Full Judgment Text
2024:BHC-AUG:8149-DB
(1) fca-18-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO.18 OF 2024
Ameya S/o. Arun Kulkarni,
Age: 27 years, Occupation: Business,
R/o. Varad, Samta Nagar, Sawedi, Ahmednagar,
Dist. Ahmednagar. ..Appellant
Versus
Isha w/o Ameya Kulkarni,
(Isha d/o Parag Mahajan)
Age: 26 years, Occupation: Household,
R/o. Plot No.75, Malhar, Sector N-1, CIDCO,
Ch. Sambhajinagar,
Dist. Ch. Sambhajinagar. ..Respondent
…
Mr. Swapnil Joshi h/f M/s. J. P. Legal Associates, Advocate for the
Appellant.
Mr. Sanjeev Deshpande, Senior Advocate i/by Mr. M. D. Swami,
Advocate for Respondent.
…
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
st
JUDGMENT RESERVED ON :- 01 APRIL 2024.
th
JUDGMENT PRONOUNCED ON :- 15 APRIL 2024.
JUDGMENT (Per: S. G. Chapalgaonkar, J.):-
1. The appellant/orig. Respondent impugns the order dated
26.02.2024 passed by the Family Court, Ch. Sambhajinagar in
Petition No. B-08 of 2023 below Exhibit-15 refusing to pass
judgment on admission under Order 12 Rule 6 of the Civil
Procedure Code.
2. Brief facts giving rise to the present appeal can be
narrated as under:
On 13.03.2023 the marriage between the appellant and
respondent has been solemnized as per Hindu rights and customs
at Aurangabad. It was an arranged marriage. It is the contention
(2) fca-18-2024.odt
of the respondent (orig. petitioner) that unfortunately marriage
brought an agony and a sense of being deceived to her as the
matrimonial relationship couldn't be pulled beyond 17 days due to
disinterest of the appellant (orig. respondent) in the relationship.
During this period marriage could not be consummated. On
16.03.2023 the sister of the appellant decorated room with flowers
and petals. However, the appellant disturbed such material and
declined physical relations. On the next date i.e. on 17.03.2023, he
slept alongwith his grandparents. On 23.03.2023 couple went for
honeymoon to Bengaluru, but during this trip no physical
relationship could be established. When the respondent
complained about abnormal behavior of the appellant, he got angry
and asked the respondent to leave house. Thereafter there were
episodes of family meetings. However, no conciliation could be
achieved. The respondent contends that the marriage could not be
consummated due to some mental or physical disability of husband
in the nature of ‘Relative Impotency’. In this background, she
approached the Family Court for annulment of marriage and
decree of nullity under Section 12(1)(a) of the Hindu Marriage Act.
The appellant filed his reply. He admits that the marriage could
not be consummated. However, blames the respondent for the
same.
3. The respondent filed an application below Exhibit-15 to
pass the judgment on admission in terms of Order 12 Rule 6 of the
Civil Procedure Code contending that the appellant has admitted
in written statement that the marriage could not be consummated
till their separation on 30.03.2023. He has also admitted that
during the short stay of 15 days, the appellant and the respondent
could not connect with each other mentally, emotionally or
physically. The appellant filed his reply to application Exhibit-15.
In paragraph nos.4 and 5 of the reply, he states thus:
(3) fca-18-2024.odt
“4. The Respondent states that he is perfectly normal and
in the particular situation as mentioned in his Reply, he
was unable to keep physical relations particularly with the
Petitioner and not otherwise.
5. Unfortunately this marriage turned out to be a
nightmare for the Respondent and he does not want any
stigma on him, but his qua impotency (Relative impotency)
towards the Petitioner was and is due to her behavior
explained in Respondent's Reply.”
4. The Family Court after hearing the respective parties,
rejected the application below Exhibit-15. Hence, this Appeal.
5. Mr. Joshi, learned Advocate appearing for the appellant
submits that the marriage between the appellant and the
respondent was nightmare. The relationship ended in just 17 days
of the marriage. They separated without marriage being
consummated. The appellant has admitted his behavior and
relative impotency in his written statement as well as in the reply
submitted to the application seeking judgment on admission. He
would, therefore, urge that the prayer for grant of decree for nullity
of marriage could have been passed. To buttress his submissions
he relies upon the judgment of the Division Bench of Kerala High
1
Court in case of Sanu Vs. Sandeep as well as judgment of this
Court in case of Suprabha Joel Gikwad (Nee Miss Suprabha
2
David Ghatge) Vs. Joel Soloman Gaikwad .
