Dismissed

Pranajit Bhowmik v. Supriya Debnath Bhowmik

Tripura HC31 Oct 2017Mat.App./10/2016

Case brief

AI extract

What is this about?

In an appeal against a decree dismissing a petition for nullity of marriage, the High Court upheld the trial court's finding that the appellant failed to discharge the burden of proving non-consummation due to impotency or anatomical defects, despite medical testimony suggesting congenital abnormalities.

What did the court decide?

Appeal dismissed; judgment dated 17.05.2016 affirmed; marriage remains valid.

Pranajit Bhowmik Vs Supriya Debnath Bhowmik — Matrimonial and Divorce | Tripura HC (2017)

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IN THE HIGH COURT OF TRIPURA A G A R T A L A

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MAT APP NO.10 OF 2016

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Sri Pranjit Bhowmik, son of Sri Nikhil Bhowmik, resident of Harina, P.S. Sabroom, District: South Tripura

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.......... Appellant

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V e r s u s

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Smti. Supriya Debnath (Bhowmik), wife of Sri Pranjit Bhowmik, daughter of Sri Nirmal Debnath, resident of village: North Sonaichari, P.S. Belonia, District: South Tripura

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.........Respondent

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BEFORE HON’BLE THE CHIEF JUSTICE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the appellant	:	Mr. A.C. Bhowmik, Senior Advocate Mr. D. Sarkar, Advocate
For the respondent	:	Mr. Ratan Datta, Advocate Mr. A. Acharjee, Advocate
Date of hearing	:	16.08.2017
Date of delivery of	:	31.10.2017
Judgment and order
Whether fit for reporting	:	Yes No √

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JUDGMENT & ORDER

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(S. Talapatra, J)

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This is an appeal under Section 28 of the Hindu Marriage Act from the judgment dated 17.05.2016 delivered in T.S. (NUL) 50 of 2014 by the District Judge, South Tripura, Belonia. The appellant filed a petition under Section 12(1)(a) of

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the Hindu Marriage Act, 1955 for a decree of nullity by declaring the marriage of the appellant and the respondent as null and void due to non-consummation of marriage owing to ‘impotency’ of the respondent.

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02. There is no dispute that on 22.05.2011, the marriage of the appellant and the respondent was solemnized as per Hindu rites and customs in the parental house of the respondent at Killamura under Belonia Police Station. After the marriage, the respondent-wife started behaving in unusual manner showing reluctance particularly in cohabiting with the appellant. After about a year of marriage the appellant came to know that the respondent had been suffering from incapacity ‘menstruation problem’, but when the appellant asked the respondent about her ‘problem’ she had replied that she was suffering from menstrual difficulty for sometimes. On 24.04.2013, the appellant took the respondent to Dr. Narayan Chandra Ghosh, Gynecologist in Sabroom Hospital. After examination, the said Doctor prescribed the respondent some medicines and also advised the petitioner for medical test of his male organ. The appellant went through the said medical test and the report of the said test was positive. No defect was found with the appellant. On 05.05.2014, the respondent was taken to Dr. P.K. Roy, Gynecologist at Agartala. The said doctor suggested some medical test and Ultra Sonography (USG) of the whole abdomen. Thereafter on 13.05.2014, the appellant came to the chamber of Dr. P.K. Roy and on perusal of the report of various clinical tests opined that

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the respondent was having blind vagina and infantile uterus. He prescribed some medicine for one month. Thereafter, on 18.06.2014, the appellant again came to the chamber of Dr. P.K. Roy and they were advised to attend OPD of IGM Hospital, Agartala. Accordingly on 19.06.2014 the appellant took the respondent to the IGM Hospital, Agartala and there a team of doctor of IGM Hospital, Agartala examined the respondent at Out Patient Department and referred the respondent to GBP Hospital, Agartala for further examination. The doctors of the GBP Hospital informed the appellant that the respondent was suffering from a condition of blind vagina. Her uterus was infantile and anteverted. Hearing the same, the appellant became mentally upset. Thereafter the same day the appellant took the respondent to Dr. Partha Pratim Saha, another Gynecologist at Agartala and after consultation and examination of the respondent Dr. Saha was also of the opinion that the respondent was suffering from infantile uterus and blind vagina. The appellant thereafter finding that the marriage cannot be consummated filed the said petition seeking nullity of marriage.

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03. The respondent by filing the written statement denied the allegations and in particular has stated that she did not suffer from blind vagina and infantile uterus. In the written statement it has been raised that the petition was time barred. It had been also asserted that in the circumstances investigation by a medical board might be carried out. The respondent denied that she was taken to the doctors for detecting any deformity in her private

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parts. After perusing the pleadings the District Judge, South Tripura, Belonia, hereinafter the trial court, framed the following issues:

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i) Whether the instant matrimonial proceeding is maintainable?

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ii) Whether the suit is barred by law of limitation?

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iii) Whether the marriage is liable to be declared void as prayed for?

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iv) What are the relief or relieves the parties are entitled?

