Husband Admitted Relative Impotency Qua Wife: Bombay HC Annuls Marriage

The Court was hearing an appeal against the order passed by the Family Court rejecting an application filed under Order 12 Rule 6 of the Civil Procedure Code to pass the judgment on admission.

The bench of Justice Vibha Kankanwadi and Justice S.G. Chapalgaonkar observed, “The respondent seeks declaration of the nullity of marriage attributing impotency against the appellant. The expression ‘Relative Impotency’ is known phenomena which is different than the normal impotency in which consummation of marriage become practically impossible i.e. inability to copulate .There are instances recognized under various judicial pronouncements where invincible and persistent repugnance in consummation of the marriage is held to be the impotency.”

Advocate Swapnil Joshi appeared for the Appellant and Senior Advocate Sanjeev Deshpande appeared for the Respondent.

Brief Facts-

The arranged marriage between the appellant and respondent lasted only 17 days due to the disinterest of the appellant in the relationship as alleged by the respondent who is the original petitioner. She contended that unfortunately, marriage brought a sense of being deceived to her as the marriage could not be consummated. When the respondent complained about the abnormal behaviour of the appellant, he got angry and asked the respondent to leave the house. However, no conciliation could be achieved after family meetings. She contended that the marriage could not be consummated due to some mental or physical disability of the husband like ‘Relative Impotency’. In this background, she approached the Family Court for annulment of marriage and decree of nullity under Section 12(1)(a) of the Hindu Marriage Act. The appellant filed his reply. He admitted that the marriage could not be consummated. However, blamed the respondent for the same.

Later, the respondent filed an application to pass the judgment on admission in terms of Order 12 Rule 6 of the Civil Procedure Code contending that the appellant has admitted in a written statement that the marriage could not be consummated till their separation. The appellant also filed his reply.

The Court mentioned the decision of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania where it considered the issue of orders that amount to the judgment and stipulated that the order rejecting an application for a judgment on admission under Order 12 Rule 6 of the CPC can be treated as judgment.

The Court found the appeal maintainable while noting that the order refusing to pass judgment on admission under Order 12 Rule 6 of the Civil Procedure Code would amount to judgment and same can be appealed u/s Section 19 of the Family Court Act, 1984 since such order finally takes away the valuable right of the parties.

The Court noted that in the present case, it can be easily gathered that the appellant-husband had relative impotency qua the respondent-wife.

The Court mentioned the decision of Kerala High Court in Sanu Vs. Sandeep and quoted, “What is meant by the expression "relative impotency"? Simply stated, relative impotency denotes a situation where a person is incapable of sexual intercourse with a particular person though he/she is capable of normal sexual intercourse with another person”

The Court stated that though Family Court had rightly observed that the relief in terms of Order 12 Rule 6 of the CPC is discretionary and powers are to be exercised with care and caution. However, as per the Court, it cannot ignore that it is a matter of a young couple who faced agony of frustration in the marriage.

Finally, the Court set aside the impugned order and passed the decree of annulment of marriage/nullity of marriage under Section 12(1)(a) of the Hindu Marriage Act.

Cause Title: X v. Y (Neutral Citation: 2024:BHC-AUG:8149-DB)

Appearance:

Appellant: Adv. Swapnil Joshi

Respondent: Senior Adv. Sanjeev Deshpande, Adv. M.D. Swami

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