Punjab-Haryana High Court
Sonia Kumar vs Dr. Harshit Kumar on 9 October, 2000
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Sonia Kumar w/o Dr. Harshit Kumar has filed the present petition u/ss 18 and 19 of the Indian Divorce Act, 1869, and has sought a decree of nullity of marriage between the parties on the allegations that the marriage between the parties was solemnised on 20.11.1998 at Ludhiana, as per Christian rites. The petitioner has alleged that the respondent at the time of the marriage and presentation of the petition was impotent and, therefore, he was incapacitated to consummate the marriage. The respondent is also guilty of cruelty towards Ihe petitioner as his behaviour was indifferent right from the very day of the marriage, as he used to get irritated over small issues. Moreover, the respondent had no healthy physical contact with the petitioner which amounts to mental torture and is an act of cruelty. The parents of the petitioner; namely Parvez Wilson and Sheela Wilson, came to know about the maltreatment and misbehaviour of the respondent towards the petitioner from her after about a week of the solemnisation of the marriage. Thereafter, the petitioner came to her parents' house along with her father on 30.11.1998 and she told everything about the respondent to her parents. Respondent also called the petitioner on telephone about two days thereafter and said that he did not want to keep the petitioner as his wife and he would like a divorce. The petitioner has further alleged that the respondent had mal-treated her twice during her stay with him and his behaviour was found to be violent and unbecoming of a good person. She apprehends danger to her life and it is impossible for her to live with the respondent as husband and wife. It was also alleged by the petitioner that at the time of the marriage, the respondent disclosed his age as 38 years whereas actu-ally he was 41 years old. He was born in the year 1957. In para 8-A of the petition, it is alleged by the petitioner that the respondent at the time of the marriage with the petitioner was a Hindu by religion and it was not disclosed to her al the time of solemnisation of the marriage. Respondent had obtained the consent of the petitioner by fraud without disclosing that he was Hindu. The parents of the petitioner had spent Rs. 50,000/- at the time of the marriage and all the dowry articles are in the custody of the respondent. With these allegations, the petitioner has sought a decree for nullity of the marriage.
2. Notice of the petition was given to the respondent. Earlier, he gave his appearance in this Court through his counsel Shri Sunil Chadha. Vide order dated 19.7.1998, the High Court gave directions to the parties to appear before the Superintendeni, P.G.I., Chandigarh, for examination before the Medical Board to be constituted by the Superintendent of the Institute.
3. Vide order dated 12.7.2000, a sum of Rs. 5,000/- were awarded as litigation expenses and Rs. 2,500/- per month were awarded as maintenance pendente lite and the respondent was directed to comply with this order and the case was adjourned to 31.8.2000. On that date, neither the respondent nor his counsel appeared as a result of which, the defence of the respondent was struck off and he was proceeded ex-parte.
4. The respondent has denied the allegations of the petitioner. Rather, he made the allegations against the petitioner that she had intercourse with another person before the marriage and that she was a lady of loose character.
5. It may also be mentioned here that in compliance to the directions dated 19.7.1998 of the High Court, the parties and appeared before the Medical Board, and vide the report dated 25.8.1999, the Board gave the following opinion vis-a-vis the petitioner :-
"The Medical Board constituted by the Medical Superintendent comprising of:
1. Dr. Kala Vasishta
2. Dr. Savita Malhotra
3. Dr. Sarita Mahajan is of the opinion that Smt. Sonia Kumar d/o Sh. Parvez Wilson, r/o H.No. 1479, Sector 42-B, Chandigarh has no psychiatric or medical illness and on gynaecological examination she is found to have normally developed secondary sex characters and the hymen is torn posteriorly. This finding suggests that penetration could have occurred."
6. Similarly, vide the report dated 22.9.1999, the Medical Board gave the following opinion, vis-a-vis the respondent :-
"Dr. Harshit Kumar denied suffering from impo-tency. On examination he did not manifest any primary psychiatric disorder or any evidence of endocrinopathy. His hormonal profile was within normal range and there was no evidence of hypogonadism. The testicular volume was normal and so was the phallus. He had normally developed secondary sexual characters. There was history of accident but no evidence of local injury, which could lead to impotency.
As a confirmatory test of organic cause of impotence, a PIPE test was undertaken on 2 occasions. He had erections following PIPE test, which were not sustained. He was advised further investigations and was given appointment to undergo those investigations but he did not appear on the appointed dates.
The medical board concludes that the definite opinion regarding the potency of Dr. Harshit Kumar cannot be given."
7. In order to prove her case, the petitioner appeared as her own witness as PW-1 and she also examined her father Parvez Wilson as PW-2, who has supported the statement of the petitioner.
