Ahmedabad: The Gujarat high court has
observed that specific medical proof was required to determine
whether a husband was impotent or his marriage cannot be
consummated when a wife seeks divorce on this count.
A division bench of the high court comprising Justice
Jayant Patel and Justice Abhilasha Kumari has set aside the
grounds for a verdict passed by a family court vis-?-vis a
divorce petition. In the case involving an earthquake victim
husband and his wife, the family court had granted divorce on
the grounds of impotency and consequent ?cruelty?.
Rejecting a family court ruling that granted divorce to
a couple on the ground of impotency, the High Court however
upheld the family court order of divorce between the same
couple on grounds of desertion and cruelty.
Rajendra Dalal had challenged in the Gujarat High
Court.a family court`s order granting divorce to his wife
Dharmishta on the ground of impotency and cruelty.
The High Court last week rejected the man`s appeal,
saying that the petition was devoid of merits.
The court, however, observed that there was no
conclusive medical evidence to prove that the man was impotent
or the marriage was not consummated.
"The finding of the Family Court on this point,
therefore, cannot be endorsed," it observed.
It said the decree of dissolution of marriage has been
passed by the family court under provisions of Section 13(1)
of the Hindu Marriage Act, on ground of cruelty and desertion
and not under Section 12 (impotency).
Also, the family court, while granting divorce had
recorded cogent findings on the ground of desertion and
cruelty against the man, the court added.
In view of the material on record that the man used to
harass his wife at her work place and misbehave with her, the
permanent injunction granted by the family court restraining
the appellant from harassing her at work place and misbehaving
with her was justified, the court observed before dismissing
The woman had got divorce from the man from a family
court on the grounds that he was impotent and could not
consummate the marriage. She had also claimed mental and
physical torture on husband`s side.
The couple had married in 2000. The man worked with a
private firm, while the woman had a government job.
The woman initiated divorce proceedings in 2003 where
she claimed that she was frustrated because of her marriage
not being consummated, and also due to harassment by her
In 2009, the family court passed the orders in favour
the woman and held that she was entitled for divorce on
grounds of cruelty and impotency.