Petition seeking to declare the marriage between the petitioner and the respondent as null and void allowed at Andhra Pradesh High Court.
Andhra Pradesh High Court – Amravati
Murikinati Sahitya Reddy vs Sura Rajasekhara Reddy
BENCH – THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO AND THE HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO
F.C.A. No.27 OF 2022
DATE OF JUDGEMENT – 11 MAY 2023
INTRODUCTION –
This case is about the Petitioner seeking to declare the marriage between the petitioner and the respondent as null and void on the ground of impotency of husband.
HINDU MARRIAGE ACT, 1955
Section 12 of Hindu Marriage Act provides for a decree of nullity of marriage, which is voidable, on various grounds. In the case mentioned below the marriage has not been consummated owing to the impotence of the respondent. A party is impotent if his or her mental or physical condition makes consummation of marriage a practical impossibility.
FACTS –
The petitioner and the respondent are the wife and husband, and their marriage was performed #on 14.12.2018 at Anantapur. At the nuptial night, the respondent represented the petitioner that he was strained, and he wants some rest. Thus, the marriage was not consummated at that time.
The petitioner also alleges that the respondent refused to have sexual relations with her when he was staying at his parents’ home up until January 6, 2019. The petitioner then moved in with her parents’ home in Hyderabad after the respondent went for Germany. Later, the petitioner herself took a trip to Germany and found work there. The responder said that his family members were aware of his impotence even before the marriage throughout this time and publicly acknowledged it.
The respondent consulted a doctor in Germany on 14.05.2020 regarding a penetration problem. It was revealed that the respondent suffered from a penetration problem and hypo plastic testicles. The petitioner left the respondent’s company on 05.12.2020 and returned to India, respondent also returned to India on 19.12.2020. The respondent openly admitted his impotence and declared himself unfit for married life. They jointly filed F.C.O.P.No.190 of 2020 before the competent court seeking mutual divorce. However, the petition was dismissed on the ground that both parties had hastily filed for divorce without adhering to the statutory requirement of a one-year separation period. the petitioner filed F.C.O.P. No.11 of 2022 under Section 12(a) of the Hindu Marriage Act, seeking a declaration that the marriage held on 14.12.2018 be declared null and void.
The Family Court dismissed the F.C.O.P. by observing that the petition for mutual consent was filed on 23.12.2020 and both the petitioners lived together in Germany upto 05.12.2020. Both parties failed to observe the statutory mandate for one-year separate living, and both parties hurriedly filed the divorce petition. They are not entitled to divorce on mutual consent without a statutory requirement of separate living for one year as mandated in section 13B of the Hindu Marriage Act.
JUDGEMENT –
The sole testimony of the petitioner, the only material evidence as to the incompetency of the respondent, cannot be discarded when it inspires confidence and there is nothing to show that they were on bad terms. The evidence of the petitioner that the marriage was not consummated due to the husband’s impotence was not refuted, and the impotence of the respondent was admitted in writing by him.
The evidence of PW.1(the impotence of the respondent was admitted in writing by him) should have been accepted by the Family Court in the facts and circumstances of the case. The court was of the view that the petitioner’s case, based on section 12(1)(a), as amended by the 1976 Act, has been clearly established.
The appeal is allowed by granting a decree for divorce in favour of the appellant and against the respondent-husband. The Judgment passed in F.C.O.P. No.11 of 2022, dated 11.04.2022, on the file of the Judge, Family Court-cum-VII Additional District & Sessions Court, Anantapur, is set aside. In the facts and circumstances of the case, the parties will bear their own costs throughout.
JUDGEMENT REVIEWED BY HARSHIT JAIN
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