Whether medical disorder can be a ground for divorce under section 23 1(a)?
Further, it can be seen that the Family Court has gone in greater detail regarding the instances of mental cruelty, by relying upon the decision of the Hon'ble Apex Court and held that if there is refusal on the part of the either spouse to have intercourse with other spouse for a considerable period without there being any physical incapacity or valid reason, it may amount to mental cruelty to the other spouse. But, in the case on hand, it is undisputed inasmuch as the appellant himself has admitted even in his cross-examination that he led marital life with the respondent wife for about one year nine months after marriage. That means, the marriage between appellant and respondent consummated and they cohabited. Simply because the respondent was unable to conceive, may not be a ground for the appellant to urge that her inability to conceive amounted to mental cruelty. Admittedly, they led marital life for about one year nine months and never complained that she was unfit for s*xual intercourse. Further, there is no such allegation made either in the petition or in the affidavit. Further, the appellant also never branded the respondent wife as an impotent person nor filed any petition seeking nullity of the marriage on the ground of her impotency. Therefore, the Family Court observed that mere barrenness and sterility would not amount to impotency. Impotence means incapacity for accomplishing the act of s*xual intercourse. Impotency has to be distinguished from sterility associated with it. Further, the Family Court observed that even though the respondent was not able to conceive due to dis-function of the ovaries, the appellant was capable of having s*xual intercourse, though not bearing children. By the use of the word 'impotency', the legislature did not intend to bring in the idea sterility or incapacity of conception. Impotency in this connection signifies incapacity to have normal s*xual intercourse. Therefore, the Family Court came to the conclusion that even though the respondent wife appears to be having some problem of nonfunctional ovaries, there was no congenital abnormality of the v**gina. Therefore, it cannot be held to be ground for divorce, on the ground of cruelty, as the respondent never denied the appellant the conjugal bliss and they led marital life for about one year nine months and absolutely there was no complaint against the respondent about her incapacity to provide him marital bliss.
M.F.A. No. 1044 of 2011 (FC)
AIR2013Kant41, 2013(1) AKR 377, 2012(5)KarLJ567;AIR 2013 karnataka 41
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Decided On: 31.05.2012
Appellants: Sri. Uma Mahesh, S/o. Late Subbaiah
Vs.
Respondent: Smt. Nethravathi, D/o. Late Rangaswamy,
Vs.
Respondent: Smt. Nethravathi, D/o. Late Rangaswamy,
Hon'ble Judges/Coram:
Hon'ble Mr. JusticeN.K. Patil and Hon'ble Mr. Justice B.V. Pinto
Hon'ble Mr. Justice
