Gujarat High Court
Gajendrasinh Hemtuji Chavda vs Peenakunver W/O Gajendrasinh Hemtuji on 16 January, 2015
Bench: Akil Kureshi, Vipul M. Pancholi
C/FA/876/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 876 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
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GAJENDRASINH HEMTUJI CHAVDA....Appellant(s)
Versus
PEENAKUNVER W/O GAJENDRASINH HEMTUJI....Defendant(s)
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Appearance:
MR MP SHAH, ADVOCATE for the Appellant(s) No. 1
MS. KRUTI M SHAH, ADVOCATE for the Appellant(s) No. 1
(MR SURESHM SHAH), ADVOCATE for the Defendant(s) No. 1
MR LALIT K BABULKAR, ADVOCATE for the Defendant(s) No. 1
MR MEHUL S SHAH, ADVOCATE for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 16/01/2015
Page 1 of 11
C/FA/876/2010 CAV JUDGMENT
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This appeal is filed against the judgment and order dated 15.09.2009 passed by the learned Judge, Family Court No.3, Ahmedabad in Family Suit No.1051 of 2000 by which the petition filed by the petitioner - husband for obtaining a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act has been dismissed.
2. Brief facts are as under:
2.1. The present appellant - original petitioner - husband filed Family Suit No.1051 of 2000 before the Family Court, Ahmedabad under Section 13(1)(ib) of the Hindu Marriage Act for decree of divorce.
Initially, in the said petition, the petitioner stated that marriage of the petitioner was solemnized on 08.05.1997 with the respondent. It was further stated that after the marriage they started their marriage life at Ahmedabad. However, after a period of one month, the respondent wife informed the petitioner that she did not have any interest in enjoying marriagelife. Thus, she did not perform her marital duties as a wife. She was avoiding to enjoy the marriage life under one pretext or the other. It was alleged that on 15.12.1997, the respondent - wife left the matrimonial home and thereby she had deserted the petitioner. Hence, the aforesaid petition came to be filed by the petitioner husband on 08.02.2000 inter alia praying for a decree of divorce under Section Page 2 of 11 C/FA/876/2010 CAV JUDGMENT 13(1)(ib) of the Hindu Marriage Act.
2.2. The petitioner filed an application Exh.37 for the amendment of the petition/plaint. The Family Court allowed the said application by an order dated 01.10.2007, which was challenged by the respondent - wife before this Court. This Court, vide order dated 21.01.2008 passed in Special Civil Application No.26988 of 2007, dismissed the said petition and therefore the plaint was amended. It is alleged in the amended plaint that the engagement of the petitioner had taken place with the respondent before one year of the date of the marriage. However, before the marriage or even after the marriage also, the respondent or her parents did not inform the petitioner that the respondent was not having uterus. It is alleged that before the marriage the respondent and her parents ought to have informed the petitioner about the said problem of the respondent. Thus, the fact that the respondent was not able to conceive was suppressed by the respondent and her parents. It was further alleged that after the marriage, the respondent was avoiding to enjoy the marriage life and therefore she was taken to a Doctor. The said Doctor examined the respondent and opined that respondent was not having uterus. When the petitioner came to know about the said aspect, he was shocked. Thus, the respondent has given mental torture to the petitioner. The prayer clause was also amended and thereby it was prayed that a decree of divorce be issued in favour of the petitioner Page 3 of 11 C/FA/876/2010 CAV JUDGMENT under Section 13(1)(ia) of the Hindu Marriage Act on the ground of cruelty.
2.3. The respondent - wife appeared before the Family Court in response to the summons issued and filed her reply at Exh.15 and denied all the allegations levelled against her by the petitioner - husband. She denied that she had left the matrimonial home. It was alleged by the respondent that she was forcibly taken to the Gynecologist with a view to prove that she is not having uterus. She denied the allegation that she does not have uterus.
2.4. The petitioner filed his rejoinder vide Exh.23 and reiterated the allegations which he had levelled in the petition. The respondent also filed reply Exh.41 in response to the application of amendment given by the petitioner.
2.5. Initially, the issues were framed vide Exh.25 on 08.09.2003. However, after granting the amendment application, the plaint was amended by the petitioner and therefore once again the issues were re framed vide Exh.74 on 05.01.2009.
