Ashok Kumar Sharma vs Smt. Kanta alias Sham Wati

S.C. Mital, J.—Facts giving rise to this letters patent appeal are that Ashok Kumar Sharma and Kanta alias Sham Wati were married on 20th June, 1973 The former on 3rd June 1974, instituted petition for annulment of marriage on the ground that Kanta was not only was idiot but also sexually impotent. The petition was contested by Kanta Initially, the parties went on trial on the following issue: --

Whether the petitioner is entitled to the annulment of his marriage with the respondent by a decree of divorce for the reasons given in paragraph No. 4 of the petition?

In the course of the trial, Ravi Dutt, father of Ashok Kumar, appeared as his witness and supported the grounds of divorce. In the cross examination of Ravi Dutt, the suggestion put to him was that he had an evil eye on Kanta. An identical suggestion was put to Ashok Kumar in his cross examination. Both of them refuted the allegation. Not only that, Ashok Kumar felt that the said allegation amounted to cruelty. As such, he applied for adding the ground of cruelty for the dissolution of marriage by amending his petition. The trial Court allowed the application and framed the following additional issue:--

1-A Whether the treatment of the respondent had been cruel as alleged? If so to what effect

The trial Court decided both the issues against Ashok Kumar. His petition having been dismissed Ashok Kumar preferred an appeal, wherein the learned Single Judge affirmed the decision of the trial Court on both the issues and dismissed the appeal. Feeling aggrieved, Ashok Kumar has preferred this appeal

As reagrds issue No. 1, it is manifest that under the order of the trial Court, Kanta was medically examined by Dr Nirmal Chaudhary and she reported on 7th May, 1976, that the allegation of sexual impotency levelled against Kanta was false. Notwithstanding the concurrent finding of the trial Court and the learned Single Judge against Ashok Kumar, his learned counsel contended that the petition was filed in June 1974 whereas Kanta was medically examined in May 1976 During this period, according to the learned counsel, she as a result of some treatment, had become sexually potent In the course of arguments, the learned counsel contended that certain letters on record, but without any reference to their exhibit marks, did indicate that she got herself medically treated. All the same, the fact remains that no such material was ever placed before the learned Single Judge, in particular. Nor has it been shown to us that the nature of the treatment, allegedly written in the letters, had any bearing on sexual impotency. As such no cogent ground at all has been made out to interfere with a finding of fact in this letters patent appeal.

As regards the ground that Kanta was an idiot, the trial Court, in order to do complete justice between the parties, got her examined by Dr. Vidya Sagar, who kept her under observation from 22nd to 27th September, 1976. The doctor then expressed the following view:--

During this time, I found Kanta Rani to be intelligent young lady who was well versed in household work and was quite conversant with the responsibilities of a house-wife. She had taken a realistic attitude towards her present stressful situation. Emotionally she was well-controlled and had shown the traditional modesty of an Indian woman...I formed the opinion that she was not suffering from any mental disease.

Thus, the concurrent finding of the trial Court and the learned Single Judge is that the opinion of Dr. Vidya Sagar falsified the above-said allegation made against Kanta. Here again, learned counsel for Ashok Kumar laid emphasis on the gap between the institution of the petition and the examination on Kanta by Dr. Vidya Sagar. The evidence of Ashok Kumar and bis parents as to the abnormal behaviour of Kanta clearly shows as if she was a complete idiot or lunatic. Quite to the contrary, not a trace of any such thing was found by Dr. Vidya Sagar. Learned counsel for Ashok Kumar was unable to show how with the passage of time, such a great transformation could take place. Thus the finding of the learned Single Judge against Ashok Kumar is perfectly sound.

