Can divorce decree be granted if husband becomes impotent

[debolina]

Can divorce decree be granted if husband becomes impotent after few years of marriage?

[tapsash]

Section 13(1) (IA) of Hindu Marriage Act 1955 provides that any marriage solemnized Whether before or
after the commencement of the Act, may on petition presented by either husband or the wife he dissolved
by decree of divorce on the ground that the other party has after the solemnization of marriage, treated
the petitioner with cruelty.

Term 'cruelty' has not been defined in the Act. Cruelty in matrimonial law may be of infinite variety. It
can be Subtle or brutal Level concept of cruelty had varied from time to time as social and economic
conditions changes 'Cruelty' under matrimonial law may be physical as well as mental cruelty.

Persistent refusal to have marital intercourse or impotency of husband, amount to cruelty. In Rita
v.Balkishan Nijhawan AIR 1973 Del. 200 Delhi High Court observed" the law is well settled that if either
of the parties to marriage being healthy physical capacity refuses to have sexual intercourse the same
would amount to cruelty entitling other to a decree. In our view it would make no difference in law
whether denial of inter course is result of sexual weakness of respondent disabling him from having
sexual union with the appellant or it is because of any willful refusal by respondent.

This view was confirmed by Supreme Court in Siraj Mohd Khan v. Hajizu Nissa AIR 1981 SC 1972 Therefore, a
wife is entitled to decree of divorce on the ground that her husband has become impotent and is unable to
have marital inter course with her. "Impotency" of any party to marriage if exists, at the time of
marriage the aggrieved party is then entitled to decree of nullity of marriage under Section 12 of the
Act..