Bombay High Court
Kishore Manmohan Sharma vs Jyotshana D/O Kamlashankar Pandya on 11 December, 1979
JUDGMENT R.A. Jahagirdar, J.
1. The appellant in this appeal had filed a petition, being M.J. Petition No. 191 of 1977, in the City Civil Court at Bombay under section 12 of the Hindu Marriage Act for a decree of nullity of his marriage with the respondent which had taken place on 14th February, 1975. The ground for annulment of the marriage as prayed for by the appellant was that the marriage has not been consummated owing to the impotence of the respondent. I have already mentioned that the marriage took place on 14th of February, 1975 and the learned trial Judge who heard the petition has mentioned that the petition for the annulment of the marriage was filed ten days after the second anniversary of the marriage. That shows the unfortunate background against which the parties went to trial in the Court below.
2. Before I proceed to refer to the rival contentions of the parties, it would be appropriate to narrate the facts which are admitted or which can be taken as sufficiently proved. After their marriage on 14th February, 1975, both the appellant and the respondent went on their honeymoon and returned to Bombay on 10th of March, 1975. The honeymoon was thus for a period of nearly three weeks. Within a few days thereafter, the respondent went back to her place called Nandol in Ahmedabad District where she had to appear for an examination. After the examination was over, she returned to Bombay in June according to her and in July according to the appellant and thereafter stayed with the appellant till 18th of November, 1975. Taking the lesser of the periods, it is seen that she stayed in her husband's house for at least four months after her return to Bombay from her examination.
3. The reasons for her leaving the marital house in the month of November 1975 are the subject matter of severe controversy between the parties and will be referred to later in this judgment. There is, however, on record a letter dated 31st of January, 1976 written by the appellant to his father-in-law telling the latter that he had taken the appellants' wife one and half months earlier and had not sent any communication in connection with the same thereafter. In this letter the appellant has further mentioned that he would be coming to attend a marriage and at that time he would take the respondent with him. Admittedly thereafter on 5th of February, 1976 the appellant paid a visit to the house of his father-in-law, but returned without his wife. Thereafter again on 23rd of May, 1976 the appellant paid another visit to his father-in-law and even this time he was not successful in persuading his father-in-law to sent his daughter back with the appellant to Bombay. This marks the end of the second phase of the marital life of the appellant and the respondents. The first life of the appellant and the respondent. The first phase would enclose the period from the marriage upto the return from the honeymoon.
4. On 13th of December, 1976, the appellant wrote a letter to his wife, which from the evidence appears to be the first letter written by him to his wife, and in this letter there is a mention, though ambiguous, of the strained relationship between the husband and the wife and of a plea to the respondent to make the way clear for their mutual separation. The respondent replied to his letter by her letter of 30th of December, 1976 which speaks of nothing but her eternal love for her husband and refuses to contenance any separation from her husband who she says, is dearer to her than her own soul. The correspondence is then lengthened by another letter written by the appellant to the respondent on 13th of January, 1977. In this letter, the appellant has asserted that it was impossible for him to forget the past life as requested by the respondent and prayed for wisdom on the part of the respondent to get out of his life. These are the only four letters, namely letters dated 31st of January, 1976, 13th of December, 1975, 30th of December, 1976 and 14th of January, 1277, which are properly admitted in evidence by the Court below. There is another letter which is said to by a copy of the letter dated 17th of December, 1976 and purporting to be an earlier reply by the respondent to the petitioner's letter dated 13th of December, 1976. After going through the proceedings of the case, I am satisfied that no foundation was laid by the respondent to produce this alleged copy of the original letter. The copy itself which has been produced is written in ink and gives an appearance of being the original itself. In my opinion, this copy or the letter dated 17th of December, 1976 was wrongly admitted in evidence and is being kept out of consideration by me while discussing the evidence in this appeal.
