In an application filed before the Allahabad High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking quashing of a summoning order dated 21-12-2024 by the Upper Civil Judge – I, Gorakhpur, in a complaint case under Section 500 of the Indian Penal Code, 1860 (IPC), a Single Judge Bench of Justice Achal Sachdev quashed the impugned order and allowed the application.
It was contended that the impugned summoning order suffered from the non-application of judicial mind since the trial court had failed to consider the impotency of opposite party 3 (husband), which was supported by the potency test report dated 27-08-2024, conducted at Medanta Hospital, Gurugram. The applicant (wife) submitted that a complaint dated 01-02-2024 was filed by opposite party 3 against her to pressurize her into withdrawing all criminal cases against him.
The husband had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955 (HMA), and the wife had filed a transfer petition before the Supreme Court, which was allowed, but the husband later withdrew the divorce petition. Aggrieved by the non-consummation of the marriage due to the husband’s inability as well as his conduct, the wife initiated criminal proceedings against him and also moved an application for the registration of a First Information Report (FIR). Thereafter, the wife filed a divorce case under Section 12(1)(a) of HMA.
The Court stated that an accusation that a person is impotent before such fact is medically confirmed is not an issue that can be raised in the public domain, and said that this was not covered under exception 1 of Section 499 of the IPC. It was stated that this did not relate to a bona fide statement made in judicial proceedings to secure legal relief. The Court held that alleging impotency without any medical evidence on the date on which such an allegation was made would amount to defamation.
It was said that such an issue could be a ground for divorce, subject to it being supported by a medical examination report and repeated non-consummation of marriage. However, the Court also stated that this could not be presumed from a single incident on the wedding night, in which the husband was unable to consummate the marriage.
Regarding whether an allegation in the complaint to the police would harm the reputation of the husband, the Court stated that a complaint to the police fell squarely within exception 8 to Section 499 of the IPC. The Court said that the person making an allegation enjoys protection under exception 8 if it was not made with malice but only as part of a genuine grievance.
The Court noted the wife’s allegation that her husband was impotent because of which he was unable to consummate the marriage, causing her great anxiety. She was also harassed by her in-laws and other relatives for the demand of additional dowry. It was stated that the marriage was arranged by concealing the husband’s medical condition and that the statement made by the wife was in good faith.
Thus, the impugned summoning order was quashed, and the present application was allowed.
Appearances:
For Applicant – Anshuman Singh, Vinay Kumar Dubey
For Opposite Party – Ashok Kumar, G.A.
