KANCHUPATI MALLA REDDY Vs. KANCHUPATI 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.

(2.) 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 Muni Debi v. Nagendra Narain;I.L.R. (1945) 1 Cal. 407.

(3.) Ghakravarti and Ellis, JJ., in Rakeya Bivi v. Anil Kumar Mukherjea, ILR (1948) 2 Cal. 119. Tendolker, J., in A. v. B., A.I.R. 1952 Bom. 486. The begetting of children is the primary object of marriage 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 recognise 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 spiritual 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 defect 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.