5. In the petition, the appellant after narrating the circumstances which led to his marriage has mentioned in paragraph 3 that the respondent did not allow him to have sexual intercourse with her. When he found the respondent reluctant to consumed the marriage the appellant says, he attributed her reluctance to normal bridal shyness in the first place. However, the appellant found that the reluctance continued and after some days the respondent told him that she had an aversion of sex life, especially with the appellant. He had thereafter mentioned that the said conduct of the respondent shows a feeling of invincible repugnance and abhorrence against sexual relations. In the subsequent paragraphs of the petition, the appellant has enumerated the various events which took place after the respondent left the marital house and has also referred to the correspondence to which I have already made a reference earlier. The sum and substance of the petition, therefore, was that there has been a failure to consummation of the marriage between the appellant and the respondent owing entirely to the impotence of the respondent.
6. The respondent resisted the petition by denying the allegations made against her regarding the impotence and by contending that during all the time that she was residing with the appellant in the marital house, the marriage had been properly consummated. In particular she refers to the period during which the couple were on honeymoon and the months during which she was staying with her in-laws at Bombay. She had insisted that during all this time they had normal sexual relationship. In the written statement she has, however, proceeded to give the reasons as to way she left the marital house, and went to reside with her own parents at their native place. Broadly speaking, the explanation is that the appellant's father took liberties with the respondent and this made her feel unsafe in the house of her husband.
7. The only issue which was to be tried by the trial Court was in the following terms :---
"Whether the petitioner proves that the marriage between the parties could not be consummated because of the impotency of the respondent?"
In support of this case, the appellant examined himself alone. On behalf of the respondent, three witnessess were examined. One was the respondent herself and the second was the father of the respondent. After the closure of the respondent's case, but with the permission of the Court on an application made in that behalf by the respondent, she got herself examined by a doctor who was examined in the Court as witness No. 3 for the respondent. Apart from this oral evidence the four letter to which I have already made reference earlier and the fifth letter, which I am ignoring, were before the learned trial Judge for consideration as part of the total evidence.
8. After considering the entire evidence, the learned trial Judge came to the conclusion that the appellant has failed to prove his contention that the marriage could not be consummated on account of the impotency of the respondent. He found that the conduct of the appellant in insisting upon his wife to return from her father's house even after what the appellant called to the unsuccessful honeymoon he speaks of an eagerness on his part that his wife should return to him. The earlier letters written by the appellant to his father-in-law also showed, according to the learned Judge, that the marriage had not remained to be consummated during their honeymoon for a period of three weeks from 17th February, 1975 onwards. He accepted the evidence of the doctor examined on behalf of the respondent. The evidence showed that the respondent was physiologically a normal person and that she had normal sexual intercourse in the past, though not in the immediate past. Both the parties also had in the trial Court agreed to get the respondent examined by another doctor of the Bombay Hospital. The said doctor, namely Dr. Pai Dhungat, sent his opinion to the Court and this opinion showed that there was nothing abnormal in the respondent and that she does not require any treatment. Since all these showed, according tot he learned trial Judge, that the marriage has been consummated, he was pleased to dismiss the petition for annulment of the marriage under section 12 of the Hindu Marriage Act by his judgment and order dated 18th of November, 1978. It is this decree which is the subject matter of challenge in the present appeal.
9. Mr. N.A. Shah, the learned Advocate appearing for the appellant, has emphasised that in a proceeding arising under the Hindu Marriage Act or other Acts relating to marriage and divorce, the burden that lies upon the petitioner is not as heavy as it is on the prosecution in a criminal case. If the petitioner can show on a prepondence of probabilities that his case is true, then the Court would be justified in allowing his petition. There is no difficulty in accepting this proposition formulated by Mr. Shah because he is in this regard supported by the judgment of the Supreme Court in Dastane v. Dastane, . With the object of showing that the appellant has discharged the burden of proving his case on a preponderance of probabilities, Mr. Shah took me through the entire evidence on record. Before one considers the evidence led by the respondent, it would naturally be appropriate to examine in the first place as to whether the appellant as the petitioner in a petition for annulment of marriage has discharged the burden that lay upon him. As already mentioned earlier, the appellant has examined himself and nobody else. This is not unnatural because the problem which he had faced was essentially a problem intimate to him and no other person could have spoken about the frigidity of impotency of the respondent vis-a-vis the appellant. While appreciating his evidence, therefore, I shall always remember this in mind and I will not blame him of he had not at the earliest opportunity made a public disclosure of his private agony.
