Prabhakar Jha vs Srimati Jayanti Devi @ Minu Devi

D.P. Singh, J.—The present appeal has been preferred by Prabhakar Jha, husband of respondent Jayantl Devi @ Minu Devi against the

judgment of District Judge, Deoghar by which his prayer for divorce has been refused by dismissing the matrimonial suit No. 5 of 1995 with costs.

Brief facts leading to this appeal are that the appellant got married with respondent No. 1 in May 1990 according to Hindu rites and customs.

As further stated both the parties resided in the same locality, and such they continued to live as husband and wife. According to the appellant,

during this period before filing of the matrimonial suit he could not succeed in having satisfactory marital relation with the respondent. It has been

stated specifically that due to undeveloped female organs, the appellant could not cohabit with the respondent and ultimately on 30.9.1994 the

appellant realized that due to this infirmity the appellant would not be able to perform sexual intercourse with the respondent. This lead to filing of

the matrimonial suit for divorce on the ground of suppression of this particular fact that the respondent was not able to perform her marital duties to

her husband.

The suit was contested by filing W.S. and denying the allegations. According to the respondent, the appellant used to have normal sexual

intercourse with her since May 1990. However the present suit was filed on the ground that she could not be able to produce child for the last four

years and other allegations regarding dowry etc. It is admitted fact on record that the respondent was subjected to medical examination in October

1994 and even during the pendency of the suit by the order of the District Judge, Deoghar. It is also admitted fact on record that since 1995 the

parties are living separately and all efforts for reconciliation have been negated.

The learned Court below has decided issue Nos. 3, 4 and 5 against the appellant holding therein that the respondent was not suffering from

genital defects not from incurable defects as well as no fraud and deception was practiced upon the appellant before solemnization of the marriage.

It is also held that the appellant failed to prove that respondent was impotent and incapable of having sexual relationship.

By filing the present appeal the appellant husband has challenged this finding on the ground that the medical evidence available on the records

proves beyond doubt that respondent Jayanti Devi @ Minu Devi was suffering from genital deformity. In this context my attention was drawn

towards Ext. 1 and 1/1, an ultrasound scan showing hypoplasia genitalis, the defect that the respondent has got undeveloped genitals. In this

context the learned Counsel Smt. Jaya Roy relied upon Butter-warths Medical Dictionary, Second Edition at page 720 which mentions

Genitalia:--The organ of generation in male or female generation organs.

Hypoplasia:--Defective formation or underdevelop.

Mrs. Roy further stressed that the respondent having refused to be examined by the Medical Board at Jawahar Lal Nehru Medical College,

Bhagalpur further confirmed that she was suffering from the above defects. Therefore the finding of the lower Court be set aside that she was not

suffering from physical deformity.

The learned Counsel appearing on behalf of the respondent submitted that this plea is afterthought because respondent has visited twice

Bhagalpur for her medical examination, which could not be completed because of the circumstances beyond her control. Sri Choudhary, the

learned Counsel for the respondent rather pointed out that the appellant himself has absented to be examined by the Medical Board without valid

grounds. Therefore the adverse inference needs to be drawn against the appellant. At this stage, Mrs. Rai submitted that in the admitted facts of

this case, where the parties are living separately for last 14 years, divorce should be granted.

I have gone through the evidence on lower Court records. The appellant has relied upon the evidence of A.W. 2 Dr. Ajay Kumar who has

asserted that as Sonologist on 17.10.1994 he examined Jayanti Devi @ Minu Devi referred by Dr. Sardha Singh A.W. 1. According to him, the

genital organs of Jayanti Devi @ Minu Devi suffered from hypoplasia of genitals organs vide Ext. 1 and 1/1. During cross-examination this witness

admitted that he was never posted at Deoghar but he had a clinic at Deoghar. He has further admitted that he was posted at Motihari and under

suspension from 20.10.1994 with headquarters at Gumla. It is strange that the doctor, who was posted at Motihari and put under suspension

having been fixed headquarter at Gumla, was conducting private practice at Deoghar.

I further find that marriage took place in May 1990 but the appellant could realize that his wife was suffering with complete genitals organs after

four years and six months. The trial Court has considered all these aspects and refused to accept the plea that due to genital deformity, the

appellant was entitled for divorce. The plea of late realization of the physical aspect of the wife appears to be after thought. It has also come on

record that Court decided regarding interim alimony to respondent by the appellant far back in May 1996 which is not being paid as per

submission of the counsel of the respondent. This shows the tendency of the appellant to harass the respondent.

Accordingly, I find that the present appeal has got no merit in it and deserves to be dismissed. In the result, this appeal is dismissed with costs.