Wife claiming divorce on the false ground of impotency. My wife filed a divorce under cruelty and I am impotent, but both grounds are false. What are all the remedy I have, can I sue her for the false allegation, what are all the procedure.
Impotency of husband renders the marriage voidable. According to section 12 of the Hindu Marriage Act, this marriage is void. The wife can file a suit for nullity of marriage within one year of marriage. If she came to know the fact after one year then move a suit within one year of disclosure of impotency.
When the wife makes a false claim
The litigant must approach the court with his clean hands. When he seeks relief on false and frivolous grounds the court rejects his case with a heavy cost. Making false allegation is also an offence. She knows the real fact therefore, she has been doing the contempt of court.
In this situation, you should contest her suit and adduce the evidence about your potency. You can also demand a medical examination by a panel of doctors. The court can take expert opinion under Section 45 of the Indian Evidence Act.
Impotency is a ground for nullity of marriage under section 12 of the Hindu Marriage Act. Medical and legal impotency are two different things. However, a person is medically potent but would be impotent in respect of a particular person.
Sexual intercourse is an essential element of marriage. It is necessary for begetting a child as well as the satisfaction of sexual desire. If you are not able to have sex with your wife due to physical or psychological sickness then you are an impotent person under Section 12.
Contest the case
You must contest this case if you have evidence to prove that you have sexual competency. It is impossible to prove impotency if the husband is potent. The medical examination will give relevant and definitive evidence about your sexual ability. However, doctor’s opinion is not binding but the court will accept his opinion because medical evidence will rule out the suspicion.
Proceeding for giving a false statement
If you successfully prove that the allegations are false then you should move an application under section 340 of CrPC. Giving or creating false evidence is perjury and court can conduct a trial for that offence. However, the court can take suo-motu cognisance but you should prefer an application under section 340 crpc.