8. It has been stated by the petitioner in her statement that Parvez Wilson is her father. She and her father are Christians and they believe in Christianity. She was married with the respondent-Dr. Harshit Kumar, on 20.11.1998, at Ludhiana as per Christian rites. Her father gave an advertisement in the newspaper and the same appeared in the Times of India dated 28.6.1998. In response to that advertisement, Shri H.S. Lall, father of the respondent, wrote a letter on 29.6.1998 and gave the particulars of the respondent. Thereafter, he again wrote a letter on 18.8.1998. Exs.A-1 andA-2 are the original letters, which were received by her father. She is in a position to identify the handwriting and signatures of Shri H.S. Lal, father of the respondent, as she had been seeing him writing and signing. After the marriage, she went to the house of the respondent and stayed with him up to 30.11.1998. During her stay in the house of the respondent, she noticed that the respondent was impotent and he was not in a position to consummate the marriage in spite of the fact that she gave full access to him for the consumation of Ihe marriage and when she pointed out to the respondent about his impotency, he started quarrelling with her. On 1/2 occasions, he even slapped on her face. During this stay of 10 days in the house of the respondent, she was not even allowed to go out of the house by the respondent. Whenever she used to point out to him that why he had spoiled her life, he used to pick up a quarrel with her. During the course of her stay in the house of the respondent, her father gave a telephonic call to the petitioner. The petitioner could not contact her father because the respondent was not allowing her to telephone him. She brought to the notice of her father about the impotency and cruelty of the respondent. Whereupon, her father and her cousin brother; namely, Sunil Can-nie came to her matrimonial house and she narrated the entire events to them. On 30.11.1998, the petitioner left the matrimonial home in the company of her father and cousin brother. After two days, the respondent gave her a telephonic call clearly expressing his intention that he did not want to keep her as his wife. Thereafter, the petitioner filed the present divorce petition on 22.12.1998. Earlier, this petition came up for hearing before Hon'ble Mr. Justice Swatanter Kumar, who gave directions to the petitioner and the respondent vide orders dated 19.7.1999 to appear before the Superintendent, P.G.I., Chandigarh, for examination so that they may be able to appear before the Medical Board which was to be constituted by the Superintendent of the said Institute. In compliance to the directions dated 19.7.1999, the petitioner appeared before the Medical Board. The petitioner does not know if the respondent appeared before the Medical Board or not. The present petition has not been filed in connivance with the respondent. The petitioner has further alleged that her husband was earlier married with Rekha Thoma and it was told to her father that the respondent had sought a legal divorce. The petitioner has produced the photographs, Exs. A-3 and A-4, and the attested copy of the marriage certificate, Ex.A-5. In spite of the fact that the respondent and Rekha Thoma were married as per Christian rites, the respondent filed a petition under Section 13 of the Hindu Marriage Act in the Court of the District Judge, Ludhiana and sought the divorce. Ex.A-6 is the certified copy of the divorce petition filed by the respondent against his previous wife Rekha Thoma. Respondent has played a fraud upon the petitioner. Respondent was impoient at the time of filing of the petition and she has never condoned his acts of cruelty. As the respondent is an impotent, therefore, the petitioner is not inclined to live with him.
9. The statement of the petitioner has also been corroborated by her father.
10. From the statements of PWs 1 and 2, it stands proved and I am satisfied that the respondent was impotent at the time of the marriage and he continued to be so at the time of filing of the petition. There is no reason to disbelieve the statement of the petitioner. From her statement, it stands proved that she gave full access to the respondent for the consummation of the marriage. The acts of mal-treatment on the part of the respondent amount to physical and mental cruelty. Every girl has high hopes when she weds herself with a man. Non-consummation of the marriage also amounts to an act of cruelty. It stands proved on the record that the marriage between the parties was solemnised as per the Christian rites. In view of the statement made by the petitioner that her husband was not in a position to consummate the marriage, this Court is not inclined to rely upon the report of the Medical Board and, therefore, I hold that the respondent was impotent at the time of ihe marriage and continued to be so at the time of filing of the present petition.
11. It stands proved from Ex.A-5 that the respondent was earlier married with Rekha Thoma as per the Christian rites and this marriage was performed on 18.4.1990. In spite of that, the respondent earlier filed a petition under Section 13 of the Hindu Marriage Act against his previous wife Rekha Thoma. The respondent had no business to file an application under Section 13 of the Hindu Marriage Act.
12. In these circumstances, I allow this petition under Sections 18 and 19 of the Indian Divorce Act and pass a decree of nisi for the dissolution of the marriage between the parties, which shall be made absolute after a period of six months on the making of an application by the petitioner in this regard.