Case Study: P. v. K.

By Kanchan Ghosh 8 Minutes Read

“Divorce on grounds of concealment of impotency.”

Citation: AIR 1982 BOM 400

Date of Judgement: 15^th July, 1981

Bench: Mody (J)

Facts

In this case the petitioner (husband) filed a suit for annulment of marriage on the ground of concealment of material fact under Section 12(1)(a) and (c). The petitioner claimed that the respondent (wife) was suffering from second degree prolapse of uterus and this fact was concealed from him (petitioner) during the time of the marriage. The respondent (wife) showed disinclination to any sexual intercourse and repelled attempt of petitioner to consummate marriage and which the petitioner subsequently came to know could be because of prolapse.

Judgement

The court held that petitioner was entitled to annulment of marriage however the respondent should be paid a lump sum of Rs 13,500/- as and by way of permanent alimony.

Key takeaways

1. Whether the non- disclosure of a known prolapse amounts to obtaining consent of the petitioner by force or by fraud as to the nature of the ceremony or as to the material fact or circumstances concerning the respondent?
   
   Yes.
   
   The court while answering this, delved into the meaning of “what amounts to fraud”. Prior to the 1976 amendment of the Hindu Marriage Act, Section 12 (1) (c) read as:
   
   “That the consent of the petitioner or where the consent of the guardian in Marriage of the petitioner is required under Sec 5, the consent of such guardian was obtained by force or fraud”.
   
   The court interpreted this line in the case of Raghunath Gopal v. Vijaya Raghunath.[1] In this case the wife concealed the fact that she was suffering from curable epilepsy and made a false representation that she was healthy. This was not considered to be fraud within the meaning of Section 12(1)(c).  The court gave reasoning that Hindu Marriage Act can be in nature of a contract but for some purpose was still a sacrament and therefore “fraud” cannot be interpreted in the light of the definition of Contract Act. The marriage solemnized under the Hindu Marriage Act cannot be duly avoided by simply showing that the petitioner was induced to marry the respondent by fraudulent statement relating to her health.
   
   This decision clearly states that “fraud” used under Section 12(1)(c) of the Hindu Marriage Act ,1955 does not relate to that in Indian Contract Act,1872. Fraud, thus, does not mean fraudulent representation or concealment. The test to be applied is whether there was any real consent to the solemnization of marriage.
   
   Now coming to the present case, if the court had to rely on this precedent then it would be easy to hold that no fraud has been committed by respondent but since the 1976 amendment, the newly amended clause eliminates such an application or interpretation . Now it reads as:
   
   “that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under Sec.5, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent”.
   
   The amended clause, thus, brings the concealment of any material fact within its ambit. Now what constitutes material fact? Answering this, the court said that fact or circumstances which is/are of such a nature as would materially interfere with the marital life and pleasure (including sexual pleasure) will be a material fact.
   
   In the present case, the fact that the prolapse of uterus was known to the respondent and the only question was whether the non-disclosure of such facts can be fraud as to material fact? It was held that the concealment of such a fact will be fraud as to material fact and the marriage between the respondent and the petitioner is voidable and liable to be annulled.
   
   
2. Whether the respondent was impotent? What would amount to “impotency?
   
   Yes
   
   The court in dealing with impotency has delved into the meaning of “what constitutes impotency?”. It based its judgement on the case of K. Balavendram v. S. Harry[2]. The court in this case had defined impotency to be incapacity to have sexual intercourse, which is undeniable one object of the marriage.
   
   In another case of Digvijay Singh vs Pratap Kumari[3], the court held a party is impotent if his physical or mental health makes the consummation of marriage impossible.
   
   The meaning of impotency was therefore observed simply inability to perform the sexual act. It may be pathological, psychological, permanent or temporary, complete or partial.
   
   Court observed that if the condition of a spouse is such as to make intercourse imperfect or painful it would amount to impotency. Even the aversion or abhorrence shown by spouse to having intercourse caused by prolapse can amount to impotency. In the present case, the respondent was impotent for two reasons. Firstly, it is proved that the respondent resisted all the approaches of the petitioner to consummate the marriage, possibly with a view to conceal the condition or prevent the pain which may possibly result because of the intercourse and secondly, because with such a prolapse the intercourse is possible only after manipulation with hands. The sight of the protruding uterus is more likely than not to cool down the ardour and desire of the husband to perform the sexual act resulting in frustration for the husband. Even if the ardour and desire survive the sight of the protruding organ, the manipulation itself will cool it down. In any case an intercourse which demands previous manipulation of the uterus before penetration cannot be said to be an intercourse in the normal way. Both reasons independently of each other are indicative of impotency and this coupled with non-consummation, entitle the petitioner to annulment of the marriage.

[1] AIR 1972 Bom 132.

[2] AIR 1954 Mad 316 (FB).

[3] AIR 1970 SC 137.

Kanchan Ghosh