Smt. Best Morning Khongthohrem vs Nirmalendu Deb on 2 June, 1987

    Smt. Best Morning Khongthohrem vs Nirmalendu Deb on 2/6/1987

JUDGMENT

   Saikia, Actg. C.J.

   1. In this reference the decree nisi granted by the Additional Deputy
Commissioner, Jaintia Hills District, Jowai dated 28-8-86 in Divorce Suit No. 1
of 1986 declaring the marriage between the petitioner and the respondent null
and void under Section 19 of the Indian Divorce Act, 1869, for short 'the Act',
has come up for confirmation under Section 20 of the Act.

   2. The petitioner Smt. Best Morning Khongthohrem's case is that she was
married to respondent Sri Nirmalendu Deb, then a widower, on 28-12-77 at the
Church of Epiphany, Mawlynnong village according to the Christian rites. The
ceremony was solemnised by Rev. Huxly B. Syngoh who issued the marriage
certificate, Ext. I. After the marriage the parties lived and co-habited
together at the Government quarter, Civil Hospital Compound, Jowai, where the
respondent was posted as Pharmacist, for more than 6 years, but they had no
issue. In the month of May, 1983 the respondent informed the petitioner that
there was no possibility of her bearing any child from him as he had already
undergone vasectomy operation prior to their marriage. The petitioner considered
herself to have been cheated by the respondent in not disclosing this
information prior to their marriage and, accordingly she left the respondent's
house and had since been living with her parents at Mawlynnong village. She
filed a petition on 2-7-86 for declaration that her marriage with the respondent
was null and void by reason of, what she called, respondent's incompetency to
enter into the pretended marriage by reason of his impotency on account of the
said vasectomy operation, and on ground of cheating.

   3. The petitioner examined herself and another witness. The respondent
appeared before the Court and stated that he did not want to contest the suit.
The petitioner's case was amply corroborated by her witness No. 1 U. Y. Khonglam
who also said that since 1983 the petitioner had been living with her parents
and she was working there as a school teacher.

   4. We have carefully perused the evidence on record and found no collusion or
connivance between the parties in the matter of filing the divorce suit. The
learned Additional Deputy Commissioner granted the decree of nullity of the
marriage on the basis of the evidence on record. The question is whether the
decree nisi can be confirmed?

   5. Section 18 of the Act deals with petition for decree of nullity and reads
:

     "Any husband or wife may present a petition to the District Court or to the
High Court, praying that his or her marriage may be declared null and void."

   Section 19 prescribes the grounds of decree :

     "Such decree may be made on any of the following grounds : --

     (1) that the respondent was impotent at the time of the marriage and at the
time of the institution of the suit;

     (2) that the parties are within the prohibited degrees of consanguinity
(whether natural or legal) or affinity;

     (3) that either party was a lunatic or idiot at the time of the marriage;

     (4) that the former husband or wife of either party was living at the time
of the marriage, and the marriage with such former husband or wife was then in
force.

     Nothing in this section shall affect the jurisdiction of the High Court to
make decrees of nullity of marriage on the ground that the consent of either
party was obtained by force or fraud."

   6. The petitioner, as already stated, sought the decree of nullity of the
marriage on the ground that the respondent was incompetent to enter into the
marriage by reason of his impotency at the time of his marriage with the
petitioner and continued to be so at the time of the institution of the suit,
because of the vasectomy he underwent before the marriage and on the ground that
he cheated the petitioner into marrying him by not disclosing that fact before
the marriage. The question then is whether vasectomy on the male renders him
impotent so as to provide a ground for a decree under Section 19(1) declaring
her marriage null and void? The respondent did not controvert that he underwent
vasectomy before the marriage with the petitioner and that he continued to
suffer the effects of vasectomy at the time of institution of the suit.
Vasectomy means the surgical removal of all or part of the vas deferens.
Vasectomy is a mode of sterlisation. Sterlisation, according to the Black's Law
Dictionary means the act or process by which one is rendered incapable of
procreation as, for example, the act of tying the female Fallopian tubes or a
vasectomy. In A. L. Som's Principles and Practice of Modern Surgery, vasectomy
is mentioned with prostatectomy. "Prostatectomy should be supplemented by
preliminary vasectomy to prevent postoperative suppurative epididymitis.
Vasectomy may be done through same incision, when pfannenstiel approach is made.
When vertical incision is employed, vasectomies are done through two small
incisions at the neck of the scrotum." Thus vasectomy is a mode of sterlization.