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04. A preliminary issue was framed to examine whether the suit is barred by law of limitation and the said preliminary issue was heard on 21.03.2015. After the hearing on the preliminary issue, the trial court found that the petition filed by the appellant was not barred by limitation and as such the issue No.1 and 2 were decided in his favour. The entire controversy in this appeal hinges on the issue No.3. The appellant adduced four witnesses [PWs 1 to 4] including his father. The appellant had also called Dr. Narayan Chandra Ghosh and Dr. P.K. Roy to prove their prescriptions. Dr. Narayan Chandra Ghosh and Dr. P.K. Roy were examined as PW-3 and PW-4. They admitted in the evidence some prescriptions and pathological reports [Exbt.1 series and Exbt.2 series]. After hearing, the trial court has observed as under:

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“On appreciation of the pleadings as well as evidence of the petitioner, I find that petitioner has suppressed the truth in his petition. Hence, he did not come with clean hand. On overall appreciation of the evidence of both sides including medical evidence, I am in the opinion that petitioner has failed to discharge his burden that respondent was/is impotent and there was no consummation of marriage due to impotency. Accordingly, the issues are decided in the negative.”

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The said finding has been challenged in this appeal.

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05. Mr. A.C. Bhowmik, learned senior counsel assisted by Mr. D. Sarkar, learned counsel appearing for the appellant has strenuously argued that the trial court has failed to appreciate the evidence of PWs 3 and 4 inasmuch as PW-3 Dr. Narayan Chandra Ghosh has clearly stated that both the appellant and the respondent came to him with the husband’s semen analysis report and the hormonal test report of the wife and both the reports were normal. He did not forget to add that if anyone suffered from blind vagina or any defect of vagina, then the complete sexual intercourse to its satisfaction was not possible. Infantile uterus means the uterus is not well developed as well as not responding to hormonal secretion and due to that defect, the cyclic menstruation gets disturbed. Thus, PW-3 had given his opinion that the respondent would never conceive.

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06. PW-4, Dr. Pradip Kumar Roy has also stated that after examination he found everything normal but there was blind vagina. Blind vagina means there was a complete obstruction in the uterus. The problem/disease was in the nature of congenital, so it was not curable. The disease can be cured through sophisticated/reconstructive vaginal surgery which is not available in Tripura. Such type of operation can be performed in the selective institutions in India. The chance of failure is also there. PW-4 has stated categorically as under:

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“In my opinion, such type of vaginal structure is unable to give complete satisfaction to a male partner at the time of intercourse. The problem of the patient suggests that she cannot conceive.”

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In the cross-examination, PW-4 had also stated that he adopted the physical examination only. She was examined in presence of the female attendant. So far he recalled in the trial, the patient was accompanied by her husband and another one.

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07. What the respondent has contended, according to Mr. A. C. Bhowmik, learned senior counsel appearing for the appellant, cannot be conciled with the statements of PWs 3 and 4. In the cross-examination, she has denied that her husband, the appellant herein, never cohabitated with her with his full satisfaction. She has stated that if she was not satisfying then how her husband tolerated her for three years after marriage. She has categorically stated that once she did not become pregnant does not mean that she would never become pregnant.

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08. Mr. A. C. Bhowmik, learned senior counsel has submitted that the trial court has failed to appreciate the evidence of the appellant’s witnesses or there was no appreciation at all. The appellant had categorically stated that her wife, the respondent herein, had no developed genital and she was not having the proper menstrual cycle like a mature woman. According to him, for such structural deformity he could not have the full penetration at the time of sexual intercourse. He took advice from PWs-3 and 4. PW-4 had categorically opined that the

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respondent was having infantile vagina. Mr. Bhowmik, learned senior counsel relied on a decision of the Gujrat High Court in Jyotsnaben Ratilal vs. Pravinchandra Tulsidas reported in AIR 2003 Gujrat 222 . In a resembling circumstances, Gujrat High Court affirmed the decree of divorce as granted by the first appellate court. Mr. Bhowmik, learned senior counsel has referred to the following passage in order to nourish his submission from Jyotsnaben Ratilal (supra):

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“25. Section 12, prior to its amendment in 1976, stated that the respondent was impotent at the time of the marriage and continued to be so until the Institution of proceeding. By the Amending Act of 1976 the substituted clause emphasises the element of non-consummation of the marriage owing to the impotence of the respondent. Medical evidence may establish that the petitioner wife has remained a virgin and the Court may presume that the requirements of the amended clause are satisfied. Clause (a) of Subsection (1) makes it abundantly clear that a marriage solemnized whether before or after the commencement of the Act is voidable at the instance of either party on the ground of nonconsummation of the same due to the Impotence of the other party to the marriage and may be annulled by a decree of nullity of marriage. The marriage of a female with a male who was impotent and who had not been able to consummate the marriage is a nullity.”

