Case: Yuvraj Digvijay Singh Vs. Yuvrani Pratap Kumari

from the finding of the trial Court on issue no. 2. The learned Judges however held that it had not been proved that the appellant was impotent, but, on the material issue regarding the impotency of the respondent-wife the learned Judges were of the view that there were various factors and circumstances throwing a serious doubt on the allegation made by the appellant. The High Court held that it had not been established by the appellant that non-consummation of the marriage was due to the impotency of the respondent. If further held that on the state of evidence it did not believe that the respondent-wife had been proved to be impotent. The High Court also declined be believe the case of the appellant that the respondent had persisted in her attitude of exhibiting repulsion to the sexual act.8. It is not really necessary for us to deal elaborately with the evidence in the case on the basis of which concurrent findings have been recorded by the District Court and the High Court, rejecting the case of the appellant that his wife the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.9. Mr. Shroff, learned counsel for the appellant, found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence. No doubt, there was a feeble attempt made by the learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed. When the two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention.10. The reliance placed by Mr. Shroff on the decision of this Court in Earnest John White v. Kathleen Olive White, 1958 SCR 1410 = (AIR 1958 SC 441 ) is misplaced. In that decision, it has been laid down that though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore or mis-construe important pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court. We are satisfied that the Courts below, in the instant case, have neither ignored nor mis-construed important pieces of evidence when they came to the conclusion that the appellants case, regarding the impotency of the respondent, could not be believed.11. On the findings that both the appellant and the respondent were not impotent and the marriage had not been admittedly consummated, counsel urged that the conclusion to be drawn was that such consummation was not possible because of an invincible repugnance on the part of the wife. Counsel further urged that taking into account the practical impossibility of consummation, the application filed by the appellant should be allowed.12. So far as the charge of invincible repugnance to the sexual act on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other hand, lack of proper approach by the appellant for consummating the marriage might have been responsible for non-consummation. It is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed.13. Mr. Shroff referred us to the decision of the House of Lords in G. v. G., 1924 AC 349. That was an action by a husband against his wife for a decree of nullity of marriage on the ground of impotency. It was establish that the husband was potent and had made frequent attempts to consummate the marriage but he could not succeed in owing to the unreasoning resistance of the wife. The wife was declared, on medical examination not to suffer from any structural incapacity. Under those circumstances the House of Lords held that the conclusion to be drawn from the evidence was that the wifes refusal was due to an invincible repugnance to the act of consummation and, as such, the husband was entitled to a decree of nullity. This decision does not assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on this aspect.14. Mr. Shroff next relied on the decision in G. v. G., 1912 P 173 holding that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto, though no reason for non-consummation was manifest or apparent. In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non-consummation of the marriage. The court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that -"quoad hunc et quoad hunc, these people cannot consummate the marriage."The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery. The position in the case before us is entirely different. Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellants plea that the respondent had always resisted his attempts to consummate the marriage.15. When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]y 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 thethe two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention.15. When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act.The reliance placed by Mr. Shroff on the decision of this Court in Earnest John White v. Kathleen Olive White, 1958 SCR 1410   = (AIR 1958 SC 441  ) is misplaced. In that decision, it has been laid down that though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore orimportant pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court. We are satisfied that the Courts below, in the instant case, have neither ignored norimportant pieces of evidence when they came to the conclusion that the appellants case, regarding the impotency of the respondent, could not be believed.So far as the charge of invincible repugnance to the sexual act on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other hand, lack of proper approach by the appellant for consummating the marriage might have been responsible forIt is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed.Mr. Shroff, learned counsel for the appellant, found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence. No doubt, there was a feeble attempt made by the learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed. Whenthe two Courts have accepted her evidence, it is futile on the part of the appellant to urge thisdecision does not assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on thisthat decision both the husband and the wife were perfectly normal and each charged the other as being responsible forof the marriage. The court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that"quoad hunc et quoad hunc, these people cannot consummate theCourt further held that the two people should not be tied up together for the rest of their lives in a state of misery. The position in the case before us is entirely different. Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellants plea that the respondent had always resisted his attempts to consummate the marriage.When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act.