Amar Jit vs Sunder Lal

Gokal Chand Mital, J.—Smt. Amarjit filed a petition on 5-11-1986 under Sections 12 and 13 of the Hindu Marriage Act, 1955, (hereinafter referred to as ''the Act''), for dissolution of her marriage with Sunder Lal on the ground that after marriage they lived together for five days and yet he was not able to have sexual intercourse with her on account of impotency and also on the ground of cruelty meted out to her for demand of more dowry.

The husband opposed the petition and denied the allegations levelled against him. In the trial Court, the wife filed an application u/s 24 of the Act for grant of maintenance pendente lite and the Court by order dated 7-2-1987 awarded her Rs. 250/- as litigation expenses and Rs. 100/- per month as maintenance pendente lite. Since the husband did not pay the litigation expenses and the maintenance pendente lite, by order dated 11-3-1987, his defence was struck off.

Thereafter, the evidence of the wife, was recorded and by judgment and decree dated 15-4-1987, the divorce petition was dismissed on the ground that the wife had filed an earlier petition for divorce on the ground of impotency, which was dismissed and this petition was barred by res-judicata. As regards the cruelty, finding was recorded that the same was not proved. This is wife''s appeal against the aforesaid order.

In appeal, again, the wife filed an application for grant of maintenance pendente lite and litigation expenses. Notice of that application as also of appeal was served on the husband. The application for grant of maintenance pendente life and litigation expenses came up for hearing before J.V. Gupta, J. and in order dated 2-11-1987 the learned Judge noticed that the husband has refused service and earlier also he had refused service and in the circumstances ordered ex-parte hearing, and without passing any order on the application posted the main appeal for hearing. The position which emerges on the record is that during the pendency of the case in the trial Court the husband did not honour the order of Court to pay maintenance and litigation expenses to the wife and in this Court he did not appear in spite of service.

Under the situation, the trial Court was right in striking off the defence and that order of the trial Court is maintained. The defence of the husband regarding the plea of res-judicata would not be available to him and cannot be looked into.

The wife had come to Court with the plea that the husband is impotent and had meted her with cruelty by beating her because she was not able to satisfy his demand of more dowry. We have her statement as PW 1 recorded on 6th April, 1987. According of this statement she lived with her husband for five days after marriage and during that period the husband was not able to have sexual intercourse with her. Both had access to each other and failed to have sexual intercourse can only happen if husband was impotent. There was no cross-examination directed to her on this matter. Accordingly, her un-controverted statement that the husband is impotent as he was not able to have sexual intercourse with her for five days after marriage has to be accepted.

It is settled law that while a person may be potent, he may be impotent qua a particular woman. In this case, assuming that the husband is potent, since he was not able to have sexual intercourse with his wife for five days soon after marriage, in spite of having access to her and opportunity to do so, it clearly goes to show that he is atleast impotent qua his wife Smt. Amarjit. See in this behalf Suvarna Vs. G.M. Achary, . Accordingly, I hold that the husband is impotent qua Smt. Amarjit.

The next ground is of cruelty namely beating the wife for not bringing more dowry. This plea of the wife is proved by her own statement as PW 1 and duly supported by her father as PW 2. This evidence is also un-controverted. Accordingly, I believe her statement and hold that she was treated with cruelty and was given beating by the husband and his family members. The findings to the contrary recorded by the Court below are reversed.

For the reasons recorded above, the appeal is allowed and after setting aside the judgment and decree of the Court below, the petition filed by the wife under Sections 12 and 13 of the Act is allowed and the marriage is annuled u/s 12 of the Act on the ground of impotency and the divorce is granted u/s 13 of the Act on the ground of cruelty. Since the husband has not put in appearance, there will be no order as to costs.