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Judgment
Alok Singh, J
Present First Appeal has been filed by the appellant-Preeti Maheshwari under Section 19 of the Family Court Act against the judgment and order dated 07.06.2017 passed by the Additional Judge, Family Court, Roorkee, District Haridwar in Original Suit No.40 of 2015, whereby the suit of the wife (appellant herein) filed under Section 12(1)(a) of the Hindu Marriage Act, 1955 was dismissed.
In order to avoid confusion, it had been desirable to term the aggrieved parties as husband and wife. The facts of the case in a nutshell are that the wife filed a suit under Section 12(1)(a) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act, 1955) alleging therein that the marriage was solemnized between the appellant (wife) and respondent (husband) on 23.02.2012 according to Hindu rites and rituals; at the time of marriage, the wife was working as Assistant Professor in the Department of Civil Engineering, IIT Roorkee; the husband was employed as Elect. Design Engineer in Cypress Semiconductor Technology India Pvt., Bangalore; after the marriage, both of them stayed at Ghaziabad for two days, where no cohabitation took place between them on the nuptial night; thereafter, they went to celebrate their honeymoon at Srinagar, Jammu & Kashmir, where they stayed from 26.02.2012 till 03.03.2012, during that period, no cohabitation / sexual intercourse took place between them; after the honeymoon, both of them returned to Ghaziabad where they stayed up to 09.03.2012, but during this period, the husband did not develop any kind of physical relationship with his wife; and, thereafter, the wife went to Bangalore on 30.03.2012 and stayed till 08.04.2012 with her husband, but during this period, the husband did not develop any kind of physical relationship with his wife.
Pursuant to the filing of the suit, the husband filed his reply alleging therein that after the marriage, they stayed for two days at Ghaziabad; during this stay, no cohabitation took place between them on their nuptial night because he found that his wife was tired due to hectic schedule of marriage; keeping in mind that his wife was tired, he refrained himself from cohabitation; during the stay at Srinagar, he proposed to, first of all, know each other and spend time together and let both fall in eternal love before cohabitation / sexual intercourse; after discussion, both the parties agreed not to cohabitate till knowing each other and till the moment of emotional feelings of oneness rises its peak and eternal love germinate between them; the wife did not push him for the cohabitation and in fact giving her time to reach the moments where she could accept the meeting of the two souls and become ready for sexual intercourse;
Perusal of the statement of PW1-wife transpires that the respondent-husband has never tried to develop physical relationship with his wife-appellant; when she specifically asked him about non-cohabitation, respondent (husband) shouted on her and said to her that he feels 'aversion'. PW1 has also stated that she tried to develop physical relationship with her husband in Bangalore in the month of May-June 2014; DW1 Tarun Goel has stated in his evidence that no sexual intercourse took place between them till the date of recording of evidence (i.e. 06.03.2017); and, moreover, an e-mail was sent to the wife by her husband to the effect that 'Is getting physical is the only way'. It appears from the record that after the marriage, the parties lived together for more than 3 years at different places; and admittedly, according to them, the marriage was not consummated.
Learned court below has held that the wife did not report the matter to any one with regard to the impotency of her husband even after three years of marriage. On the contrary, it has specifically come in the evidence of PW2 that the wife had disclosed to him about the impotency of the respondent in the month of July, 2013.
It is an admitted case of the parties that no cohabitation took place between them. In a suit for declaring marriage nullity under Section 12 of the Act, 1955, the wife must prove that the husband was impotent at the time of marriage and that such impotency continued till the date when the petition under Section 12 of the Act, 1955 was filed. Once the wife proves that the husband was unable to consummate the marriage on the ground of impotency, the onus shifts on the husband to show that he is not impotent.
In the instant case, this Court is of the opinion, on the premise of the following facts, that the husband was unable to consummate the marriage : -
(a) Firstly, the husband did not have any sexual intercourse with her (wife). He always tried to refrain himself from cohabitation; and, during the stay at Srinagar, he proposed, first of all, to know each other and spend time together and let both fall in eternal love before cohabitation / sexual intercourse.
(b) Surprisingly, after few months of their marriage, the husband did not have sexual intercourse with his wife and, even after 2-3 years of their marriage, the husband wants eternal love before cohabitation/sexual intercourse with his wife. So, what would be the legal inference looking to the conduct of the husband?
(c) While the husband has never tried to develop physical relationship with his wife-appellant, the wife has specifically stated in her evidence that she tried to develop physical relationship with her husband during their honeymoon at Srinagar and in May-June, 2014 as well. It has come in the evidence of PW1, which was recorded on 3.1.2017 (at paper no.16A/16) that she tried to hug her husband, but he declined.
(d) When the wife asked her husband about non-cohabitation, he shouted on her and said that he feels 'aversion'.
From the aforesaid facts, therefore, the only legal inference that can be drawn is that the husband was unable to consummate the marriage because of his incapacity to have a complete and successful intercourse with his wife; whether this was due to any physical defect in the organ of the husband or due to psychological or nervous reason, is not of much importance. The fact remains that being incapable of performing his marital obligations towards his wife and thereby being unable to consummate the marriage, the legal impotency as contemplated by Section 12(1)(a) of the Act, 1955 was proved by the wife.
In view of the foregoing discussions, this Court is of the opinion that the impugned judgment and order is liable to be quashed. The same is hereby quashed.
Accordingly, the First Appeal is allowed. As a consequence thereof, appellant's suit for declaring the marriage solemnized between the parties on 23.02.2012 to be nullity is allowed and the marriage is hereby declared a nullity.