6. Mr. Deshpande, learned Senior Advocate appearing for
the respondent-wife submits that the Court is empowered to
exercise powers under Order 12 Rule 6 of the Civil Procedure Code
even in absence of admission in the written statement. He would
submit that if the admission can be ascertained from any other
material on record before the Court, the judgment on admission
can be passed. He would further submit that the vast discretion is
1 2019 AIR CC 1077.
2 1997 (1) Mh.L.J. 321.
(4) fca-18-2024.odt
available to the Court to entertain the application under Order 12
Rule 6 of the Civil Procedure Code at any stage of proceeding, once
the admission is brought on record either through pleadings or
otherwise. He supports his contentions relying upon the judgment
of the Supreme Court in case of Mahendra Manilal Nanavati
3
Vs. Sushila Mahendra Nanavati . He would, therefore, urge
that the admission of the appellant in his written statement as well
as in reply to the application Exhibit-15 conjointly could have been
considered as admission of the ‘Relative Impotency’ and the
judgment on admission could have passed. He criticized the
observations of the Family Court that the parties have joined
hands and raising collusive claims.
7. Before we proceed to decide main issue in the present
appeal, the learned Advocate for the appellant was called upon to
satisfy this Court as regards to the maintainability of the appeal
against the impugned order dated 26.02.2024, since objection to
that effect has been raised by Registry.
8. Mr. Joshi, learned Advocate appearing for the appellant
submits that Section 19 of the Family Court Act, 1984 provides for
Appeal from every judgment or order, not being an interlocutory
order passed by the Family Court to the High Court. He would
submit that any order passed under Order 12 Rule 6 of the Civil
Procedure Code would constitute judgment having finality in the
sense, that decides the controversy on that particular issue. In
support of his contentions he relies upon the observations of the
Supreme Court in cases of Shah Shah Babulal Khimji Vs.
4
Jayaben D. Kania and Shyam Sel and Power Limited and
5
Another Vs. Shyam Steel Industries Limited .
3 1965 Mh.L.J. 365.
4 1981 AIR (SC) 1786.
5 2023 (1) SCC 634.
(5) fca-18-2024.odt
9. In the present case, the order passed by the Family
Court rejecting an application filed under Order 12 Rule 6 of the
Civil Procedure Code is subjected to challenge. The Supreme Court
in case of Shah Babulal Khimji (Supra) considered the issue as
regards to the orders that amounts to the judgment. The
illustrations of interlocutory orders, which may treated as
judgment have been specified in paragraph no.120. Clause 6 of the
paragraph no.120, stipulates that the order rejecting an application
for a judgment on admission under Order 12 Rule 6 of the Civil
Procedure Code can be treated as judgment. Similar view is
reiterated by the Supreme Court in case of Shyam Sel and Power
Limited and Another (supra). In paragraph no.114 it has been
observed that in the course of trial, the Trial Judge may pass
number of orders, whereby, some of the various steps to be taken
by the parties in prosecution of the suit may be of a routine nature
while other orders may cause some inconvenience to one party or
other. Such orders are purely interlocutory and parties concerned
can raise grievance of such orders in appeal against final judgment
passed by the Trial Judge. However, those orders would be
judgments, which decide matters of moment or affect vital and
valuable rights of the parties and which work serious injustice to
the party concerned.
10. If we apply the aforesaid analogy emerging from the
observation of the Supreme Court of India, it is apparent that the
order refusing to pass judgment on admission under Order 12 Rule
6 of the Civil Procedure Code would amount to judgment and same
can be appealed u/s Section 19 of the Family Court Act, 1984, since
such order finally takes away the valuable right of the parties.
Therefore, we hold that the present appeal is maintainable before
this Court.
(6) fca-18-2024.odt
11. So far as the contentions on merits in this appeal are
concerned, following points arise for our consideration:
1. Whether pleadings in the written statement of the appellant
coupled with his reply to the application below Exhibit-15 can
be construed as admission of “Relative Impotency” to make
out case of annulment of marriage under Section 12(1)(a) of
Hindu Marriage Act?
2. Whether the impugned order dated 26.02.2024 passed below
Exhibit-15 by the Family Court, Aurangabad is sustainable
in law?
