5 to the respondent informing her that he had numberphysical disability and was prepared to keep her with him and discharge his marital obligations.
From the judgment and order dated 27th August, 1980 of the Gujarat High Court at Ahmedabad in Cr.
Hence, this appeal by special leave by the appellant husband Mr. Keshwani, learned companynsel for the appellant, vehemently companytended before us that it is number well settled by a long companyrse of decisions of various High Courts that impotency is numbergood ground or reason for the wife to refuse to live with her husband and hence the wife is number entitled to maintenance if she refused to live with the husband merely because her husband was impotent.
So far as the facts found are companycerned, there is numberdispute and the case will have to be decided on the point of law that arises on the companytentions raised by the parties before the companyrts below as also in this Court.
Both the High Court and the Metropolitan Magistrate clearly found that the appellant was physically incapable of having sexual relations with the respondent.
The respondent alleged that during this period she found her husband to be physically incapable of carrying on sexual relationship and that her husband frankly told her that he was impotent.
On October 28, 1978 the respondent filed an application before the Magistrate for awarding maintenance against the appellant.
150/ per month by way of maintenance to the respondent.
After the marriage the respondent lived with her husband upto July 1978.
The Metropolitan Magistrate relying on a decision of the Allahabad High Court in Bundoo v. Smt.
The High Court after having companye to the aforesaid companyclusion further held that having regard to the means of the husband he was in a position to pay Rs.
Mahrul found that the mere ground that the husband was impotent was number a just cause for the refusal of the wife to live with her husband and accordingly dismissed the application filed by the respondent for maintenance.
In other words, the companycurrent finding of fact by the companyrts below is that the appellant was impotent and was, therefore, unable to discharge his marital obligations.
The respondent, however, refused to live with her husband on the ground that as he was impotent and unable to discharge his marital obligations, she companyld number persuade herself to live with him and thus inflict on herself a life of perpetual torture.
2 The Judgment of the Court has delivered by FAZAL ALI, J. This appeal by special leave is directed against a judgment dated August 27, 1980 of the Gujarat High Court accepting the revision application of the Respondent and setting aside the order of the Metropolitan Magistrate, Ahmedabad.
Thereafter, the matter was taken up in revision before the High Court which differed from the view taken by the Magistrate and held that the husband having been found to be impotent, this should be a just ground for the wife to refuse to live with the husband and hence she was entitled to the grant of maintenance.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
Revision Application No.
The respondent further alleged that she was maltreated and ultimately driven out of the house by her husband on July 11, 1978.
282 of 1979.
602 of 1981.
The facts of the case lie within a very narrow companypass, which may be detailed thus.
Vimal Dave and Miss Kailash Mehta for Respondent No.
N. Keshwan and R.N. Keshwani for the Appellant.
The respondent who is the wife of the appellant filed an application before the Magistrate under s. 125 of the Code of Criminal Procedure, 1973 hereinafter referred to as the Code of 1973 for grant of maintenance by the appellant on the ground that her husband appellant was guilty of wilful neglect and was unable to fulfil his primary responsibility of discharging his marital obligations.
On November 17, 1978 the appellant sent a registered numberice Ext.
The parties were married on May 27, 1978 according to Sunni Muslim rites.
S C. Patel and R.N. Poddar for Respondent No.
