Ashok Kumar Sharma vs Smt. Kanta alias Sham Wati

J.M. Tandon, J.—Ashok Kumar Sharma Appellant and Kanta alias Sham Wati(sic) Respondent were married on June 2(sic), 1973. On June 3, 1974, the Appellant filed a petition for annulment of his marriage on the ground that the Respondent was an idiot and sexually impotent. After the evidence of the parties had been concluded, the Appellant applied for amendment of the plaint seeking diverce(sic) on the additional ground of cruelty an the part of the Respondent because she had stated that the father of the Appellant had at evil eye on her.

The Respondent in her written statement denied(sic) that she was sexually impotent or the marriage had not been consummated or she was an idiot-

On the pleadings of the parties the following issues were framed. -

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 (sic) 4 of the petition ?

1A Whether the treatment of the Respondent had been cruel as alleged ? if so ? to what effect ?

The learned trial Court found both the issue against the Appellant and dismissed his petition. It is against this order that the present appeal is directed.

The Appellant, in support of his case, appeared as a witness and stated that after their marriage he could not have proper intercourse with the Respondent. The penetration could not take place more than two or three inches. He told about it to his parents and his sister in law. The Respondent did not respond to the intercourse as she had no feeling and remained lying like a log of woods she had no breast. She did not manstruate for 3/4 months she stayed with him. On his enquiry, she told him that she did not know about the menses. Many times when he returned at night after seeing Ramlila, the Respondent would wake him up and ask him to take meals. Sometimes during the night she would get up and started singing. She moved about on the roof of the house in half-naked condition at noon time. Once he asked her to make tea for one or two friends, but she prepared a large quantity. She did not wash her hands many times, on return from the laterine. On sometime, she mixed the pot used. In the laterine with kitchen utensils. She laughed like a mad woman when her mistakes were pointed out to her. On one or two occassions she woke him up by holding his neck. She also bit him. PW-Ravi Dutt is the father of the Appellant and Lila Wati is his mother. They both stated about the abnormal behaviour of the Respondent as also about her sexual impotency as told to them by the Appellant PW Smt. Nirmal(sic) Goel is a private Nurse at Dera Bassi. She stated that she examined the res-pondent and found her uterus very narrow. She concluded that it was difficult that she would give birth to a child. She was not fit for sexual intercourse.P Ws Kashmiri Lal and Sunehri Lal are residents of Dera Bassi they stated that they saw the Respondent on the roof of the Kotho twice or thrice at noon time.

Apart from other evidence produced by the Respondent, she herself appeared as a witness. She stated that she had regular menses and after her marriage with the Appellant, the latter had sexual intercourse with her. She denied that she used to stand on the roof of the house in a semi-naked condition or did other alleged abnormal acts. No doctor examined her during the period she lived with the Appellant. After this petition had been filed by the Appellant she got herself medically examined by a private doctor at Shahbad and then under the orders of the Court by Dr. Mrs. Nirmal Chaudhry, Civil Hospital, Karnal and also at Rohtak. In her cross examination, she denied that the Appellant could not cohabi(sic) with her completely

Under the orders of the Court, the Respondent was got medically examined by Or Mrs. Nrimal Chaudhry (R.W.) on May 7, 1976, she stated as under:-

I found that her sex characters were well developed Secondary sex characters were normal. Breasts were normal. Her veginal examination revealed that vagina admitted two fingers. Hymen was ruptured. Uterus was of normal siz. It was retroverted and retroflexed. She was menstruating at that time. Bleeding was present. Fornices were clear. Perspeulum examination showed that servix was healthy and normal in my opinion, Kanta Devi, a woman fit for intercourse.

