Bombay High court observed that there is a marked difference between ‘infertility’ and ‘impotency’, and set aside a 1994 order of divorce.
The family court, in October 1994, had granted divorce to the husband (then 42 years old) on the ground that the wife (then 45 years old) was impotent, a valid ground for divorce as contemplated by Section 12 (1) (a) of Hindu Marriage Act.
The wife challenged the divorce order in High Court.
The division bench of Justices A M Khanwilkar and A R Joshi today set aside the divorce, observing that family court had erred in equating infertility with impotency.
“The family court held that inability to give birth to a child presupposed that woman is impotent. This view taken by the family court is erroneous and it is wrong in accepting infertility of a woman equivalent to her impotency,” the bench said.
The family court had said that even after 16 years of marriage, there was no child, which was sufficient to establish that wife was impotent.
“We must say that the family court has definitely committed an error in arriving at such a conclusion and treating impotency and infertility at par. There is a marked distinction between the two,” the High Court said.
There was no proof that marriage had not been consummated, court said. “For most of the period after the marriage the spouses were staying separately, (but) they had a joint stay occasionally and had definitely consummated the marriage,” said the judges.