1. INTRODUCTION
Marriage is one of the most important institution in our culture. However, marriage as one of the most intricate partnership is hard to maintain; especially in today's time where people have easily started seeking divorces. This is where the need for Hindu Marriage Act helps to save marriages and families from falling apart.[1]
The Hindu Marriage Act came into force in the year 1955, it helps to form uniformity of laws among the Hindus. Marriages are one of the most complex and highly emotionally and financially invested relationships in the world. The purpose of this act is to safeguard the rights of the marriage for both, the husband, and the wife. Whenever needed, the law helps people to file for a Divorce Under Hindu Marriage Act, as per the sections permitted by the law.[1]
2. APPLICATION OF THE HINDU MARRIAGE ACT [1]
This Act applies to -
( a) any person who is a Hindu by religion in any of its forms or developments
( b) any person who is a Buddhist, Jain or Sikh by religion, and
( c) any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion.
3. HISTORICAL BACKGROUND OF THE ACT
Divorce, as a legal option for separation, was identified and practiced in British India in the year 1869 which was majorly for the Christians seeking divorce lawfully. In India, there was no legal framework that could formalize a divorce or allow for it. Later in the year 1955, the Hindu Marriage Act was formed, to enable people to file for a Divorce Under Hindu Marriage Act.[1]
4. GROUNDS FOR DIVORCE
* Adultery
* Cruelty
* Desertion
* Conversion to Another Religion.
* Mental Disorder
* Communicable Disease
* Renunciation of the World
* Presumption of Death
* Unsound Mind or Suffering from Continuous Insanity
5. PSYCHOLOGICAL IMPOTENCY AS A GROUND FOR DIVORCE [2]
When we talk about marriage, a variety of notions comes to mind and the most significant one is regarding the basis of marriage or the reason why individuals get married in the first place. More than one option comes up, but the most prevalent one is having children.
So what if a couple can't get married because one or both of them are infertile. We allow the marriage to be annulled in this circumstance. Let us understand this by understanding what impotency means and when is a person considered to be impotent.
6. CONCEPT OF IMPOTENCY IN MATRIMONIAL SITES [2]
Impotency in general terms refers to the state of mind which makes sexual act impossible. Up till recently it was assumed that the only man can be impotent and generally it is assumed that the inability to attain or sustain an erection for the sexual act makes a man impotent. However, for matrimonial matters, and rightly so, any party who because of his/her bodily or mental state is unable to consummate marriage is said to be impotent.
Supreme Court defined impotency as 'a party must be held to be impotent if his or her mental or physical condition makes consummation of marriage impossible', Delhi High Court defined it as 'lack of ability to perform full and complete sexual intercourse'.
Impotency is a ground for matrimonial relief under all personal laws. Under Hindu Marriage Act, 1955 impotency would render marriage voidable under Section 12 (1) (a). Under the Special Marriage Act, it makes the marriage void. Similar Provisions are there under the Indian Divorce Parsi and Muslim Marriage Acts. In all marriage acts impotency can be a ground of annulment.
Impotency or incapability must last indefinitely and consummation of marriage must be impossible in order to get the decision of nullity. As a result, an annulment may not be warranted if a minor surgical operation will resolve the issue. When one of the parties refuses to go through with a potentially risky surgical operation will resolve the issue. When one of the parties refuses to go through with a potentially risky surgical operation, its enough to deem the marriage invalid.
Impotence and sterility are not the same thing, and its crucial to remember that. It is possible for a person to be able to engage in sexual activity and still not be able to conceive. A declaration of annulment is not issued in these circumstances since the parties are regarded infertile and not impotent.
It has to be understood that imperfect and partial intercourse is not consummation. And it does not bear affect on males only. Even where the husband could not consummate the marriage because of the artificial vagina of the wife, a nullity decree was upheld by the superior courts.
However, to seek a relief under matrimonial matters under this regard, the malformation of organ or incapability must be incurable and consummation therefore a practical impossibility. It is to be understood that impotence and sterility are not the same thing, and it's important to remember that. It is possible for a person to be able to get engaged in sexual activity and still not be able to conceive. A declaration of annulment is not issued in these circumstances since the parties are regarded infertile and not impotent.
7. THE GROUND FOR RELATIVE IMPOTENCY [2]
It is accepted by both the medical and legal jurisprudence that there can be instances where a perfectly normal human can be virtually impotent qua the other, whereas she/he might be perfectly potent vis--vis another person. The petitioner would be entitled to matrimonial relief on the ground of relative impotency of the respondent. Thus, impotency can be of temporary nature or of permanent nature. It may be towards a particular person or it can be universal.
The court also accepts that mere consummation of marriage by force wont make the other person potent vis--vis a petitioner. In a particular case, the husband alleged that whenever he attempted an intercourse with his wife the act had produced hysteria and the wife submitted to an intercourse only on the wedding night when the husband used force and on all other occasions resisted his attempts, in this case wife could be said to be impotent qua the husband.