10. After narrating the facts relating to his marriage, the appellant has mentioned that at about 11.00 or 11.30 p.m. on 14th of February, 1975 on the first day of his marriage, he was frustrated in his attempt to have sexual intercourse with the respondent. There is nothing unusual in such a conduct on the part of the respondent. Thereafter on two or three subsequent nights also he met with failure. Then he proceeds to mention that on 17th of February, 1975 he and the respondent left on a honeymoon to Abu and Ambaji where, according to him, they stayed for about two weeks. During this period when they were all alone on their honeymoon, the appellant again could not succeed in his attempt to consummate the marriage. It is during this period of honeymoon, according to the appellant, that the respondent told him that she abhorred sex life. On their way back to Bombay both the appellant and the respondent stayed for a day at her parent's place at Nandol and returned to Bombay in the first week of March 1975. The appellant thereafter has mentioned that on 14th of March, 1975 the respondent's brother took her to her parent's place at Nandol because the respondent was to appear for her Intermediate Examination. The appellant then says that on 15th of July, 1975 he received a telephone call from the respondent who was staying with her uncle at Dadar and on the telephone the respondent told him that she had arrived in Bombay on 10th of July. On the same day he went to Dadar and brought the respondent to his place at Mulund. He admits that from that date till 18th of November, 1975 he and the respondent stayed together at his place at Mulund. During this period of nearly four months, according to the appellant, all his attempts to consummate the marriage were unsuccessful. According to him, she would not even allow him to approach her physically.
11. A mention is then made to the visit of the respondent's father some time in November 1975 when, according to the appellant, he mentioned to her father about the respondent's incapacity to consummate the marriage. Upon this the respondent's father is alleged to have assured the appellant that he would have a talk with his daughter. Subsequently, however, on 18th of November, 1975 the respondent left his house along with her father without even informing the appellant. After leaving the house on 18th of November, 1975, the respondent and her father seem to have resided somewhere else in Bombay because according to the appellant, for days after she left the house he received a telephone call from the respondent's father to the effect that he was taking his daughter to Nandol and that she would return after about a month. Thereafter, the consent, four letters mentioned above were tendered in evidence.
12. In the cross-examination, attempt was naturally made to demolish his theory that there was no consummation of the marriage. It was put to him that sexual intercourse normal between husband and wife took place. This suggestion was turned down by the appellant. Thereafter it was suggested to the appellant that the respondent had made complaints to him about the advances made by the appellant's father towards the respondent about a fortnight before the Raksha Bandhan day in August 1975. The appellant categorically denied that the respondent had made any such complaints. Then a question was put to him to which the answer of the appellant is in the following terms :---
"It is not true that it was because of such complaints of the respondent that I refused to have sexual intercourse with the respondent from the third week of September 1975."
From the suggestion which elicited this answer, Mr. N.A. Shah wants me to infer that according to the case of the respondent herself there was no sexual relations between the parties from the third week of September 1975. I may proceed on that basis but, in my opinion, it will hardly improve the appellant's case. The appellant has also mentioned in his deposition about the two visits which he paid to the house of the respondent's father. He has complained that on both these visits he was not treated properly and in fact an insulting attitude was displayed towards him. Before I proceed to consider the four letters which have come on record by consent and about which there is no dispute, I may summarise in a few sentences the sum and substance of the deposition of the appellant.
