False allegation of impotency during divorce case amounts to cruelty: Kerala High Court allows dissolution of marriage

Making unsubstantiated allegations of impotency or erectile dysfunction during matrimonial proceedings will constitute cruelty, the Kerala High Court recently ruled, allowing a plea by husband for dissolution of marriage. .The High Court Bench of Justices A Muhamed Mustaque and Kauser Edappagath held that it is settled position of law that unsubstantiated accusation and character assassination in a written statement would constitute mental cruelty."Casting aspersions of impotency or erectile dysfunction by one spouse against the other in the counter statement in a matrimonial proceedings will undoubtedly constitute cruelty. Hence, we hold that the act of the respondent making unnecessary accusations against the appellant amounts to mental cruelty," the Court held .The order was passed on an appeal filed by a husband after the trial court dismissed his petition seeking dissolution of marriage and allowed his wife's petition for restitution of conjugal rights. .The appellant and respondent, both doctors, had tied the knot in June 2008. Initially, the couple lived together for just a week without consummating the marriage. After that, they lived in different cities while pursuing the post graduate degrees. The Court noted that the two started living together two years later but by then the gap between them had widened and eventually the husband initiated proceedings for divorce and the wife for restitution of conjugal rights..The husband filed an original petition to declare the marriage as null and void or in the alternative, to pass a decree of dissolution of marriage. The wife, on the other hand, filed a petition seeking a decree for restitution of conjugal rights. Both original petitions were tried jointly by the trial court which dismissed the petition by the husband and allowed the petition filed by the wife granting her a decree for restitution of conjugal rights. The husband challenged both orders before the High Court..The husband alleged that his consent to marriage was obtained by fraud by the wife. The counsel for the appellant, Advocate NK Subramanian, stated that the wife had suppressed material facts concerning her mental condition and, therefore, the marriage could be nullified under Section 18 and proviso to Section 19 of the Divorce Act, 1869. In the alternative, he sought dissolution of marriage on the grounds of incurable unsound mind an cruelty on the part of the respondent-wife under Section 10(1)(iii) and 10(1)(x) of the Divorce Act..Though the respondent admitted that she suffered from some mental disorders and was treated by two psychiatrists, the Court observed that there was no convincing evidence on record to prove that she suffers from any mental disease that were incurable in nature..The Court further noted that Section 19 of the Act gets attracted only when the consent is obtained through force or by playing fraud."The word 'suppression' does not occur in S.19 of the Act. The Parliament has employed the words 'force' and 'fraud'. Before a party gives consent for the marriage with the other, there is bound to be exchange of information. This Section cannot be treated as a provision placing burden upon a spouse to the marriage, to reveal the entire information about him or her to the other," the Court said. Thus, non-disclosure by the wife before marriage that she was suffering from delusion disorder is not a suppression of material fact, the Court said. Therefore, the Bench ruled that the appellant is not entitled to get a decree of nullity of his marriage under the proviso to Section 19 of the Divorce Act..The Court then examined the question of whether the appellant would be entitled to dissolution of marriage on the grounds of cruelty. In this regard, the Court adverted to the allegations by the wife regarding the husband suffering from erectile dysfunction. .The counsel for the husband highlighted that in the counter statement made by the wife, she made accusations against the husband about his sexual capacity, by specifically mentioning erectile dysfunction and impotence. However, apart from the allegations made by the respondent, no proof was offered to show that he suffered from erectile dysfunction or impotency, it was contended. .The Court observed that the wife had contradicted herself regarding these allegations and failed to substantiate any of the claims she made. "The respondent imputed that the appellant was suffering from erectile dysfunction, and thus, he was incapable of performing sexual activities, but at the same breath, she admitted that the appellant could get erections early in the morning and they used to have sexual intercourse in early morning. She further admitted that she had a satisfactory sexual relationship with the appellant after July, 2010. But, to a specific question during evidence, she answered that she was still maintaining the stand that the appellant was suffering from erectile dysfunction. These are mutually contradictory stand," the Court said. Further, the Court also noted that the husband had deposed during evidence that he was prepared to undergo a medical examination to disprove the contention of the respondent that he was having such a sexual incapacity but no such steps were taken by the respondent-wife. "The respondent has miserably failed to substantiate the imputation made by her that the appellant was suffering from erectile dysfunction," the Court concluded. Casting such aspersions on one's spouse during matrimonial proceedings will undoubtedly amount to mental cruelty, the Court ruled. In this regard, the Bench also placed reliance on the Supreme Court judgment in Vijaykumar Ramachandra Bhate v. Neela Vijaykumar Bhate. "The Supreme Court in Vijaykumar Ramachandra Bhate v. Neela Vijaykumar Bhate (AIR 2003 SC 2462) has held that unsubstantiated disgusting accusations made by one spouse against the other in the written statement constitutes mental cruelty for sustaining the claim for divorce. In K. Srinivas Rao v. D. A. Deepa (AIR 2013 SC 2176), it was held that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse," the judgment stated. .For these reasons, the Court allowed the appeals and granted a decree for dissolution of marriage. .[Read Judgment]