Court:Andhra Pradesh High Court
Bench:J Chelameswar, G K Tamada
Susarla Subrahmanya Sastry vs S. Padmakshi on 28 April, 2005
Relationship between parties irretrievably broken and because of non-co-operation and hostile attitude of respondent-wife, appellant husband subjected to serious traumatic experience : It can safely be termed as ‘cruelty’ within meaning of Section 13(1)(ia) of Act . Acts of respondent and her parents saying appellant cannot perform sexual intercourse amounts to cruelty.
1. The appellant is the husband. Though his O.P. No. 246 of 2000 filed under Section 13(l)(ia)(iii) of the Hindu Marriage Act, was allowed by a judgment and decree dated 23.9.2002 passed by the Judge, Family Court, Secunderabad, he filed this appeal questioning the correctness of the finding that he is impotent for leading conjugal life.
2. It is an unfortunate and peculiar case where the parties are fighting with each other to bring quietus to their marital status as husband and wife. Though there is a consensus between the spouses to bring an end to their marital status, but the ground on which they seek divorce is different. The appellant-husband wants divorce under Section 13(l)(ia)(iii) of the Hindu Marriage Act, 1955 on the ground of mental cruelty; whereas the respondent- wife is seeking a declaration that the marriage between them is null and void in view of the fact that the appellant-husband is impotent.
3. In view of the sensitiveness involved in the matter and after hearing both the learned Counsel for the appellant-husband and respondent-wife, we advised both the learned Counsel to settle the dispute between the parties amicably, and we also directed the parties to be present before this Court. Accordingly, the parties were present before the Court and we conducted in-camera proceedings also. But the conciliation unfortunately failed.
4. The factual matrix of the case as culled out from the pleadings and evidence can be briefly stated as under:
5. The undisputed fact is that the marriage between the appellant-husband and the respondent-wife was solemnized on 5.5.1999 as per caste, custom and Hindu rites at the residence of respondent parents and immediately thereafter nuptial ceremony was arranged on 7.5.1999. According to the appellant-husband, the marriage was consummated on 7.5.1999 itself and they had conjugal life on the second night also. But the respondent-wife disputes the same and states that the marriage was not consummated and the respondent- appellant never tried to have any conjugal life with her and she remained to be a virgin. The appellant-husband was also subjected to medical tests by Dr. V. Rajagopal, Urologist, Apollo Hospitals, Hyderabad and Dr. M.S. Reddy, Psychiatrist, and according to the appellant-husband, the medical tests certify that he is potent. However, as the father of the respondent- wife was proclaiming that the appellant- husband is impotent, he again underwent prolactin test and according to the report, his prolactin level is normal, which indicates that there is no gross abnormality of his endocrinal function. The appellant-husband stated that the respondent-wife used to get up at midnight saying that she intends to do mediation as instructed by her Guru and she often said that she was under continuous mental depression and as such she was directed to do meditation in the midnight. The appellant-husband further stated that the respondent-wife was very moody and used to change her temperament in pace with mercury. The respondent- wife and her parents from the 3rd day of marriage started harassing the appellant- husband on the ground that he is not virile and unfit for marriage and they also threatened him to face a criminal prosecution under Section 498-A I.P.C. Therefore, he filed O.P. before the Court below seeking divorce by dissolution of marriage between him and the respondent-wife under Section 13(la)(iii) of the Hindu Marriage Act, 1955.
6. The respondent-wife filed counter in which she contended that the appellant- husband is frigid towards her and he has no manly feelings. Whenever she tried to get closer to him, he pushed her awav and thus it necessitated her to inform her parents about the impotency of the appellant- husband and on that her parents, who are doctors, questioned the appellant-husband. According to her, the medical evidence clinchingly established that the appellant- husband is impotent. She contended that the marriage was not consummated, as the appellant-husband was impotent and she never led marital life with him. Hence, the respondent-wife prayed this Court to declare the marriage between the appellant-husband and herself as null and void as the same has not been consummated on the ground of impotency of her husband.
