Surinder Kaur vs Karnail Singh

J.V. Gupta, J.—This is wife''s appeal against the decree of divorce passed by the Additional District Judge. Ambala dated Oct. 4, 1986.

The marriage between the parties was solemnised on May 6, 1981. The divorce petition was filed by the husband Karnail Singh on Feb.26, 1986 alleging that soon after the marriage he came to know that his wife is incapable of bearing a child as she was not having any menses. She was taken to Dr. Waryam Singh Hospital, Yamuna Nagar, for examination and treatment. Lady doctor who examined her opined that she was not capable of bearing a child. She further told that she was prepared to undertake a major surgery but there was no definite hope that the operation would necessarily make the lady capable of bearing a child. However, when the husband wanted to get the operation performed on his wife, she refused to under go the same. Thus he was frustrated and disheartened and the idea of not having a child lingering on his mind, began to tell upon his health. The wife also started giving filthy abuses to him whenever any of his relations visited him. She would bestow unbecoming insults on him. It was further alleged that the wife even refused to perform her marital obligations and used to tell him that he should take his mother or sister for operation. In short the case of the husband was that the continuous ill treatment, cessation of marital obligations and neglect of the husband by the wife unremitting abuses and quarrels made a state of married life impossible. The day by day attitude of the wife become more furious and she treated the husband with contempt. This according to the husband amounts to cruelty. Another ground taken was that he has not been allowed cohabitation for the last two years and in this way the wife has deserted him for continuous period of more than two years immediately preceding the presentation of the petition without any reasonable cause or justification.

In the written statement the wife pleaded that the husband was suffering from disease at the time of her marriage with him he was got treated by her father after spending huge amount. She further pleaded that the husband was adament to perform a major operation on her so that she may die an unnatural death. However, she pleaded that she has no objection to under go surgery but wanted that the" operation should be performed in the presence of her parents. She denied that she ever refused to perform her marital obligations. The position taken by her was that she lived with the husband up to May 11, 1986, and that on May 12, 1986, she was turned out of the house in three wearing clothes and was further threatened that she will be done to death if she dared to visit the house of her husband again. According to her allegations her husband is a greedy person and demanded scooter from her parents. She was always ready and willing to live with him and perform all the duties of a good Hindu wife. She denied the allegation of cruelty and pleaded that it was the husband who, has been cruel to her and asked her to commit suicide while turning her out of the house.

On the pleadings of the parties, the trial Court framed the following issues.

(1) Whether the Petitioner is entitled to a decree of divorce on the grounds of cruelty and desertion as alleged by the Petitioner in the petition, if so, to what effect?

(2) Relief.

On the appreciation of the entire evidence the trial Court found that as regard the ground of desertion no evidence was led on behalf of the husband. Moreover this ground was not pressed either. Consequently, it was held that the husband has failed to prove the ground of desertion taken by him. On the ground of cruelty the trial Court came to the conclusion that in the present case the wife was not having any menses at all and there are few chances of her conceiving a child. Her attitude towards her husband got stiffened and she started giving him filthy abuses and started humiliating him in the presence of his friends and relations. This according to the ld. trial Court amounts to mental cruelty on the part of the wife towards her husband. On this ground decree of divorce was granted.

Learned Counsel for the wife-Appellant submitted that the stand taken by the husband in his statement was that he was prepared to take his wife back only if after medical examination she is found fit to conceive a child or she should agree to his marrying for the second time. Thus argued the ld. Counsel that the wife was not capable of bearing a child. According to the ld. Counsel there was no medical evidence to prove this fact. In any case even if it be so, this did not provide the husband to claim divorce. Argument was also raised that there has been unnecessary delay in instituting the proceedings as this fact had come to the notice of the husband just after the marriage in the year 1981 whereas the present petition was filed after five years in the year 1986. In support of this contention reference was made to Sir Chand v. Mst. Suresho 1984 MLJ 579. On the other hand the learned Counsel for the husband Respondent submitted that it is not the sole ground for claiming divorce that the wife was not capable of bearing a child. As a matter of fact it was her conduct and violent temperament which made the life a hell for the husband. She abused him in the presence of his relations and thus this disrupted the family life. According to the learned Counsel the marriage has become irretrievable and under the circumstances divorce has been rightly granted.

I have heard the ld. Counsel for the parties and have also gone through the relevant evidence on the record. The main reason on which the divorce is sought appears to be that since the wife was not capable of bearing a child her conduct on that account had become violent towards her husband and, therefore, the whole matrimonial life had become a hell. The husband while appearing in the witness box as PW.I categorically stated in his cross-examination that "I am prepared to take the Respondent back only if after medical examination she is found fit to conceive a child or she should agree to my marrying for the second time." Even though there is no satisfactory evidence on the record to prove the allegations of the husband but even the evidence of the doctor produced by him helps the wife and keeping in view the evidence of Dr. A.N. Gupta, PW.3 who was Professor and Head of Gynaecology Department, P.G.I. Chandigarh the primary complaint with the wife was that she was suffering from "amenorrhea". Rather he further stated that without examination of the patient by him in person he was unable to make any comments and the only opinion expressed is based on the record. He has categorically stated that there was no history of coitus problem. He also stated that there are no problems in intercourse (coitus). She can have normal sexual relationship. In the presence of this medical evidence it is quite evident that there are no problems for sexual intercourse by the husband with his wife. If it is so then the mere fact that she was incapable of bearing a child does not provide the husband a ground for divorce nor there is any such provision u/s 13 of the Hindu Marriage Act. Thus the whole approach of the trial Court in this behalf was wholly wrong and misconceived.

As regards the violent conduct of the wife there is no cogent evidence on the record to prove except the bald statement of the husband. The wife has denied while appearing in the witness box the said allegation made by her husband. She has stated that she was still ready and willing to live with the husband as his legally wedded wife whereas it is the husband who is not prepared to keep her because she, was unable to bear a child.

Much has been made out by the ld. trial Court because of the report made by the wife to the police when she was turned out of the house on 12th May, 1986. The said report was made by the wife when she was turned out of the house on that day though it was denied by the husband. Except this statement there is no evidence of the report or the allegations made therein. Rather it appears that the divorce petition was filed on 26th February, 1986 when the wife was still living with her husband. When she was served in the divorce petition the husband wanted that she should not contest but when she persisted she was turned out of the house on which she had to lodge the report with the police that she was given beating. In these circumstances it could not be said that the wife lodged a false report against her husband. It is no more disputed that no action was taken by the police against the husband on the report said to have been made by the wife. Thus from the facts and circumstances of the case it has been wrongly held that the conduct of the wife amounted to cruelty as contemplated u/s 13 of the Hindu Marriage Act. Rather it is the conduct of the husband which forced the wife to leave the matrimonial home because she was unable to bear any child.

There has also been unnecessary delay in initiating the present proceedings. According to the husband he came to know of the trouble with his wife that she was not having any menses immediately after the marriage. Rather according to his allegations he was deceived as this fact was not disclosed to him before the marriage was solemnised. If that was so then immediately after the marriage the petition should have been filed whereas the present petition was filed after more than five years. During this period they have been living together as husband and wife. On this account also the divorce petition was liable to be dismissed.

Consequently, this appeal succeeds, the decree of divorce granted by the trial Court is set aside and the petition filed u/s 13 of the Hindu Marriage Act is dismissed with no order as to costs.