Punjab-Haryana High Court
Surinder Singh vs Nirmaljit Kaur on 1 November, 1999
Equivalent citations: AIR2000P&H139, (2000)124PLR715, AIR 2000 PUNJAB AND HARYANA 139, (2000) 1 MARRILJ 596, (2000) 124 PUN LR 715, (2000) 2 RECCIVR 135
JUDGMENT V.K. Bali, J.
1. While dealing with Civil Misc. No. 10435 CII of 1999 on October 25, 1999, the main case as such was ordered to be listed for hearing on October 27, 1999. Misc. application was ordered to be heard with the main case. On the adjourned date, however, Counsel for the parties were not available. The matter was adjourned for today. After hearing the learned Counsel representing the parties, by a short order of the even date, the appeal was dismissed. Reasons follow now.
2. Before I, however, might proceed to give reasons for dismissing the appeal in hand, it required to be mentioned here that there are other Misc. applications as well but the learned Counsel representing the parties have not addressed any arguments and have not invited any decision on the said applications during the course of arguments.
3. Nirmaljit Kaur was married to the appellant Surinder Singh on 6-11-1994 at Bathinda. Only after about seven months of her marriage, she filed a petition under Section 12(a)(i) of the Hindu Marriage Act, 1955 seeking a decree of nullity of marriage on account of impotency of the appellant husband Surinder Singh and on some other grounds. Inasmuch as, she succeeded before the trial Judge in getting the desired relief on the ground of impotency, there is no need at all to give details of other pleadings made in the petition or for that matter even the pleadings made in the written statement. While projecting her cause, she pleaded that soon after marriage, she joined her husband and remained in his company. Some close relations also arranged separate room for the purpose of cohabitation but husband was pretending to be suffering from some disease and stated that he was taking medicines and was advised by the doctor not to cohabit with her. She believed his version as he assured that he would be in a position to cohabit after some days. She, however, started feeling unpleasant atmosphere in the house but keeping in view the honour of her parents and in order to avoid shock to them, she kept silent. Only ten days after the marriage, her husband left her in her parents house with the instruction not to disclose the fact regarding non-cohabitation and further informing her that he would be going to Delhi for better treatment. In the month of January, 1995, she was present at village Mehraj in Bathinda district and while sitting in company of her colleague Raj Rani, who is a Hindi teacher in the school, she broke down. She was, however, consoled by Raj Rani who persuaded her to repose confidence in her. She then narrated her trouble and disclosed to her that her husband was not cohabiting with her despite separate accommodation and it appeared that he was not able to consummate marriage. Raj Rani suggested to her that the matter was serious and that steps must be taken to inform the elders. It was in these circumstances that the matter was brought to the notice of the elders. Petitioner's father and his friend Bhupinder Singh then met the husband of the petitioner. They were assured that the husband of the petitioner would be examined and if required would be given medical treatment. The father of the respondent-wife, however, made a complaint that a fraud has been committed with her daughter and the parents of the husband knew well before time that the husband was impotent and was unable to consummate marriage and yet this fact was not disclosed. On 6-5-1995 when husband in the company of Iqbal Singh, Malkiat Singh Raj Rani met Harpal Kaur sister of the husband that husband was confronted with the situation and he had to admit that he is physically unfit due to the disease, frustration and was unable to consummate the marriage as also unable to cohabit with the wife. It is on these broad pleadings that the petition was filed. The appellant-respondent in the written statement denied that he was impotent. It was, however, admitted that he was operated for brain tumour in the year 1976 but after operation he was completely fit and was working as a teacher in a government school: The petition in hand was filed just to harass him by levelling false allegations and quite to the contrary, it is the wife who wanted to live separately and further wanted that some agricultural land be transferred in her name. She left her husband without any reasonable cause. On the pleadings of the parties, the learned trial Judge framed the following issues :--
i) Whether the marriage between the parties has not been consummated on account of impotency of the respondent ? OPP.
i-A) Whether the respondent represented his age as 22 years before marriage whereas actually he was aged 35 years and thus committed fraud on the petitioner. ? OPP
ii) Relief.
