Under Section 12, any marriage solemnised either before or after the commencement of this Act, shall be voidable at the option of the aggrieved party and may be annulled by a decree of nullity. Under the Marriage Laws (Amendment) Act of 1976, some changes have been affected in respect of impotency as a ground of nullity of marriage.
Moreover, the Child Marriage (Restraint) Act of 1978 has deleted the sixth condition relating to guardianship in marriage contained in Section 5(vi) and Section 6 of the Hindu Marriage Act, 1955. The grounds under Section 12 are as under:
(a) That the marriage has not been consummated owing to the impotency of the respondent, or
(b) That the marriage is in contravention to the condition specified in clause (ii) of Section 5, i.e., if either party suffers from unsoundness of mind at the time of marriage; or
(c) That the consent of the petitioner or where the consent of the guardian in marriage of the petitioner was required under Section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of ceremony or as to any material fact or circumstances concerning the respondent; or
(d) That the respondent was, at the time of marriage pregnant by some person other than the petitioner.
The primary aim of marriage is to procure a child and for that physical capacity, i.e., potentiality is an essential requisite. Hence under Hindu law the marriage of an impotent person whether male or female is wholly ineffective. Impotency connotes incapacity to cohabit, whether it be physical or mental, but it must be permanent and incurable. Refusal to cohabit for any psychological reasons pertaining to the husband or wife would also be considered impotency.
According to a decision of Delhi High Court impotency is incapacity to accomplish sexual intercourse in complete sense. Where it is proved by medical examination that the wife was capable of accomplishing sexual intercourse, but which has been performed once or twice, she could not be considered impotent.
Barrenness, howsoever chronic, does not establish impotency. Incapacity to conceive is not a ground for divorce until want of capacity to cohabit is proved. If the wife is capable of veracopula and natural coitus, the absence of procreating or conceptive power is no ground for a decree of nullity. The capacity to consummate the marriage is the ultimate aim of marriage. The parties are inspired to marry for marital happiness and begetting children.
Hence where these objectives cannot be achieved by a party to marriage he or she can wriggle out of such marriage through a decree of nullity. Such a petition can be brought at the instance of an aggrieved party to the marriage. Where it is established that the husband expresses inability to cohabit despite full opportunity extended by the wife, it stands proved that the husband was impotent within the meaning of Section 12 (A).
In Jagannath Muduli v. Niritpant Beliera, here the learned judges of the High Court dwelt upon the meaning of word ‘impotent’ and explained that it means a practical impossibility to perform sexual act in complete and perfect manner while describing the complete sexual penetration is an essential ingredient of ordinarily and complete intercourse.
In this case the wife was incapable of having sexual relationship as a result the court considered it legal as well as mental cruelty to the husband. The court held that on this ground the marriage can be annulled because the marriage was not consummated due to impotency.
Marriage with an Enuch:
Under modern Hindu law marriage with an enuch (Hinjra) is voidable but a marriage between two enuchs or impotents would be void because in a valid marriage there must be one male and the other female one. The Madras High Court in Paramaswami v. Somathawal, observed that a sexless person (enuch), would be deemed to be impotent within the meaning of Section 12(l)(a) and marriage with such a person can be declared null and void at the instance of the husband.
But where both the parties to the marriage are of the same sex, the marriage is void ab initio. Where a woman or man wilfully marries a sexless (Hinjra) the marriage would be voidable and not void. Under old Hindu law a marriage between two enuchs was deemed to be valid.
Impotency of the respondent can be proved either by medical evidence or by the corroborated testimony of the petitioner. Potency is to be presumed and the party alleging impotency is under a legal obligation to prove the same. The courts may order for physical examination of the party suffering from impotency or from a disease making consummation of marriage a practical impossibility. A party refusing to submit for medical examination exposes himself/herself to an unfavourable inference.
Where the wife filed a petition for annulment of marriage on the ground of non-consummation of marriage by the husband but the medical evidence proved that the hymen of wife was not intact but torn suggesting that she had sexual intercourse, and the husband offered himself for medical evidence which was not availed by the wife, it was held that hymen of wife was torn on account of sexual intercourse with the husband and none else and in such circumstances it could not be said that the husband was impotent.
When a husband abstains from or fails to attempt intercourse with his wife, the inference of incapacity is even stronger and the onus is on him to rebut the presumption. Where the marriage remains unconsummated and both the spouses appear to be capable, there is presumption that incapacity must be imputed to the man.
(b) Unsoundness of Mind:
One of the essential conditions of a valid marriage under Section 5(2) is that parties to marriage must not suffer from unsoundness of mind at the time of marriage. In case of contravention of this condition it can be declared void under Section 12(2). With the passage of the Amendment Act of 1976, Section 5(2) has been reconstructed. It is necessary for a lawful marriage that at the time of marriage neither party be—
(i) Incapable of giving a valid consent on account of unsoundness of mind, or
(ii) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or
(iii) Has been subject to recurrent attacks of insanity and epilepsy.
