 13. In a suit on nullity, solemnization of the marriage is required to be proved for purpose of annulling on the ground as provided under Section 12 of the Hindu Marriage Act, 1955. The suit, in the case in hand, was instituted under Section 12(1)(a) i.e. only on the ground of non-consummation of marriage. 14. On reading of the entire evidence, we do not find any material in support of non-consummation of marriage owing to impotency. From the pleadings, we could locate the suit has been filed for non-consummation of the marriage. There is no reference to impotency. 15. The analogy as provided by the Judge, Family Court has been reproduced before. At this stage, we are constrained to observe that 8 mere non-consummation alone cannot be a ground for nullity of the marriage. For securing a decree of nullity under Section 12(1)(a) of the Hindu Marriage Act, the non-consummation should be owing to impotency. This is a special species of non-consummation and its basic feature is impotency. As corollary, we can observe that non- consummation or resisting consummation may be a good ground for cruelty, but it cannot be the ground for annulling the marriage. 16. Having observed thus, we are persuaded to hold that the Judgment and decree annulling the marriage as passed by the Judge, Family Court, Nayagarh and as challenged in this appeal are liable to
Decision
be set aside. In the result, the appeal is allowed. Registry is directed to prepare the decree. LCRs, if still lying in the Registry be returned forthwith. 17. Accordingly, it is ordered. (S. Talapatra) Judge (Savitri Ratho) Judge Rati Ranjan