This Term Paper / Assignment / Project has been submitted by

Mr. Apoorv Gupta ID No: 212109

Date: 1 April 2013

Impact of Impotency on Hindu Marriage (Family Law) During the Winter Session 2012-13

Impact of Impotency on Hindu Marriage

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Impact of Impotency on Hindu Marriage

I.

Introduction

Sex is one of the most important aspects of marriage in modern times. Vigorous and harmonious sexual relations between partners to marriage creates favourable changes in their lives and is vital for the continuance of marriage. If this pivotal aspect of marriage gets disturb owing to the impotence of an of the parties to the marriage, the very basic objective of marriages as legitimizing tool for sexual relations between two individuals is rendered pointless; thus, eliminating one of the key defining aspects of marriage. This project in the light of above observations shall look into the impact of impotency on hindu marriage. The project shall define the term impotency as it has been adopted by the judiciary. It shall concentrate on the provisions of the Hindu Marriage act, 1955 which provide for a remedy relating to this aspect. Finally it shall study what may in the light of judicial precedents constitute impotency and the method of proof required to establish it. II. Impotency: The Meaning

Impotency is generally described as a physical or mental condition which makes the person suffering from it incapable of performing the sexual act.1 In males it generally results from non-erection of the male organ making the penetration impossible.2 In females, it generally takes the form of lack active process of spasm which inhibits the satisfactory culmination of the sexual activity.3 However, the cause for such incapability may lie in variety of factors. Malformation of sex organs: Presence of such physical condition may lead to impotence. The excess length of male organ4 or deformity of female genital5 making normal exercise of the sexual act impossible have been in past held to be impotent. Diseases: There are many diseases, both general and specific, which adversely affect the potency of a person.6 Such diseases can be another cause for a persons impotency

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Pramila Shankar Ghante v Shankar Vishwanath Ghante 2012(7) ALL MR 1. Manjit Singh Nijjar, Nullity of Marriage Under Hindu Law (Deep & Deep 1994) 94. 3 ibid. 4 Balvendram v Harry AIR 1954 Mad 316. 5 Samar v Snigdha AIR 1977 Cal 213. 6 Nijjar (n 2) 98.

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 Age: Age is another of those factors that has adverse impacts on potency. As age increases sexual capability decreases.7 General psychological impotency: Some individual even though physically full capable of performing the sexual act have some aversion to it which results in non consummation of the sexual act.8 Impotency only vis-a-vis the partner: In some case the person is mentally impotent only in relation to their partner.9 They may be capable of having a fully satisfactory sexual act with other individuals but their inability to do the same with their partners makes them impotent for the purposes of the statute. In addition to these there may be other physical and mental factors that may lead to general or specific impotence of a person. However, the following should never be confused with impotency: Infertility: Infertility and impotency are two different medical conditions.10 Infertility is no where indicative of impotency. Infertility is the lack of ability to reproduce but impotency is the lack of ability to have sexual intercourse. 11 While the latter gives the innocent person remedy under the Hindu Marriage act, the former avails of no such remedy.12 Infertility is not lack of ability to have sexual intercourse, but it is the lack of ability to procreate which are two completely different things13. Absence of Uterus: The absence of uterus makes a female infertile by it in no way harms the potency of the female. So a female lacking the organ shall still be considered potent.14 Lack of emission of seminal fluids: Emission of Seminal fluids is not related to the potency of an individual. Therefore, lack of ejaculation when erection and penetration has been achieved to full satisfaction, shall not be considered as impotency.15 Degree of Sexual Satisfaction: The satisfaction derived out of sexual activity is not related to potency of the partners.16 So lack of sexual satisfaction if the sexual activity has been satisfactorily accomplished shall not be a ground for relief.
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ibid. ibid. 9 Amarjit v Sundar Lal I (1990) DMC 68. 10 Pramila Shankar Ghante v Shankar Vishwanath Ghante 2012(7) ALL MR 1. 11 ibid. 12 ibid. 13 ibid. 14 Samar Som v Sadhana Som AIR 1975 Cal 413. 15 Chanchal Kumari v Kewal Krishan AIR 1972 P&H 474.

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III.

The Implications of Impotency

The implication of impotency under the Hindu Marriage Act, 1955 manifests itself in two ways one direct and other indirect. The direct reference to impotence is found in section 12(1)(a) of the Hindu Marriage Act, 1955. The relevant provision reads as follows: (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:(a) that the marriage has not been consummated owing to the impotency of the respondent; or [...] 17 On the other hand, the indirect link to impotency under the act can be found implicit in section 13(1)(ia). The specific provision is as follows: (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party [...] (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or [...] 18 This indirect link has been established by years of judicial precedents. The proposition for the first time laid down in Rita Nijhawan v Balkrishan Nijhawan19 wherein the court after quoting Lord Denning in Sheldon v Sheldon20 and deriving authority from his argument held that impotency leading to a marriage without sex amounts to mental cruelty. The court went on to the extent to say that a marriage without sex is anathema.21 This celebrated decision by the Honble Delhi High Court has come to be established rule of law on this position.

