Himachal Pradesh High Court
Dharam Prakash vs Of on 25 November, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 357 of 2016.
.
Reserved on : 17.11.2016.
Decided on: 25th November, 2016.
Dharam Prakash .....Appellant/Petitioner.
Versus
of
Neela Devi ....Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt Whether approved for reporting?1 Yes.
For the Appellant: Mr. Anupinder Rohal, Advocate.
For the Respondent : Ms. Monika Singh, Advocate.
Sureshwar Thakur, Judge.
The instant appeal stands directed against the judgment rendered by the learned District Judge (Forest), Shimla, H.P. on 30.04.2016 in H.M.A. Petition No. 22-S/3 of 2013/12, whereby, the petition aforesaid constituted 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:37:22 :::HCHP -2-therebefore by the petitioner/appellant herein stood dismissed.
.
2. The brief facts of the case are that the marriage inter se the contesting parties hereat stood solemnized in the year 1997 at Village Sandoa, PO Dharogra, Tehsil Suni, District Shimla, H.P. After the of solemnization of the marriage, the parties to the petition lived as husband and wife at village Sandoa for some time, rt but the respondent used to leave the house of the petitioner very frequently and preferred to reside in the house of her parents. The marriage could not be consummated owing to the impotency of the respondent and no child has born from the marriage between the parties. The respondent is total incapacitated for accomplishing the act of sexual intercourse and the cause of impotency of the respondent is malformation and structural defect of her vagina. The respondent was impotent at the time of the marriage till the institution of the ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP -3- present proceedings. There has been no unnecessary or improper delay in filing the petition. The mother of the .
petitioner died on 5.8.2011 and the petitioner came to know the fact of the impotency of the respondent recently in the first week of this month when he was doing work of cleaning etc., in his house and found a medical prescription of slip of the respondent from the trunk of his mother and thereafter consulted the Doctors and obtained the opinion rt of the Doctor and thus filed the present petition. Hence, there is no unnecessary and improper delay in filing the present petition.
3. The petition for divorce instituted by the petitioner/appellant herein before the learned District Judge concerned stood contested by the respondent herein by hers instituting reply thereto wherein she controverted all the allegations constituted against her in the apposite petition by the appellant herein.
::: Downloaded on - 15/04/2017 21:37:22 :::HCHP -4-5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at .
contest:-
1. Whether the marriage between the parties has not been consummated owing to the imptency of the respondent?...OPP
2. Whether this petition is not maintainable? OPR
3. Whether the petition is barred by limitation?OPR of
4. Whether the petitioner is estopped from filing the present petition on account of his own act, deed, conduct, acquiescence etc.?....OPR
5.rt Whether the petitioner has concealed the material facts?OPR
6. Relief.
7. The trite factum whereupon an adjudication stands enjoined to be pronounced is qua the petitioner by adducing cogent evidence hence succeeding in proving the relevant issue qua the respondent herein suffering from a congenital sexual deformity whereupon he stood precluded to successfully consummate his marriage with the respondent herein. In other words, evidence emphatically pronouncing upon the sexual incapacity of the respondent to hold coitus with the petitioner stands ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP -5- enjoined to be unearthed from the material as exists here-
before. Uncontrovertedly, the marital spouses entered into .
wedlock in the year 1997. The petitioner/appellant herein avers besides testifies qua since thereat up to now on account of the purported apposite sexual incapacity of the respondent herein both not holding coitus. However, he of canvasses qua on the dissuasive advice of his parents, his not in quick promptitude of his detecting the apposite rt physical deformity of the respondent herein instituting on ground aforesaid, a petition for dissolution of his marital ties with the respondent herein. The effect of the aforesaid imprompt institution of the apposite petition by the petitioner on the ground of the respondent herein not holding the befitting sexual capacity to hold coitus with him, would stand pronounced hereafter. Hereat the veracity of the relevant allegations testified by the petitioner in his examination-in-chief vis-a-vis the respondent herein, is enjoined to be tested. The veracity of the relevant ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP -6- allegations testified by the petitioner/appellant herein in his examination-in-chief stand eroded of their truth arising from .
the factum of his in his cross-examination acquiescing qua the respondent herein living with him upto eight years since theirs solemnizing marriage yet theirs living in separate rooms. Also with his acquiescing to the suggestion put to of him in his cross-examination by the counsel appearing for the respondent qua the latter not standing encumbered rt with any physical defect rather she being fully potent besides his acquiescing to the relevant suggestion put to him in his cross-examination by the learned counsel for the respondent while holding him to cross-examination qua the reason for no child standing begotten from their wedlock arising from his omission to hold coitus with the respondent herein, ultimately, his acquiescing qua the respondent being a female omnibusly, blunts the vigour of his testification held in his examination-in-chief wherein he imputes qua the respondent qua hers suffering from a ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP -7- sexual deformity, whereupon, their wedlock did not beget consummation.
.
