Hindu Marriage Act, 1955 (Act 25 of 1955), Section 12(1)(a) – Nullity of Marriage – Grounds of Impotence and Invincible Repugnance – Requisites to establish impotency – Non-consummation despite both parties being potent – Interference by Supreme Court on findings of fact. The appellant-husband married the respondent-wife according to Hindu rites on April 20, 1955. The parties lived together for about three years, but the marriage was not consummated. The appellant filed a petition under Section 12 of the Hindu Marriage Act, 1955, seeking annulment of the marriage on the grounds that the respondent-wife was impotent at the time of marriage and continued to be so till the institution of proceedings, and that she exhibited an invincible and persistent repugnance to the act of consummation. The trial court (District Judge) dismissed the petition, holding that the respondent was not impotent. The High Court, on appeal, confirmed the dismissal, holding that the appellant failed to prove impotency or invincible repugnance on the part of the respondent-wife. The husband appealed to the Supreme Court by special leave. Held, dismissing the appeal:

advocatemmmohan

SUPREME COURT OF INDIA

1970 AIR 137, 1970 SCR (1) 559, AIR 1970 SUPREME COURT 137, 1969 SCC (2) 279

BENCH: C.A. Vaidialingam and J.C. Shah, JJ.

AUTHOR: C.A. Vaidialingam, J.

DATE OF JUDGMENT: May 2, 1969

HEADNOTE

Hindu Marriage Act, 1955 (Act 25 of 1955), Section 12(1)(a) – Nullity of Marriage – Grounds of Impotence and Invincible Repugnance – Requisites to establish impotency – Non-consummation despite both parties being potent – Interference by Supreme Court on findings of fact.

The appellant-husband married the respondent-wife according to Hindu rites on April 20, 1955. The parties lived together for about three years, but the marriage was not consummated. The appellant filed a petition under Section 12 of the Hindu Marriage Act, 1955, seeking annulment of the marriage on the grounds that the respondent-wife was impotent at the time of marriage and continued to be so till the institution of proceedings, and that she exhibited an invincible and persistent repugnance to the act of consummation. The trial court (District Judge) dismissed the petition, holding that the respondent was not impotent. The High Court, on appeal, confirmed the dismissal, holding that the appellant failed to prove impotency or invincible repugnance on the part of the respondent-wife. The husband appealed to the Supreme Court by special leave.

Held, dismissing the appeal:

¶ 1. Scope of Interference with Findings of Fact:

Though the Supreme Court does not usually interfere with concurrent findings of fact, it may do so if the courts below have ignored or misconstrued important pieces of evidence. However, in the present case, the lower courts neither ignored nor misconstrued any material evidence in arriving at the finding that the appellant failed to establish the impotency of the respondent.

(Earnest John White v. Kathleen Olive White, [1958] S.C.R. 1410, referred to).

¶ 2. Definition and Proof of Impotency under Section 12(1)(a):

A party is impotent within the meaning of Section 12(1)(a) of the Hindu Marriage Act, 1955, if his or her physical or mental condition renders the consummation of marriage a practical impossibility. To obtain a decree of nullity under this provision, the petitioner must establish that the respondent was impotent both at the time of marriage and continued to be so until the institution of the proceedings.

¶ 3. Invincible Repugnance to Sexual Act:

The principle that persistent and unreasoning resistance arising from invincible repugnance amounts to impotency could not assist the appellant, as the High Court concurrently recorded a finding of fact that the allegation of invincible repugnance was not proved, and that the lack of proper approach by the appellant himself might have caused the non-consummation.

(G. v. G., L.R. [1924] A.C. 349, distinguished).

¶ 4. Inability to Consummate in Future (Quoad Hunc et Quoad Hanc):

Where courts below have not recorded a finding that the marriage is impossible to consummate in the present or future, a decree of nullity cannot be granted merely because the marriage remained unconsummated while both parties are medically normal. In the absence of proof of respondent's impotency as mandated by Section 12(1)(a), the petition must fail.

(G. v. G., L.R. [1912] P.D. 173, distinguished).