Smt. Pooja vs Vijay Kumar

This second appeal has been directed against the judgment and order dated 15.2.2016 passed by the learned District Judge, Almora in Civil Appeal No. 39/2015. A matrimonial divorce petition no. 30/2014 was instituted on 2.4.2014 by husband Vijay Kumar against his wife Smt. Pooja Arya seeking dissolution of the marriage under Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955.

It is pertinent to mention that both the spouses are the residents of the same place Indira Basti, Ranikhet, District Almora. They tied their nuptial knot on 14.7.2009. So, it can be inferred that wife could have arrived to her matrimonial home not earlier than the morning of 15.7.2009. When in the coming night, the husband attempted to consummate the marriage, she denied on the ground of undergoing the menstrual cycle and this denial went on as such up to the night of 18.7.2009. On 19.7.2009, Smt. Pooja came to her parents'' house for some worship and lived their up to 23.7.2009. Nothing has been indicated in the averments of the husband that he further tried for cohabitation in the intervening night of 23/24.7.2009. So, that night also could not be of any avail

for marriage consummation. On 24.7.2009, both spouses came to Nainital for the purpose of honeymoon and stayed in a local city hotel, but nothing has been explicitly explained regarding the establishment of spousal relations in the intervening night of 24/25.7.2009.

It was pleaded by the husband that in the evening of 25th July 2009, he found that Smt. Pooja eloped suddenly. He inquired from some local persons at Tallital, where he gathered the information that Smt. Pooja left with some young man for Haldwani. So, apprehending some foul play on the part of Smt. Pooja, he also followed her to Haldwani, where at bus stand he found her sitting alone in a bus. By that time, it was late evening, but somehow they both returned to Nainital. Parents of both were informed, who also arrived in the intervening night of 25/26.7.2009. So, mutual settlement or the talks to mitigate the bitterness inter se continued for the whole night, but in this way the marriage could not be consummated in that night too. They checked out the hotel in the morning of 26th July 2009, and it appears that then Smt. Pooja left along with her own family and did not live in the house of her husband in the intervening night of 26/27.7.2009.

Since there had been quite bitterness between the two and their respective families, so on 27.7.2009, application for mutual divorce was moved in the Court. They did not dispute that both were residing separately. But unfortunately, mutual divorce petition was rejected by the Court on 7.9.2012, whereagainst First Appeal was filed, which was permitted to be dismissed as withdrawn with liberty to file proper divorce suit in the competent Court. In pursuance of that liberty, this matrimonial petition was launched by the husband, which was decreed by the learned Civil Judge (Junior Division) on 3.9.2015, whereagainst First Appeal has also failed. Hence, feeling dissatisfied, the wife has come up before this Court in this Second Appeal.

Following substantial questions of law were framed:

(i) Whether a judicial officer could derive the expertise like a bio-technocrat to record this finding?

(ii) Whether an issue under Section 13(1) and Section (i-b) decided against the husband could result into decreeing of a suit under Section 13 (i-a)?

I have heard the rival contentions of the parties and perused the papers on record. I feel that the learned District Judge has manifested his observations with miniscule details about the women menstrual cycle as well as the keenness of the spouse, and predominantly the husband, to enter into cohabitation just after the marriage. He has expressed the view that in the intensity of such keenness, sometimes even the restraint of menstrual cycle is ignored.

I think that although a judge or a lawyer is supposed to have some knowledge about everything, but in such type of personal matters, where the keenness/intensity to establish the physical relations or the menstrual cycle vary from person to person, all the same just after the marriage, a judicial officer could not be expected to derive an expertise like a bio-technocrat to record the finding, in question. I answer the first substantial question of law accordingly.

Further the longevity of the menstrual cycle may also vary from circumstances to circumstances in a particular lady and it may also have its dependence upon many other factors including the social or surrounding

atmosphere. So, the longevity of the menstrual cycle in the present case (as the case of the lady was) from 15.7.2009 to 18.7.2009 (in all, four days) may not be totally impossible. Rather, in the normal circumstances, it is quite a natural period.

Thereafter it was only the night of 23/24.7.2009. However, the husband has not pleaded that any attempt was ever made on his part in this regard. When they came to Naintial for honeymoon on 24.7.2009 in the intervening night of 24/25.7.2009, nothing has been specifically averred as to why the relations between the two could not be established then. As is evident, thereafter no suitable occasion arrived for the purpose because the relations had been bitter enough and Smt. Pooja Arya had left for her native home. However, it may be said that ever since the solemnization of the marriage on 14.7.2009 when the couple spent the intervening night of 23/24.7.2009 in the house of husband, then disregard of the initiation on the part of the husband, Smt. Pooja could have made attempt on her own to court her husband for the purpose and thereafter she would have grasped the opportunity in the intervening night of 24/25.7.2009 in the hotel at Nainital. It is just possible that on account of her shyness, there might not have any attempt on her part and thereafter their relations became so estranged and quarrelsome that it was not possible.

It was urged by the learned Counsel of the respondent that 8 years since the marriage have elapsed. Husband is an army soldier. He is no more inclined to continue this marriage any further. On the other hand, the Court also feels that there was some reluctance on the part of Smt. Pooja as well to consummate the marriage happily with her husband. So, it may tantamount to some cruelty on her part too. Although she had not deserted her husband, that is why his averments in the petition under Section 13(1) (i-b) have not been accepted by both the Courts below, but the Courts duo have accepted the petition under Section 13(1) (i-a) of the Act. I have also not been persuaded to take a different view in this regard. At the same time, I feel that the Courts below should have exercised the power under Section 25 of the Act for granting the permanent alimony and maintenance. I answer the second substantial question of law accordingly.

Consequently, I do not find any force in this appeal. It is hereby dismissed. However, permanent alimony of rupees four lakhs is granted to the appellant Smt. Pooja Arya and the same shall be payable by the husband Vijay Kumar within three months. I think this amount is justified as the marriage could not be consummated and thus the virginity of Smt. Pooja Arya remained intact. No sooner did the payment of permanent alimony is made/deposited in the Court below by way of account payee draft, the decree of divorce shall come into effect. Impugned decree is modified to the above extent only.

Let the LCR be sent back.