2.6. The petitioner filed his affidavit at Exh.79 in lieu of his oral examinationinchief, whereas, the respondent filed her affidavit at Exh.91 in lieu of her oral examinationinchief. After considering the Page 4 of 11 C/FA/876/2010 CAV JUDGMENT documents as well as oral evidence on record, the Family Court, Ahmedabad dismissed the petition. Hence, the appellant filed this appeal.
3. Heard learned advocate Ms. Kruti M. Shah for the appellant and learned advocate Mr. Mehul S. Shah for the respondent.
4. Learned advocate Ms. Shah submitted that the Family Court has not properly considered the documentary as well as oral evidence on record. Learned counsel further submitted that initially the petition was filed by the husband under Section 13(1)(ib) of the Hindu Marriage Act for getting decree of divorce on the ground of desertion by the respondent wife from 15.12.1997. However, the plaint was amended and thereby specific averments and allegations were made in the petition with regard to cruelty meted out by the respondent wife to the husband. It was specifically stated in the amended plaint that the respondent and her parents have suppressed the fact that the respondent was not having uterus. They were aware about the said aspect before the date of the marriage. After the marriage, the respondent was avoiding to enjoy marriage life under one pretext or the other. It was also specifically stated in the amended plaint that when the wife was taken to a Doctor for medical checkup, at that time, it was revealed that she did not have uterus. On account of her inability to bear a child, there was Page 5 of 11 C/FA/876/2010 CAV JUDGMENT constant mental torture to the petitioner husband. Learned counsel further submitted that the petitioner filed his affidavit in lieu of examinationinchief at Exh.79 in which he has specifically stated that the wife was not cooperating in marriage life. She was not performing her duty as a wife. It was further stated by him in the said affidavit that the wife was not cooperating at the time of sexual intercourse. The petitioner, therefore, took her to Chandramani Hospital of Dr. Bavisi on 28.11.1998. On examination, the said Doctor informed the petitioner that the respondent did not have uterus. The Doctor called the respondent again for further investigation and reports. However, the respondent wife was avoiding under one pretext or the other and when the petitioner insisted that she should go to the Doctor for further check up, on 07.12.1998, she left the matrimonial home. Thus, the learned advocate submitted that there were specific allegations with regard to cruelty and desertion on the part of the wife. Learned counsel for the appellant submitted that the Family Court has committed an error in not appreciating the evidence on record and thereby wrongly dismissed the petition.
5. Per contra, learned advocate Mr. Mehul S. Shah appearing on behalf of the respondent - wife contended that the Family Court, Ahmedabad has not committed any error in dismissing the petition filed by the petitioner - husband. Learned counsel for the respondent relied Page 6 of 11 C/FA/876/2010 CAV JUDGMENT upon the crossexamination of the petitioner husband and the affidavit in lieu of examinationinchief submitted by the respondent vide Exh.91. Learned counsel further submitted that the petition is mainly based on the ground that the respondent wife was not having uterus and therefore the petitioner - husband could not enjoy his sexual life. However, there is no nexus of sexual enjoyment with uterus as the uterus is needed for bearing a child. Learned counsel further submitted that the learned Family Court has not committed any error in rejecting the plaint in absence of any medical evidence through which it can be suggested that the petitioner could not enjoy his sexual life in absence of uterus and the learned Family Court has rightly observed that sexual satisfaction without uterus can be judged only by the medical experts. Thus, the learned Family Court has not committed any error in rejecting the suit/plaint and this Court may not interfere with the judgment of the learned Family Court.
6. We have heard the learned counsel for both the parties. We have also perused the judgment impugned and also the Record & Proceedings available on record.
7. It appears that the present appeal is filed mainly on the ground that the appellant could not satisfactorily consummate a marriage as the respondent wife was not having uterus and thereby the appellant has Page 7 of 11 C/FA/876/2010 CAV JUDGMENT been meted out with cruelty by the respondent. The subsidiary ground is that the respondent wife deserted the appellant for a continuous period not less than two years immediately preceding the presentation of the suit/plaint and thereby he has been meted out with cruelty by the respondent.
