INTRODUCTION-

Annulment of marriage under the Hindu Marriage Act, 1955 lies u/s 11 and 12 which is void and voidable. Section 11 states that all marriages are void, which means the marriage was never accomplished. Section 12 states voidable situations in which either party has an option to annul the marriage. In this article, I will majorly focus on annulment of marriage within 1 year of marriage on a voidable ground Impotency under section 12 of the Hindu Marriage Act, 1955.

VOIDABLE MARRIAGES-

Sec 12- Voidable marriages-

• Any marriage solemnized, whether before or after the commencement of the Act, shall be voidable and be annulled by a decree of nullity on any of the following ground, namely: –
• That the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings;
• ……………………………………………………………….

• What is impotency?

The meaning of the term impotent has been described by the Supreme Court of India in the case of Digvijay Singh v. Pratap Kumari[1] incapacity to consummate the marriage that is to say incapacity to have conjugal intercourse, which is one of the objects of marriage.

• What is the consummation of marriage?

The meaning of consummation of marriage means that sexual intercourse should be normal or perfectly coitus and not imperfect coitus.[2] Term coitus as per the Merriam Webster Dictionary is a physical union of male and female genitalia accompanied by rhythmic movements.

If complete coitus is established, the discharge of semen in the wife’s body is not a necessary condition of consummation. It has been stated in case Baxter v. Baxter[3] and Sushila v. Vijay Kumar[4]

• Mental and psychological impotency-

Non-consummation of marriage is not only due to physical disability but also mental or psychological reasons. In a case of full bench judgment of Kerala High Court 1988 (2) KLT 135 says, because respondent hates doing sex, is also impotency against a specific person or in general.

Illustration- A and B married each other on 01.01.2020 and after marriage, it found that A is capable to be in sexual intercourse but A was unable to perform sexual intercourse with B. This is called Impotency against a specific person.

The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in the future also. Accordingly, the Court annulled the marriage for the reason that it was satisfied that “quoad hunc et quoad hunc” these people cannot consummate the marriage.[5]

Quoad hunc means when one party to a marriage is not impotent but is incapable to consummate the marriage with a specific person.

• Who can file the case of annulment of marriage?

No person other than the party to the marriage has the right to claim impotency of either party, as per the rule of marriage, this is the private matter of Husband and Wife.

CONCLUSION-

In the case of Jaggannath Mudull v. Nirupuma Behera[6], the wife did not have any vaginal canal, the husband filed a case of annulment of marriage on the ground of impotency. The court said the husband is entitled to get a decree of nullity based on the impotency of his wife. Hence, we can conclude that non-consummation of marriage is either due to-

• Impotency; or
• Mental health or psychological reasons (ex- Impotent quoad Hunc or Quoad hanc).

CO-AUTHORED BY

HARSH RATHI

4th Year BALLB

PUNE UNIVERSITY

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[1] Digvijay Singh v. Pratap Kumari, A.I.R. 1970 S.C. 137 (India).

[2] Jagdish Lal v. Smt. Shyama Madan & Ors., A.I.R. 1966 ALL 150 (India).

[3] Baxter v. Baxter (1947) 2 ALL & R 886n

[4] Sushila v. Vijay Kumar A.I.R. 1982 DEL 272 (India).

[5] Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari, 1970 A.I.R. 137 (India).

[6] Jaggannath Mudull v. Nirupuma Behera, A.I.R. 2009 ORI 59 (India).