3. Whether in the facts of the case, the case is made out to
exercise discretion in terms of Order 12 Rule 6 of the Civil
Procedure Code and to pass judgment on admission?
12. The respondent submitted the petition for annulment of
marriage as nullity in terms of Section 12(1)(a) of the Hindu
Marriage Act. The gist of her contention is that her marriage with
the appellant was never consummated and brief endeavour to build
up matrimonial relationship collapsed in to to. She further
contends that there are no chances of consummation of marriage
th
and from 17 day of marriage she is residing with her parents.
The marriage brought an agony and a sense of being deceived to
her. While narrating certain incidents, she pleads that appellant-
husband threw away decoration at the first night and slept turning
his back towards her. Even during the honeymoon tour no
attraction and affection could be blossomed between spouses due to
some disability i.e. mental or physical of the appellant-husband to
have sexual relations, which may be termed as relative impotency
(qua the petitioner), the marriage could not be consummated and
there is no such possibility in future. In reply to the aforesaid
pleadings the appellant-husband specifically admits that the
marriage could not be consummated. However, attributes
irresponsible behaviour towards the wife. Based on such
admission, the respondent-wife filed an application Exhibit-15 for
(7) fca-18-2024.odt
the judgment on admission. Pertinently, the appellant-husband
replied application stating that in fact spouses resided together for
13 days after marriage, but no intimacy or attraction could be
developed between them. In paragraph nos.4 and 5 of the reply he
specifically states that although he is perfectly normal, he was
unable to keep physical relations, particularly with the respondent-
wife and admits qua impotency (Relative impotency) towards the
respondent-wife.
13. If the pleadings in the written statement and the reply to
the application below Exhibit-15 filed by the appellant-husband is
considered together, two admissions of vital importance can be
gathered. Firstly, the marriage could not be consummated and
secondly, appellant has relative impotency qua the respondent.
The respondent seeks declaration of the nullity of marriage
attributing impotency against the appellant. The expression
‘Relative Impotency’ is known phenomena which is different than
the normal impotency in which consummation of marriage become
practically impossible i.e. inability to copulate. The various causes
are identified for such contentions which may be physical or
mental. If the husband abstains or fails to have intercourse with
his wife, the inference of the incapacity can be drawn. There are
instances recognized under various judicial pronouncements where
invincible and persistent repugnance in consummation of the
marriage is held to be the impotency.
14. In the present case, from the pleadings in the written
statement and reply to the application, it can be easily gathered
that the appellant-husband has relative impotency qua the
respondent-wife. The reason for non-consummation of the
marriage is apparent relative impotency of the husband. The
(8) fca-18-2024.odt
Division Bench of Kerala High Court in case of Sanu (supra)
observed in paragraph nos.12 to 14 as under:
“12. In the instant case, what is admitted by the
respondent is "relative impotency". What is meant by the
expression "relative impotency"? Simply stated, relative
impotency denotes a situation where a person is incapable of
sexual intercourse with a particular person though he/she is
capable of normal sexual intercourse with another person. A
person may generally be capable of performing sexual act yet
he may be incapable of it vis-a-vis a particular person. The
incapability may be either physical or mental. It sometimes
happens that a person is capable of having sexual intercourse,
but incapable of performing it with the particular individual.
In such a case the person must be regarded as impotent in
relation to that particular individual regardless of his potency
in general. It is possible that a man is impotent in respect of
one woman though he can perform sexual act with other
women. A man may be impotent vis-a-vis his wife, though he
may not be impotent vis-a-vis to any other woman.
13. Relative impotency is a ground recognised by the
courts to annul the marriage (See Suprabha Joel v. Joel
Soloman (AIR 1997 Bom. 171), Vandana Subhash v.
Subhash Benjamin (1994 (1) KLT OnLine 1108 (Bom.) = I
(1995) DMC 183), Vincent Adolf v. Jume Beatrice (AIR 1985
Bom. 103), Kamla v. Jagdish Prasad
(MANU/RH/0464/1985), Shantabai alias Gourabai v.
Tarachand (1965 KLT OnLine 1305 (M.P.) = AIR 1966 M.P.
8), Bawi v. Nath: (AIR 1970 J.&K. 130) and Suvarna v. G.M.
Achary (AIR 1979 A.Ρ. 169).