Thus Marriage Laws (Amendment) Act, 1976 has amended Section 5(ii) and it has been made clear as to the circumstances in which unsoundness of mind, mental disorder, insanity [or epilepsy] would invalidate a marriage.
In case of epilepsy it is not necessary to prove that epilepsy is incurable. The only condition which the section contemplates is the recurrent attacks of insanity or epilepsy. Where a person was suffering from epilepsy before the Marriage Laws Amendment Act, 1976 came into force and he was suffering from the recurrent attack at the time of marriage the court held that he is also entitled to get a decree of nullity under the Section.
Recently in Rajeswari Mishra v. Sidharta Pandit, husband filed the petition for annulment of the marriage on the ground that at the time of the marriage wife was suffering from recurrent attacks of epilepsy. She had lost her sense and salivating. The husband took his wife to various hospitals for treatment but they started situation did not improve.
In this case the court held that, when suit came for judgment the ground of epilepsy was no longer available as the ground of annulment. But the court observed that, husband was entitled to decree for annulment of marriage because he had filed the suit prior to such amendment and section 6 of General Clauses Act which provides that effects of repeal can be resorted to.
In Alka Sharma v. Abhinesh Chandra, the Madhya Pradesh High Court held that even schizophrenic state of mind would constitute a ground of mental disorder of such a nature which would be sufficient for granting a decree of nullity under this section, hi this case the wife was found so cold, frigid and nervous on the first night of marriage that no consummation could take place. She was unable to handle domestic appliances and she also urinated in presence of all the family members.
It was held that the wife suffered from schizophrenia and the husband was entitled to decree of nullity of marriage.
In Muneshwar Dutt v. Smt. Indra Knmari, it has been observed that the mental condition of the parties at the time of marriage would be decisive in the nullification. If the insanity develops after marriage, it could not be declared null and void on that ground. Where either party had been suffering from unsoundness of mind prior to marriage but later at the time of marriage became mentally sound, the marriage could not be declared null and void.
Recently in Girish Dangwal v. Smt. Sushma Dangwal, court further observed that, merely forgetfulness cannot be said to be insanity or unsoundness of mind. On that ground the marriage cannot be declared null and void.
(c) Consent Obtained By Force or Fraud:
A marriage becomes voidable where consent to it is obtained by force or fraud and a decree of nullity could be obtained in such a case under Section 12(1-C). By the Child Marriage Restraint (Amendment) Act, 1978 the provision for the consent of the guardian in marriage has been abolished.
But prior to this amendment, the consent of the guardian in marriage was not regarded as an absolute necessity and on the basis of the doctrine of factum valet it had been established that marriage which was duly solemnized and was otherwise valid was not rendered invalid merely because it was brought about without the consent of the guardian in marriage.
Now under Section 12(l)(c) any marriage effected by force or fraud may be declared invalid where—
(i) The force or fraud has been committed upon the petitioner;
(ii) Where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent.
It should, however, be noted that no petition for annulling a marriage on the ground of force or fraud, shall be entertained if—
(i) The petition is presented more than a year after the force has ceased to operate or, as the case may be, the fraud has been discovered; or
(ii) The petitioner has, with his or her full consent lived with the other party to the marriage as husband and wife after the force has ceased to operate or, as the case may be, the fraud had been discovered.
The clause deals with a case where the consent of the petitioner or of the guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.
After the Child Marriage (Amendment) Act, 1978 for a valid marriage, the bride must be of eighteen years of age at the time of marriage and therefore the question of her guardian’s consent has become redundant. Now a marriage could be nullified under Section 12(l-c) only if the consent of the guardian was obtained by force and fraud before the commencement of the Act of 1978.
In Nand Kishore v. Smt. Munni Bai, the Madhya Pradesh High Court has held that the terms force and fraud mean those conditions in which there is absence of real consent. The term fraud has been used in the sense which lacks the element of consent and there is an intention to defraud. The term ‘fraud’ is not to be understood in the sense as it has been used in Section 17 of the Indian Contract Act.
Where the wife was suffering from epilepsy and continued to be affected so when she came to the husband’s place and this very fact was concealed from him at the time of betrothel and thereby his consent was obtained, the court held that the husband would become entitled to have the marriage annulled.
It would be improper to expect that in the intervening period of one year between the betrothel and marriage, the husband should have discovered the fact concerning the wife, suffering from epilepsy. It would also be improper to infer that the husband knew it from before and still he gave his consent to it. In such cases the husband could get the marriage annulled as also where the epilepsy is curable.