13. The appellant has consistently maintained that neither during the three days when the appellant and the respondent were staying at Mulund immediately after their marriage, nor during the three weeks when they were on honeymoon was there a consummation of the marriage. He has insisted that after the respondent's return from Nandol where she had gone to offer examination, she refused to consummate the marriage for nearly five months during which she was staying in the marital house. He has mentioned the reason of the respondent leaving the marital house and that reason is his complaint to the father of the respondent about the incapacity of the respondent to fulfil her marital obligation. On this aspect of his evidence, it is impossible to expect any oral corroboration from any other witness. It is true that the learned trial Judge has at some place in his judgment mentioned that the conduct of the appellant is not making a complaint either to his father or to his friends militated against his case. I am not in full agreement with the view expressed by the learned trial Judge in this regard. One cannot forget that when the appellant was going through what could have been otherwise characterised as a crisis in his life, it would be hard to expect that he should go and tell others the most intimate of his problem. Merely by his failure to complain at the earliest opportunity to his own parents or to his friends I would not hold that the appellant has displayed a conduct which is inconsistent with his case. But unfortunately for him, that is not the end of the criticism on his overall conduct.
14. If according to him the marriage was not consummated till March 1975 when he and the respondent were together, which period included the three weeks of honeymoon, it is difficult to see why the appellant paid two visits to the house of his father-in-law as late as in February 1976 and May 1976 to persuade him to send his daughter back to him. If he is to be believed, his marriage had been reduced to shambles in November 1975 when the respondent turned her back finally upon him and walked out of the marital house to her parental house. If this is so, one fails to understand why the appellant displayed a state of mind which was almost equivalent to a great eagerness on his part for the return of his wife to his house. By this time, according to him, he had already lodged a sort of complaint to his father-in-law saying that some thing was wrong with the respondent who was unable to fulfil her marital obligation .As far as he himself was concerned, six months togetherness should have been sufficient to convince him that there was some insurmountable difficulty in the consummation of the marriage and that difficulty was, according to him, the abhorrence of sex life on the part of the respondent. With his stage of mind which he has exposed before the Court in his evidence, he makes it difficult for the Court to understand his subsequent conduct of paying two visits to the house of his father-in-law to persuade him to send his daughter to her marital house. This, in my opinion, is one of the strongest circumstances, which militates against the case of the non-consummation of marriage set up by the appellant before the Court.
15. Apart from this conduct, which has got its own tell-tale signs, the letter written by the appellant on 31st of January, 1976 shows further that it is very difficult to accept the case as set up by the appellant. In this letter written to all the members of the family of his father-in-law, the appellant has taken the liberty of mentioning that his father-in-law has taken the respondent on 22nd of November with a promise to sent her back after one month. He makes a grievance that no letter has been received on that account by him from his father-in-law. He informs his father-in-law that he and his one uncle called Natukaka would be attending the marriage of one Anirudh and that they would go to his house on 5th of February, 1976 to take the respondent who should be kept ready for that purpose. This was the earliest letter written by the appellant to his father-in-law after the letter had taken away his daughter to Nandol from Mulund. If what the appellant says before the Court is in some measure true, one would be expecting some evidence in this letter of the problem which he was facing and about which he had spoken to his father-in-law. On the other hand, the letter is devoid of any grievance relating to the conduct of the respondent. If anything, there is a complaint against the father-in-law, but not against the respondent. Secondly, the letter displays an eagerness on his part to have his wife back with him. There is a mild protest that the father-in-law has not kept his promise of sending back his daughter after a month. In my opinion, this letter read properly and in the context displays a state of mind which is inconsistent with the state of mind of a husband whose marriage has not been consummated on the day on which this letter was written.
