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PQR (S)     22 April 2012

Annulment case

Hi everyone,

One of my friends is facing a serious marriage related problem. Since he is not well-versed with computers/internet, I am putting this case on his behalf:

The case in brief is as follows:

He got married about 5 months back through arranged marriage. His marriage has not been consummated and he & his wife have not been having any marital relations at all, not even once, due to some reasons (some serious differences between them, I think). Now, they simply want to separate and annul this marriage. They have also mutually agreed to settle all money/marriage expenses between them.

The wife has filed the petition of marriage annulment citing the non-consummation of marriage due to impotency of husband. The husband is ready to admit his impotency to the court.

The queries are:

1) Since both the parties have agreed and there are not going to be any contests from either side, will there be any objection created by the court in annulling the marriage?

2) How much time will the annulment process take ? My view is that it should not take much time.

3) Since the husband is ready to  admit his impotency in his reply to the court, can the court still ask him to go for medical tests ? What if he refuses?

4) Will there be any maintenance/alimony related issues raised by the court? The wife, on her part, has agreed that she will not ask for any maintenance/alimony in the court (although she has already taken a huge amount of money from husband but that is through out-of-court settlement between them).

Thanks very much. Would really appreciate your help in this.

 

 

 



Learning

 24 Replies

adv. rajeev ( rajoo ) (practicing advocate)     22 April 2012

When both are ready for divorce, court wont interfere, but it can try for reconciliation.

1 Like

adv. rajeev ( rajoo ) (practicing advocate)     22 April 2012

When both are ready for divorce, court wont interfere, but it can try for reconciliation.

1 Like

Dr J C Vashista (Advocate)     22 April 2012

Since the marriage is just 5 months old and not consumated due to impotency (presumed) of the groom, it may get annulled soon. 

1 Like

SAINATH DEVALLA (LEGAL CONSULTANT)     22 April 2012

Dear Querist,

5 months of marriage and separation,of course hard to digest.Well is your friend really impotent,or for the sake of divorce is he pleading?Because that is the basis for the grant of divorce.If your friend's physical problem is true then they can be granted divorce u/s 12 of the HMA 1955.Now that it is mutual separation,do you think that the girl will demand maintenance or alimony.You have said that enough has been already provided to her.

1 Like

PQR (S)     22 April 2012

Thanks everyone.

@adv. rajeev, reconciliation is totally ruled out, as both the parties do not want to stay with each other. Will the court have any problem with this?

 

 

@Sainath, since the husband is ready to admit his impotence, I think, it means that he is really impotent and the court will also accept this. Whats your opinion?

Do you think the court might ask the wife to prove husband's impotency? How will she prove because the husband is not willing to undergo medical tests? In fact, in her petition, she has stated that she requested her husband many times to go for medical tests but he refused it everytime.

Adv Archana Deshmukh (Practicing Advocate)     22 April 2012

If the husband admits impotancy the court will not ask him to go for any medical tests. If the wife has received any alimony already, it is better to include the said fact in the pleadings.

1 Like

PQR (S)     22 April 2012

Thanks Adv Archana.

 

Yes, he plans to include the amount he will pay to his wife in the pleadings. Not sure though whether the word "alimony" would be correct or not.

Do you think this case will come under "annulment case" or a case of "mutual divorce" ?

mrgop (Owner)     22 April 2012

Originally posted by :Adv Archana
"
If the husband admits impotancy the court will not ask him to go for any medical tests. If the wife has received any alimony already, it is better to include the said fact in the pleadings.
"

If judge suspects collution between parties, the court can send husband or both for medical checkup to prove impotency/non-consumation of marriage.

SAINATH DEVALLA (LEGAL CONSULTANT)     23 April 2012

  • AS suggested by  Archanaji, this is purely mutual divorce and anot annulment. Your friend need not physically prove that he is impotent.His submission of his physical impotency would be enough for the judge to grant divorce.I don't think there is any chance for collusion by both the parties.They have mutually agreed to settle all the marriage related financial aspects.No question of maintenance or alimony.Hence, Mr.PQR,ask your friend to stick on to his submissions,take divorce.One more thing is his physical ailment can be cured by an experienced specialist.May be after treatment he will be eligible for wedded life again.I wish him the best of luck.

PQR (S)     23 April 2012

@Sainath....Thanks for your reply....But one thing is still not clear to me......Won't this case fall under the "annulment" case and not "mutual divorce" because, remember in this case, the marriage has not been consummated. I have read from some sources that one of the grounds for marriage annulment is "non-consummation of marriage due to impotence".

 

But not sure. Whats your view on this? Also, since the wife has filed the petition for annulment, is it possible that the court might ask her to withdraw that and file for "mutual divorce". The actual issue here is that both the husband and wife do not want the tag of "divorcee" even if it is mutual.

 

@mrgop...thanks for your inputs. How would the judge suspect collusion since both of them have agreed for this. Also, why would the judge ask the wife to go for medical tests (as you have written in your reply that "both" may be asked to go for medical tests). Nowhere it is stated that the wife is impotent, why would she agree for tests ? Regarding the husband, what if he does not go for medical tests inspite of court orders. Will there be any implications ?

 

Anjuru Chandra Sekhar (Advocate )     23 April 2012

Why say impotent?  Just say not consummated.  Husband accepts yes I have not cooperated because I don't like. That is sufficient. Non-consummation as a factor is sufficient, what are the factors responsible for non-consummation need not be explained to Court.

Anjuru Chandra Sekhar (Advocate )     23 April 2012

The non-consummation of marriage due to impotency of the respondent as in HMA OR non-consummation of marriage due to refusal of the respondent as in SMA are ground which which one can use to annul the marriage at anytime (no time limit provided for this), the statement of the Petitioner/Spouse is held good proof of the fact of non-consummation of marriage however the medical evidence with regard to complete or partial impotency of the respondent has to be brought on the record of the court.

 


It has been held that impotency of a person viz a viz a particular person may exist however he/she may otherwise may be absolutely normal, however when it comes to the person with whom this disability exist if happens to be his/her spouse than this is a serious problem.

 


The person/spouse cannot be made to suffer on this account just because his/her spouse is having this disability when it comes to having s*xual relationship.

 


In a marital life every spouse has right to have normal s*xual relationship and if he/she is not being satisfied by the other partner than he/she cannot be made to suffer just because of the disability of the other partner.
The usual form of partial impotency can be unable to attain penile erection for a particular person or premature ejaculation of semen thus fall in the penile erection even before v**ginal insertion, these disability can be general or specific in the respondent but in any case if the petitioner spouse is made to suffer on this account and there is no consummation of marriage than relief has to be granted by nullifying the marriage.
The issue of impotency is a serious one and has to be handled by expert lawyer when it comes to annulment matter in the court.

PQR (S)     23 April 2012

@chandrasekhar.....thanks for your reply.......Do you mean to say that the husband should state that he is impotent only for his wife and not for others. Yes, I read this somewhere. But do you think the court will accept this statement? Is there any such provision in the law?

 

Can the court ask the husband as to why he is impotent only for his wife? Will it be enough if he just says that there are serious differences between them? Will this point (that the husband is impotent only for his wife due to differences) be written in the final judgment of annulment ? What exactly would be written in the final judgement?

 

SAINATH DEVALLA (LEGAL CONSULTANT)     23 April 2012

Dear PQR,

Once certified that he is impotent and unfit for family life and which has been submitted in the court,will remain with him throughout his life.The word impotency dosen't mean only to his wife,but that relates to all the females.This statement of your's gives raise to umpteen suspicions.So don't keep on pouring doubts an aggravate your friends case.


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