Coming now to the additional issue No. 1-A, as observed already, the cause of action arose in the course of the trial when suggestions were made to Rani Dutt P. W father of Ashok Kumar, and Ashok Kumar himself that false allegations of idiocy and sexual impotency had been made against Kanta because Ravi Dutt has an evil eye upon her. Whether such an allegation or suggestion can form the basis of legal cruelty, the law as laid down by my Lords S.S. Sandhawalia C.J. and S.P. Goyal J. in Paras Ram Vs. Kamlesh, is :--

Before an allegation of adultery can be deemed as legal cruelty it must first be proved as factually false. To highlight, it is a blatantly false allegation of adultery which would amount to legal cruelty, and not possibly a true allegation of that nature which cannot give any cause of action to the offending spouse. Once this is so, it would appear to be elementary that any such allegation of adultery must be put to trial and it is only when its falsity or otherwise is determined that any legal consequence can flow therefrom It would indeed be going too far to hold that a mere allegation by itself and that too made by way of a defence in legal pleadings should become legal cruelty in the eye of law and per se be the ground for divorce.

Mr. J.K. Sharma pointed out that the trial Court and the learned Single Judge decided the case before the announcement of the above-cited ruling, hence the issue was not pressed before them by the learned counsel for the parties in the right direction. In the result, the trial Court without recording a positive finding whether the allegation levelled by Kanta against Ravi Dutt was false or true, expressed the view that even if the allegation be found to be in correct, it could not be said that it amounts to cruelty on the basis of which a decree of divorce could be granted As regards the learned Single Judge, upon a consideration of the arguments raised, before him, he expressed himself as under: --

It is possible that certain overtures made by the appellant''s father towards the respondent in the spirit of fatherly affection were bonafide misconstrued by the respondent. It would therefore be wrong to hold that the imputation made by the respondent per se amount to cruelty entitling the appellant to a decree for divorce against her.

In view of the above-explained situation, we have reconsidered the whole matter Ashok Kumar and his father refuted the allegation that the latter had an evil eye upon Kanta. In the facts and circumstances of the case, urged their learned counsel, nothing further was expected of them to prove this issue. That being so, we examined the sworn testimony of Kanta (R W 5) About her veracity, it may be said at the outset that she has not been disbelieved in any respect either by the trial Court or by the learned Judge. She testified that as the petitioner''s father had an evil eye upon her false allegations of idiocy and lunacy were levelled against her. When cross-examined in this regard, her testimony is:--

On one Sunday, my father in-law when he did not go to the office, was present in the house He started talking filthily towards me I refused to submit to him and said that I was not such a girl. My father in-law did not say anything particular My father in law first tried to remove my veil but I refused to do so My father in-law sat for some time and then said that if I was not willing then he would go and would not insist I told this fact to my husband but he told me not to tell it to anybody. I told him that I would tell it to my brother However, when my brother went to meet me in Dera Bassi, my father-in law himself told that he wanted to insult me.

A bare perusal of the above quoted testimony leaves no room for doubt that it has a ring of truth. The argument to the contrary that she failed to make the allegation in her written statement is of no consequence. It deserves mention that in the first instance, she was depicted by Ashok Kumar and Ravi Dutt, by giving numerous instances, that she was not only idiot or lunatic but also sexually impotent and a woman like a eunuch As a result, in the scathing cross-examination to which she was subjected, the following was sought to be elicited:--

I cannot tell upto what length the male organ of my husband went inside my vagina because my husband''s uncle is standing. It is worng to suggest that only 2 inches in length petitioner''s male organ entered me. In fact it entered upto the length of 5 or 7 inches. I used to enjoy cohabitation.

It was under such strained circumstances that she was constrained to divulge in the course of the trial that her father-in-law (Ravi Dutt) has an evil eye upon her. As such, it cannot be held that she levelled a false charge against Ravi Dutt. Ashok Kumar, petitioner-appellant having failed to prove the falsity thereof, the question whether it amounted to legal cruelty need not be gone into. Issue No. 1A is accordingly decided aginst Ashok Kumar.

For the foregoing reasons, the appeal fails and the same is hereby dismissed with costs.

S.S. Sandhawalia, C.J.

I agree.