HANUMAN Vs. CHANDER KALA

JUDGEMENT

(1.) This is a husband's appeal against the judgment and decree of divorce granted to his wife on the ground of cruelty. The only ground of cruelty which prevailed with the matrimonial Court was inability of the husband to perform sexual intercourse with his wife and thus being impotent. In this appeal, the only point for consideration is whether the view taken by the lower Court is sound in law. Details of their other matrimonial disputes need not here be taken note of.

(2.) The case of the wife was that she had been with the husband in the first instance for three days, in the second instance for fifteen days and lastly for over three and a half months after marriage. Though the husband was sleeping with her and had been attempting to have sexual intercourse but to no avail and he had admitted before her that he was trying to have himself medically treated for which he required money and had asked the wife to fetch it from her parents. The fact that the husband was impotent and unable to perform sexual intercourse was deposed to by not only the wife as P.W.1 but was supported by her mother Basanti P.W.4 to whom she narrated her plight, who in turn told to Ganeshi P.W.2, the wife's father, and who in turn told it to his cousin Mool Chand P.W.3. All these witnesses have clearly deposed that the husband is impotent and the wife complains about it. The husband, on the other hand, as R.W.1 denied the suggestion and said that he had not only been having sexual intercourse with his wife but she had even got pregnant from him but had later aborted. His uncle Jhabal R.W.2 supported him in that regard. The conflicting claims of the parties were sought by the husband to set at rest on the statement of Dr. H. C. Sood R.W.3, who came in the witness-box as one of the members of the Medical Board who had examined the husband. Now according to him, the external genetalia of the husband was well developed and there was nothing to suggest on clinical examination of his male organs that he was unfit to perform the sexual intercourse. On semen examination, he found the quantity O.2ml. On microscopic examination, it showed only 5 to 10 pus cells per h.p.f. and no sperms were seen in the specimen. Dr. Sood, when cross-examined, deposed that while coming to the conclusion, the Board had only visibly seen the husband and had not got his penis erected in their presence. In order to obtain semen, as said by him, the husband was given a nirodh but they did not see to it whether there was erection at the time of ejaculation. Rattier, Dr. Sood went on to say that under the Medical Jurisprudence, it was not thus required until and unless something was brought before the Board that the male was unable to perform sexual intercourse and in the case in hand, there was nothing to suggest that he was unfit to perform sexual intercourse. This opinion is the sheet-anchor of the case of the husband.

(3.) Now a catena of precedents has grown around this branch of law emphasising that sex is the foundation of marriage and without sexual activity, it would be impossible for any marriage to continue for long. It has also been noticed that denial of sexual activity in marriage has an extremely unfavourable influence on a woman's mind and body leading to depression and frustration. Forcing the wife to live a sexless life would inevitably damage her physical and mental health and tantamounts to cruelty. The Trial Judge relied on the following observations of G. C. Mittal, J. in Atam Parkash Arora v. Neelam, (1981) 2 D.M.C. 43, to grant a decree for divorce :-