D. Padmavathi vs Kalidindi Ravikumar Verma

Amareswari, J.—This is an appeal from the Judgment of the Principal Subordinate Judge, Visakhapatnam in O.P. No. 184 of 1983 made on 20th November, 1984 granting annulment of the marriage u/s 12(1)(a) of the Hindu Marriage Act.

The wife is the appellant. The case in brief is as follows:

The parties were married on 28.7.1982 at Hyderabad according to Hindu rites and customs. Soon thereafter, on 30.7.1982, they went to Visakhapatnam the husband''s place. There was a wedding reception on 31.7.1982 and on the same night consummation of marriage was arranged. The consummation did not take place. According to the husband, the wife refused stating that the marriage was without her consent and that she has an aversion for sexual life. On 3.8.1982 the parties went to Hyderabad, the place where wife''s parents live and stayed for 4 days. Then they went to Kothagudem on the invitation of Sri P.S. Raju, the wife''s cousin on 6.8.1982. From there, all of them went to Tirupathi and thereafter, the couple went to Polamuru to visit the relations of the wife. The husband then left for Visakhapatnam leaving the wife an Polamuru. In the last week of August, 1982, the wife secured a seat in Andhra Medical College at Visakhapatnam, in D.G.O. Course. She joined the College and was Jiving in the house of her uncle K.R. Raju at Viskhapatnam. Thereafter, the husband issued a notice on 25.5.1983. There was no reply by the wife, the husband then filed this petition for annulment of the marriage u/s 12(1)(a) of the Hindu Marriage At.

The appellant-wife resisted the petition contending that she had no repugnance for the sexual intercourse with the husband, that on the first night they both agreed not to have sex for six months till they write their entrance examination for Post Graduation Course in Medicine, that she did not join the husband after admission into the College at Visakhapatnam as it was not an auspicious period.

The husband examined himself and his father as P.Ws.1 and 2 and marked Exs.A-1 to A-3, the letters exchanged between the parties. The wife examined herself and 3 others as R.Ws.1 to 4 and filed Exs.B-1 to B-6. After a consideration of the entire evidence, the trial Court found that the marriage has not been consummated due to the invincible repugnance on the part of the wife to have sexual inter-course with the husband and annulled the marriage.

In this appeal by the wife, it is contended that the findings are erroneous, the evidence has not been properly appreciated and the ingredients of Section 12(1)(a) are not established as to sustain a decree for annulment.

We have to now consider this point with reference to the material on record.

Section 12(1)(a) of the Hindu Marriage Act is as follows:

Voidable marriage- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:

(a) that the marriage4 has not been consummated owing to the impotence of the respondent; or

XX XX XX XX XX"

It is plain from this Section that two conditions have to be satisfied for annulment of marriage - (1) that the marriage is not consummated and (2) that the non-consummation is due to the impotence of the respondent. It is now well settled that the expression ''impotence'' includes not only a physical or structural defect making consummation impossible but also frigidity or invincible repugnance on the part of spouse to the physical act.

In Elizabeth G. v. Richard G. 33-35 Victoria (The Law Reports Probate and Divorce Cases) 287 it was held that where the consummation of the marriage is impracticable and impossible because of the conduct of one of the spouses, the marriage can be declared as null and void and can be dissolved. In this case, there was no structural defect or deformity on the part of the wife for conjugal life. It was only her unwillingness to have sexual intercourse with her husband that was considered sufficient for annulling the marriage.

In Dickinson v. Dickinson 1913 (Probate Division) Law Reports 198, it was held that wilful and persistent refusal to allow any marital intercourse is a sufficient ground for a decree of nullity of marriage.

In P. Vs. K., It was held that repugnance for sexual inter-course is a ground for nullity u/s 12(1)(a) of the Act.

In Muthuraj Kollpillai v. Esther Victorial Kannammal A.I.R 1970 Mad 237 a Full Bench of the Madras High Court held that "Impotency is not necessarily to be confined to the Physical inability of one or the other of the spouses to have sexual intercourse. It may cover all such a condition, either of the mind or of the physical condition of the person which renders normal sexual intercourse impracticable so a to reach its completion."