14. The appellant has pleaded and proved that the
parties lived together only for a period of five days after the
marriage. She has also pleaded and proved that the marriage
was not consummated as the respondent had no inclination
towards her. Now, the respondent has admitted that he was
impotent qua the appellant. In these circumstances, it appears
that there is sufficient evidence to find that the marriage
between the appellant and the respondent was not
consummated due to the relative impotency of the respondent.
Therefore, a decree for annulment of marriage can be granted
in the case.”
(9) fca-18-2024.odt
15. The Division Bench of this Court in case of Suprabha
Joel Gikwad (Nee Miss Suprabha David Ghatge) (supra)
observed in paragraph no.6 as under:
“According to our opinion, had the trial court understood the
case of the appellant-wife in the background of the contents
of the letter which is at Exhibit 28 read with the contents of
the amendment application, the trial court would have come
to a finding that though from medical point of view, the
respondent-husband was not impotent, but he was impotent
vis-a-vis his wife, the appellant herein. In view of the
contentions of the wife that since she could not cohabit with
her husband due to the relative impotency on his part, in our
opinion, she is justified in claiming the relief of divorce on
the ground of "relative impotency" on the part of her
husband, the respondent herein ”
16. Keeping in view the aforesaid observations, if the facts of
the present case are considered, we find that pleadings in the
written statement coupled with reply submitted by the appellant-
husband to the application below Exhibit-15 is sufficient to bring
home case of the respondent-wife regarding Relative Impotency of
the appellant-husband.
17. Apparently, the respondent-wife had filed her application
seeking judgment on admission under Order 12 Rule 6 of the Civil
Procedure Code. The Family Court refused to entertain the
application firstly for the reason that there is no clear admission of
impotency or relative impotency qua the respondent-wife in the
written statement. Secondly, after filing of the written statement
and the application Exhibit-15, first time admission regarding
relative impotency is employed by the appellant-husband in his
reply. On the basis of such admission, the discretionary relief
under Order 12 Rule 6 of the Civil Procedure Code cannot be
granted. We find that such observation of the Family Court are
inconsistent with the legal position as can be deduced from the
catena of judgments on the subject. As observed in the earlier
(10) fca-18-2024.odt
paragraphs, if the admission can be ascertained from any material
on record, if not from written statement before the Court, the
judgment on admission can be passed. In the present case, the
combine reading of the written statement and reply dated
22.11.2023 filed on behalf of the appellant-husband, admission of
the relative impotency qua the respondent-wife can be gathered.
18. Although Family Court has rightly observed that the
relief in terms of Order 12 Rule 6 of the Civil Procedure Code is
discretionary and powers are to be exercised with care and caution,
further observation of the Family Court that the parties are in
collusion for claiming reliefs appears to be surmise. The Court
cannot ignore that it is a matter of young couple who faced agony of
frustration of the marriage. The appellant-husband admitted in
his written statement that the marriage could not be consummated
and attributed some fault on the part of the respondent-wife.
However, in his reply to the application seeking judgment on
admission, he has categorically admitted the relative impotency
qua wife. In the facts and circumstances of the present case, there
is possibility that the appellant-husband had hesitation to accept
relative impotency at the time of filing written statement.
However, subsequently, he candidly admitted the same, being
satisfied of the fact that it would not put lifelong stigma on him.
The relative impotency is somewhat different than the general
notion of the impotency and acceptance of Relative Impotency
would not brand him impotent in general parlance. In this
background, it was a fit case where Court is expected to exercise its
discretion and help young sufferers of marriage to find out their
own ways by declaring marriage to be invalid. For the reasons as
discussed above, in our opinion, case is made out to set aside the
impugned order and pass decree of annulment of marriage / nullity
of marriage under Section 12(1)(a) of the Hindu Marriage Act.
(11) fca-18-2024.odt
Resultantly, we answer points framed for consideration accordingly
and proceed to pass following order:
ORDER
a. Family Court Appeal is allowed.
b. The impugned judgment and order dated 26.02.2024
passed by the Family Court, Aurangabad below Exhibit-15 in
Petition No.B-08 of 2023 is hereby quashed and set aside.
c. The application below Exhibit-15 filed under Order 12
Rule 6 of the Civil Procedure Code for judgment on admission is
allowed.
d. The marriage solemnized between the appellant and the
respondent dated 13.03.2023 is hereby annulled and declared as
void under Section 12(1)(a) of the Hindu Marriage Act.
e. Decree of nullity be passed accordingly.
f. The Petition No.B-08 of 2023 filed before Family Court,
Aurangabad stands disposed of in aforesaid terms.
