Case – P. v. K., 1982
Fact – The appellant husband and the respondent were married on 20th June 1976. The appellant and the respondent were both Hindus and were about 36 and 27 years of age respectively at the time of marriage. Due to certain unfortunate circumstances, the husband was driven to file a petition for nullity within a short time which he did on or about 30th Nov. 1976.
The petition alleges that the marriage had not been consummated owing to the impotency of the respondent. On the very first night the respondent refused to have sexual intercourse saying that for one year she would not have sexual intercourse with the appellant.
Then followed a medical checkup on 27-8-1976 by Dr. Bhatia when it was discovered by the petitioner that the respondent was suffering from second degree prolapse of the uterus. This was indicative of non-virginity. Taking into consideration the medical report and the odd behaviour of the respondent and the surrounding circumstances, the petitioner had reasons to suspect that the respondent wanted to conceal facts from the petitioner and that was one of the main reasons why she was refusing to have sexual intercourse with the petitioner and have the marriage consummated.
It was clear from the conduct of the respondent and that of her parents that fraud was committed and that the marriage had been brought about by fraud and misrepresentation. The respondent and her parents had suppressed material facts about the sexual lapse and defect.
The petitioner prayed for annulment of the marriage under Sec. 12 (1) (a) and (c).
Issue – Whether it can be said that the respondent was impotent at the relevant time or that the non-disclosure of a known prolapse amounts to obtaining consent of the petitioner “by force or by fraud as to the nature of the ceremony or as to the material fact or circumstances concerning the respondent”?
Contentions and Judgement :
- In my view, therefore, if the condition of a spouse is such as to make intercourse imperfect or painful it would amount to impotency. Even the aversion or abhorrence shown by spouse to having intercourse caused by prolapse can amount to impotency.
In the present case in my view the respondent was impotent for two reasons.
Firstly, it is proved that the respondent resisted all the approaches of the petitioner to consummate the marriage, possibly with a view to conceal the condition or prevent the pain which may possibly result because of the inter-course and;
Secondly, because with such a prolapse the intercourse is possible only after manipulation with hands. The sight of the protruding uterus is more likely than not to cool down the ardour and desire of the husband to perform the sexual act resulting in frustration for the husband.
- In any case an intercourse which demands previous manipulation of the uterus before penetration cannot be said to be an intercourse in the normal way. Therefore, both reasons independently of each other are indicative of impotency and this coupled with non-consummation which I have already held, to have been established entitled the petitioner to annulment of the marriage.
- The learned trial Judge in my view has not appreciated the evidence properly and has come to erroneous conclusions. He has wrongly not believed the evidence of Dr. Bhatia, which clearly leads to the conclusion that the respondent was aware of her condition since prior to marriage.
- In the circumstances, I set aside the Judgment and decree of the trial Court dismissing the petition and make the petition absolute in terms of prayer (a).