16. I have already mentioned earlier that the appellant had paid two visits, one in February 1976 after writing the letter of 31st January, 1976 and another on 23rd of May, 1976, both with the object of persuading his father-in-law to send his daughter to her marital house. So till the end of May 1976, at any rate, the appellant has not shown any conduct or state of mind which would be suggestive of the problem which he says he had faced in those days. On the other hand, his conduct is suggestive of the fact that he was eager to have his wife back with him as early as possible and his eagerness was being frustrated by the conduct of the father-ion-law. The appellant has not explained as to why he wrote the letter dated 31st of January, 1976 which shows his eagerness to have his wife back. He has not given any explanation as to why he felt it necessary, despite breakdown of his marriage, to go to the father-in-law's place on 6th of February, 1976 to bring her back. However, he has given some explanation as to why he went on 23rd of May, 1976 to the house of the respondent's parents. His explanation is that he felt that by this time the respondent might have understood the nature and the necessity of a proper sexual relationship between the husband and wife. In my opinion, this explanation has come too belatedly and is inconsistent with the conduct of the appellant till that day.
17. Mr. N.A. Shah has placed considerable reliance upon two subsequent letters written by the appellant to the respondent. One of them is dated 13th of December, 1976. This is nearly seven months after the last visit of the appellant to the house of the respondent's parents. In this letter he tells his wife that since about last 12 months she had left his house against his desire and that she did not inform him of her going away. I do not see the necessity of mentioning this fact in a letter sent more than one year after the respondent left his house, because in between the appellant had not only written letters to his father-in-law but had paid two visits to his house. He has also recorded that twice he came personally to see her and that he was neglected and insulted by her parents, brother and sister. He proceeds to say that she knew that after their marriage they lived together hardly for three or four months altogether. Then the following sentence occurs in the letter :---
"Perhaps, in the eyes of the society we are supposed to be husband and wife, but what is our internal personal relation that you also know."
Some words which apparently express the anguish of a frustrated husband and their place in the last paragraph of this letter. The appellant mentions that he felt that the way the respondent hated him and the way she behaved with him he was convinced that the respondent was not ready to stay in his house or accept him as his husband. He has mentioned that he came to the conclusion that he must get out from her way and allow to do whatever she felt proper. The main trend of the letter is to invite the respondent to take the first step of separating from the appellant. It will in a moment make reference to the reply sent by the respondent to this letter. Before I do that, however, I must examine the interpretation put by Mr. N.A. Shah on the contents of this letter.
18. Mr. Shah says that this letter which was written by the appellant long before he entertained any idea of going to the Court shows the anguish of a person, a young boy of hardly 23 years or 24 years, who has suffered by the failure of the consummation of his marriage with his wife. The sentence which I have extracted above shows, according to Mr. Shah, that the appellant was speaking of the physical incapacity of the respondent to consummate the marriage. The letter which was written in Gujarat contains a particular Gujarati phrase which interpreted means 'physical relationship.' This is the interpretation which has been put by the learned trial Judge also and there is no difficulty in proceeding on that basis. So, according to Mr. Shah, in this letter written by the appellant he is giving expression to his most personal problem before a person to whom alone he could communicate on that subject. This shows that there was a non-consummation of the marriage of the appellant with the respondent. I am reluctant to accept this interpretation put on the contents of this letter by Mr. Shah. The letter in fact does not complain that because of the attitude of the respondent the marriage has remained to be consummated. It is true that he speaks of some internal or physical relation between himself and his wife, but that itself is couched in so vague and abstract expression that it was practically impossible for the respondent to understand its meaning. This will be apparent when I will be referring to the reply of the respondent to this letter. I am reluctant to read in the contents of this letter any possible expression of the fact of the non-consummation of marriage between the appellant and the respondent. There is, no doubt, an amount of disappointment which runs through this letter, but that disappointment has not been related either explicitly or impliedly to the failure of the respondent to consummate the marriage. One does not understand as to why as late as in December 1976 the appellant while writing at least to his wife did not at all tell her that it is because of her conduct that their marriage was broken on the rocks and it was necessary for them to separate. The letter of 13th December, 1976 though expressing some amount of disappointment still is couched in a language which is appropriate of a husband to use to his wife.
