Divorce on the ground of impotancy of husband
Amol
(Querist) 23 February 2015
This query is : Resolved
Sir/s
I have to file a Divorce Petition against the Husband on the ground of impotency
( lack of erection of organ )
Please guide me under which provisions of Hindu Marriage Act I can file Divorce petition on the aforesaid ground ?
If no provision is available then please guide by mentioning some case laws permitting Impotancy as ground of Divorce.
Thanks
Kappil Cchandna
(Expert) 23 February 2015
Dear,
U should have rather filed a petition for annulment of marriage ....
Kapil Chandna Adv 9899011450
Amol
(Querist) 24 February 2015
Yes I know its U/s 12
but now considerable period of time i.e. 5 years have passed after marriage and two years after leaving matrimonial home ?
Can I still file for Annulment of marriage ?
Secondly what Decree Court will pass if i will u/s 12 for annulment ? is that will be a Decree of Nullity or Decree of Divorce which Court will pass ? if i succeed to prove two factors 1 ) non consumation & 2) impotency please guide ?
theirdly Can court will grant me a relief of permanent Alimony for destroying my life at the time of passing final Decree of Nullity or Divorce as the case may be ?
Please guide with case Laws if Any thanks
Amol
(Querist) 24 February 2015
See my main intention to file a petition is to seek a Decree of Divorce on ground of impotency of husband.
so considering the above intention though I have to file petition u/s 12 for seeking relief of divorce on the ground of Impotency my main question is while making prayers i the petition
What should be my actual prayer in the prayer clause of the petition
is that should be for grant of Decree of Nullity or Decree of Divorce ??/
Please guide I am confused
Devajyoti Barman
(Expert) 24 February 2015
Non consummation and impotency is both very hard to prove more son within this considerable period of time the person may have cured the impotency.
You better file suit for divorce which much easier to prove.
Rajendra K Goyal
(Expert) 24 February 2015
Agree with the expert Devajyoti Barman.
Kappil Cchandna
(Expert) 24 February 2015
Dear,
It depends on the documents you are relying upon ... I mean if you can prove to the court that u were visiting doctors and despite best effort it cannot be cured then you can get it done .... It will be a decree for annulment and not divorce.... Yes you can also seek alimony ....but for all this you need to discharge heavy burden of proof.... Else you have divorce option ....
Kapil Chandna Adv 9899011450
ajay sethi
(Expert) 24 February 2015
you cant file petition for annulment after 5 years of marriage . file divorce petition only
Guest
(Expert) 24 February 2015
Agree with experts.
Dr J C Vashista
(Expert) 24 February 2015
1. What was the wife doing for 5 long years when she knew the factum of the impotency? There is something wrong with the lady.
2. Why did she not apply for annulment of marriage being non-consummated? Again the suspicion arises on the wife.
K.K.Ganguly
(Expert) 24 February 2015
1. It will be very hard for you prove his erectal dysfunction after 5 years of marriage,
2. He may challenge it with certificate of medical test by Govt. Hospital,
3. Better try some other ground like cruelty for seeking decree of divorce.
R.K Nanda
(Expert) 24 February 2015
agree with experts.
Amol
(Querist) 25 February 2015
Thanks a lot Sirs / All experts.
I read somewhere that there is no limitation period to file annulment on the ground of impotency.
See the lady was not given proper Advice by previous lawyers.and she was helpless but to stay with in laws as she is from poor family.
The fact is that she was deceived by her in laws i.e. a fraud played upon her by in laws by not disclosing impotency ( erection problem ) of a husband before marriage though they were about said problem of husband.
Do you think Court will dismiss annulment petition ? If yes it is dismissed on ground of delay then subsequently
Can I file Divorce petition under ground of cruelty.
or
Can i directly file a petition for divorce under cruelty , desertion also under ground of impotency of a husband which was a reason he always avoided physical contact relationship with wife?
please guide
Amol
(Querist) 26 February 2015
or Can I make a alternate prayer for passing decree of divorce in a Petition for annulment of marriage [ground impotency , u/s 12 -1 (a) ] ?
by which if court may dismiss prayer for annulment then in that case Court may at least consider prayer for Divorce on the ground of mental cruelty suffered by wife due to non co operation / involvement and participation in sex as well as non cooperation by husband for seeking medical treatment and advice etc
whether alternate prayers in a petition for annulment is maintainable ????