We will now examined the evidence. The parties are Hindus. They were married on 28.7.1982 at Hyderabad. After the marriage, they came to Visakhapatnam. On 31.7.1982 agreements were made for consummation of the marriage. It is common case that there was no consummation on that night. On 2.8.1982 there was Satyanarayana Vratham and it could not be performed as the wife complained illness. On 3.8.1982 the husband and wife went to Hyderabad and stayed for 3 days. The marriage was not consummated. On 6.1.1982 they went to Kothagudem to the house of the wife''s cousin who is examined as R.W.3. They stayed there for 2 or 3 days. The marriage was not consummated. Then they proceeded to Tirupathi on the invitation of R.W.3 along with the family. Even at Tirupathi, the same position continued. From there, they came back to Polamuru where the uncle of the wife resided. They stayed there for a day. Then the husband returned to his place Visakhapatnam leaving the wife behind. In the last week of August, 1982 the wife secured a seat in D.G.O. course in Andhra Medical College. From Hyderabad she came to Visakhapatnam and lived in the house of her maternal uncle K.P.R. Raju. Throughout her studies she did not come and join the husband, who is also residing at Visakhapatnam.

It is not in dispute that the marriage was not consummated. The first ingredient of Section 12(1)(a) is therefore established. The second is that the non-consummation must be due to the impotence on the part of the wife. The parties give different reasons for non-consummation.

The husband examined as P.W. 1 stated that on the first night when he attempted to touch her, she did not allow him. He deposed that she expressed her unwillingness for the marriage and that she has no desire to have sexual inter-course with him. He also deposed that the wife stated that the marriage was performed against her will. The wife denies all these facts. Whether there is a consistent refusal by the wife for the sexual act has to be considered with reference to the evidence and the surrounding circumstances. The wife as R.W.1 stated that on the very first night they have decided not to have sex for six months till both of them appeared for entrance examination for post Graduation Course in Medicine. It is relevant to note at this stage that parties are medical graduates. She deposed that if the marriage is consummated, her studies would be disturbed. This understanding according to her was at Visakhapatnam. R.W.3 is her cousin. He deposed that when they were at Kothagudem after 6.8.1982, P.W. 1 the husband woke him up at midnight and told him that the wife was refusing sexual inter-course on the ground that she wants to prosecute further studies. R.W.3 further deposed that she told P.W. 1 that he will convince his sister the wife. If really, there was an agreement between the parties on the first night when the consummation was arranged, the husband would not have complained at midnight to R.W.3 that the wife was not co-operating for the sexual act. R.W.3 is no other than the cousin of the wife. Further, the explanation of the wife that conjugal life would interfere with preparation for her entrance examination is improbable. The marriage took place on 28.7.1982. She got the seat by the end of August, 1982. The entrance examinations were held some time in June, 1982, even before the marriage. So her plea that the parties agreed to abstain from sex as they had to prepare for the examination is unacceptable.

The agreement pleaded by the wife is also improbable for another reason. The husband returned to Visakhapatnam after leaving the wife at Polamuru on or about in the middle of August, 1982. She secured a seat in the D.G.O. Course at Visakhapatnam. She preferred residing in the house of her maternal uncle to prosecute the studies. From this conduct, there is no other inference possible that she is adverse to sexual life with the husband. It is invincible repugnance for consummation of marriage and has to be treated as impotence within the meaning of Section 12(1)(a) of the Hindu Marriage Act. There were some letters which are marked as Exs.B-1 to B-5. There is also a letter addressed by R.W.4 to P.W. 2 which was marked as Ex. A-3. They contained allegations and counter allegations against the parties with regard to some formalities which were not observed and inconvenience that was caused at the time of marriage. They do not shed much light on the point in issue. For the reasons stated above, we hold that the wife was consistently refusing to have sexual inter-course with the husband. The only inference that is possible is that she was adverse and repugnant to the physical act.

According to the books on the subject, there can be sexual impotency in general or with regard to particular spouse described as impotency quoad hune or quoad hane. The burden is no doubt on the appellant to prove affirmatively that the non-consummation is due to incapacity or wilful neglect to consummate on the part of the respondent. We have already found that the agreement alleged by the wife as reason for non-consummation of the marriage has not been proved.

In G. v. G. 1924 Appeal cases 349 where wife resisted frequent attempts by the husband over a protracted period to consummate the marriage, it was held that refusal was due to an invincible repugnance to the Act of consummation consistent only with incapacity.

Eversley on domestic Relations, 6th Edition, Page 25, it is observed as follows:

Where there has been persistent refusal to consummate a marriage on the part of one of the spouses (who also refuses to obey an order for medical inspection) while the other spouse has been desirous (sic.) there should be consummation, the Court will assume the existence of some latent impediment amounting to incapacity.

We have examined the evidence. The agreement pleaded by the wife is not proved. The husband''s evidence appears to be consistent. The evidence of R.W.3 clearly establishes that the wife was resisting the attempts of the husband to consummate the marriage. The only inference that is possible from the conduct of the wife is that she has an invincible repugnance to the sexual act amounting to impotency within the meaning of Section 12(1)(b) of the Hindu Marriage Act.

In result, we dismiss the appeal. No Costs.