The statement of the Respondent coupled with the report of Dr. Mrs. Nirmal Chaudhary who medically examined her under the orders of the Court on May 7, 197(sic), falsifies the allegation made by the Appellant regarding her sexual impotency If the statement of the Appellant is to be believed then the Respondent is more or less an eunuch. The learned Counsel for the Appellant has argued that the statement of the Appellant proves that the Respondent was not a woman when she lived with him and may be she got herself medically treated and became a normal women by the time she was medically examined by Dr Mrs Nirmal Chaudhary on May 7, 1976. For this purpose reliance has been placed on some latter written by the Respondent to the Appellant regarding her treatment. I sec no force in this contention. The letters now ere(sic) prove that the Respondent bad got herself treated for being converted into a woman. The statement of Dr. Mrs. Nirmal Chaudhary is also not suggestive that the Respondent was sunuch(sic) at one time as alleged by the Appellant Her statement proves that the Respondent had been subjected to intercourse and obviously by the Appellant. The learned trial judge has rightly concluded that the Appellant has failed to prove sexual impotency on the part of the Respondent

According to the Appellant, the Respondent is an idiot or insane. He has produced two independent witnesses. P W Kashmiri Lal and PW Sunehri Lal who have stated that they and seen the Respondent standing on the roof of the house in the sun 2/3 times. The fact that the Respondent stood on the roof of the house during noon time for sometimes on two or three occassions is hardly sufficient to infer that she is an idiot or insane. About the other abnormal behaviour, reliance has been placed on the statement of the Appellant his father P W Ravi Dutt and his mother P.W Lila Wati(sic). The Appellant and his parents are highly interested persons. Their statement Per se cannot be relied upon unless corroborated by some other independent evidence which if lacking I is interesting that Dr vidya Sagar, Professor of Mental Diseases Medical College Kohtak,(sic) examined the Respondent under the orders of the Court, He kept her under observation from September 22 to 27, 1976, and opined as under:

During the tine(sic) I found Kanta Rani to be intelligent young lady who was well versed in household work and was quite conversing with the responsibilities of a house wife. She had taken a realistic attitude towards her present stressful situation Emotionally she was well-controlled and bad shown the traditional modesty of an Indian woman 1 formed the opinion that she was not suffering from any mentai(sic) disease

The opinion of Dr Vidya Sagar tends to falsify the allegation made by the Appellant and his parents regarding the abnormal behaviour of the Respondent. The learned Counsel for the Appellant has argued that may be the Respondent was normal when she was examined by Dr. Vidya Sagar and it would not prove that the was normal in 1973 when she lived with the Appellant and his family. This contention is devoid of any force. In the light of the opinion of Dr. vidya Sagar which he formed after keeping the Respondent under observation for six days, the learned trial Judge has rightly discarded the statements of the Appellant and his parents holding that it is not proved that the Respondent is an idiot or insane.(sic)

This brings us to the additional ground of cruelty on which the Appellant has sought divorce. The petition was filed on June 3, 1974, and the Respondent submitted her written statement on November 14, 197(sic) counter allegation was made by her in the written statement. PW Ravi Dutt, father of the Appellant, appeared as a witness on October 1, 195(sic). He levelled allegations against the Respondent which have been discussed above. In the end of his cross-examination, he denied the suggestion given to him that he had an evil eye on the Respondent and such a suggestion was again given to the Appellant in his cross-examination which be also denied. The Respondent in her own statement stated that false allegations had been levelled against her because her father in-law had an evil eye on her. The learned Counsel for the Appellant has argued that the imputation made by the Respondent against the Appellant''s father amounts to cruelty on her part entitling the Appellant to a decree for divorce. On this point, the finding of the learned trial Judge is that it may not be said with certaninty as to which party is telling the truth. Even if the allegation levelled by the Respondent her father-in-law is incorrect, it cannot be said that it amounts to cruelty on the basis of which a decree for divorce can be granted to the husband The view taken by the learned trial Judge appears to be wholesome and correct. The petition filed by the Appellant is silent about any such allegation made by the Respondent. She did not make a counter allegation to that effect even in her written statement. This suggestion was made for the first time to the father of the Appellant when he made detailed statement making allegations against her which have been found to be false. It is obvious that the impugned suggestion was made by the Respondent under colossal menlal(sic) strain It is possible that certain overtures made by the Appellant''s father towards the Respondent in the spirit of fatherly affection were bora fiac 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 the result, the appeal fails and is dismissed with no order as to costs.