(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI)
JUDGE JUDGE
Devendra/April-2024
(1) fca-18-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO.18 OF 2024
Ameya S/o. Arun Kulkarni,
Age: 27 years, Occupation: Business,
R/o. Varad, Samta Nagar, Sawedi, Ahmednagar,
Dist. Ahmednagar. ..Appellant
Versus
Isha w/o Ameya Kulkarni,
(Isha d/o Parag Mahajan)
Age: 26 years, Occupation: Household,
R/o. Plot No.75, Malhar, Sector N-1, CIDCO,
Ch. Sambhajinagar,
Dist. Ch. Sambhajinagar. ..Respondent
…
Mr. Swapnil Joshi h/f M/s. J. P. Legal Associates, Advocate for the
Appellant.
Mr. Sanjeev Deshpande, Senior Advocate i/by Mr. M. D. Swami,
Advocate for Respondent.
…
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
st
JUDGMENT RESERVED ON :- 01 APRIL 2024.
th
JUDGMENT PRONOUNCED ON :- 15 APRIL 2024.
JUDGMENT (Per: S. G. Chapalgaonkar, J.):-
1. The appellant/orig. Respondent impugns the order dated
26.02.2024 passed by the Family Court, Ch. Sambhajinagar in
Petition No. B-08 of 2023 below Exhibit-15 refusing to pass
judgment on admission under Order 12 Rule 6 of the Civil
Procedure Code.
2. Brief facts giving rise to the present appeal can be
narrated as under:
On 13.03.2023 the marriage between the appellant and
respondent has been solemnized as per Hindu rights and customs
at Aurangabad. It was an arranged marriage. It is the contention
(2) fca-18-2024.odt
of the respondent (orig. petitioner) that unfortunately marriage
brought an agony and a sense of being deceived to her as the
matrimonial relationship couldn't be pulled beyond 17 days due to
disinterest of the appellant (orig. respondent) in the relationship.
During this period marriage could not be consummated. On
16.03.2023 the sister of the appellant decorated room with flowers
and petals. However, the appellant disturbed such material and
declined physical relations. On the next date i.e. on 17.03.2023, he
slept alongwith his grandparents. On 23.03.2023 couple went for
honeymoon to Bengaluru, but during this trip no physical
relationship could be established. When the respondent
complained about abnormal behavior of the appellant, he got angry
and asked the respondent to leave house. Thereafter there were
episodes of family meetings. However, no conciliation could be
achieved. The respondent contends that the marriage could not be
consummated due to some mental or physical disability of husband
in the nature of ‘Relative Impotency’. In this background, she
approached the Family Court for annulment of marriage and
decree of nullity under Section 12(1)(a) of the Hindu Marriage Act.
The appellant filed his reply. He admits that the marriage could
not be consummated. However, blames the respondent for the
same.
3. The respondent filed an application below Exhibit-15 to
pass the judgment on admission in terms of Order 12 Rule 6 of the
Civil Procedure Code contending that the appellant has admitted
in written statement that the marriage could not be consummated
till their separation on 30.03.2023. He has also admitted that
during the short stay of 15 days, the appellant and the respondent
could not connect with each other mentally, emotionally or
physically. The appellant filed his reply to application Exhibit-15.
In paragraph nos.4 and 5 of the reply, he states thus:
(3) fca-18-2024.odt
“4. The Respondent states that he is perfectly normal and
in the particular situation as mentioned in his Reply, he
was unable to keep physical relations particularly with the
Petitioner and not otherwise.
5. Unfortunately this marriage turned out to be a
nightmare for the Respondent and he does not want any
stigma on him, but his qua impotency (Relative impotency)
towards the Petitioner was and is due to her behavior
explained in Respondent's Reply.”
4. The Family Court after hearing the respective parties,
rejected the application below Exhibit-15. Hence, this Appeal.
5. Mr. Joshi, learned Advocate appearing for the appellant
submits that the marriage between the appellant and the
respondent was nightmare. The relationship ended in just 17 days
of the marriage. They separated without marriage being
consummated. The appellant has admitted his behavior and
relative impotency in his written statement as well as in the reply
submitted to the application seeking judgment on admission. He
would, therefore, urge that the prayer for grant of decree for nullity
of marriage could have been passed. To buttress his submissions
he relies upon the judgment of the Division Bench of Kerala High
1
Court in case of Sanu Vs. Sandeep as well as judgment of this
Court in case of Suprabha Joel Gikwad (Nee Miss Suprabha
2
David Ghatge) Vs. Joel Soloman Gaikwad .