4. Respondent-wife endeavoured to fortify allegation of impotency made against her husband by dint of her own statement as also statements made by Dr. Harminder Singh AW-1, Dr. Nirmal Kumar Sihgal AW-3 and Smt. Raj Rani AW-4. The appellant-husband led no evidence in rebuttal whatsoever. Relying upon two judgments in AmarendraChaudharyv.NaliniChaudhary, 1975 Rajdhani L.R. 63 and Rita Nijhawan v. Balkishan Nijhawan AIR 1973 Delhi 200 dealing with the non-consummation and impotency as also oral evidence led in the case, the learned trial Judge by a detailed judgment returned findings, on issues referred to above in favour of respondent-wife and allowed the petition. Marriage between the parties was annulled under Section 12 of the Hindu Marriage Act on the ground of impotency. Parties were, however, left to bear their own costs. It is against these findings recorded by the learned District Judge, Bathinda, that the present appeal has been filed.
5. Before this Court may evaluate the contention raised by Mr. J. S. Chahal, learned Counsel representing the appellant, some salient features of the case on which there is absolutely no dispute need a necessary mention.
6. As mentioned above, marriage between the parties was solemnised on 6-11-1994 and the petition under Section 12(a)(i) of Hindu Marriage Act, 1955 was filed on 18-5- 1995 i.e. within about six months of the marriage. It has been so pleaded and also asserted by the respondent-wife when she appeared as her own witness that she left the matrimonial home only after 9-10 days of the marriage. The petitioner is M. Sc. M. Ed. and posted in a senior secondary as a teacher. A Medical Board was constituted by the Civil Surgeon, Patiala, under the orders of the trial Judge. The appellant-husband was examined by the said Board. Dr. Harminder Singh, one of the doctors constituting the Board, stepped in the witness box and deposed that husband had given his history that he was operated for a brain tumour. On clinical examination, Board of doctors observed that husband had scanty secondary sex character like the beard was scanty, chest's hair were scanty, his testicles were of pea size. His penis was, of course, normal but his speech was dysarthric i.e. unclear. From the case history it was found by the Board of the doctors that husband had been operated for a pituitary tumour at All India Institute of Medical Sciences. New Delhi. In the opinion of the doctor, pituitary gland controls hormone producing organs of body including testicles assuages which produces sex hormone. The doctor further deposed that the examination revealed that the testicles had not developed to the normal size and this could be the result of pituitary tumour. This report was proved by this witness as Ex. PA. The report has been signed by all the doctors constituting the Board. It may, however, be observed at this stage that the witness could not definitely opine whether the medical condition of the patient had led to impotency but he, however, stated that on account of low hormone, it is possible that the patient may be sterilized and sterility may also be on account of small testicles. Another doctor, Dr. Nirmal Kumar Singla was also examined as AW-3. Relevant portion of his statement as has also been reproduced by the trial Judge reads thus :--
"All the vital functions of the body are controlled by pituitary glands situated in the brain. Whenever a brain tumour is removed and the said gland is also appeared removed all the vital functions of the body are affected. This seems to have been the case with Surinder Singh. The testicles and the production of testosterone hormones are directly influenced by the pituitary glands and when the tests are not developed as in the case of Surinder Pal Singh because he is having pea size testicles. When the said hormone is not produced, the person cannot have erection and suffers from impotency. Since Surinder Singh was operated in 1976 and he did not have any improvement in his condition till my examination, it is not likely that his medical condition can ever improve."
7. During the course of trial, the appellant moved an application for examination of the petitioner. This application was allowed and the respondent-wife was examined by a reputed doctor of Bathinda Dr. J. Singh. She appeared before Dr. Sidhu in the presence of Counsel representing the respondent in the trial Court. After examination, wife was declared as virgin by the doctor. It is significant to note that the Counsel representing the appellant made a statement before the trial Judge that he did not want to examine Dr. J. Sidhu. It is further significant to mention that the appellant led no evidence in rebuttal and so much so he did not appear as his own witness to deny the allegation made against him by his wife.