19. Now one must turn to the reply which the respondent has sent on 30th of December, 1976. In this entire reply, which is longer than the one sent by the appellant, the respondent has, like a blind dutyful Hindu wife, sworn again and again her loyalty an obedience to her husband. She has sworn that her husband is her whole and soul, If the appellant's suggestion was that there was some physical incompatibility between the husband and the wife, it would have been impossible for the respondent not to refer to the same in her reply and to make at least some suggestive protest regarding the same. On the other hand, she has taken the letter of the appellant almost innocently and has replied it again innocently. If the conduct of the respondent was such as would suggest abhorrence for the appellant, it is impossible that she would have used the language which she was used in her reply dated 30th of December, 1976. It is only after he received this reply from this wife that the appellant came out with another letter dated 13th of January, 1977 which couched in a little more militant terms.
20. For the first time he mentions in this letter about the ill-treatment and the non-co-operation which the respondent gave him and that he will never forget the past life. It is somewhat enigmatic that even in this letter of 13th of January, 1977 there is no whisper on the part of the appellant about the physical or to her incapacity of the respondent to consummate the marriage. If he had said either in this letter or in the earlier letter of 13th of December, 1976 anything about the incompetence of the respondent to consummate the marriage, one would have seen what exactly would be the reaction of the respondent. By using evasive, abstract, vague and even enigmatic language the appellant has denied an opportunity to the respondent to meet his case which he says is contained in the letters written by him. I have, therefore no hesitation rejecting Mr. N.A. Shah's interpretation of the correspondence language for between the parties. In my opinion, this correspondence does not in any way support the case put up by the appellant.
21. The oral evidence given by the appellant is not conclusive; the conduct displayed by him is destructive of the case put up by him; and the correspondence between the parties far from supporting the case of the appellant, to a considerable extent, militates against the same. In view of these findings which the learned trial Judge has arrived at and which I have no hesitation in confirming, it is unnecessary to refer to the evidence of the respondent. However, I will make a brief reference to that in view of certain arguments advanced by Mr. N.A. Shah. Before I do that, however, again I should briefly refer to the medical evidence.
22. Dr. Bhatt was examined as witness No. 3 for the respondent. The respondent went to him on 4th of September, 1978 which is admittedly after the depositions of both the respondent and her father were recorded in the trial Court. However, it must be noted that the respondent after closing her case made an application to the Court for allowing herself to be examined by a doctor who in turn would be examined as a witness in the Court. That application was granted by the trial Court and pursuant to the permission given by the Court the respondent went to Dr. Bhatt on 4th of September, 1978. Dr. Bhatt has mentioned that after examining the respondent he found no physical abnormality in her to prevent sexual intercourse and that she was capable of undergoing sexual intercourse. His findings included that the respondent had sexual intercourse in the past and that she was capable of enjoying sexual intercourse. The basis of this opinion is to be found in his findings that her hymen was absent and that there was no difficulty in introducing sims speculum in the vagina. He has also noticed that at the time of introducing the sims speculum there was no pain suffered by the respondent. According to him, the absence of this pain leads to the conclusion that the respondent had undergone sexual intercourse in the past and that she was accustomed to sexual intercourse.