6. Mr. Deshpande, learned Senior Advocate appearing for
the respondent-wife submits that the Court is empowered to
exercise powers under Order 12 Rule 6 of the Civil Procedure Code
even in absence of admission in the written statement. He would
submit that if the admission can be ascertained from any other
material on record before the Court, the judgment on admission
can be passed. He would further submit that the vast discretion is
1 2019 AIR CC 1077.
2 1997 (1) Mh.L.J. 321.
(4) fca-18-2024.odt
available to the Court to entertain the application under Order 12
Rule 6 of the Civil Procedure Code at any stage of proceeding, once
the admission is brought on record either through pleadings or
otherwise. He supports his contentions relying upon the judgment
of the Supreme Court in case of Mahendra Manilal Nanavati
3
Vs. Sushila Mahendra Nanavati . He would, therefore, urge
that the admission of the appellant in his written statement as well
as in reply to the application Exhibit-15 conjointly could have been
considered as admission of the ‘Relative Impotency’ and the
judgment on admission could have passed. He criticized the
observations of the Family Court that the parties have joined
hands and raising collusive claims.
7. Before we proceed to decide main issue in the present
appeal, the learned Advocate for the appellant was called upon to
satisfy this Court as regards to the maintainability of the appeal
against the impugned order dated 26.02.2024, since objection to
that effect has been raised by Registry.
8. Mr. Joshi, learned Advocate appearing for the appellant
submits that Section 19 of the Family Court Act, 1984 provides for
Appeal from every judgment or order, not being an interlocutory
order passed by the Family Court to the High Court. He would
submit that any order passed under Order 12 Rule 6 of the Civil
Procedure Code would constitute judgment having finality in the
sense, that decides the controversy on that particular issue. In
support of his contentions he relies upon the observations of the
Supreme Court in cases of Shah Shah Babulal Khimji Vs.
4
Jayaben D. Kania and Shyam Sel and Power Limited and
5
Another Vs. Shyam Steel Industries Limited .
3 1965 Mh.L.J. 365.
4 1981 AIR (SC) 1786.
5 2023 (1) SCC 634.
(5) fca-18-2024.odt
9. In the present case, the order passed by the Family
Court rejecting an application filed under Order 12 Rule 6 of the
Civil Procedure Code is subjected to challenge. The Supreme Court
in case of Shah Babulal Khimji (Supra) considered the issue as
regards to the orders that amounts to the judgment. The
illustrations of interlocutory orders, which may treated as
judgment have been specified in paragraph no.120. Clause 6 of the
paragraph no.120, stipulates that the order rejecting an application
for a judgment on admission under Order 12 Rule 6 of the Civil
Procedure Code can be treated as judgment. Similar view is
reiterated by the Supreme Court in case of Shyam Sel and Power
Limited and Another (supra). In paragraph no.114 it has been
observed that in the course of trial, the Trial Judge may pass
number of orders, whereby, some of the various steps to be taken
by the parties in prosecution of the suit may be of a routine nature
while other orders may cause some inconvenience to one party or
other. Such orders are purely interlocutory and parties concerned
can raise grievance of such orders in appeal against final judgment
passed by the Trial Judge. However, those orders would be
judgments, which decide matters of moment or affect vital and
valuable rights of the parties and which work serious injustice to
the party concerned.
10. If we apply the aforesaid analogy emerging from the
observation of the Supreme Court of India, it is apparent that the
order refusing to pass judgment on admission under Order 12 Rule
6 of the Civil Procedure Code would amount to judgment and same
can be appealed u/s Section 19 of the Family Court Act, 1984, since
such order finally takes away the valuable right of the parties.
Therefore, we hold that the present appeal is maintainable before
this Court.
(6) fca-18-2024.odt
11. So far as the contentions on merits in this appeal are
concerned, following points arise for our consideration:
1. Whether pleadings in the written statement of the appellant
coupled with his reply to the application below Exhibit-15 can
be construed as admission of “Relative Impotency” to make
out case of annulment of marriage under Section 12(1)(a) of
Hindu Marriage Act?
2. Whether the impugned order dated 26.02.2024 passed below
Exhibit-15 by the Family Court, Aurangabad is sustainable
in law?
