HC erases divorced woman’s ‘impotent’ tag after 18 years

Rosy Sequeira, TNN Jul 24, 2012

MUMBAI: Nearly 18 years after a family court granted divorce to a man on the ground that his wife was "impotent", the Bombay high court on Monday quashed the order and said the lower court had made an "error" to equate infertility with impotency.

A division bench of Justices A M Khanwilkar and A R Joshi said no evidence was presented before the court to prove the woman was impotent and directed the man to pay Rs 10,000 as costs to his wife immediately.

The court verdict came on a petition filed by Pramila Ghante challenging the Pune family court's October 31, 1994 order granting divorce to her husband Shankar Ghante on grounds of impotency, cruelty and desertion. The couple had married on March 25, 1976.

Pramila, now 63 years of age, retired as a Pune Municipal Corporation school teacher, while Shankar, who is 61, retired as an inspector with the state excise department. The bench pointed out that the appeal was filed in the high court when Pramila was 45 years old and Shankar 42, and said such a long delay for the appeal to reach a final hearing is a "rather disturbing state of affairs".

Pramila's advocate Y S Bhate argued that the impotency charge was levelled by Shankar to regularize his second marriage, from which he has two children. But Shankar's advocate countered it by saying Pramila has relative impotency as the sexual relations between the couple were not satisfactory.

The judges said under section 12 (1) (a) of the Hindu Marriage Act, impotency is a ground for nullity of marriage but not infertility and there is a marked difference between the two. "In the absence of material on record showing the impotency, or to be more specific, frigidity of the wife, so as to render the consummation of the marriage impossible, it cannot be said that the provision of the section is attracted," Justice Joshi wrote for the bench.

The family court in its "crystal clear" conclusion said that Pramila was impotent as she did not bear a child after 16 years of marriage, was unable to leave her job and join Shankar at his places of work to give him every satisfaction and she was unable to conceive even after taking medical treatment. But the bench stated, "We must say that the family court had definitely committed an error in arriving at such a conclusion—thus treating impotency and infertility at par, ignoring various (court) decisions on this aspect. The pleading and evidence at best would support the fact that the wife was incapable of giving birth to a child."

The judges also noted that from September 4, 1981 to July 7, 1982 the couple resided together every weekend—Saturdays and Sundays. They said this was substantive evidence that was presented before the family court and established the fact that there was consummation of marriage at least for some period and even two years prior to alleged separation. So, the case did not attract grounds of desertion.

"In our considered view, though for most of the period after marriage the spouses were staying at their respective places of service, they had definitely cohabited/consummated the marriage, though unfortunately the wife could not give birth to any child out of such cohabitation," they said.

The judges said evidence suggests that the wife was given treatment for "birth of child and not for the problem of relative impotency. Indisputably, even after the unsuccessful medical treatment given to the wife, the parties continued their relationship," the judges said.

Infertility no ground for divorce 

Impotency is defined as physical incapacity of accomplishing the sexual act, while infertility means inability to conceive a child. In law, infertility is no ground for getting a divorce while impotency is ground for annulling the marriage. Section 12 (1) (a) of the Hindu Marriage Act provides for annulling the marriage on the ground that 'that the marriage has not been consummated owing to the impotence of the respondent (either husband or wife)'. Even judgments delivered so far speak of non-consummation of the marriage due to impotency.

http://articles.timesofindia.indiatimes.com/2012-07-24/mumbai/32826874_1_impotency-high-court-hindu-marriage-act