7. The appellant-husband filed rejoinder to the counter denying the allegations levelled against him.
8. The appellant-husband examined himself as P.W.I and marked Exs.Al to A.8 Ex.Al is the report of the Parklane Medical Diagnostics, Secunderabad, which conducted Prolactin test. Ex.A2 is the Clinical Pathology report of semen analysis. Ex.A3 is the Biochemistry report. Ex.A4 is the Clinical Pathology report relating to urine examination. Ex.A5 is the Hematology report. Ex.A6 is the consultation fee receipt of Dr. M.S. Reddy. Ex.A7 is the Clinical Evaluation report of Dr. Rajgopal, Urologist to the effect that the appellant- husband needs counselling. Ex.A8 is the telephone bill for the month of July and August, 2000. On the other hand, the respondent-wife got herself examined as R.W.I besides examining her father as R.W.2; Dr. Y. Savitha Devi, Gynaecologist as R.W.3; Dr. V. Rajagopal Urologist as R.W.4; Dr. M.S. Reddy, Psychiatrist as R.W.5 and marked Exs.Bl to B5. Ex.Bl is the photo taken at the time of engagement. Ex.B2 is the report of Dr. Y. Savitha Devi to the effect that the hymen of the respondent-wife is intact. Ex.B3 is the telephone bill. Ex.B4 is the wedding invitation of the respondent’s paternal aunt’s daughter and Ex.B5 is the greeting sent by respondent’s father to the paternal aunt’s daughter of the respondent.
9. After considering the entire oral and documentary evidence adduced by both parties, the Court below granted a decree of divorce on the ground that the appellant-husband is impotent. Decree of divorce is not challenged, but the husband is aggrieved of the finding that he is impotent and filed this appeal.
10. Heard both the learned Counsel.
11. The learned Counsel for the appellant-husband submitted that the marriage between the appellant and the respondent was consummated on 7.5.1999; the entire evidence clinchingly establish that the appellant is potent and he performed the sexual act with his wife and nowhere in the documentary evidence coupled with the evidence of R.Ws.3 to 5 it is stated that the appellant-husband is impotent. He submitted that the appellant-husband is virile and has the ability to perform sex. He further submitted that the respondent-wife was never co-operative with the husband in conjugal life and she had mental depression and on the other hand the respondent and her parents indulged in indecent mudslinging against the appellant from the very next day of marriage and day in and day out, they maligned and harassed him by spreading a rumor that he is impotent, which not only caused embarrassment to him and his family members in social circles, but also caused immense mental agony and trauma to the appellant. Therefore, he submitted that the marriage between the appellant and the respondent be dissolved on the ground of “cruelty” on the part of the respondent and not on the ground “impotency”.
12. Learned Counsel for the respondent- wife contended that the marriage between the appellant and the respondent was never consummated and the couple did not have any sexual intercourse; on medical examination, the hymen of the respondent was found intact and had the appellant and the respondent had sexual intercourse, her hymen would have been ruptured. He thus submitted that as there was no sexual intercourse between the appellant and the respondent, as is evident from the unruptured hymen of the respondent, as certified by the Doctor, the Court below had rightly dissolved the marriage between the appellant and the respondent, on the ground of impotency and not cruelty, and no interference is called therewith.
13. Now in the light of the submission made by the learned Counsel for the parties, two questions would emerge for consideration, firstly whether the appellant is impotent for leading marital life and secondly whether there was any cruelty on the part of the respondent-wife.
14. For deciding the first question, it is necessary to know the meaning of impotence, which is as under:
“The word impotence is obsolete. Previously it was used as a blanket term to denote that male is not sexually fit. Now, the word impotence is no more used. Today, scientifically accepted term is ERECTILE DYSFUNCTION, which means inability to get erection/or inability to perform sexual intercourse”.
