Bombay HC allows man to tender evidence to counter wife’s charge of impotency
The Bombay high court (HC) recently allowed a Borivli resident, whose marriage has been annulled by a civil court at Sangli on the ground of his impotency, to submit medical evidence to prove his “physical competence” at the appellate stage.
“It has to be noted that the said finding (about impotency of the 43-year-old) would cast a stigma on him throughout his life,” said justice Nitin Sambre while dismissing his wife’s petition, challenging the October 17, 2018 order of the district judge-4, Sangli, passed on an application filed by her estranged husband.
The couple had married in December 2009. The next year, the 38-year-old woman moved the civil court for divorce, claiming her husband - a Borivli resident was impotent and had failed to consummate the marriage. On September 2, 2013, the civil court accepted her claim and annulled the marriage on that ground.
The husband then carried the matter in appeal before the district court-4, and during the pendency of the appeal, filed an application for a direction to the husband a civil surgeon from Sangli, to examine him with regards to his erectile response and normal sexual capacity and submit a report to the court.
On October 17, 2018, the district judge allowed the husband’s application and issued directions to the civil surgeon, prompting the woman to file the petition contending that in the given circumstances the district judge could not have allowed her husband to adduce additional evidence at the appellate stage.
Justice Sambre, however, rejected her contention. HC said the district judge was justified in issuing the order especially since the husband had called a doctor to support his claim of potency, but the doctor failed to produce a medical certificate to that effect. However, the civil court drew adverse inference and recorded the finding that he was impotent.
Justice Sambre said allowing the 43-year-old to adduce additional evidence would not cause any prejudice to his wife, as she will get the opportunity to cross-examine the doctor concerned. Besides, HC took into consideration that the man has already undergone a medical examination and the civil hospital has already submitted its report to the district judge.