Case Note & Summary
The case involves a Family Court Appeal filed by the wife, Sou. Pramila Shankar Ghante, challenging the judgment and decree passed by the Family Court, Pune, which allowed the husband's petition for nullity of marriage under Section 12(1)(a) of the Hindu Marriage Act on the ground of impotency, and alternatively granted divorce under Section 13(1)(ia) and (ib) on grounds of cruelty and desertion. The wife had also filed a petition for restitution of conjugal rights, which was dismissed. The marriage took place in 1972, and the parties lived together for about 20 years before separation. The husband alleged that the wife was impotent and treated him with cruelty, and that she deserted him. The wife denied these allegations and claimed that the husband was responsible for the breakdown of the marriage. The Family Court, after a joint trial, annulled the marriage and granted divorce, dismissing the wife's restitution petition. On appeal, the Bombay High Court examined the evidence and found that the husband failed to prove impotency, cruelty, or desertion. The court noted that the wife was willing to undergo medical examination but the husband did not pursue it, and that the allegations of cruelty were vague and unsubstantiated. The court also observed that the wife had filed a petition for restitution, indicating her desire to resume cohabitation. Consequently, the High Court set aside the decree of nullity and divorce, and allowed the wife's petition for restitution of conjugal rights. The appeal was allowed with no order as to costs.
Headnote
A) Hindu Marriage Act - Nullity of Marriage - Impotency - Section 12(1)(a) - Burden of Proof - The husband sought annulment of marriage on ground of wife's impotency. The court held that the burden lies on the petitioner to prove that the respondent was impotent at the time of marriage and continued to be so. The evidence must show incurable incapacity to consummate the marriage. In this case, the husband's allegations were not supported by medical evidence or credible testimony, and the wife's willingness to undergo medical examination was not properly pursued. Held that the decree of nullity was not sustainable (Paras 6-10). B) Hindu Marriage Act - Divorce - Cruelty - Section 13(1)(ia) - Definition - The husband alleged mental cruelty due to wife's behavior and refusal to cohabit. The court held that cruelty must be of such a nature as to cause reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to live with the other spouse. Isolated incidents or trivial acts do not constitute cruelty. The evidence showed that the wife was willing to live with the husband and had filed a petition for restitution of conjugal rights. Held that cruelty was not established (Paras 11-14). C) Hindu Marriage Act - Divorce - Desertion - Section 13(1)(ib) - Essential Ingredients - The husband claimed desertion by the wife. The court reiterated that desertion requires both factum of separation and animus deserendi (intention to desert). The wife's departure from the matrimonial home was due to the husband's conduct and she expressed willingness to return. The husband failed to prove that the wife deserted him without reasonable cause. Held that desertion was not proved (Paras 15-17). D) Hindu Marriage Act - Restitution of Conjugal Rights - Section 9 - Wife's Petition - The wife filed a petition for restitution of conjugal rights, which was dismissed by the Family Court. The appellate court held that since the husband's petition for nullity and divorce was not maintainable, the wife's petition for restitution deserved to be allowed. The wife had shown genuine desire to resume cohabitation. Held that the wife is entitled to restitution of conjugal rights (Paras 18-19).
Issue of Consideration
Whether the Family Court was justified in granting a decree of nullity under Section 12(1)(a) of the Hindu Marriage Act on the ground of impotency, and alternatively a decree of divorce under Section 13(1)(ia) and (ib) on the grounds of cruelty and desertion, and whether the wife's petition for restitution of conjugal rights was rightly dismissed.
Final Decision
The appeal is allowed. The judgment and decree of the Family Court, Pune dated 31.10.1994 in M.J. Petition No.565/1992 and M.J. Petition No.272/1993 is set aside. The husband's petition for nullity and divorce is dismissed. The wife's petition for restitution of conjugal rights is allowed. No order as to costs.
Law Points
- Nullity of marriage on ground of impotency requires strict proof of incurable incapacity
- Divorce on ground of cruelty requires evidence of mental or physical harm
- Desertion requires proof of animus deserendi and factum of separation
- Restitution of conjugal rights can be sought by either spouse
