• Divorce to be filed within a month from marriage

Hello i am 37 years old female, divorced once about 7 years back. i got married on 28th feb 2017 but the i understood that my husband has male sex issue (erection) and he or his family did not inform us about this issue before.

we got married t mumbai and my husband resides at ahmedabad

we met a doctor he did some testes and prescribed some medecines to my husband, but the doctor says he cannot confirm for atleast 2 months if his issue shall be cured.

i do not wish to spoli my life plus am pissed off with this as they did not reveal such an important factor.

pls suggest if i can file divorce now
Asked 7 years ago in Family Law
Religion: Hindu

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7 Answers

1) you can file for anullment of marriage on grounds that husband is impotent

2) rely upon medical reports in your possession that husband has erection problems

3) you can file for divorce only on expiry of one year of marriage

4) only in exceptional crircumstances can you file for divorce before expiry of one year of marriage

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

file for anulment of marriage on grounds of impotency of husband

2) you can file for anullment within period of one year of marriage

3) Section 12(1)(a) of the Hindu Marriage Act, 1955. Said section reads

as under :­

“12. Voidable marriages. – (1) Any marriage solemnized,

whether before or after the commencement of this Act, shall be

voidable and may be annulled by a decree of nullity on any of the

following grounds, namely:-

(a) that the marriage has not been consummated owing to the

impotence of the respondent; or

(b) …...

(c) …...

(d) …...”

2) In the case of V. v. S. (supra), the Division Bench of this

Court has observed on the aspect of impotency and sterility by quoting

the passage from Modi’s Textbook on Medical Jurisprudence and

Toxicology, Twenty-first Edition. The said observations are as under :

"Impotence is defined as physical incapacity of

accomplishing the sexual act, while sterility means inability

for procreation of children. Impotence in males is the

persistent inability to develop or maintain a penile creation

sufficient to conclude coitus to orgasm and ejaculation. It

should be remembered that the term impotence or sexual

incapacity in forensic medicine connotes physical incapacity

to accomplish the sex act.

Impotence has been described in Halsbury's Laws of England

to be such a state of mental or physical condition which

makes consummation of the marriage a practical

impossibility.

An impotent individual need not necessarily be sterile, nor a

sterile individual impotent, though both conditions may

sometimes be combined in the same individual."

3) While dealing with cases of impotency the predominant

consideration is not physical incapacity which courts are

often guided by, but another all important angle, namely, the

fact that non consummation of marriage, could be due to

several circumstances which contribute to a situation

whereby both the spouses, though physically and mentally

potent in the normal sense, find it impossible to achieve a

satisfactory sexual relationship. The concept of relative

impotency which prescribes that a person suffering from no

handicap whatever still feels inhibited or incompetent vis­avis

the particular sexual partner is now an accepted ground

for a decree in a matrimonial Court.

4)since law has granted you remedy for filing for anullment it is not advisable to file for divorce before expiry of one year of marriage

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

1. If you have decided not to proceed with this man anymore then it would be est for you to make offer for mutual divorce and amicably end the marriage.

2. However since without passing of one year you can not apply for mutual divorce then filing a suit for nullity of marriage remains only option on the ground of material suppression of fact and non consummation of marriage.

3. Convince your husband not to appear in the case so the decision is passed ex parte and both of you get rid of each other.

Good luck.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1, The remedy for you is to file annulment on the ground of suppression of impotency of your husband, not divorce. To file for annulment, unlike divorce, there is no minimum waiting duration prescribed by the law. You are free to file the petition even tomorrow.

2. You will have to bank on the medical records of your husband to prove your case.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

As per Hindu Marriage Act 1955 any application for divorce can be filed after completion of one from the date of marriage. But in your case, your husband and his family members are suppressed the facts with regards to erection of male sex issues of your husband and as such you can file petition before concerned High Court under Section 14 clause 1 of the Hindu Marriage Act 1955 seeking relief of filing divorce petition before on year from the date of marriage as your husband and his family members of ignorant of informing facts to you and your family members.

Lakshmi Kanth
Advocate, Hyderabad
446 Answers
15 Consultations

4.7 on 5.0

i do not wish to spoli my life plus am pissed off with this as they did not reveal such an important factor.

pls suggest if i can file divorce now

You cannot file a divorce case within one year from the date of marriage.

However if you confirm that he is impotent and your marriage was not consummated due to this then you can seek annulment of marriage within one year from the date of marriage.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

cant this problem be considered as "exceptional circumstances" after all m a lady and aging, its difficult to wait for 1 more year than file a petition and than search for some partner. pls guide

Law is common for all, nobody is above law or you can claim any exemption to this in any manner.

However you can file a petition seeking annulment of your marriage on this ground of his impotency and non consummation of marriage owing to his impotency.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

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