   7. Does sterlization render a man impotent? Sterility is not impotency both
for husband and wife. Impotent is he who suffers from impotency. Impotency is
the inability to perform the sexual act, and sterlity, is inability to
procreate, and may exist in either sex, but the existence of one of these
conditions does not necessarily imply the existence of the other, for example,
an individual may be sterile, but not impotent; or impotent, but not sterile.
Impotence is medically defined as physical incapacity of incapacity of
accomplishing the sexual act, while sterility means inability for procreation of
children. An impotent individual need not necessarily be sterile, nor a sterile
individual impotent, though both conditions may sometimes be combined in the
same individual. In Glaister's Medical Jurisprudence and Toxicology, 13th
Edition in Chapter 13, pages 358 to 366, we find some discussions on impotence,
sterility in the male. According to the author impotence is the inability to
have sexual intercourse whereas sterility is the inability to impregnate.
Impotence may be the result of various factors. Below the age of puberty, the
male is said to be sexually impotent. Certain conditions of the central nervous
system, such as hemiplegia, paraplegia, locomotor ataxia, disseminated
sclerosis, syringomyelia, and fracture of vertebrae with cord injury may cause
impotence, but this is not always so. Impotence may also be produced by
premature ejaculation, endocrine dysfunction, the abuse of alcohol and drugs,
but most frequently by psychical causes. The physical causes of impotence afford
the safest basis upon which to found an opinion, but psychical causes are more
common as the basis of declarators of nullity. Relative impotence is sometimes
present and may be due, among other causes, to neurasthenia frigidity, or sexual
perversion. Absence of the penis constitutes absolute impotence, since there is
no organ for intromission, and in cases of partial amputation, performance of
the sexual act may be rendered impossible. Certain malformations of the male
external genitals may prevent intercourse, and these include such conditions as
intersexuality, hypospadias and epispadias.

   8. Sterility, or inability to impregnate, in the male is commonly due to a
variety of causes which include hypospadias, absence or atrophy of the testes,
pituitary dysfunction, hypothyroidism, and the effects of gonorrhoeal infection.
Following the removal of both testicles, procreative power is progressively
lost.

   9. In a Divorce or Nullity Suit the question to be decided is the incapacity
of the husband to sexual intercourse with his married partner; his capacity to
intercourse with other woman is of no consequence in deciding the case.
Sometimes incapacity is due to psychological influence. A temporary absence of
desire for sexual intercourse may result from fear, anxiety, guilt sense,
timidity, aversion, hypochondrias is, excessive passion, and sexual over-
indulgence. Sometimes, an individual may be impotent with one particular woman,
but not with another, impotence quoad hanc. Lord Birkenhead, Lord Chancellor
granted divorce, to a woman who instituted a suit for nullity of marriage after
ten years of married life on the ground that the husband was unable to
consummate the marriage. It followed that although physically normal, he had
always been incapable of consummating this particular union with this particular
woman. In R. R. Saraiya v. Kasum Madgavkar, Mr. Justice Coyajee of Bombay High
Court passed a decree for nullity of marriage on the ground that the husband was
impotent as regards his wife, although he was generally potent.

   10. Impotence according to Black's Law Dictionary means inability to
copulate. Properly used of the male, but it has also been used synonymously with
'sterility'. Impotency as a ground for divorce means want of potentia copulandi
or incapacity to consummate the marriage, and not merely incapacity for
procreation.

   11. Impotency is ordinarily understood to mean an incapacity, physical or
mental, which admits of neither copulation nor procreation. However, the
capacity to copulate and the capacity to procreate are two different capacities
and resultant incapacities are also different. It can, therefore, be said that
impotency means an incapacity, physical or mental on the part of either spouse
to copulate which incapacity is permanent and incurable. The impotency of a
husband means his incapacity to perform sexual intercourse meaning thereby a
normal and complete coitus, as distinguished from incipient, partial or
imperfect one. Sterility is not necessarily associated with impotency. The two
expressions denote lack of two different powers. In Jayaraj Antony v. Mary
Seeniammal, AIR 1967 Mad 242 the Full Bench held impotency as incapacity of
consummate marriage, which may be physical or psychological In Digvijay Singh v.
Pratap Kumari, AIR 1970 SC 137 : (1969) 2 SCC 279 the Supreme Court held :

     "A party is impotent if his mental or physical condition makes consummation
of 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."

