SECTION 12 (1)(a) HMA –IMPOTENCY AND NULLITY OF MARRIAGE

 

SECTION 12 (1)(a) HMA –IMPOTENCY AND Nullity of marriage

That the Hindu Marriage Act (HMA) 1955 contains different grounds for seeking divorce as contained in section 13 of the said Act and even divorce by mutual consent is enshrined in Section 13 B of HMA. However, the marriage could be declared as nullity if one of the spouse is impotent or infertile. The grant of nullity of marriage is distinct from grant of divorce in as much as the existing marriage is annulled by decree of divorce as per the provisions of Section 13 of HMA and on account of various parameters laid down under that provision. The declaration of nullity of marriage however hits the root of marriage and it generally predicates upon no marriage-since the marriage is alleged to be not consummated right from inception. The aspect of nullity is contained in section 12 (1)9a) of HMA 1955 and shall be deliberated at length here-in-below while also analyzing the provisions of section 13 (1)(ia) of HMA.      

The Delhi High Court had the occasion to deal with the issue in a matter captioned as RM Vs M K AIR 2015 DELHI 197 ( The complete name withheld).  

(1) In RM (Supra), the ld Additional District Judge had granted decree of divorce under section 13 (1)(1a) of HMA, whereas relief sought under Section 12 (1)(a) of the HMA on the ground of alleged impotency of husband was declined. The wife was thus aggrieved on account of the fact that order u/s 12 (1) (a) for nullity of marriage was not granted.   The moot point raised was whether even after granting of decree of divorce in favour of wife, could a wife, still insists on seeking nullity of marriage u/s 12 (1)(a) of HMA? Moreover, whether appeal against declining the relief u/s 12 (1) 9a) of HMA 1955 shall be maintainable is another angle requiring deliberation. According to respondent husband, an appeal would only lie against the decree passed under HMA, as provided for under Section 28 of the HMA. The reliance was placed on Ganga Bai Vs.Vijay Kumar 1974 AIR (SC) 1126 and in Sanjay Chahal Vs Narendra Singh (2007) 97 DRJ 91, in support of the submission that the appeal is not maintainable. It was also urged by the respondent husband that the wife in her original petition shall reflect that only a decree of divorce was sought not a decree of nullity. The title of the petition reads "Petition under Section 13 (1)(ia) read with section 12 (1) (a) of the Hindu Marriage Act for divorce on the ground of cruelty".  According to respondent husband even the prayer made in the petition did not contain prayer for a decree of nullity on the ground that the marriage is voidable at the instance of the petitioner, on account of the alleged impotence of the respondent.  It was thus contended that a prayer, which was not made before the learned ADJ, cannot be sought before the high court in appellate jurisdiction.

(2) The Delhi High Court however in the above case has held that it is a settled preposition in law that the pleadings of the parties have to be read in their entirety, and cannot be read in piecemeal manner. The reliance was placed on Ponnala Lakshmaiah Vs Kommuri Pratap Reddy & Ors, (2012) 7 SCC 788, where the Supreme Court observed as follows:

"5. ... ... ... ... The averments made in the plaint or petition cannot be read out of context or in isolation. They must be taken in totality for a true and proper understanding of the case set up by the Plaintiff.

6. This Court has in Udhav Singh Vs Madhav Rao Scindia, (1977) 1 SCC 511 given a timely reminder of the principle in the following words:

"33. We are afraid, this ingenious method of construction after compartmentalisation, dissection, segregation and inversion of the language of the paragraph, suggested by Counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.""

(3) Thus, the Delhi High Court in RM (Supra) has held that merely, because, the heading of the petition does not contain the words, such as, "A petition to seek a decree of nullity", it shall not imply that the petition was preferred only under Section 13 (1)(ia). It was also noted that in the heading itself the petitioner had invoked Section 12 (1)(a) of the HMA. Moreover, the averments were made by the petitioner/ appellant about alleged impotence of the respondent. It was alleged that the marriage was not consummated because the Respondent never offered himself for a complete sexual intercourse with the Petitioner. It was also alleged that the petitioner was not aware that the respondent was impotent and thus the very foundation of the marriage was based on false and incorrect information given by the respondent.

(4)  It is further held by Delhi High Court that averments in clear terms has alleged impotence of the respondent and even the prayer clause shows that under prayer (b) the petitioner appellant had sought nullity of the marriage on account of non- consummation of marriage under Section  12 (1)(a)  of the HMA. In any case, if in pith and substance the relief sought is evident, the inept drafting of the petition by the counsel shall not take away from it, the substance of the prayer, which essentially was to seek a decree of nullity of the marriage under Section 12 (1) (a) of the HMA. What is borne out from above that the petitioner had preferred a composite petition, instead of preferring two separate petitions - one under Section 12 (1) (a) of the HMA, and the other under Section 13 (1) (ia) of the HMA..

(5) The impugned judgment shows that the learned ADJ that the ld ADJ was aware about the fact two separate and independent causes of action, i.e. one under Section 12 (1(a) and the other under Section 13 (1(ia) of the HMA had been clubbed in the same petition by the petitioner/ appellant. The learned ADJ however while dismissed the petition on the ground of impotence under Section 12 (1)(a), whereas a decree of divorce under Section 13 (1)(ia) of the HMA was granted.

