Chander Mohan vs Smt. Neelam Kumari alias Urmil Kumari

Gokal Chand Mittal, J.—The parties were married way back on 11.12.1981 at Ambala City. On 22.3.1985 the husband filed a petition under S. 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for annulment of the marriage on the ground that the wife was not fit for procreation of children and he came to know abut it on her medical examination and this fact was known to the parents of the wife and they did not disclose the same before the solemnization of the marriage. Since during her stay with the husband the wife did not become pregnant and when he was of the firm belief that the wife will not be able to procreate children he stated that he had been defrauded by her parents. He also vaguely stated that the behaviour of the wife was not good and then there is mention about the threat to involve him in criminal cases. This petition was subsequently amended to a petition under Ss. 12 and 13 of the Act, i.e., for annulment of the marriage or in the alternative for dissolution of the marriage by a decree of divorce. In the amended petition, the following additional facts were stated:

(i) The attitude of the petitioner became bit repulsive with regard to sexual relations having a tension on his mind after known (sic) the fact that respondent is unable to produce a child. The respondent in order to suppress her fault, used to pick up quarrels with the family members of the petitioner as well as with the petitioner.

(ii) That the petitioner was falsely implicated by the respondent in a case under S. 498A of the IPC.

The involvement in the criminal case was stated to have caused the husband mental cruelty.

The wife contested the petition and denied the allegation that she was not able to procreate children. Her case was that, may be, there was some defect in the husband. In addition, she pleaded that her behaviour towards her husband and his family members was throughout good but they were cruel to her as they used to taunt her for bringing inadequate dowry and were pressing her time and again to bring cash for a scooter and fridge and also for the purchase of house regarding which the husband had entered into an agreement to purchase for Rs. 1,17,000/ -. When her parents could not fulfil all these demands, an attempt was made by the petitioner and his relations to put her on fire and apprehending danger to her life the wife, in three plain clothes, came to her parents'' house on 13.3.1985. When all efforts failed, a case under Ss. 498-A and 406 of the IPC was got registered against the husband and his parents.

On the contest of the parties, the following issues were framed:

Whether the respondent is unable to give birth to a child? If so, whether that fact was concealed from the petitioner before the marriage?

Whether the respondent has exercised cruelty towards the petitioner?

Whether the petitioner is not entitled to the relief prayed for by him?

3-A. Whether the articles mentioned in the Annexures A and B were given to the petitioner at the time of marriage? If so, whether the respondent is entitled to return of said articles?

Relief.

On the evidence led in the case, the learned trial Judge by a well considered judgment dated 25.4.1986 dismissed the petition. This is husband''s appeal.

After hearing the Learned Counsel for the parties and on consideration of the record, I am of the view that there is not the least scope for interference in this appeal. On the fact on the allegation made in the petition by the husband, no case for annulment of marriage or dissolution of the marriage by a decree of divorce, is made out. The marriage was performed in December, 1981. According to the husband, the parties lived. upto January, 1985 and it was in January, 1985 that he came to know that the wife could not procreate children and that he was defrauded because this fact was kept concealed from him since before the marriage and till before January, 1985. In the Hindu Marriage Act there is no provision that if the spouses have normal sex organs but children are not born, any one of them can seek divorce. It appears from the reading of the petition that the husband wanted to have children and when after three years'' cohabitation, no conception took place, he concocted the story that the wife was not able to procreate children and this fact was concealed from him. As rightly said by the trial court that before the marriage no girl or her parents can ever know that she would not be able to give birth to a child after the marriage if the material organs are normal. In this case, it is not the case in the petition nor tried to be proved during evidence that the wife was not having normal organs for this purpose. The child may not be born for various factors. It may be either due to some latent defect in the husband or the wife or may be a matter of chance that for some years there may be no conception.

To seek divorce in these circumstances a false allegation was made in the petition that in March, 1985, the wife''s parents got the husband arrested without any warrants and he was kept in illegal confinement for about 24 hours in the police station at Ambala Cantt. This plea is not supported by any reliable evidence on the record.

As regards getting a First Information Report registered under Ss. 498A and 406 of the IPC, in view of the latest judgments of the Supreme Court, the wife is well within her rights to do so if the husband does not return the dowry. It cannot be said that it will amount to mental cruelty to the husband to give a cause to him to seek divorce.

Before proceeding with the case on merits sufficient efforts were made for reconciliation. The wife was willing to live with the husband unconditionally, but the husband was not prepared to keep her at any cost. In these circumstances, it was suggested to the husband that in case he pays a reasonable amount to the wife in lieu of the amount spent by the parents of the wife at the time of marriage, the wife would be prepared to get divorce by mutual consent, but the husband was not ready for this also. This is how the reconciliation proceedings failed.

For the reasons recorded above, I endorse the findings of the trial court and dismiss the appeal with costs.