Court No. - 37
Case :- FIRST APPEAL No. - 818 of 2018 Appellant :- Parul Gupta Respondent :- Mohit Kumar Gupta Counsel for Appellant :- Gaurav Gupta,Balram Mishra
Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Subhash Chand,J.
1. Heard Sri Balram Mishra, learned counsel for the appellant. This appeal is pending since 2018 & despite notice the respondent has purposefully not appeared before this Court and, therefore, today we would be obliged to take this appeal for final disposal.
2. By way of this appeal, the appellant has challenged the judgment and order dated 22.10.2018 passed by Principal Judge, Fast Track Court No.1, Bareilly in Case No.860 of 2016 dismissing the petition preferred by appellant-herein under Section 12 (1) A of Hindu Marriage Act, 1995.
3. The appellant does not dispute that the marriage was solemnized on 9.5.2016 according to Hindu rites and rituals. She filed a petition before the Court below for declaring the marriage void as according to her, after the marriage she came to know that the husband was impotent. The appellant started cohabiting with the respondent from 10.5.2016 but, for a period of three days from 10.5.2016 to 12.5.2016, the husband did not have any physical relation with her on one pretext or the other. On 12.5.2016, the appellant returned back to her parental home. One 28.5.2016, she was again sent to her matrimonial home but, during this period also, the respondent showed his reluctance to have physical relations with the appellant and conveyed to her that since childhood, he was impotent. The respondent, on being enquired about this fact that as to why he entered into wedlock so as to spoil the life of a lady, conveyed that he wanted a girl who was in government job. This fact was brought to the notice to the family members but, on 29.6.2016, respondent and his family members quarrelled with appellant and her family members. Respondent filed reply and contended that appellant being an educated lady and being in government job, wanted to get out of the matrimony. Parties have got themselves medically examined. It is only because appellant wanted respondent to come to Bareilly and stay with her, a false and fabricated litigation was instituted.
4. The Court below framed three issues namely whether the marriage dated 9.5.2016 should be declared void, whether the petition was based on false and fabricated facts and whether the appellant was entitled to maintenance? The appellant examined hereself, examined P.W.2 Ashok Kumar Gupta and P.W.3 Smt. Sarita. The respondent examined himself on oath. The parties filed documentary evidence also. The Court below decided issue Nos. 1 & 2 against the appellant. The Court below did not accept the oral version of the appellant herein and oral version of the husband was accepted namely that he had physical relation with the appellant. According to him he even had physical relation with his wife when they stayed together. The wife has also filed documentary evidence. The Learned Judge below has dismissed the petition of the wife to hold that because of his oral contention that he had maintained physical relation is accepted.
5. It is submitted by counsel for the appellant that the Court below did not even discuss about the medical evidence submitted by the appellant. The evidence of the father has also not been believed which goes to the route of the matter. The appellant had requested on 19.5.2017 that respondent should be medically examined by a Government registered Doctor. Unfortunately, that was not done.
6. If we go by the documentary evidence which has been produced before the Court below, unfortunately, the Court below has not even considered the said document which is on the record of this Court at page No.74. which goes to show that Dr. Neelam Arya, E.M.O. D.W.H. B.L.Y. opined as "to my opinion all internal & external organ suggestive, normal & she is seems to be virgin". The learned Judge below has not even discussed this document and has gone by the document which was produced by the husband. The document at page 77 shows that on 10.8.2018, certain documents were sought to be produced by the appellant which were not examined. The Radiologist of Deptt. of Radiology (USG Unit) Femal Hosptial, Bareilly also opined in favour of the appellant. The Report of Dr. Neelam Arya, dated 17.8.2018 has not even been considered by the Court below. The husband got himself examined in private hospital being Metro Hospital and Heart Institute which was a health check up and not a specialized test for impotency. The Doctor of Metro Hospital also nowhere opined that he was medically fit, even if he was medically fit, whether he had consummated the marriage or not was a question of fact which was proved by medical evidence of the appellant which shows that she had remained virgin.
7. Decision in Rekha Mathur Vs. Manish Khanna, 2015 0 SUPREME (DEL) 1434, relied upon by the appellant is fully applicable to the facts of this case. From documentary evidence and oral testimony of P.W.1 to P.W.3, it is clear that there is no consummation of marriage when the parties stayed together. No doubt, the irretrievable break down of marriage is not a reason for granting divorce. In this case, parties are separate since 2016. This appeal is pending since 2018 & despite notice the respondent has purposefully not appeared before this Court and, therefore, today we would be obliged to take this appeal for final disposal. The main ground is that there is no consummation of marriage which is very clear from the medical evidence by which the appellant has been declared to be virgin.
8. The appeal is allowed. The marriage is annulled. We declare that the marriage is voidable. Judgment and order impugned is quashed and set aside. Record and proceedings be sent back to the Tribunal forthwith.
Order Date :- 30.9.2021 DKS