3. Whether in the facts of the case, the case is made out to
exercise discretion in terms of Order 12 Rule 6 of the Civil
Procedure Code and to pass judgment on admission?
12. The respondent submitted the petition for annulment of
marriage as nullity in terms of Section 12(1)(a) of the Hindu
Marriage Act. The gist of her contention is that her marriage with
the appellant was never consummated and brief endeavour to build
up matrimonial relationship collapsed in to to. She further
contends that there are no chances of consummation of marriage
th
and from 17 day of marriage she is residing with her parents.
The marriage brought an agony and a sense of being deceived to
her. While narrating certain incidents, she pleads that appellant-
husband threw away decoration at the first night and slept turning
his back towards her. Even during the honeymoon tour no
attraction and affection could be blossomed between spouses due to
some disability i.e. mental or physical of the appellant-husband to
have sexual relations, which may be termed as relative impotency
(qua the petitioner), the marriage could not be consummated and
there is no such possibility in future. In reply to the aforesaid
pleadings the appellant-husband specifically admits that the
marriage could not be consummated. However, attributes
irresponsible behaviour towards the wife. Based on such
admission, the respondent-wife filed an application Exhibit-15 for
(7) fca-18-2024.odt
the judgment on admission. Pertinently, the appellant-husband
replied application stating that in fact spouses resided together for
13 days after marriage, but no intimacy or attraction could be
developed between them. In paragraph nos.4 and 5 of the reply he
specifically states that although he is perfectly normal, he was
unable to keep physical relations, particularly with the respondent-
wife and admits qua impotency (Relative impotency) towards the
respondent-wife.
13. If the pleadings in the written statement and the reply to
the application below Exhibit-15 filed by the appellant-husband is
considered together, two admissions of vital importance can be
gathered. Firstly, the marriage could not be consummated and
secondly, appellant has relative impotency qua the respondent.
The respondent seeks declaration of the nullity of marriage
attributing impotency against the appellant. The expression
‘Relative Impotency’ is known phenomena which is different than
the normal impotency in which consummation of marriage become
practically impossible i.e. inability to copulate. The various causes
are identified for such contentions which may be physical or
mental. If the husband abstains or fails to have intercourse with
his wife, the inference of the incapacity can be drawn. There are
instances recognized under various judicial pronouncements where
invincible and persistent repugnance in consummation of the
marriage is held to be the impotency.
14. In the present case, from the pleadings in the written
statement and reply to the application, it can be easily gathered
that the appellant-husband has relative impotency qua the
respondent-wife. The reason for non-consummation of the
marriage is apparent relative impotency of the husband. The
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Division Bench of Kerala High Court in case of Sanu (supra)
observed in paragraph nos.12 to 14 as under:
“12. In the instant case, what is admitted by the
respondent is "relative impotency". What is meant by the
expression "relative impotency"? Simply stated, relative
impotency denotes a situation where a person is incapable of
sexual intercourse with a particular person though he/she is
capable of normal sexual intercourse with another person. A
person may generally be capable of performing sexual act yet
he may be incapable of it vis-a-vis a particular person. The
incapability may be either physical or mental. It sometimes
happens that a person is capable of having sexual intercourse,
but incapable of performing it with the particular individual.
In such a case the person must be regarded as impotent in
relation to that particular individual regardless of his potency
in general. It is possible that a man is impotent in respect of
one woman though he can perform sexual act with other
women. A man may be impotent vis-a-vis his wife, though he
may not be impotent vis-a-vis to any other woman.
13. Relative impotency is a ground recognised by the
courts to annul the marriage (See Suprabha Joel v. Joel
Soloman (AIR 1997 Bom. 171), Vandana Subhash v.
Subhash Benjamin (1994 (1) KLT OnLine 1108 (Bom.) = I
(1995) DMC 183), Vincent Adolf v. Jume Beatrice (AIR 1985
Bom. 103), Kamla v. Jagdish Prasad
(MANU/RH/0464/1985), Shantabai alias Gourabai v.
Tarachand (1965 KLT OnLine 1305 (M.P.) = AIR 1966 M.P.
8), Bawi v. Nath: (AIR 1970 J.&K. 130) and Suvarna v. G.M.
Achary (AIR 1979 A.Ρ. 169).
14. The appellant has pleaded and proved that the
parties lived together only for a period of five days after the
marriage. She has also pleaded and proved that the marriage
was not consummated as the respondent had no inclination
towards her. Now, the respondent has admitted that he was
impotent qua the appellant. In these circumstances, it appears
that there is sufficient evidence to find that the marriage
between the appellant and the respondent was not
consummated due to the relative impotency of the respondent.