8. BURDEN OF PROOF AND EVIDENCE [3]
The petitioner bears the burden of proving that the respondent is impotent in any claim for annulment of marriage filed because of the impotence of one of the spouses. It's thought to be crucial that the information is only shared between the two people involved. Medical tests are often used as evidence in cases of infertility. Moreover, proof of impotency is critical because merely accusing someone of being impotent is not enough because there will be no proof but only one persons word against another.
An examination by a medical professional is regarded the most reliable evidence of impotence. To find out if there is an organ abnormality or the person has difficulty getting an erection at all times, there is a test.
In the event a person refuses to take a medical examination, the marriage is declared null and void. A person who accepts accusations of impotence and then rejects it, is awarded an annulment as well.
Court orders for impotency tests aren't violation of privacy under Article 21 of the US Constitution, thus we should stress the issue. However, individuals have the option to take the test or not, but if they refuse to do so without providing a legitimate justification, the court will award them an annulment. The court can also grant a specific medical examiner to the respondent if requested by the respondent.
9. CAN IMPOTENCY BE CONSIDERED AS CRUELTY? [3]
There was a lot of debate whether or not the spouses impotence was cruel. One of the primary foundations of marriage is to satisfy the sexual demands of our partner by consummating the union. Thus, impotency can be truly claimed as cruelty. A lack of ability to do so is mental cruelty on the part of the other partner, as they are suffering as a result of the others apathy.
For example, if the male is unable to consummate the marriage due to impotence, this is mental cruelty to the wife and she has the right to have the marriage annulled. In cases of impotence, courts are now allowing annulment and also deeming it harsh.
In the case of Susarla Subhramanya Saatry v. S. Padmakshi, [4] the courts granted annulment on the facts that the husband is proved sexually incompetent and this also amounts to cruelty. This was just a drop in the ocean, there are many other cases in which the courts have granted annulment under Section 12 (1)(a) amounting to sexual impotency and Section 13 (1)(a) as mental cruelty due to the impotency of one spouse, of the Hindu Marriage Act, 1955
The statutes referred are Hindu Marriage Act, 1955, Special Marriage Act, 1954, Parsi Marriage and Divorce Act, 1936, Indian Divorce Act, 1869, Dissolution of Muslim Marriage Act, 1939.
10. IMPORTANT CASE LAWS ON IMPOTENCE IN INDIA[3]
The court in the case of Samar Roy Chowdhary v. Sm. Snigdha Roy Chowdhary, [5] highlighted that Section 12(1)(a) of the Hindu Marriage Act, 1955, as amended by the Marriage Laws (Amendement) Act, 1976, does not mention the curability aspect regarding impotency. Therefore, the question of whether impotency is curable or not is deemed irrelevant in deciding cases under Section 12(1)(a). It was established that if the lack of consummation in a marriage is due to the respondents impotency, the petitioner is eligible for a decree of nullity.
In the Yuvraj Digvijay Singh v. Yuvrani Pratap Kumar [6] on 2nd May, 1969, the court held that on the basis of evidence it cannot be believed that the respondent, i.e. the wife is not impotent. The court also declined the fact that the petitioner posed that the wife also repulsed him from any sexual act. It is not really important to deal with the findings of the District Court and High Court and eventually rejecting the appeal of petitioner that his wife was impotent at the time of marriage and continued to be so.
11. CONCLUSION
In the context of the Hindu Marriage Act, impotency serves as a significant ground for seeking a decree of nullity or divorce. The Act, specifically Section12(1)(a), does not explicitly consider the curability of impotency when determining the validity of a marriage. Therefore, if the lack of consummation in a marriage is established to be a result of the respondents impotency, it can be a valid reason for granting a decree of nullity, indicating that the marriage never truly took place. This legal provision recognizes the fundamental importance of physical intimacy in a marital relationship and offers recourse for individuals whose marriages remain unconsummated due to impotency.
[1] Important things to know about Divorce under the Hindu Marriage Act, 1955, available at, https://www.lexisnexis.in/blogs/divorce-under-hindu-marriage-act/#:~:text=Section%2013%2D2%20include%20grounds,marriage%20happened%20before%20the%20age
[2] Impotency in Marriage - Annulment impotency,available at, https://www.shoneekapoor.com/impotency-in-matrimony/
[3] Syeedamanali,"Impotency as a proof of nullity under the Hindu Marriage Act", Legal Services India E- Journal
[4] Susarla Subhramanya Saatry v. S. Padmakshi,2005 (4) ALD 821, 2005 (4) ALT 677, II (2005) DMC 707
[5] Samar Roy Chowdhary v. Sm. Snigdha Roy Chowdhary, AIR 1977 Cal 213, 1985 AIR 582, 1985 SCR (2) 643, AIR 1957 Mad 243
[6] Yuvraj Digvijay Singh v. Yuvrani Pratap Kumar, 1970 AIR 137, 1970 SCR(1) 559, 1958 AIR 441, 1858 SCR 1410
