The husband is impotent and the wife could not bear this mental cruelty and wish to live seperately though her husband loves her very much and do not wish her to live seperately from him, and again in the mean time she filed a petition against her husband to maintain her under section 125 CrPc. Should the Magistrate decreed the wife's application for maintenance?
Sirajmohmedkhan Janmohamadkhan vs Hafizunnisa Yasinkhan & Anr on 14 September, 1981
It is held :
" we find ourselves in complete agreement with the view taken by the learned Judge of the High Court. We hold that where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations, this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife's refusal to live with her husband and the wife would be entitled to maintenance from her husband according to his means"
Advocate High Court Chandigarh M:09814110005 email:email@example.com
If husband will file application u/s 9 then first magistrate has to deside that application and only then maintenance application and if she refused to come alongwith her husband then no maintenance as per latest judgments, but it depends upon state to state.
Thank you very much Aejaz and Kamal. But if the wife stays away from the husband and asked for maintenance that will be more cruel to the husband as he will be imaganing all those things about his wife and keep on maintaining her?
The question is very interesting, however there are two argumentative angles to see its valid legal end;
1. Say if a seasoned lawyer is hired by husband then husband can press for "sufficient reason not to live with husband grounds" recorded as materials of court and get the whole of maint. suit on just first hearing dismissed without getting it on a full fleged trial stage later and then suffer with no fault of his as he loves her and does not wish to break marriage. Bze in this case wife probably after finding impotancy status of husband does not wish to live with him which is not a valid reason as medico legally impotent men are seen to be recovered with resonably sperm count mortality factors and or child adoption is other option least a marriage should not breakdown on some flimsy grounds.
or the other way to look at your question answered is;
2. The husband as far as interim maint. is concerned can't escape "meeting" interim maint. if any awarded, as "interim maint.' is direction of a matrimonial court devoir of getting into the "merits" of the case (read main grounds case) as it is a summery disposal activity of a Court. Here the merit I think she has made out is impotancy but this myth could be shattered very well medico legally but it would also result into time consuming efforts of husband side pleadings and counters and meanwhile the main que. will still remain un answered which is maintenace.
So under above stated paras, para 1 is the catch (read fine meaning of "refusal to maintain" and "neglats" as in various commenteries of S. 125 CrPC by Ld. subject experts I have read) where a very seasoned lawyer can bail this gentlemen out as by your avernments he is shown not to neglect (he says he loves her and wants to save marriage) so where is neglect / refusal coming into picture the very essence of award of S. 125 CrPC!
Now let us cover "sufficient reasons not to live with husband" so advise me is being impotant sufficient reason when medically it is proven that with medications and time this myth condition could be overcome.
Illustration: I have seen a live case of a Delhi based gentlemen who due to youthfull days Alcoholism became medically impotant to such an extent that he forced himself to embrace one fine day AA Foundation (the famous worldwide Alcohol Anonymus Foundation) to get himself out of his bad vice and now his perm count is getting better and better from having no pserms at all and meanwhile the hiccup here in this boy from Delhi's case is that he got married and wife didnot knew his impotancy history and resut he is undergoing start of similar marrital problems as in your stated case and in this boy's case his wife wants a child badly but since his impotancy level is just miracleously closer to boarderline after a difficult past having undergone chemo and having no testicles even, she deserts this Delhi boy and now threatens him of DV / S 498a / S. 125 CrPC etc but your cited situation is much interesting as it is very direct question he he.
Sir, look forward to receive other advises on this interesting question to understand logics in a better way.
Dr.Arun, on the contrary, I have learnt lots from you with your medical story. In the present case Aejaz, has given the Apex Court decision and I ahve also come across similar observtions of the Supreme Court, but this is a bit disturbing to my mind. under no circumstances it should be taken as undermining the apex Court decisions, but try to be in the position of the husband who has to maintain his wife who deserted him simply for his impotency and he had to maintain her wherever she may be.
Assumi sir, i want to say some thing, that your approach is always what law ought to be not what the law is.
But in the present case you r thinking 4m husband's prospective that where is his fault that he is impotent. You r right in your thinking. So according to law an impotent doesn't have right to have spouse.
But if you see from the wife's angle, isn't she got the right to have pleasure of s*x ,
the right to have child from natural process.
Also the fact that maintenance is statuary right with social base.
Courts have to maintain balance the conflicting right. So the supreme court has held that way.
But you also might be right, isn't judges of supreme court differs in the same judgement.
Might be it happens that in future judgement supreme court favours your view.