Therefore, a decree for annulment of marriage can be granted
in the case.”
(9) fca-18-2024.odt
15. The Division Bench of this Court in case of Suprabha
Joel Gikwad (Nee Miss Suprabha David Ghatge) (supra)
observed in paragraph no.6 as under:
“According to our opinion, had the trial court understood the
case of the appellant-wife in the background of the contents
of the letter which is at Exhibit 28 read with the contents of
the amendment application, the trial court would have come
to a finding that though from medical point of view, the
respondent-husband was not impotent, but he was impotent
vis-a-vis his wife, the appellant herein. In view of the
contentions of the wife that since she could not cohabit with
her husband due to the relative impotency on his part, in our
opinion, she is justified in claiming the relief of divorce on
the ground of "relative impotency" on the part of her
husband, the respondent herein ”
16. Keeping in view the aforesaid observations, if the facts of
the present case are considered, we find that pleadings in the
written statement coupled with reply submitted by the appellant-
husband to the application below Exhibit-15 is sufficient to bring
home case of the respondent-wife regarding Relative Impotency of
the appellant-husband.
17. Apparently, the respondent-wife had filed her application
seeking judgment on admission under Order 12 Rule 6 of the Civil
Procedure Code. The Family Court refused to entertain the
application firstly for the reason that there is no clear admission of
impotency or relative impotency qua the respondent-wife in the
written statement. Secondly, after filing of the written statement
and the application Exhibit-15, first time admission regarding
relative impotency is employed by the appellant-husband in his
reply. On the basis of such admission, the discretionary relief
under Order 12 Rule 6 of the Civil Procedure Code cannot be
granted. We find that such observation of the Family Court are
inconsistent with the legal position as can be deduced from the
catena of judgments on the subject. As observed in the earlier
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paragraphs, if the admission can be ascertained from any material
on record, if not from written statement before the Court, the
judgment on admission can be passed. In the present case, the
combine reading of the written statement and reply dated
22.11.2023 filed on behalf of the appellant-husband, admission of
the relative impotency qua the respondent-wife can be gathered.
18. Although Family Court has rightly observed that the
relief in terms of Order 12 Rule 6 of the Civil Procedure Code is
discretionary and powers are to be exercised with care and caution,
further observation of the Family Court that the parties are in
collusion for claiming reliefs appears to be surmise. The Court
cannot ignore that it is a matter of young couple who faced agony of
frustration of the marriage. The appellant-husband admitted in
his written statement that the marriage could not be consummated
and attributed some fault on the part of the respondent-wife.
However, in his reply to the application seeking judgment on
admission, he has categorically admitted the relative impotency
qua wife. In the facts and circumstances of the present case, there
is possibility that the appellant-husband had hesitation to accept
relative impotency at the time of filing written statement.
However, subsequently, he candidly admitted the same, being
satisfied of the fact that it would not put lifelong stigma on him.
The relative impotency is somewhat different than the general
notion of the impotency and acceptance of Relative Impotency
would not brand him impotent in general parlance. In this
background, it was a fit case where Court is expected to exercise its
discretion and help young sufferers of marriage to find out their
own ways by declaring marriage to be invalid. For the reasons as
discussed above, in our opinion, case is made out to set aside the
impugned order and pass decree of annulment of marriage / nullity
of marriage under Section 12(1)(a) of the Hindu Marriage Act.
(11) fca-18-2024.odt
Resultantly, we answer points framed for consideration accordingly
and proceed to pass following order:
ORDER
a. Family Court Appeal is allowed.
b. The impugned judgment and order dated 26.02.2024
passed by the Family Court, Aurangabad below Exhibit-15 in
Petition No.B-08 of 2023 is hereby quashed and set aside.
c. The application below Exhibit-15 filed under Order 12
Rule 6 of the Civil Procedure Code for judgment on admission is
allowed.
d. The marriage solemnized between the appellant and the
respondent dated 13.03.2023 is hereby annulled and declared as
void under Section 12(1)(a) of the Hindu Marriage Act.
e. Decree of nullity be passed accordingly.
f. The Petition No.B-08 of 2023 filed before Family Court,
Aurangabad stands disposed of in aforesaid terms.
(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI)
JUDGE JUDGE
Devendra/April-2024