23. In the cross-examination, it was suggested to the doctor that the absence of hymen could be on account of several factors apart from the fact of having had sexual intercourse. He agreed with this suggestion. He also agreed that mere absence of hymen would not be conclusive of the fact that the woman had sexual intercourse. The doctor, however, has based his opinion not merely on the absence of hymen but also on the fact that the speculum could be easily introduced and that two fingers could also be introduced without any pain on the part of the patient. The absence of pain, says the doctor, could be made out not only by asking the patient about the same but also by the observations of the facial expression of the patient and any movement on her part. This is indeed how he has given the opinion that there was no pain while speculum was inserted. Mr. Shah has criticised the evidence of this doctor by concentrating his attack on what the doctor has said in paragraph 16 of his deposition. In this, paragraph the doctor has mentioned that "his impression in respect of the three items mentioned in the certificate (to be referred to hereinafter) might not have been different, but they may have been different only in respect of Item No. 2." The three impressions which are mentioned by him in his certificate dated 4th of September, 1978 are as follows :---
"1. Mrs. Jyotsanaben Kishorbhai Sharma has no physical abnormality to prevent sexual intercourse and hence she is capable of undergoing sexual intercourse.
2. That from the history and examination it appears that she had sexual intercourse in the past.
3. That she is capable of enjoying the sexual intercourse."
According to Mr. Shah, without the history which was given to him by the patient, he would not have given the impression which he has mentioned at Serial No. 2. If this is so, says Mr. Shah, the opinion of the doctor that she had sexual intercourse in the past has no value. It is difficult to accept this criticism made by Mr. Shah of the evidence of the doctor. The impressions no doubt have been mentioned in the certificate itself given by him. The doctor has, however, stepped into the witness box and has explained in great details as to how he came to the conclusion that the respondent had sexual intercourse in the past. That opinion is not based merely on the personal history given by the respondent. It is based upon a detailed examination of the vestibule area of the patient referred to him. From what Mr. Shah has characterised as an admission contained in paragraph 16 of his deposition, it is not possible to discard the opinion which he has given earlier on the basis of the detailed examination conducted by him. In my opinion, therefore, the evidence of the doctor fully supports the case of the respondent and is destructive of the case put by the appellant. It must be remembered that it was not the case of the appellant that the respondent was not allowing him to have repeated sexual intercourse. He came to the Court basically with the assertion that she did not allow him to have even a single intercourse. This case has been totally destroyed by the evidence which consists of the conduct of the parties, the documents and the medical opinion.
24. Mr. N.H. Shah took me through the evidence of the respondent and also invited my attention to the finding of the Court below that the respondent has failed to prove that her father-in-law misbehaved with her which necessitated her leaving the marital house. Mr. Shah contents that two cases are before the Court for its acceptance; one is set up by the appellant while the other is pleaded by the respondent. If, as the trial Court has found, the case of the respondent is wholly unacceptable, then it would be proper for a Civil Court to accept the case which has been set up by the appellant. This is too broad a proposition to be accepted. As the learned trial Judge himself has pointed out, ultimately it is the appellant-petitioner who must stand or fall by his own case. The question of considering the strength or weakness of the defence does not arise till the Court holds that the burden of proving her case has shifted to the respondent. Since I have already held above that the appellant has failed to prove his case, the question of considering the case of the respondent does not arise. It is true, as Mr. Shah to some extent justifiably complaints, that the respondent set up a case which she has failed to prove, but that by itself will not enable the appellant to obtain a decree in his favour.
25. Mr. A.H. Shah, the learned Advocate appearing for the respondent, wanted to support the order passed by the Court below by arguing that the finding of the learned trial Judge regarding the allegations made by the respondent against her father-in-law is incorrect. Mr. A.H. Shah said that the evidence, both oral and documentary, if properly considered along with the probabilities of the case would show that the allegations made by the respondent are correct. I have, however, not thought it necessary to hear Mr. A.H. Shah in this regard. This is an appeal arising out of matrimonial proceedings and the courts and the Advocates appearing for the parties at all times must leave some way open for the parties to come together in future. If the learned trial Judge has passed an order in favour of the respondent and that order is supportable on grounds which have been mentioned by the learned trial Judge it is unnecessary to consider a ground on which the learned trial Judge has held against the respondent. For this reason I have not heard Mr. A.H. Shah on that point.
26. In the result, this appeal must fail and is accordingly dismissed with costs.