(d) Pregnancy at the Time of the Marriage:
The fourth ground of getting a marriage nullified under Section 12 is that the respondent was at the time of marriage pregnant by some person other than the petitioner. The petitioner, however, must satisfy the court that the fact of pregnancy was not known to him at the time of marriage. The respondent wife must be proved to be pregnant from some person other than her husband and mere loose sexual relations of wife with such another person is not a ground for annulment of such marriage.
In this connection the Punjab & Haryana High Court observed: “A perusal of Section 12(1) (d) of the Act would show that the marriage may be annulled only if at the time of marriage the girl was pregnant by some person other than the husband. That sheds a considerable light on the intention of the legislature. It shows that past unchastity is not made a ground for annulment of marriage. Past illicit relations of a girl with some man may per se not be a factor to be taken into consideration by all persons agreeing to enter into a marriage tie. This is a circumstance which in all cases, would result in breakage of the marriage negotiations. Can then it be said that the relations were under any obligation to disclose about the girl’s past unchastity? The answer must be no.”
Under Section 12 of the Act in order to sustain a petition the things that a petitioner has to prove are the following:
(i) That at the time of marriage the wife was pregnant;
(ii) That the pregnancy was by some person other than the petitioner;
(iii) That the petitioner was ignorant of the pregnancy at the time of marriage;
(iv) That the petition was filed within one year from the date of marriage; and
(v) No marital intercourse has taken place since the discovery by the petitioner of the respondent’s pregnancy. The burden lies on the petitioner to prove pregnancy of the respondent by some other person.
Thus, there are three limitations laid down in Section 12(2) (b) (i), (ii) and (iii) which provide that no petition for annulling a marriage on this ground shall be entertained unless the court is satisfied—
(i) That the petitioner was at the time of marriage ignorant of the facts alleged;
(ii) That the proceedings have been initiated in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriage solemnized after such commencement within one year from the date of marriage; and
(iii) That the marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.
The Supreme Court in Mahendra v. Shushila laid down that, “What the Court has to see in these proceedings is whether the petitioner has proved that the respondent was pregnant by someone else at the time of marriage. The petitioner has to establish such facts and circumstances which would leads to the court cither to believe that the respondent was pregnant at the time of marriage by someone else or to hold that a prudent man would, on these facts and circumstances, be completely satisfied that it was so.
In the above case the baby was born to Sushila after 171 days from the date of marriage. The child was fully developed healthy child. There was no evidence of their meeting before the marriage. Hence the husband was held entitled to the decree.
The question whether the court can act upon the admission of the wife relating to her premarital pregnancy, also came up before the Supreme Court. In this case the wife admitted her pregnancy from before the solemnization of her marriage and gave birth to a mature child within 171 days after first coitus with her husband.
The usual period of gestation is prescribed as 280 days by Section 112 of the Evidence Act and the pre-mature birth of a child or miscarriage will not prove the pregnancy of the wife at the time of marriage. In the absence of any proof to the effect that she was pregnant by a person who became her husband, she would be deemed pregnant at the time of marriage from person other than her husband. Hence the husband was held entitled to the decree of nullity.
If the sexual intercourse is alleged between the petitioner and the respondent even after the fact of pregnancy is known to the petitioner, although it would be fatal to the maintainability of the petition, yet the petitioner can refute the said allegation on the ground that the cohabitation was not wilful on his part but had been forced upon him under threat or pressure. In Baldeo Miglani v. Smt. Urmila Kumari, the petitioner was married to the respondent on 8.10.1962.
After cohabitation for sometime the petitioner discovered on 30.10.1962 that his wife was pregnant at the time of marriage. On discovering the said knowledge he ceased to have cohabitation with his wife and moved a petition for the nullity of marriage. The wife gave birth to a mature child on 20.5.1963. The respondent wife challenged the medical examination and contended that she conceived from her husband after the marriage. The court did not accept her contention and granted the decree of nullity of marriage.
In Nishit Kumar Biswas v. Anjali Biswas, the marriage took place on July 3, 1960. The wife was delivered of a normal fulltime child weighing more than 6 lbs. on December 6, 1960 without unusual difficulty. The normal period of pregnancy from the date of marriage and the usual normal period of human gestation (about 280 days) from the date of first fruitful coition after marriage was absent.
The period between the date of marriage and date of birth was too short for a mature child to be born—counting both days, it being 167th day. On these facts, dealing with the question of onus of proof it was observed: “It seems to this court that to put a burden in such cases entirely on the husband is to put an increasing burden on him.
The burden of proving a negative cohabitation by the husband in such cases is too high. The burden on the husband in such cases should be provisional, and not a compelling one. If, however, circumstances appear in a given case, which lead to a reasonable doubt, they would then counter balance the provisional presumption and leave the wife with the burden of proving that the husband is the father of tine child.
Where, the husband discovers the wife’s pregnancy only a few months after the marriage but still wilfully cohabits with her, his petition for nullity of marriage would fail for want of fulfilment of necessary condition under Section 12(2) (b)(ii).