15. At the same time, in view of the evidence of R.W.3-Dr. Y. Savitha Devi, that the hymen of the respondent-wife is intact, it is also necessary to know whether “intact hymen” is a proof of virginity or not. In fact, according to Modi’s Medical Jurisprudence, intact hymen is not a proof of virginity. Presence of unruptured hymen is a presumption but not absolute proof of virginity, because in some women the hymen is very elastic and stretches without any rupture. Hence, it is difficult to establish the virginity in such situation.
16. In the light of the definition “Erectile Dysfunction”, it is necessary to refer to the medical evidence as well as the certificates issued by the doctors. According to Ex.Al report of the Parklane Medical Diagnostics, which conducted prolactin test, normal range in males shall be in between 1.58 to 23.12 ng/ml and the prolactin on the part of the appellant- husband is 17.31. From this it is clear that the appellant-husband’s prolactin level is normal and hence it cannot be said that he is unable to perform sexual intercourse. According to Ex.A2 Clinical Pathology report of semen analysis, the normal sperm count should be between 40-150 mln.spm/ml; total sperm count of the appellant-husband is 65 mln.spm/ml. The impression, according to the said report, is “Normospermia”. From the said report it cannot be said that the appellant-husband is suffering from infertility. No doubt Ex.A7 is the prescription issued by R.W.4-Dr. V. Rajagopal, wherein it is mentioned that the appellant-husband requires counselling/therapy. From this alone, it cannot be inferred that the appellant- husband is totally unable to perform sexual intercourse with his wife and there is Erectile Dysfunction. From the evidence of R.Ws.4 and 5, it is not possible to come to a conclusion that the appellant-husband is suffering from Erectile Dysfunction and he is unable to perform sexual intercourse. The evidence of R.W.4-Dr. V. Rajagopal is that it is highly impossible to say by physical examination whether a particular man is potent or impotent and the premature ejaculation means a person who attains a climax and ejaculates prematurely without spending sufficient time in the intercourse. According to the evidence of R.W.4, premature ejaculation is one form of sexual dysfunction, but that does not mean that there is total Erectile Dysfunction of the appellant-husband to perform sexual intercourse. In cases of premature ejaculation normally the doctors suggest counselling. Accordingly R.W.4 referred the appellant- husband to R.W.5-Dr. M.S. Reddy, Psychiatrist. According to the evidence of R.W.5, in case of impotency there will not be any erection or minimal erection and a person will not be able to penetrate. In case of premature ejaculation there will be erection but coitus cannot prolong to certain extent that the person feels satisfied. He further deposed that non-consummation of marriage was likely due to impotency and sometimes due to premature ejaculation. He further certified that from a perusal of Exs.A.2 to A6 he cannot say whether a person has sexual dysfunction. Of course, he has stated in his evidence that though Exs.A2 to A6 are showing normal reading, they do not disclose that the appellant- husband is potent. From this alone, this Court cannot come to a conclusion that the appellant-husband is suffering from total Erectile Dysfunction and he is unable to perform sexual intercourse. From the evidence of R.W.5, it is clear that the behaviour of a person with impotency may be on account of various circumstances like if he feels that the other partner is not co- operating he may show hostile reaction towards the partner or if he is trying to suppress information there can be a tendency to exaggerate problems of a partner trying to show that she could be the reason for his impotency. That is why R.W.5 conducted counselling and there are cases and cases where the husbands and wives have led happy marital life. It is only after counselling R.W.5 can come to the conclusion whether a person is totally unable to perform sexual act or not. In the instant case, as there was no total counselling of both appellant and respondent, it cannot be held that the appellant-husband is unable to perform sexual intercourse. The Court below had not appreciated the entire medical evidence in its right perspective. No doubt R.W.3 recorded that hymen of the respondent-wife is intact. But as already observed, simply because hymen of the respondent-wife is intact, it cannot be said that the respondent-wife is virgin. Intact hymen may be on account of various circumstances as already stated supra. Hence, this Court is of the view that the finding arrived at by the Court below that the appellant-husband is suffering from Erectile Dysfunction and he is unable to perform sexual intercourse cannot be sustained and liable to be set aside. In view of this finding, we are not going to deal with the aspect whether the marriage was consummated or not.
