VANDANA SUBHASH BORDE Vs. SUBHASH BENJAMIN BORDE

JUDGEMENT

(1.) SEVERAL misconceptions require to be brushed aside, particularly by the trial courts while dealing with matrimonial proceedings which constitute a separate class of litigation. This Court has repeatedly pointed out that the normal technicalities that are involved in the sifting and evaluation of the evidence and the degree of proof insisted upon in other forms of proceedings are required to be considerably diluted and modified and a more understanding and helpful attitude adopted in the handling of these matters. This is a field where the problem of physical and mental trauma is predominant, where the parties are under severe strain, handicaps and limitations; where the incidents are essentially of a highly personalised nature, often times very private and, consequently, where the evidence is necessarily restrictive. The general rules of corroboration, supportive evidence, etc. , though applicable, are required to be mellowed down and the evidence of the parties themselves is about all the material on the basis of which the Court will have to act, Modern legal thinking also subscribes to the view that where the relationship has irretrievably broken down, a Court ought not to refuse a decree except for very good reasons, because it would relegate the parties to a position of limbo and would only add to the human suffering.

(2.) MUCH research has been done, both in the field of medicine and psychology, and in the last two decades in particular after the research of Maters and Johnson, while dealing with cases of impotency, the predominant consideration is not physical incapacity which courts are often guided by, but another all important angle, namely, the fact that non-consummation of the marriage, could be due to several circumstances which contribute to a situation whereby both the spouses, though physicaly and mentally potent in the normal sense, find it impossible to achieve a satisfactory sexual relationship. The concept of relative impotency which prescribes that a person suffering from no handicap whatsoever still feels inhibited or incompetent vis-a-vis the particular sexual partner is now an accepted ground for a decree in a matrimonial Court. It is this aspect of the matter that requires serious consideration because reliefs in cases of matrimonial breakdown must be speedy and simple and parties should not be pushed through long drawnout legal battles and then forced to approach the Appellate Court after years of prolonged agency merely because of insensitive and hypertechnical approaches on the part of judicial officers. It is equally essential in these cases that the relief granted be moulded within the framework of the record and that even where the original prayer cannot be granted, the Court consider the next best alternative.

(3.) BOTH these appeals have been preferred by the wife and are directed against a common judgment and order of the Family Court, Pune, dated 20-3-1991. The parties to the proceedings are governed by the provisions of the Indian Divorce Act, 1869 and the appellate-wife before us had filed a petition under section 18 of the Indian Divorce Act praying for a decree of nullity on the ground that the respondent-husband was impotent at the time of the performance of the marriage and continued to be so as on the date of the presentation of the petition. The respondent-husband had filed a counter-petition for restitution of conjugal rights under section 32 of the Indian Divorce Act whereby he had contended that the appellant-wife had withdrawn from the matrimonial home and his company without just and reasonable course. The learned trial Judge recorded evidence and decided both the petitions together. He held that the ground of impotency that had been pleaded by the appellant-wife is undsubstantiated; whereas at the same time he recorded the finding that the respondent-husband was entitled to a decree for restitution of conjugal rights. Being aggrieved by this decision, the appellant-wife has preferred these two appeals. We have heard learned Counsel on both sides in the two appeals, perused the entire material that was before the trial Court as also the judgment of that Court and we propose to dispose of both the appeals through a common judgment.