   12. In Rajendar Pershad v. Shanti Devi, AIR 1978 Punj and Har 181, it has
been observed that the impotence simply means inability to perform the sexual
act. It may be pathological or psychological, permanent or temporary, complete
or partial.

   13. The performance of successful vasectomy does not make one impotent but
makes him sterile. It does not result in the person's physical incapacity to
copulate or to perform the sexual act, but his physical incapacity to procreate.
Vasectomy, therefore, cannot be said to cause impotency of the person. Vasectomy
thus resulting only in sterility and not impotency cannot be a ground for
nullity of marriage. Indeed it was considered for a long time that it was
illegal to perform the operation which would enable a man to have unrestricted
enjoyment of sexual intercourse without the possibility of procreation.

   14. The deception by the husband by not disclosing that he underwent
vasectomy before the marriage would be entirely a different question. Sterility
is not impotency both for husband and wife. The fact that a wife is incapable of
conceiving a child, is no ground for a decree of nullity. The test is the
capacity to consummate and not the capacity to conceive. The sterility of the
husband, whether artificially engineered or not, is no ground for granting a
decree for nullity, as was held in Baxter v. Baxter, (1947) 2 All ER 886.
Impotency does not signify sterility but contemplates incapacity to have normal
sexual intercourse.

   15. In the instant case there is no other evidence to prove the respondent's
impotency. The respondent has to be presumed to be potent as he had children by
his deceased wife. According to Glaister every man is presumed capable of
begetting, and every woman of bearing, children. The only proof allowed, in
order to rebut this presumption is that of facts establishing that there is a
permanent de facto incapacity with respect to the spouse. When an allegation is
made by a wife or husband that impotence exists, it is the duty of the Court to
call medical evidence. The examination of a husband is for finding out whether
there exists a physical deformity or deficiency of the body of the husband,
which will prevent, and is likely to continue to prevent the consummation.
Erection and penetration without emission, although not constituting sexual
intercourse in the full sense of the word, are sufficient in law to consummate a
marriage. The examination of the husband should include the physical
conformation of his genitals and microscopical examination of seminal fluid, for
living spermatozoa. An opinion regarding virility must depend upon a man being
like, or unlike, other men, for unless there is marked deviation from normal, an
opinion implying diminished virility naturally cannot be expressed. Development
of any part which prevents coitus, after the marriage has been consummated, will
not afford legal grounds for declaration of nullity. The decisions in Clarke v.
Clarke, (1943) 2 All ER 540; Baxter v. Baxter, (1947) 1 All ER 387, Bravery v.
Bravery, (1954) 3 All ER 59 may be referred on this question. We are, therefore,
unable to hold that the respondent was impotent at the relevant time.

   16. The next question is whether nondisclosure by the respondent would amount
to fraud. The petitioner stated that she was cheated by the respondent's non-
disclosure of the vasectomy. If there was really a fraudulent misrepresentation,
the petitioner could complain of it as her hope of bearing children would be
betrayed. In Bravery v. Bravery, (1954) 3 All ER 59 (CA) a husband got himself
sterilised without good medical reason and without the consent of the wife. It
was held to have amounted to cruelty to the wife if her health was thereby
injured or there was reasonable apprehension of it. The hurt would be, it was
observed, progressive because the wife would be deprived of a child without her
consent. In Walsham v. Walsham, (1949) 1 All ER 774 where a husband practised
coitus interruptus despite repeated protests of the wife right from the
beginning of their marriage, regardless of the fact that this conduct was
injuries for wife's health, both physical and mental, it was held to have
amounted to cruelty. In Knott v. Knott, (1955) 2 All ER 305 where the husband
deliberately and without good reason permanently denied :to the wife who had a
normally developed maternal instinct, a fair opportunity of having even a single
child by adopting coitus interruptus, when their ages were only 17 and 22, the
husband was held guilty of cruelty.