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09. Mr. A. C. Bhowmik, learned senior counsel has relied on another decision from Allahabad High Court in Smt. Sulekha vs. Ashok Kumar [judgment dated 14.03.2016 delivered in Second Appeal No.239 of 2016]. In that case, the wife’s vaginal passage was closed and she was not capable to consummate the marriage. In such circumstances, the husband had filed a petition for declaration of their marriage void under Sections 12 (1)(a) and 12 (1)(c) of the Hindu Marriage Act. The lower appellate court

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having held that the wife had a blind vagina and was not fit to consummate annulled the marriage and the said judgment was affirmed by the second appeal in the Allahabad High Court.

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10. Mr. Bhowmik, learned senior counsel has submitted that the respondent is suffering from Mullerian Agenesis which is a congenital malformation characterized by a failure of the Mullerian duct to develop, resulting in a missing uterus and variable degrees of vaginal hypoplasia of its upper portion. According to Mr. Bhowmik, learned senior counsel persons suffering from this syndrome are infertile for not having a functional uterus.

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11. From the other side, Mr. R. Datta, learned counsel appearing for the respondent has submitted that the trial court has correctly observed that the appellant has failed to discharge his burden in proving that the respondent was impotent. He has referred to the statement of PW-1, the appellant herein where he had categorically stated as follows:

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“When I was trying to cohabit with my wife, she did not secrete any birtholmius saliva. At the time of cohabitation, there was no full penetration and I was suffering pain as well as my wife also suffering pain at the time of cohabitation. At the time of cohabitation, the ejaculation was not in the vagina but it was happened outside the vagina. Due to the cohabitation I did not feel satisfied. My wife tried to avoid me when I desire to sex with her.”

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12. Mr. Datta, learned counsel has dilated by submitting that lack of satisfaction during sexual intercourse cannot be termed impotency. That apart, according to the medical experts those complaints are curable. Thus, the question what remains to

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be attended is whether the marriage is capable of being consummated or whether the respondent is suffering from any impotency?

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13. We have carefully scrutinized the statements of PWs 3 and 4 whose statements could not be relied by the court below. For discarding their evidence the court below has provided the reasons as paraphrased hereafter.

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PW-3 did not physically examine the vagina of the respondent whose concern was of the problem of infertility not the infantile uterus or blind vagina and hence the opinion of PW-3 was not relied by the trial court. So far the opinion of the PW-4 is concerned, he had clinically and physically examined and he found everything normal, but he has opined that the respondent was having blind vagina. Blind vagina means there was a complete obstruction of the uterus. He had opined that such formation of vagina cannot provide full pleasure during intercourse. PW-4 also had suggested that the respondent may not conceive. In her cross-examination, according to the trial court, he had reflected on inadequate process. The trial court in that context had observed as under:

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“So I find a contradictory view from the testimony of PW-4. It is also pertinent to mention that this PW-4 examined the patient on 5^th May, 2014, whereas the marriage of the petitioner was solemnized on 22^nd May, 2011. That means, the petitioner felt that his wife should be examined by a Gynaecologist after three years of his marriage for the purpose of getting just opinion for obtaining the nullity of marriage. On perusal of the testimony of the petitioner, I do not find any statement that why the petitioner has waited

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for long to file this application for nullity of marriage due to non consummation of marriage, whereas I find that the petitioner lived with the respondent for long time together and he went to the chamber of Dr. Narayan Chandra Ghosh just for the problem of infertility and not for the problem of blind vagina.”

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14. If the opinion of PW-4 is juxtaposed with the statement of PW-1, the appellant, it would create a serious incongruity inasmuch as PW-1 stated that the respondent has ‘no uterus’. Further, he has stated that ‘full penetration is not possible for satisfactory sexual intercourse’. The opinion of the other doctors has not been proved. In the cross-examination, PW-1 specifically stated that:

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“At the time of cohabitation there was no full penetration and I was suffering pain as well as my wife suffering pain at the time of cohabitation. At the time of cohabitation, the ejaculation was not in the vagina but it was happened outside the vagina. Due to the cohabitation I did not feel satisfied.”

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15. This is a clear admission that the vagina was not fully shut, nor even fully open. It creates dissatisfaction in consummation of marriage to the extent as stated by the appellant. But it cannot lead to inference that the respondent is suffering from impotency. It may be true that the respondent is suffering from some unusual formation of the genital. The procedure that has been followed by the doctors [PWs 3 and 4] does not generate confidence in the court to come to a definite or probable conclusion that the respondent is impotent and consummation of marriage is a far cry. Moreover, if it was a case of infantile vagina in its true meaning, then partial penetration had

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been not possible. The opinion of PW-4 in particular, cannot be relied, in view of the reply made by him under Section 51(A) of the Indian Evidence Act.

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16. Having observed thus, this court does not find any tenable basis for interfering with the impugned judgment. Hence the appeal stands dismissed.

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LCRs be returned after the decree is drawn in terms of

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the above.

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JUDGE CHIEF JUSTICE

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Moumita

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Pranajit Bhowmik v. Supriya Debnath Bhowmik

Case brief

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Pranajit Bhowmik v. Supriya Debnath Bhowmik

Case brief

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