(6) According to Delhi High Court in RM (Supra) the reliance on Ganga Bai (supra), which has been followed in Sanjay Chahal (Supra) is misplaced. The aforesaid cases relied upon by the respondent were held to be of no help to the respondent , because these cases related to assailing in appeal some finding returned by the original Court and the appeal was not directed against the judgment & decree deciding the proceeding one way or another. However, in the present case, the petition of the petitioner/ appellant under Section 12 (1)(a) of the HMA was rejected by the impugned judgment. The petitioner cannot be penalized , merely because, a composite petition was preferred, and the petition for divorce was allowed. The dismissal of Section 12 (1)(a) in the circumstances shall not render a petitioner/ appellant, remediless.

                    ANALYSIS of SECTION 123 (1)(a) and 13 (1) (ia) of HMA

S.N	Section 12 (1) (a)	Section 13 (1(ia)
1.	Deals with separate cause of action	Deals with separate cause of action
2.	Nature of relief sought under it is separate and qualitatively different	Nature of relief sought under it is separate and qualitatively different
3.	The petitioner is entitled to seek a decree of nullity of the marriage i.e for a declaration that there was no marriage in the eyes of law	The decree seeks to dissolve a valid marriage on one of the grounds specified under it
4.	The relief of annulment of the marriage impinges on the marital status of the petitioner. A decree of nullity would mean that she/ he was never legally married to the respondent	The decree of divorce merely grants the status of a divorcee to the petitioner,
5.	Alleged impotence of the respondent, leading to alleged non-consummation of marriage, is a ground to seek a decree of nullity under this section	The alleged impotence is not a ground to seek a decree of divorce.

 

(7) According to the respondent, since the appellant wife has already been granted divorce under Section 13 (1)(ia) of the HMA, and as the marriage already stands dissolved by decree of divorce, therefore, the marriage cannot be annulled at this point of time. In order to annul a marriage, there has to be a subsisting marriage, which is not the case. Moreover, it was also contended that the appeal is not maintainable, as an appeal under Section 28 of the HMA would lie only against a decree. The Section 28(1) uses the expression: "All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction". Therefore, it was submitted that the dismissal of the petition under Section 12 (1)(a) of the HMA does not tantamount to a decree. It is only when a petition is allowed, that it culminates into a decree. 

(8) The hon’ble Delhi High Court in RM (Supra) has observed that in his written statement, the respondent did not lead any evidence to substantiate the claim against impotency. Thus, there was no basis for the Court to accept the ipsi dixit of the respondent. Significantly, a bare reading of Section 12 (1)(a) and Section 12 (2) shows that the ground of impotence of the respondent, which has resulted in the marriage not being consummated, is an absolute ground, which enables the petitioner to avoid the marriage and seek a decree of nullity. It may be noted that Section 12 (2) sets out circumstances in which a petition to seek nullity of marriage on grounds set up in Section 12 (1)(c) and Section 12 (1)(d). However, in relation to the grounds set up in clause (a) of Section 12 (1) of the HMA, there are no such limitations. What shall further be evident that the respondent has not established that his incapacity was known to the appellant/ petitioner even prior to the marriage. It cannot be said or alleged that that a normal sexual life cannot be the basis of marriage, as  it is altogether against the very grain of a marriage.

(9) The respondent failed to contest the petition seeking annulment of the marriage under Section 12 (1)(a)  and he further avoided getting himself examined by a Medical Board as directed by the court. The Delhi High Court therefore, in RM (Supra) in para 27 has held as under:

“27. There is no merit in this submission of learned counsel for the respondent that the present is an academic exercise. Merely because the appellant has already been granted divorce under Section 13 (1)(ia) of the HMA and the marriage stands dissolved by a decree of divorce, it cannot be said that the marriage could not be annulled on the grounds given under Section 12 (1)(a) of the HMA. As noticed hereinabove, the two provisions deal with separate causes of action, and are premised upon qualitatively and materially different fact situations. Even the relief granted is qualitatively and materially different inasmuch, as, by a decree of divorce, a valid marriage is dissolved; whereas a decree under Section 12 (1)(a) declares the marriage to be a nullity, i.e. there was no marriage in the eyes of law. The status of the petitioner in the first case - post the decree, is that of a divorcee, whereas in the second case, it is that of an unmarried person. The said status has different connotations for the petitioner in the society, and the future marriage prospects of the petitioner hinge on the nature of relief granted by the Court, in case he/ she wishes to re-marry. A decree of annulment of the marriage under Section 12 (1)(a) relates back to the date of marriage, since the marriage is held to be a nullity. On the other hand, the decree of divorce operates only prospectively. Thus, it is not merely an academic exercise when the petitioner/ appellant seeks a decree of nullity of marriage under Section 12 (1) (a), even though a decree of divorce under Section 13 (1)(ia) has already been granted”.

Thus, in view of the foregoing, a decree of nullity of the marriage between the appellant and the respondent was passed under Section 12 (1)(a) of the HMA on the ground that the marriage has not been consummated on account of the impotence of the respondent.

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                                  Anil K Khaware

Founder & Senior Associate

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