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Tag: HM Act 12 – Voidable marriages

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986

Posted on July 26, 2023 by ShadesOfKnife

A single judge of Delhi High Court held as follows,

From Paras 18 to 26,

18. Under Section 12 (1) (a), therefore, the requisite is that ordinary and complete sexual intercourse has not taken place between the parties owing to the impotence of the respondent. The words ‘impotence of the respondent’ would, to my mind, mean incapacity of the respondent to have sexual intercourse. The Supreme Court has said in Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137, that “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility”.

19. As stated above, consummation means capacity to have ‘ordinary and complete sexual intercourse’. The above stated observation of the Supreme Court in AIR 1970 SC 137, therefore, must mean that a party is impotent if his or her mental or physical condition is such, that practically speaking, it is impossible for him or her to have ordinary and complete sexual intercourse. In the instant case it is instant case it is stated by the appellant in her deposition that the respondent was unable to have any, even a partial or incipient, sexual intercourse with the appellant.

20. Respondent has himself written in his diary Ex. PW1/2, that the is a Homosexual. The appellant has stated in her deposition that the respondent told her that he was a homosexual, that he was unable “to perform sexual intercourse with me and with females in general”. In other words, the respondent was incapable of having Hetrosexual intercourse with any woman.

21. As sexual intercourse essentially has two participants, it must be ordinary and complete for both the participants, individually, and together as a marital unit. For the man participant sexual intercourse is complete when he has an orgasm and for a woman participant sexual intercourse is complete when she has an orgasm (See Encyclopaedia Brittanica: 15th Ed: 1968; Macropaedia, Vol. 16, p. 594: Sexual Response).

22. No sexual intercourse has been taken place between the parties, there is no question is this case whether sexual intercourse was ordinary any complete.

23. In this case there is unrebutted evidence of the petitioner that no sexual intercourse has taken place between the parties. As no sexual intercourse has taken place between the parties, in this case, the requirements of Section 12(1) (a) of the Act are satisfied.

24. In the above view of the matter no purpose would be served by remitting the case back to the District Judge, as in my view, there is no reason why the statement given by the wife ought not to be accepted.

25. I am of the view that in view of her statement recorded in the court, the wife is entitled to a decree of nullity of marriage on the ground mentioned under Section 12(1)(a) of the Act and the judgment of the Additional District Judge needs to be set aside which is hereby set aside.

26. A decree of nullity of marriage is granted to the wife under section 12(1)(a) of the Hindu Marriage Act.


Indian Kanoon Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (IK Version)

Casemine Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (CM Version)

Supreme Today Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (ST Version)

Legal Data Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (LD Version)

Citations: [1986 DMC 2 65], [1986 DRJ 10 286], [1986 SCC ONLINE DEL 42], [1987 PLR DEL 91 12], [1986 AIR DELHI 399], [1986 ILR DELHI 2 659]

Other Sources:

https://indiankanoon.org/doc/913344/

https://www.casemine.com/judgement/in/560909b5e4b01497111707b8

https://legaldata.in/court/read/6288

Posted in High Court of Delhi Judgment or Order or Notification | Tagged 1-Judge Bench Decision Catena of Landmark Judgments Referred/Cited to HM Act 12 - Voidable marriages Landmark Case Legal Procedure Explained - Interpretation of Statutes Moina Khosla Vs Amardeep Singh Khosla Not Authentic copy hence to be replaced Reportable Judgement or Order | Leave a comment

Dr.XXXXX Vs Dr.XXXXX on 24 Mar 2016

Posted on July 4, 2022 by ShadesOfKnife

After wasting opportunities given, the knife moved an application to file Counter but husband opposed it at Karnataka High Court.

From Paras 3-6,

4. However, insofar as the position of law as to whether the opportunity to file the objection statement can be granted subsequent to the expiry of the period as provided under Order 8, Rule 1 of CPC has in fact been stated by the Hon’ble Supreme Court wherein, it is held that it is only directory and not mandatory. The said decision in Salem Advocate Bar Association -vs- Union of India has also been referred to by the Court below.

From Para 5, (Pass an ex-parte order, what are you waiting for?)

5. In the instant case, though the petitioner contends that the respondent has not putforth any justifiable reasons seeking such opportunity, what cannot be lost sight is that the instant case is a matrimonial dispute where personal allegations would be made by the parties. If that be so, unless such personal allegations as made are controverted and thereafter evidence is available before the Court below, the Court in any event cannot come to an appropriate conclusion. Therefore, if in that light, when it is seen that the petition filed by the petitioner is for annulment of the marriage under Section 12 of the Hindu Marriage Act, 1955, it is more so that the petition averments would have to be controverted and thereafter a conclusion is to be reached. Therefore, in that circumstance, in any event, the Court below was justified in allowing the application and taking on record the objection statement.

Dr.XXXXX Vs Dr.XXXXX on 24 Mar 2016

Citations :

Other Sources :

https://indiankanoon.org/doc/135443264/


Index here.

Posted in High Court of Karnataka Judgment or Order or Notification | Tagged 1-Judge Bench Decision CPC Order 8 Rule 1 - Written Statement Dr.XXXXX Vs Dr.XXXXX HM Act 12 - Voidable marriages No Consummation of Marriage | Leave a comment

Hindu Marriage Act Sec 12 – Voidable marriages

Posted on August 2, 2021 by ShadesOfKnife

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—
(a) that the marriage has not been consummated owing to the imporence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—
(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—
(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied—
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages
solemnised after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 6[the said ground].

Posted in Bare Acts or State Amendments or Statutes or GOs or Notifications issued by Central or State Governments | Tagged HM Act 12 - Voidable marriages | Leave a comment

Yuvraj Digvijay Singh Vs Yuvrani Pratap Kumari on 2 May, 1969

Posted on August 2, 2021 by ShadesOfKnife

The division bench of Apex Court held as follows regarding how to prove non-consummation of marriage under Hindu Marriage Act 1955.

A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.

Yuvraj Digvijay Singh Vs Yuvrani Pratap Kumari on 2 May, 1969

Citations : [1970 AIR SC 137], [1969 SCC 2 279], [1970 SCR 1 559], [1970 AIR SC 1373]

Other Sources :

https://indiankanoon.org/doc/1514023/

https://www.casemine.com/judgement/in/5609ab60e4b014971140c4a5


The UK case law is here.


The Index is here.

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision HM Act 12 - Voidable marriages Landmark Case Legal Procedure Explained - Interpretation of Statutes Mental Cruelty No Consummation of Marriage Reportable Judgement or Order Yuvraj Digvijay Singh Vs Yuvrani Pratap Kumari | Leave a comment

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