Whether husband can be directed to prove that he is not impotent?

 It was also correctly held by the trial Court that the onus could not have been shifted on the respondent to show that he was not impotent. Since it was the appellant who has alleged that she could not live with the respondent and wanted annulment of the marriage on account of his incapacity to perform sexual intercourse, it was for her to prove so. She could not make capital out of the weakness, if any, in case of the respondent. Rather in the present case the respondent was always ready and willing to get himself tested. He presented himself before the Medical Board, whose report was in his favour and even after that on the application of the appellant, he went to PGI, Chandigarh, for getting the pipe test conducted. The withdrawal of the application by the appellant rather showed that she herself was raising her case on falsehood.

Punjab-Haryana High Court

Suvin Kumari vs Sukhvir Singh on 6 March, 2014

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MS. JUSTICE NAVITA SINGH
Citation ;AIR 2014 (NOC)431 P&H

1. Heard counsel for the parties.

2. This appeal is directed against the judgment and decree dated 5.9.2001 passed in favour of respondent-husband, whereby the petition filed by the appellant-wife under Section 12 of the Hindu Marriage Act, 1955 (Act for short) was dismissed.

3. The case of the appellant was that the marriage between the parties was solemnized on 12.5.1981 in Village Kheri Sangwal, Tehsil Charkhi Dadri, District Bhiwani. No child was born from the wedlock. The appellant alleged that she was 13 years old when she got married and was studying. She had gone to the matrimonial home for the first time in June 1990 and remained there for two days. The respondent was completely incapable of having sexual relation. In the last week of January 1997, she again went to the matrimonial home but the marriage could not be consummated due to impotency of the respondent. In the meantime, the appellant had done her Singh Ishwar

2014.03.24 03:56M.Phil and Ph.D and was working as a school teacher. The appellant sought I 

annulment of marriage on that ground.

4. The respondent, on the other hand, admitted the marriage, but totally denied that the same was not consummated. He stated that the fault rather lay with the petitioner who was a haughty woman and proud of her high education. He stated that he had sex with her whenever she remained in the matrimonial home and he was healthy and able-bodied. It may also be mentioned here that the sister of the appellant namely Sushil was married to Dalbir Singh, brother of the respondent.

5. The following issues were framed by the trial Court: -

1. Whether the petitioner is entitled to get the marriage annulled on the ground of impotency, as alleged?OPP

2. Whether the petition is liable to be dismissed, on account of various preliminary objections raised by the respondent, in his written statement?OPR.

3. Relief.

6. In evidence, the appellant maintained her stand that her husband was impotent and marriage was not consummated. The respondent stated that in January 1997, his wife stayed in the matrimonial home only for two days and during that period they had physical relationship.

7. Learned counsel for the appellant argued that the court below did not appreciate the evidence in the right perspective and discarded the case of the appellant without proper reasoning. He contended that there was sufficient evidence led by the appellant that the respondent was impotent and besides the statement of the appellant herself, there was the statement of her brother's wife Suresh Bala and her friend Suresh Kumari. They stated that the appellant had disclosed to them that the respondent was not capable of sexual intercourse. She had also disclosed the fact to her Jethani, who tried to convince the appellant that education and social life were different things. Singh Ishwar

However, the appellant stated that she could not come back to the responden

because of his physical incapacity.

8. Learned counsel for the appellant, however, relied on the oral evidence of the appellant and the other two witnesses, but could not explain as to why proper physical examination of the respondent was not got done and why medical evidence was not produced. It has come on record that the Additional District Judge, Bhiwani, had directed the respondent to get his pipe test conducted from PGI, Chandigarh, but the said test was not performed on the respondent because the appellant had withdrawn her application in that regard. Earlier, a Medical Board, constituting of three doctors Dr. K.K. Girdhar, Dr. R.K. Gera and Dr. D.S. Nandal, examined the respondent and it was mentioned in their report dated 21.5.1998 sent to the court, that there was nothing to suggest that the respondent was incapable of performing sexual intercourse. The result of all investigations revealed that everything was normal with the respondent.

9. The appellant, however, was not satisfied with the said report and she filed an application for determining the impotency of the respondent by way of pipe test. On her request, court directed the respondent to get himself so tested from PGI, Rohtak. It was, however, informed that the test was not available at PGI, Rohtak. Thereafter, the respondent was directed to get the test conducted at PGI, Chandigarh. He went there, but the examination was not conducted due to absence of his wife and relatives. Another application was filed by the appellant and inquiry was made from PGI as to whether pipe test was available there and if it was, whether the respondent was required to be accompanied by the appellant and her relatives or not. Surprisingly enough in the meantime, the appellant withdrew her application for the test. It was rightly concluded by the trial Court that such conduct of the appellant showed that she did not want the respondent to be subjected to any such test. The irresistible conclusion, therefore, would be that the appellant was aware that if the Singh Ishwar

particular test for determining whether or not the respondent was impotent was

conducted, her lies would be exposed.

10. It was also correctly held by the trial Court that the onus could not have been shifted on the respondent to show that he was not impotent. Since it was the appellant who has alleged that she could not live with the respondent and wanted annulment of the marriage on account of his incapacity to perform sexual intercourse, it was for her to prove so. She could not make capital out of the weakness, if any, in case of the respondent. Rather in the present case the respondent was always ready and willing to get himself tested. He presented himself before the Medical Board, whose report was in his favour and even after that on the application of the appellant, he went to PGI, Chandigarh, for getting the pipe test conducted. The withdrawal of the application by the appellant rather showed that she herself was raising her case on falsehood.

11. It rather appears, as came in the evidence of respondent, that the appellant had not wanted to live with him after she had acquired higher education to the level of Ph.D because the respondent was practically illiterate th

and uneducated because he had studied only upto 6 standard. The disparity between educational and social standard created a superiority complex in the mind of the appellant, who did not want to live with a villager.

12. There being no merit in the appeal, the same is dismissed. (S.S. SARON) (NAVITA SINGH) J

High Court Chandigarh

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