8. Be that as it may, the petitioner has testified qua on occurrence of demise of his mother on 5.8.2011, whereat when he while cleaning the house, he discovered a prescription slip from the trunk of his mother, whereafter, he of consulted the doctor who purveyed an opinion qua the respondent herein being unfit to hold coitus with him, rt whereupon, he canvasses qua his thereupon holding the apposite evidence for seeking annulment of his marital ties with the respondent herein. However, the testification of the petitioner qua his discovering the medical prescription slip on 5.8.2011, whereafter, he proceeded to consult the doctor concerned, who purveyed to him an opinion qua the unbefitting sexual capacity of the respondent herein to hold coitus with him appears to be sheer invention besides a concoction of the petitioner/appellant herein, inference whereof spurs from the factum of his echoing in his cross-
::: Downloaded on - 15/04/2017 21:37:22 :::HCHP -8-examination qua his not visiting the doctor whereupon it is to be concomitantly concluded qua obviously his hence .
not consulting the doctor qua the manifestations occurring in the relevant purported prescription slip. The vice of falsity qua the factum aforesaid when construed in coagulation with the effect of the aforesaid acquiescence(s) made by of him in his cross-examination, holding loud unveilings qua his conceding to the factum of the respondent herein not rt standing entailed with any physical deformity for hence hers standing precluded to perform coitus with him negates in its entirety, the entire assay of the petitioner herein comprised in his examination-in-chief wherein he in discharge of the onus qua the relevant trite issue, has testified in consonance therewith. Also the effect of his omitting to examine the doctor concerned, who purportedly purveyed him an opinion qua the manifestations held in the medical prescription slip, pronouncing upon her unbefitting sexual capacity, ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP -9- constrains an inference of it not holding any tenacity nor any probative sinew for thereupon this Court standing .
prodded to accord the relief as stands canvassed in the apposite petition.
9. Be that as it may, with the petitioner testifying in his examination-in-chief qua his detecting the relevant of defect in the respondent herein in quick succession to their marriage standing solemnized, yet his on dissuasive advise rt of his parents his omitting to thereat institute a petition for dissolution of their marital ties when is in rife conflict with his testifying qua on his on 5.8.2011 discovering the medical prescription slip holding disclosures therein qua the respondent herein standing entailed with a physical deformity whereupon she stood purportedly forbidden to hold coitus with him factum whereof for reasons stated herein-above standing concluded to be seeped in an entrenched vice of falsity besides when it imperatively stands reared as a stratagem to purportedly explain the ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP
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omission on the part of the petitioner/appellant herein to in quick promptitude of his promptly discovering the relevant .
defect in the respondent herein attracts qua the relevant delay besides qua the relevant omission, the statutory bar held in Section 23 of the Hindu Marriage Act (hereinafter referred to as 'the Act'), the relevant provisions whereof of read as under:
"23. (a) rt xxx xxx
(b) xxx xxx (bb) xxx xxx
(c) xxx xxx
(d) there has not been any unnecessary or improper delay in instituting the proceeding; and
(e) there is no other legal ground why relief should not be granted then and in such a case, but not otherwise, the court shall decree such relief accordingly."
Clause (d) to Section 23 of the Act inhibits Courts of law seized with a Hindu Marriage Petition its grant the apposite relief canvassed therein on evident upsurgings holding unravelments qua unnecessary or improper delay standing ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP
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begotten in the initiation of the relevant proceedings before the Court concerned. Reiteratedly, with there is a .
visible apparent delay since 1997 whereat the relevant defect in the respondent herein stood evidently for reasons aforestated detected by the appellant herein upto the stage of institution of the instant petition, corollary whereof of is qua the statutory bar constituted in clause (d) of Section 23 of the Act standing squarely attracted qua the rt petitioner/appellant herein whereupon it warrants its dismissal.
10. The learned counsel appearing for the petitioner herein has canvassed qua the disaffirmative order pronounced by the learned trial Court on his application instituted therebefore under Section 151 of the CPC read with Section 122 and 114 of the Indian Evidence Act with a prayer held herein for constitution of a medical board for ascertaining the factum of the gender of the respondent herein besides for ascertaining the ability of respondent ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP
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herein to perform coitus with the appellant herein, suffering from an inherent fallibility significantly when it would have .
clinched the relevant trite issue. However, the order refusing grant of the apposite relief aforesaid as stood canvassed therein by the petitioner is not imbued with any legal fallacy, inference whereof sprouts from the factum of of his anvilling his relief on prescription slip mark 'X', prescription slip whereof for reasons aforestated stands seeped in an rt entrenched vice of falsity, reiteratedly it visibly stands stained with a vice of fictitiousness, inference of fictitiousness gripping it, is erectable for want of the appellant herein/petitioner examining its authour despite his purportedly canvassing qua his visiting him whereupon he unfolded to him qua the relevant physical defect gripping the respondent herein also when for reasons aforestated the petitioner acquiesces to the feminity of the respondent herein rather his conceding qua the reason of no child standing begotten from their wedlock standing anchored ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP
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upon his not accessing his wife, the respondent herein.
Crucially also when this Court has herein-above .
pronounced qua the statutory bar encapsulated in clause
(d) of Section 23 of the Act standing squarely attracted vis-
a-vis the appellant herein, the endeavour of the appellant herein/petitioner to through the aforesaid application to of assert an affirmative relief thereon appears to be belated besides a premeditated assay on his part. Also assuming if rt he held any tenacity in getting an affirmative pronouncement thereon, tenacity thereof gets eroded in the trite factum of his acquiescing qua the respondent's espousal qua his in quick spontaneity of their entering into a wedlock his despite thereat discovering the relevant defect yet his on the purported persuasive dissuasive advice of his parents not thereat instituting the apposite petition for dissolution of his marital ties with the respondent herein ground whereof meted by him loses its veracity by his belatedly relying upon an engineered Ext.PX whereupon ::: Downloaded on - 15/04/2017 21:37:22 :::HCHP
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hence as aforestated the statutory bar constituted in clause
(d) of Section 23 of the Act stands squarely attracted qua .
him also thereupon it appears qua the defect, if any, which may grip the respondent herein being not congenital.
11. For the foregoing reasons, this Court finds no of merit in the instant appeal, which is accordingly dismissed.
Consequently, the judgment and decree impugned before rt this Court is maintained and affirmed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 25th November, 2016. Judge.
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