8. Now, first of all we would like to deal with the first aspect of the matter i.e. whether the appellant could not satisfactorily consummate a marriage in absence of uterus of respondent wife and thereby the appellant has been meted out with cruelty by the respondent as provided in Section 13(1)(ia) of the Hindu Marriage Act. Though, it is true that the appellant has not examined any Doctor, who is expert and throw light on the subject, it is a matter of prudence that consummation of marriage has nothing to do with uterus and the function of uterus, which is a hollow muscular organ in the pelvic cavity of female is to contain the developing foetus. This Court, vide order dated 21.01.2008 passed in Special Civil Application No. 26987 of 2007, in para 7, observed as under:
"7. ....................At the outset, as noted earlier, the respondent had only stated that upon medical check up it was revealed that the wife does not have uterus. At no stage has he stated that this prevents him from leading satisfactory married life. Despite which, the learned Judge observed that it is necessary to know with the help of expert advice that whether due to primary amenorrhea, parties were unable to lead happy married life (i.e. that there was no sexual satisfaction). Incidentally, the learned Page 8 of 11 C/FA/876/2010 CAV JUDGMENT Judge records that amenorrhea means not having regular menstruation. I fail to understand as to how the two can be connected. Even absence of uterus cannot directly be linked to satisfaction or dissatisfaction in sexual life................."
9. Further, when the appellant raised a grievance that his wife was not having uterus before marriage and he came to know about the said aspect when they went for medical checkup after marriage, the onus to prove this fact is on the appellant. As observed by the learned Family Court, the appellant did not examine the Doctor who opined that the respondent wife was not having uterus and in absence of evidence of the Doctor, it would be difficult to come to a definite conclusion that the respondent wife was not having uterus and she suppressed that fact before the marriage. However, for the sake of argument, even if we believe that the respondent wife was not having uterus prior to marriage then also the onus to prove the concealment by the wife is heavily on the appellant, which he could not prove. The sole premise of the petitioner's assertion of the ground of cruelty was that the wife though aware about the absence of uterus, did not reveal it to the husband before marriage. Thus, one of the grounds that the respondent has, after the solemnization of the marriage, treated the petitioner with cruelty, in our opinion, cannot be sustained.
10. Now, the another aspect of the matter is as to whether the respondent wife deserted the appellant for a continuous period not less Page 9 of 11 C/FA/876/2010 CAV JUDGMENT than two years immediately preceding the presentation of the suit/plaint? To deal with this aspect, we would like to bring certain admitted facts on record. It is an admitted fact that the marriage between the parties solemnized on 08.05.1997. As per the amended plaint, the respondent wife is alleged to have deserted the appellant on 07.12.1998. It also appears that the suit/plaint seeking decree of divorce came to be filed on 09.02.2000. Thus, the condition prescribed in Section 13(1)(ib) does not fulfill in present case. The provisions of Section 13(1)(ia) & (ib) reads as under:
"13. Divorce.(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(i) xxxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]"
11. Further, this Court, in the case of Prajapati Ganeshji v. Hastuben Hemraj, reported in 1967 GLR 966, has observed and held that one of the purposes behind marriage may have been to procreate children in old times, but absence of achieving the same with marriage solemnized amongst Hindus, at no time entitled the husband to have his marriage Page 10 of 11 C/FA/876/2010 CAV JUDGMENT dissolved much less annulled. Not only no such law prevailed before as to enable a husband to get divorce in case she were not able to beget children by reason of such absence of uterus, but no annulment of marriage on that account was ever suggested. No such ground for divorce is also made available to the husband under the present Act. It was further observed that in the instant case it was clearly established that the wife did not lack that capacity to consummate marriage with her husband after she underwent operations. Much though, therefore, she was not capable of procreating she having no uterus or cervix, that does not render her 'impotent' under Section 12(1)(a) of the Act.
12. Thus, on overall consideration of the facts and circumstances of the present case, we are of the opinion that the learned Family Court has not committed any error in dismissing the suit filed by the appellant seeking decree of divorce. The present appeal is, therefore, dismissed. No order as to costs.
(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) Jani Page 11 of 11