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Nijjar (n 2) 104. Hindu Marriage Act 1955, s 12(1)(a). 18 Hindu Marriage Act 1955, s 13(1)(ia). 19 AIR 1973 Del 200. 20 (1966) 2 All ER 257. 21 Rita Nijhawan v Balkrishan Nijhawan AIR 1973 Del 200.

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Though the two references relate to the same matter, i.e. impotency, they play out in very different manner. Under Section 12(1)(a) non consummation of marriage due to impotency entitles the innocent party to annulment of marriage. But for claiming this remedy it has to be established that not even a single act sexual intercourse has taken place between the parties right till the time of institution of proceedings owing to the impotency of the other partner. This is so because of the wording used in the section. For the purpose of consummation of marriage a single act of intercourse is sufficient. This section shall not cover circumstances where one of the parties to the marriage subsequent to consummation becomes impotent. This is where section 13(1)(ia) comes into picture. The section deals with such situations of subsequent impotency. It provides remedy to the aggrieved party on the grounds that no sex in marriage amounts to cruelty.22 Sexual intercourse between the parties prior to one of them turning impotent is no bar to the remedy embedded in the section. However, under peculiar circumstances of the case other things shall also be taken into consideration.23 For example, a claim by the wife for divorce after a satisfying sex life previously when both the husband and the lady have become senior citizens on the grounds that the husband has turned impotent shall in all probability be turned down. But a similar claim by one of the parties to the marriage where both of them are in their thirties shall in the circumstances succeed even though they may have a satisfying sex life previous to one of them turning impotent. So, before adjudicating on the matter surrounding circumstances have to be taken into consideration. Also, a decree under section 12 shall make the marriage a nullity right from its inception. In successful claims for voidability of marriage a decree of nullity is pronounced which operates with retrospective effect making the marriage null and void right from the beginning. In other words, it is treated as if no marriage had ever taken place. On the other hand, the same is not true for a decree under section 13. In a successful claim under section 13, the decree puts an end to marriage from the date of issue of the decree. It is not deemed to be null and void right from its inception. The divorce decree doesnt work retrospectively and does not take away fact of existence marriage prior to the date of decree. IV. The Method of Proof

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Pramila Shankar Ghante v Shankar Vishwanath Ghante 2012(7) ALL MR 1. Nijjar (n 2).

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In order to make use of the remedy provided in the act, the impotency should be of incurable nature.24 If the impotency is curable, then the innocent party cannot avail itself of the remedies provided for under the relevant sections. However, if the person refuses to submit himself to the treatment, the impotency shall be considered as permanent.25 The impotency of the respondent can be proved by: Medical Examination;26 Corroborated testimony of the petitioner.27

V.

Conclusion

It is apt to conclude here that despite its relative short existence, the law of this aspect of marriage has developed on clear and well demarcated lines. The position of law as to what shall constitute impotency and under what circumstances the remedies shall be available is quite clear and well organised. It is good to see that the judiciary and legislature has recognised this essential aspect of marriage and have thus provided remedies for its nonenjoyment. Also, the law quite logically and scientifically distinguished between different but related concepts which would otherwise have complicated the entire scenario. In the end, the law also has to be complimented in ensuring gender neutrality and keep up pace with the changing times.

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Nijjar (n 2). ibid. 26 G. Venkatanarayan v Kurupati Laxmi Devi AIR 1985 AP 1. 27 Sucharita v Rajindra 1975 RLR 52.

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INDEX OF AUTHORITIES
LEGISLATION The Hindu Marriage Act, 1955.

CASES CITED Sucharita v Rajindra 1975 RLR 52. G. Venkatanarayan v Kurupati Laxmi Devi AIR 1985 AP 1. Pramila Shankar Ghante v Shankar Vishwanath Ghante 2012(7) ALL MR 1. Rita Nijhawan v Balkrishan Nijhawan AIR 1973 Del 200. Balvendram v Harry AIR 1954 Mad 316. Samar v Snigdha AIR 1977 Cal 213. Amarjit v Sundar Lal I (1990) DMC 68. Samar Som v Sadhana Som AIR 1975 Cal 413. Chanchal Kumari v Kewal Krishan AIR 1972 P&H 474. Sheldon v Sheldon (1966) 2 All ER 257.

BOOKS Manjit Singh Nijjar, Nullity of Marriage Under Hindu Law (Deep & Deep 1994).

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