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Biological needs not met among partners- it is logical that either of them may seek divorce: HC

It is an legimate expectation of the husband to live with his wife and have cohabitation and bear children and if the same is not achieved owing to any physical and mental problem among the partners, it is quite logical that either of the parties will approach the court for seeking divorce on such allegations. Except in few cases, where the couple understand each other and come forward with the life issue-less or even go for adoption, however, the same has to be proved by the person claiming that his or her partner is incapactated to give or bear the child. But in the case on hand, the petitioner is not in a position to show that there is no cause of action disclosed by the averments made in the petition filed by the husband / respondent or that the cause of action disclosed by the averments made in the petition is not natural, but illusive. (Para.12)

ANNAPOORANI V. S. RITESH

Civil Revision Petition( C.R.P) No. 106 of 2021.

Decided on March 16, 2021.


The present Civil Revision Petition was decided In the High Court of Madras, before Justice V. Bhavani Subbaroyan. The Court dismissed the petition on the grounds that the petitioner has not pointed out any valid reason under Section 227 of the Constitution of India for the High Court to intervene and strike off the petition in Original Petition no. 4784 of 2019 on the file of III Additional Family Court, Chennai.


The present revision petition was filed by the Wife before the High Court of Madras under Section 227 of the Constitution of India seeking the Court’s intervention and to strike off the Original Petition filed by the Husband on file of III Additional Family Court, Chennai, where the husband has filed a petition seeking divorce from his wife on the grounds that she suffers from Polycystic Ovarian Syndrome and hence she is unable to cohabitate or give birth to a child. The husband also seeked to declare the marriage solemnized on 01.07.2018 null and void. The husband also filed an I.A 1 of 2020 seeking for an amendment to include the provision of law from 12(1)(a) and 12(1)(a) and ( c ) of the Hindu Marriage Act.


Ms. S.P. Arthi, The Learned Counsel representing the petitioner, the wife, argued before the court that the petition filed by the husband cannot be sustained, as it is pure abuse of process of Law. According to the counsel, the facts taken by the Family Court under Section 12(1)(a) of the Hindu Marriage Act are not valid and should be rejected at the threshold and stated that the Polycystic Ovarian Syndrome disorder is endocrine system disorder that affects the capacity of the reproduction in women and which is totally distinct and different from claiming to be impotence. Furthermore, the Counsel argued that the husband's claim is completely incorrect and that his use of impotency against the wife is unsustainable.


The respondent, on his appeal before the Family Court, Chennai has raised various issues apart from Polycystic Ovarian Syndrome to seek divorce from the wife. The Husband stated that the wife has not cooperated for cohabitation owing to her medical condition, as she was almost 25 days on her menstrual cycle.


The Court after examining the petition filed before the Family Court of Chennai by the husband stated:

“As far as as the present case on hand is concerned, on going through the entire pleadings it is clear that the respondent/husband has not spelt out any single word connating impotency towards his wife/petitioner herein. But he has approached the Family Court mainly on the issue complaining that his wife/petitioner herein could not bear a child on two reasons, viz., firstly, there is no cohabitation, secondly, the wife is suffering from ‘PSOS’ due to which the said wife suffer a improper menstrual cycle. At this stage of the case, the petiitoner/wife has filed the present Civil Revision Petition, who has not filed any counter to the said allegation.” (Para 10)


The Court noted:

With regard to invocation of Article 227 of Constitution of India is concerned, it is only a supervisory jurisdiction of the High Court on its Subordinate Courts and in several cases, Hon'ble Supreme Court as well as this Court have confirmed that when the suit filed on frivolous fact and when there is an abuse of process of law, the court can extend its power strictly and if on plain reading of the plaint, it shows abuse of process of law, the court can intervene. The supervisory jurisdiction of this Court can be invoked only when there is manifest error committed by the Subordinate court and the said arguments of the petitioner's counsel does not come under the said reason and the same will not fall under realm of exercising the power under Article 227 Constitution of India, as the respondent/husband contrary to the submissions made by the learned counsel petitioner, has not made any allegation in the petition with regard to the impotenancy of the petitioner/wife.” (Para 11)


It is an legimate expectation of the husband to live with his wife and have cohabitation and bear children and if the same is not achieved owing to any physical and mental problem among the partners, it is quite logical that either of the parties will approach the court for seeking divorce on such allegations. Except in few cases, where the couple understand each other and come forward with the life issue-less or even go for adoption, however, the same has to be proved by the person claiming that his or her partner is incapactated to give or bear the child. But in the case on hand, the petitioner is not in a position to show that there is no cause of action disclosed by the averments made in the petition filed by the husband / respondent or that the cause of action disclosed by the averments made in the petition is not natural, but illusive. (Para.12)


The present revision petition was dismissed.


View/Download Judgment - ANNAPOORANI V. S. RITESH


Utkarsh Kumar Jayaswal

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