   17. Maternity is the natural inclination of a woman. C A. Stoddard said :
"There can be no higher ambition for a Christian woman than to be a faithful
wife and a happy and influential mother. It is the place which God has given
woman, and she who fills it well, is as honourable and honoured as the most
illustrious man can be." Not that every barren marriage is to break down, but
that there should be no deception or fraud perpetrated on the wife by the
husband in this regard. Hence the provision saving the jurisdiction of the High
Court to make decrees of nullity of marriage on the ground that the consent of
either party was obtained by force or fraud. Was there a fraud in the instant
case?

   18. As defined in Section 17 of the Indian Contract Act, "fraud" means and
includes any of the following acts committed by a party to a contract, or with
his connivance, or by his agent, with intent to deceive another party thereto or
his agent, or to induce him to enter into the contract :--

     (1) the suggestion, as to a fact, of that which is not true by one who does
not believe it to be true;

     (2) the active concealment of a fact by one having knowledge or belief of
the fact;

     (3) a promise made without any intention of performing it;

     (4) any other act fitted to deceive;

     (5) any such act or omission as the law specially declares to be
fraudulent.

   Explanation.-- Mere silence as to facts likely to affect the willingness of a
person to enter into a contract is not fraud, unless the circumstances of the
case are such that, regard being had to them, it is the duty of the person
keeping silence to speak, or unless his silence is, in itself, equivalent to
speech.

   19. Fraud is committed wherever one man causes another to act on a false
belief by a representation which he does not himself believe to be true. He need
not have definite knowledge or belief that it is not true.

   20. Fraud in English common law implies absence of honest belief. Fraud in
common parlance is a somewhat comprehensive word that embraces a multitude of
delinquencies differing widely in turpitude, but the types of conduct that give
rise to an action of deceit have been narrowed down to rigid limits. As was held
in Le Lievre v. Gould, (1893) 1 QB 491 a charge of fraud is such a terrible
thing to bring against a man that it cannot be maintained in any Court unless it
is shown that he had a wicked mind. It was held in Deny v. Peek, (1889) 14 AC
337 that an absence of honest belief is essential to constitute fraud. Fraud
means a false statement "made knowingly, or without belief in its truth, or
recklessly, careless whether it be true or false". In testing the honesty of the
petitioner's belief, his statement must not be considered according to its
ordinary meaning, but according to its meaning as understood by him. At common
law, nothing less than a want of honest belief, or, nothing less than a lie
suffices to found an action of deceit. The course of equity has given a more
extended meaning to the word "fraud" and has developed a doctrine of
constructive fraud including class of cases of fraud which did not necessarily
import the element of dolus malus and tried to prevent a man from acting against
the dictates of conscience and had tried to grant injunction in anticipation of
injury, as well as relief where injury had been done. A man who concludes a
transaction under such circumstances that he is not a free agent and not equal
to protecting himself is entitled to the protection of the Court. The doctrine
has been applied to a wide field of human activities where a confidential or
fiduciary relation exists between the two parties to a contract or other
transaction. Whenever the relation between the parties to a contract is of a
confidential or fiduciary nature, the person in whom the confidence is reposed
and who thus possesses influence over the other cannot hold that other to the
contract unless he satisfies the Court that it is advantageous to the other
party and that he has disclosed all material facts within his knowledge. Even
silence in such a case constitutes misrepresentation. The Courts are prepared to
accept such a confidential relationship between the persons connected by certain
recognized ties, such as parent and child, principal and agent, religious
superior and inferior, and trustees and beneficiary, but not confine it to these
relations alone and to extend it to such familiar relation. "Whenever two
persons stand in such a relation that, while it continues, confidence is
necessarily reposed by one, and the influence which naturally grows out of that
confidence is possessed by the other, and this confidence is abused, or the
influence is exerted to obtain an advantage at the expense of the confiding
party, the person so availing himself of his position will not be permitted to
retain the advantage, although the transaction could not have been impeached if
no such confidential relation had existed", as was observed by Lord Chelmsford
in Tate v. Williamson, (1866) 2 Ch App 55.