Please guide ?
SAINATH DEVALLA
(Expert) 26 February 2015
U have to prove that he is impotent and U never had conjugal life with him since marriage. Represent through a good lawyer in UR place
T. Kalaiselvan, Advocate
(Expert) 26 February 2015
First of all you should understand the difference between annulment of marriage and dissolution o marriage by a decree o nullity and decree of divorce respectively. Both cannot go together. Now since the passage of time is more than a year from the date of knowledge of the decease of incurable impotency, a petition to annul the marriage at this belated stage may not be maintainable hence without running a risk, you may file a petition for divorce to dissolve the marriage on the grounds of non-consummation of marriage and continuous non-cohabitation owing to the impotency of the respondent/husband and the mental cruelties thereon, adding to it, you may add the physical tortures she might have underwent in the hands of in-laws or her husband throughout her married life so far.
Choose the relief intended to seek, wisely instead of standing at the losers end by a wrong move.
Amol
(Querist) 01 March 2015
Sir I appreciate your advice to
file a petition for divorce to dissolve the marriage on the grounds of non-consummation of marriage and continuous non-cohabitation owing to the impotency of the respondent/husband
but under which section I can file for Divorce on aforesaid impotency ground
because Sec 12 1 (a) impotency is the only statutory provision available in Hindu Law which is for annulment of marriage or nullity but not for Divorce
please I am still confused. or is it a discretion of a judge while deciding nullity petition he may grant divorce on the ground of impotancy though in absence of specific provision in H M Act ?
SAINATH DEVALLA
(Expert) 02 March 2015
Section 12 1(a) clearly states the grounds for annulment of marriage.Section 19 states the following:
Section 19 in THE DIVORCE ACT, 1869
19 Grounds of decree. Such decree may be made on any of the following grounds:
(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;
(2) that the parties are within the prohibited degree of consanguinity (whether natural or legal) or affinity;
(3) that either party was a lunatic or idiot at the time of the marriage;
(4) that the former husband or wife of either party was living at the time of the marriage, and the marriage with such former husband or wife was then in force. Nothing in this section shall affect the 27 [jurisdiction of the District Court] to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.
Amol
(Querist) 06 March 2015
Sainath Sir
IN my case The Law or act which is applicable to the parties is HIndu Marriage Act but not THE DIVORCE ACT, 1869
therefore How can I rely upon Sec 19 of THE DIVORCE ACT, 1869
Please experts
It is requested Kapil Chandna ,Devajyoti Barman , ajay sethi , SAINATH DEVALLA , Dr J C Vashista,
please guide in the light of my further equerry raised by me after your prima facie opinion
thanks
SAINATH DEVALLA
(Expert) 06 March 2015
Nullity of marriage and divorce has been clearly mentioned in Section 5 of HMA 1955.
Any marriage can be voidable and may be annulled on the grounds that the marriage has not been consummated due to impotency of husband.
Even though 5yrs have elasped since your marriage, a good advocate in your place who is well experienced in dealing family matters will be helpful to you to fight for divorce.The other things like alimony etc can be decided later in the court depending on the merits on UR side. You also mentioned that it has been 2yrs since U left matrimonial home.I feel U have wasted these 2yrs to file for divorce.
SAINATH DEVALLA
(Expert) 06 March 2015
Nullity of marriage and divorce has been clearly mentioned in Section 5 of HMA 1955.
Any marriage can be voidable and may be annulled on the grounds that the marriage has not been consummated due to impotency of husband.
Even though 5yrs have elasped since your marriage, a good advocate in your place who is well experienced in dealing family matters will be helpful to you to fight for divorce.The other things like alimony etc can be decided later in the court depending on the merits on UR side. You also mentioned that it has been 2yrs since U left matrimonial home.I feel U have wasted these 2yrs to file for divorce.
