MALLA REDDI Vs. SUBBAMMA

JUDGEMENT

(1.) This is a husband's appeal against a decree awarding separate maintenance to his wife on the ground of cruelty. The liability is denied on the ground that the marriage was void and a nullity by reason of the impotence of the husband. Objection is also taken to the amount of maintenance decreed. It is admitted that both at the time of the marriage and since the marriage, the husband has been impotent and incapable of consummating the marriage with the plaintiff. Under the English Law there is no doubt that in such circumstances the wife would be entitled to a decree of nullity. It has been held that the marriage of a person who is impotent and has never been able to consummate marriage is a nullity under the Hindu Law too. See Edgley, J. in Ratan Moni Debi v. Nagendra Narain Ghakravarti and Ellis JJ. in Rakeya Bibi v. Anil Kumar Mukherjea and TendolkarJ., in A. V. B.. The begetting of children is the primary object of marraiage for the attainment of which the physical capacity of the spouses is an essential requisite. A marriage, whatever else it is i. e. a sacrament, is a contract with correlative rights and obligations. Marriage postulates physical capacity in the partners as the foundation of the contract. An impotent person has not the capacity to marry and therefore the marriage of such a person is null and void. The texts of Hindu Law are by no means clear, much less conclusive, on this topic and courts are free to act according to justice, equity and good conscience. It is abhorrent to a modern mind that an impotent person should be allowed to marry and courts should not recognize his or her marriage as valid. This is one view. The other view is that under the Hindu Law marriage is a sacrament. Marriage is not a contract in which a consenting mind is necessary. The marriage ceremonial creates a spiritul or religious tie between the spouses which once created cannot be untied. Cohabitation and the begetting of children are not the only objects or purposes of marriage and a marriage once celebrated with due ceremonial is valid irrespective of any defects in the spouses. There is no actual prohibition of the marriage of an impotent person though it is considered undesirable or improper in the texts of Hindu Law. Some of the texts recognise the validity of such a marriage once it is performed with the prescribed ceremonial. Therefore the marriage is not null and void. This is the other view. I have to choose between these two views.

(2.) I have gone through the relevant texts of Hindu Law but I consider it mere pedantry to assemble all of them here or examine them at length particularly when many of them have no contemporary application at all. Marriage according to Hindu Law-givers is only a samskara or purificatory ceremony prescribed for all classes. There is no textual warrant for equating it to a sacrament. Marriage also partakes of a civil contract made by the spouses or by their parents if they are minors and an essential part of the marriage ceremonial is the gift of the bride either free as in the case of a Brahma marriage or for money as in the case of an Asura marriage. The object or purpose of marriage is both secular and religious, namely, " offspring, religious duties, faithful service and highest conjugal bliss" according to Manu (IX-28). An impotent person is unfit for Vedic mantras or ritual or for performing sacrifices according to Manu (IV-205, 206) and Katyayana (Shrauta Sutra 1-4-5).. He can neither produce offspring nor conjugal bliss. The marriage of such a person fails of its purpose. It does not however follow from all this that the marriage is null and void. The texts of Hindu Law do not say so.

(3.) There are passages in the Smritis and the commentaries dealing with the disqualifications of a bridegroom or a bride and impotence is one of them. For instance Katyayana cited in Parasara Madhaviyam enumerates the following disqualifications : " Madness, being an outcaste, leprosy, impotence, being of the same gotra, blindness, deafness and epilepsy." Passages like these have reference to a stage before the marriage and merely indicate who is not a proper bridegroom or bride. In applying the rules of Hindu Law it must be remembered that it by no means follows that because an act has been prohibited it should therefore be considered illegal. "The distinction between the Vinculum juris and the Vinculum pudoris is not always discernible". Balwant Singh v. Ranikishori. It is obvious that the above disqualifications do not all stand on the same footing with reference to the object and purpose of a marriage. There is also no prohibition of the impotent and the rest from marrying nor is there any text declaring that the marriage, if it takes place, is void. The texts also provide a permissive rule that in certain contingencies, including the husband's impotence, a wife may marry another man. For instance Vasishta quoted in Madana Parijata says: