A false allegation of impotency against the husband in the written submissions, even if made as a "counter-allegation", amounts to cruelty by the wife under the Hindu Marriage Act, Delhi High Court has held.

The Court was dealing with an appeal preferred by the Appellant-wife against an order of the Family Court allowing the Respondent-husband's petition for grant of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (HMA).

While doing so, the Family Court had rejected the plea to declare the marriage void under Section 12 HMA.

Before the Family Court, in response to the Section 12 plea, the Appellant-wife had inter alia pleaded that the Respondent-husband was suffering from impotency/erectile dysfunction due to which the marriage had remained non-consummated.

The relief of divorce was sought after these allegations were made in the written statement.

Before the High Court, the Appellant-wife sought the setting aside of the divorce order. She prayed that instead, her petition of restitution of conjugal rights be heard and decided on merits.

The Appellant-wife argued that the impugned order was passed in an arbitrary manner and that she wanted to save the matrimonial alliance.

The Respondent-husband contended that the false, reckless and venomous allegations made against him in the written submissions amounted to cruelty and no self-respecting person would continue in a matrimonial alliance with such a partner.

The High Court noted that the allegation of the Appellant-wife was rejected by the Family Court on the basis of the testimony of an expert witness who upon physical examination found the Respondent-husband to be a normal male adult with no problem of impotence.

In view of the testimony, the Court held that such a false allegation of impotency, even in the written submissions, was nothing but mental cruelty within the meaning of Section 13(1)(ia) of the HMA.

"(Mental cruelty) is primarily contextual, pertaining to human behaviour or conduct with respect to matrimonial duties and obligations. It is therefore, essential to see whether the conduct of the party is of such a nature, that a reasonable person would neither tolerate the same, nor be reasonably expected to live with the other party.", the Court said.

The Court stressed upon the significance of pleadings in matrimonial proceedings and refused to accept the Appellant-wife's stand that the allegations of impotency were only in the nature of counter-allegation.

The Court remarked,

"The averments made by a party in its pleadings before a Court of law have to be given due sanctity and have to be treated with seriousness. These allegations made in the pleadings are brought in the public domain and the Court is expected to give its verdict on the basis of the allegations and the counter-allegations made by the parties. No party can be excused of recklessness in allegations made before the Court of law. The consequences of false assertions have to follow.. Even in V. Bhagat's case (supra), the Supreme Court had taken a strong view of the matter with respect to false allegations, opining that such allegations made in a formal pleading filed in the Court went far beyond the reasonable limits of the wife's defense."

The Court also referred to Section 20 HMA to state that the averments made in the pleadings would be treated as evidence and the court was empowered to act upon unfounded allegations made in pleadings.

In view of the fact that throughout the litigation, the Appellant-wife had been reinforcing the allegation of impotency, the Court opined,

"These false accusations which could not be proved are bound to cause deep hurt and anguish to the Respondent, who can reasonably apprehend that it would be perilous for him to live with the appellant. It is also abundantly clear that due to the mental pain, agony and suffering caused by the false accusations, the Respondent cannot be asked to put up with the conduct of the Appellant and to continue to live with her."

Recognizing there was irretrievable breakdown of the marriage, the Court concluded that the Family Court's order could not be faulted with.

"..we find no infirmity in the findings and observations of the trial court that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under law.", it held.

The appeal was thus dismissed.