The Karnataka High Court has held that a wife calling her husband an impotent without legally substantiating the same by itself would amount to cruelty within the meaning of Section 13(ia) of the Hindu Marriage Act.
A division bench of Justice S. Sunil Dutt Yadav and Justice K.S. Hemalekha, while setting aside the family court judgment which had dismissed the petition filed by the husband seeking divorce, said,
"The allegations having not been proved to be genuine, and calling the husband an impotent without legally substantiating the same, itself would amount to cruelty within the meaning of Section 13(ia) of the Act and the trial Court was not justified in holding that the cruelty asserted by the husband is not proved."
The Husband averred that the wife was co-operative for one month, however, her behaviour altogether changed later on. It is averred that she refused to do household work, also started making allegations against him that he is incompetent to discharge his matrimonial obligations, he is an unfit person to be a husband, the allegation of impotency was disclosed not only before him, but also before relatives of both parties, which caused lot of embarrassment to the husband resulting in mental torture, which was intolerable to lead the life with his wife and thus, sought for a decree of divorce.
Advocate Srinand A. Pachchapure, for the husband said other than the wife disrespecting the husband as well as her in-laws and refusing to do the household work, had started making serious allegations that the husband is incapable of discharging his matrimonial obligations. The said allegation was not only made before the husband, but also before her and his relatives. This act of the wife has subjected the husband to mental and physical cruelty. It is more so contended that, the allegations so made, having not proved to be true, the Trial Court was not justified in dismissing the petition filed by the husband.
The wife contended that their marriage was never consummated, without there being any fault on her part and that the act of husband created a doubt in her mind regarding incompetency to perform his matrimonial obligations. It is further urged that she is always ready and willing to join the husband in spite of his incapability to perform his marital obligations.
The bench on going through the records noted, "No material is forthcoming and no efforts have been made to prove that the contention raised by her about the impotency of the husband is true and is not merely an allegation, but a fact. This having not been done, the allegation of impotency in the presence of others and her husband would necessarily affect the reputation of the husband."
It added, "No prudent woman would think of making allegations of impotency in the presence of others, rather she would take necessary steps to see that the reputation of the husband is not affected and not thrown out in public. The complaining of incapacity of the husband to bear children, without any proof creates an intense mental agony and anguish of the husband."
Noting that the wife has not proved the allegation the bench said, "The wife has failed to discharge the burden to prove that the husband is impotent as the husband is willing to undergo medical examination as stated in his affidavit. Having not proved the allegation, the unproved/unsubstantiated false allegations about impotency has led to mental disturbance of the husband causing disharmony between the husband and wife, which makes the husband unable to stay with the wife."
Following which it held, "Though Section 13 of the Act does not consider the impotency as the ground for divorce, the false allegation of impotency being made by the wife would definitely cause mental disharmony and this would amount to mental cruelty within the meaning of Section 13(1)(ia) of the Act, and enables the husband to seek divorce on the ground of cruelty."
The bench also rejected the contentions of the wife denying the allegations made against her by the husband, "In view of the fact that the wife has not placed any materials to unshore her contentions."
The bench also found fault with the family court order which has taken note of the conciliation proceedings between the husband and the wife before the Mediator. Referring to Rule 23 of the Karnataka Civil Procedure (Mediation) Rules 2005. The bench said, "Rule 23 of the Mediation Rules would state that the communication between the parties and the mediator is confidential and prescribes the procedure as to what is to be communicated between the mediator and the Court."
Accordingly it allowed the appeal and dissolved the marriage. Further it clarified that In light of the facts and circumstances of the case and looking into the gross salary of the husband award of maintenance by the trial Court at Rs.8,000 per month to be paid on monthly basis as and when it accrues till she remarries. This amount of Rs.8,000 would be in the nature of permanent alimony to the wife in view of the granting decree of divorce, till she gets remarried.
Case Title: XXXX versus XXXX
Case No: MFA NO.102625/2015 (MC)
Citation: 2022 LiveLaw (Kar) 213
Date of Order: 31ST DAY OF MAY, 2022
Appearance: Advocate SRINAND A. PACHHAPURE for appellant; Advocate S.R. HEGDE for respondent