   21. The question of fraud in matrimonial law has to be understood in the
context of and consistently with that law. Fraudulent, misrepresentation or
concealment may not affect the validity of a marriage to which the parties
freely consented with a knowledge of the nature of the transaction. Where
consent to the marriage exists it is immaterial whether it is induced by
fraudulent misrepresentation so that where a woman, not a chaste virgin, but a
person deflowered, married without disclosing that to her husband to be, such a
marriage cannot be avoided on the ground that he would not have consented to
marry had he known the true facts. It has been said that misrepresentation or
concealment of facts which if known to one of the parties might have prevented
his or her marriage does not invalidate a marriage provided that there were free
consents for the marriage. As a general rule prenuptial unchastity of the wife
though unknown to the husband at the time of the marriage is not a ground for a
decree of nullity. Misrepresentation by a woman as to her chastity of itself may
not be a ground for avoidance of the marriage, though, of course, it may be
taken into consideration together with other circumstances indicative of fraud.
Will there be any difference in law, if the husband concealed his vasectomy?
Concealment or deception by one of the parties in respect of traits or defects
of character, habits, temper, reputation, bodily health and the like, is not
sufficient ground for avoiding a marriage. Was there concealment or deception by
the husband as to his vasectomy in this case? The parties ordinarily must take
the burden of informing themselves by acquaintance and satisfactory enquiry
before entering into a contract of the first importance to themselves and to
society in general. Fraudulent misrepresentation will of course be a different
matter. In Moss v. Moss, (1897 (77) LT 220) it was held that fraud, spoken of as
ground for avoiding a marriage, does not include such fraud as induces a
consent, but is limited to such fraud as procures the appearance without the
reality of consent. The simplest instance of such fraud is personation. Every
error does not exclude consent. Only that kind of error which hinders and
impeaches a matrimonial consent and renders it null and void ab initio. In David
v. Kalpana, 1976 Hindu LR 607 (Bom), a case under the Indian Divorce Act, on the
question of fraud in regard to alleged premarital lack of chastity, it was held
that false statements during matrimonial negotiations would not affect a validly
performed marriage.

   22. In the instant case the evidence is not clear as to whether an express
statement was made by the respondent that he had not undergone vasectomy and
that such statement had induced petitioner's consent. It is also not clear
whether the petitioner expressly believed the respondent to be virile or potent
as he had several issues by his deceased wife. However, the difficulty is that
when the petitioner stated that she was deceived into the marriage by the
respondent's concealment of his vasectomy and consequential sterility, the
respondent did not contest or controvert the statement. More so, appearing
before the Court he stated that he did not want to contest. Under such
circumstances we feel justified in holding the averment of the petitioner to be
true. It is no doubt true that spouses would normally expect to have children
from their wedlocks. But can it be said that the bride would refuse to marry a
male who already underwent vasectomy or that had that been disclosed she would
not have consented to the marriage? The petitioner deposed that the respondent
was a widower and he had four children from his deceased wife. The petitioner
clearly deposed that only in May, 1983 the respondent informed her that there
was no possibility of her having any issue from him as he had undergone a
sterlization before the marriage with her. On knowing that, she felt cheated and
also felt that there was no charm in her further living with the respondent and
so she declined to live with him and informed the respondent that she was going
back to her parent's village and would not come back. She also deposed that the
respondent told her that if she wanted to do so he had no objection. She,
accordingly, prays for declaration of the marriage pull and void on the ground
of the respondent's wilful concealment of his vasectomy. The respondent having
not adduced any evidence to controvert the above statement, the fact that the
petitioner felt cheated goes unchallenged. The respondent having also not
objected to what the petitioner had done and he having clearly told the Court
that he did not like to contest the suit, the question arises whether this may
be treated as a fraud In Ms. Jorden Diengdeh v. S. S. Chopra, AIR 1985 SC 935,
their Lordships observed that the case before the Court was an illustration of a
case where the parties were bound together by a marital tie which was better
untied. There was no point or purpose to be served by the continuance of a
marriage which had so completely and signally broken down. There is no point in
continuing the instant marriage under the circumstances. The respondent having
begotten children by his first wife and the petitioner's hope of having any
children from him having been shattered and considering the fact that the
petitioner felt cheated or defrauded, and this having not been denied by the
respondent, we are satisfied that the respondent, a widower obtained the consent
of the petitioner by fraud and the Court has jurisdiction to make a decree of
nullity of the marriage on the basis of the facts and circumstances. We
accordingly do not find any infirmity in the decree of nullity passed by the
Additional Deputy Commissioner.

   23. We accordingly confirm the decree Nisi under Section 20 of the Act and
accept the reference.

   R.K. Manisana, J.

   24. I agree.

   S.N. Phukan, J.

   25. I agree.