Husband's Impotency Sufficient Reason For Wife To Reside Separately; She Is Entitled To Maintenance U/S 125 CrPC: Chhattisgarh HC

Observing thus, a bench of Justice Parth Prateem Sahu dismissed a criminal revision petition filed by a husband challenging an order of the Family Court, Jashpur, directing him to pay his wife, an amount of Rs. 14K as maintenance.

In the instant case, the respondent-wife had filed a plea seeking maintenance from her husband (petitioner-revisionist) under Section 125 of CrPC on the grounds that she was deprived of her conjugal rights as after their marriage, her husband had not established physical relations with her.

On the other hand, it was the contention of the husband-revisionist that he had categorically informed his wife, about his physical incompetency, before the marriage and hence, if she was now residing separately, she was not eligible for maintenance. It was further argued that impotency is not a ground mentioned under Section 125 of CrPC to be sufficient cause for a wife to reside separately.

However, the Family Court, taking note of the fact that the husband had admitted to his “incompetency”, concluded that there were sufficient reasons for the respondent-wife to reside separately and hence, she was very well eligible for maintenance.

Against the backdrop of the facts and circumstances of the case, the Court noted that the conjugal rights of the parties to the marriage are the foundation of marriage and deprivation of the same by either of them will be cruelty to the other partner.

The Court added that there is a provision under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and if any party is deprived of his/her partner's conjugal rights, it may be one of the grounds to seek divorce.

“If the married person is not having a conjugal relationship with his/her partner which makes him/her entitled to take divorce meaning thereby to separate from his or her partner. For the reasons as discussed above that the impotency of applicant-husband as admitted by him would be sufficient reason for the respondent-wife to reside separately,” the Court further noted.

In this regard, the Court also relied upon Apex Court's ruling in the case of Sirajmohmedkhan Janmohamadkhan Vs. Hafizunnisa Yasinkhan & Anr 1981 wherein it was thus:

“…where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations, this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife's refusal to live with her husband and the wife would be entitled to maintenance from her husband according to his means.”

In view of this, the Court did not find any infirmity or illegality in the order passed by the Family Court and hence, the criminal revision plea was dismissed.