BHASWATI SARKAR Vs. ANGSHUMAN SARKAR

JUDGEMENT

(1.) This Revisional Application is directed against the Order No. 12 dated 23-6-99 passed by the Court of 4th Additional District Judge, Barasat, 24-Parganas (North) in Matrimonial Suit No. 10 of 1991. By the said order the petition filed by the husband-respondent was allowed by permitting the husband-Opposite Party to undergo medical examination at any Government Hospital or by any other expert at his own costs, choice and responsibility.

(2.) . The wife-petitioner instituted a proceeding under Sections 24 (ii) and 27 (i) (d) of the Special Marriage Act, 1954 against the husband-opposite party alleging inter alia that the opposite party was impotent at the time of marriage, and continued to be so during their joint living and till the date of institution of the proceeding rendering the marriage as void and null. Husband-opposite party entered appearance in the said suit and filed written statement denying the allegations made therein. It was specifically denied that the husband-respondent is not capable of performing marital intercourse as alleged. It was further pleaded that due to initial refusal by the wife-petitioner, the respondent could not have sexual intercourse with the petitioner-wife and she was wholly responsible for non-consumation of the marriage. In particular it was stated that the wife-petitioner was totally against performing sexual intercourse in the first few nights after the marriage and further since she was not willing to conceive right after the marriage so she asked the husband-respondentto take enough precaution for which the act of consummation of marriage on subsequent occasions was discontinued midway to avoid conception of the wife-petitioner. On the basis of the said pleadings the husband-respondent before framing of issues in the suit made an application for his examination by a medical board and/or Chief Medical Officer of the District which was allowed by the learned Court below.

(3.) The wife-petitioner in support of this revisional application raised the same points as were raised before the learned Trial Court, that under Section 27 (i) (d) of the Special Marriage Act the petitioner-wife is required only to prove that the husband-respondent was impotent at the time of the marriage and continued to be so till the institution of the proceeding and therefore any medical examination subsequent to the institution of the above proceeding would not bring any relevant evidence for the purpose of passing a decree for nullity of marriage on the ground of impotency. Secondly, the conclusion of impotency of the husband-respondent could be arrived at if the wife-petitioner is medically examined and found virgin even after the institution of the above proceeding. Therefore, the Learned Court below acted illegally and with material irregularity in allowing the husband-respondent's application as above at this stage. Mr. Subhra Kamal Mukherjee, Learned Advocate appearing on behalf of the wife-petitioner in support of the above contentions referred to the decisions of the Supreme Court reported in AIR 1970 SC 137 (Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari) and the decisions reported in AIR 1979 Andh Pra 169 (Smt. Suvarna v. G. M. Achary) and AIR 1977 Punj and Har 97 (Ushman v. Inderjit). All the aforesaid decisions lay down with uniformity that in order to entitle the applicant to obtain a decree of nullity, as prayed for by the applicant, the applicant will have to establish that the opposite party was impotent at the time of the marriage and continued to be so until the institution of the proceeding. The case before Punjab and Haryana High Court further lays down that a person is impotent qua his wife would mean and include his incapacity to consummate the marriage which is one of the objects of the marriage and if no evidence is led to show that the husband has cured himself of his incapacity to consummate the marriage it would have to be assumed that the husband continued to be impotent qua her. The decision of Andhra Pradesh High Court is to the effect that where the medical evidence on the part of the husband is non-committal and incomplete and the medical evidence on the part of the wife clearly proves that the wife remained virgin, the Court would presume that the marriage had not been consummated due to impotency of the husband.