8. Having noticed the salient features of this case, time is now ripe to evaluate the contentions raised by Mr. Chahal, learned Counsel representing the appellant. It has been strenuously argued that the respondent-wife having filed a petition under Section 12(a)(i) of the Hindu Marriage Act had to succeed on the strength of her evidence and in case the evidence led by her is such that a finding that the appellant is impotent cannot be returned, petition must fail irrespective of the fact whether any evidence was led by the appellant in rebuttal or not. Neither the report Ex. PA which was proved by Dr. Harminder Singh nor the statement made by him in the Court and not for that matter even the statement made by AW-3 namely Dr. Nirmal Kumar Singla would clinch the issue in such a way that a finding may be possible that the appellant is impotent, contends the learned Counsel. I have given my anxious thoughts to the contentions of the learned Counsel but I am of the view that in the facts and circumstances of this case, there is no merit whatsoever in either of the contentions of the learned Counsel noted above. In a civil matter issues are determined on the basis of preponderance of evidence and onus to discharge an issue keeps on shifting throughout the trial. Keeping this principle in view, it may first be seen as to whether there was any reason whatsoever with the wife to make such a serious allegation as impotency of her husband if the same was not correct. As mentioned above, the marriage went on rocks within a few days of marriage. There had to be reason for the same. No one could take such a step that may bring relationship to an end and that too within a short span, if there may not be cogent reasons for the same. One reason as is available before the Court has been given by the wife. The husband also pleaded a cause for matrimonial discord but had no courage to substantiate it by appearing as his own witness least examining anybody else to support his contention. There is, thus, only one reason for the appellant to part company from the husband before the Court and there is no reason to disbelieve the same. The petitioner did not only examine herself in support of the allegations made against her husband but examined AW-4 Raj Rani who corroborated the statement made by her. Naturally, in so far as Raj Rani is concerned, she could not give any direct evidence of the allegations made by the wife against her husband. However, it is quite well made out from the reading of the statement of the wife and AW-4 Raj Rani that impotency of the husband was discussed between the two immediately after the marriage. Raj Rani was posted at the same place where the wife was posted and was her colleague. Events having been disclosed to Raj Rani immediately after marriage are, thus, in any case, relevant. Further, a medical Board was constituted by Civil Surgeon, Patiala, under the orders of the Court with the report already discussed above. No doubt, the witness who appeared to prove the report aforesaid could not definitely say whether the medical condition of the appellant was such that led to impotency but the examination of the husband with various features mentioned above do corroborate the testimony of the respondent-wife. AW-3 Dr. Nirmal Kumar Singla further strengthens the plea of the respondent-wife. The statement of Dr. Nirmal Kumar Singla is quite akin to report given by the Board of Doctors which was proved by Dr. Harminder Singh AW-1. The matter does not rest there, inasmuch as, on a request made by none other than the appellant, respondent-wife was examined by Dr. J. Sidhu who declared her to be virgin. This Court is of the firm view that the respondent-wife had led sufficient evidence in proof of the plea that the appellant was impotent. In any case, the onus to prove the vital issue had been discharged by the respondent-wife. The onus to prove otherwise shifted to the appellant and, as mentioned above, he led no evidence. Further, an inference has to be drawn against the appellant for his non-appearance in the witness box. It is quite apparent that he did not have the courage to face the cross-examination that might have been adverted to him on the question of impotency.
9. There is no scope for interference in the well reasoned order passed by the learned District Judge Bathinda. The question of impotency of the appellant has been examined from all angles and a correct conclusion has been arrived at.
10. Before I may part with this order, Civil Misc. No. 10435-CII of 1999 also needs to be disposed of. The prayer in this application filed by the appellant is that the wife be directed to appear before a Board of Doctors of post Graduate Institute of Medical Education and Research, Chandigarh which in turn may give an opinion as to whether she virgin or not. This application in considered view of this Court needs summary rejection. As mentioned above, such an application was given before the trial Judge with result already indicated above. Appellant-husband made a statement before the trial Court that he was not to examine the doctor who examined his wife and who had, in turn, given her opinion that she was virgin. No doubt, on the opinion given by her, was expressed at that stage. In the present application as well, nothing at all doubting the declaration given by Dr. J. Sidhu has been mentioned. All that has been stated is that wife resisted the vaginal examination with the result that definite opinion could not be given. Nothing like that was even remotely mentioned before the trial Judge while making a statement that Dr. J. Sidhu was not to be examined by the appellant in the trial Court. That apart, if the respondent-wife has been able to prove that the appellant is impotent, her being a virgin or not and that too at this stage is wholly immaterial. The application in hand is, thus, rejected.
11. In view of the discussion made above, this appeal fails and is accordingly dismissed, leaving., however, the parties to bear their own costs.