17. Coming to the second question of cruelty, whether the acts of the respondent- wife and her parents towards the appellant- husband and their allegation that the appellant-husband is impotent, would amount to immense mental agony and cruelty to the appellant-husband, it is necessary to refer to Section 13 of the Hindu Marriage Act.
Section 13 of the Hindu Marriage Act reads as under:
“(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) x x x x (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) xxx (ii) xxx (iii) x x x
18. The Supreme Court had an occasion to deal with the cases of cruelty in umpteen decisions.
19. In G.V.N. Kameswara Rao v. G. Jabilli, 2002 (4) ALD 84 (SC) : 2002 AIR SCW 162, the Supreme Court observed at Paras-12 and 16 of the judgment, which is extracted hereunder:
“The Court has to come to a conclusion whether the acts committed by the counter- petitioner amount to cruelty, and it is assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.”
“The mental cruelty faced by the appellant is to be assessed having regard to his status in his life, educational background, the environment in which he lived. The appellant could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. Married life of the appellant with the respondent had never been happy”.
20. In Parveen Mehta v. Inderjit Mehta, 2002 (4) Supreme 596, the Supreme Court observed at Paras-15, 19 and 21 of the judgment, which is extracted hereunder:
“In essence what must be taken as fairly settled position is that though the clause does not in terms say so it is abundantly clear that the application of the rule must depend on the circumstances of each case; that ‘cruelty’ contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be excepted to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status environments and social values, as also the customs and traditions governing them”.
“Clause (ia) of Sub-section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts”.
“Cruelty for the purpose of Section 13(l)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”
21. From the above decisions, it is clear that where the relationship between the parties is irretrievably broken and because of the non-co-operation and hostile attitude of the respondent-wife, the appellant- husband was subjected to serious traumatic experience, it can safely be termed as ‘cruelty’ within the purview of Section 13(1)(ia) of the Hindu Marriage Act. In the instant case, there is no dispute that the respondent and her parents are saying that the appellant cannot perform sexual intercourse. In our considered view, no husband even if he is unable to perform sexual intercourse would like to be called that he is suffering from Erectile Dysfunction. In view of our finding that there is absolutely no material to come to the conclusion that the appellant-husband is unable to perform sexual intercourse, it can safely be inferred that the acts of the respondent-wife and her parents towards the appellant-husband would definitely amount to cruelty, particularly, immense mental cruelty within the meaning of Section 13(l)(ia) of the Hindu Marriage Act. In this state of affairs where the relationship between the appellant-husband and respondent-wife is irretrievably broken and as both the spouses are willing to give a quietus to their marital status, we have no hesitation to come to the conclusion that the attitude of the respondent-wife and her parents would definitely amount to cruelty. In this view of the matter, the question whether marriage was consummated or not loses its importance. The adamant attitude of the respondent-wife during in- camera proceedings also adds strength to our conclusion because she wanted a declaration that the marriage between the spouses is a nullity. Hence, this Court is of the considered view that the entire attitude of the respondent-wife clearly amounts to mental cruelty within the. meaning of Section 13(l)(ia) of the Hindu Marriage Act and as such the appellant is entitled for divorce.
22. In the result, we hold that the finding of the Court below that the appellant is suffering from Erectile Dysfunction and unable to perform sexual intercourse is not correct and consequently we set aside the declaration of the Court below that the marriage between the spouses is null and void.
23. However, in view of our finding that the acts of the respondent calling the appellant “sexually incompetent” would amount to cruelty within the meaning of Section 13(l)(ia) of the Hindu Marriage Act, 1955, we hereby dissolve the marriage between the appellant and respondent taken place on 5.5.1999.
24. Accordingly, the Civil Miscellaneous Appeal is allowed. No costs.