Manju Ajay Ahuja v. Ajay R. Ahuja — 1995 DIGILAW 353 (MP)

JUDGMENT D.P.S. Chouhan, J. 1. A petition for annulment of the marriage of Smt. Manju Ahuja, the wife, was filed by Shri Ajay Ahuja, the husband, under Sections 12 and 13 of the Hindu Marriage Act, 1955 (for brevity hereinafter referred to as 'the Act'). The trial court granted the relief for annulment of the marriage and decreed the suit under Section 13(1-A) of the Act. 2. In the same suit an application under Section 27 of the Act was moved by the wife for return of the dowry. The respondent-husband admitted having received one pair of bed, one and half Tolas of gold and one TV, which were directed to be returned and the parties were directed to bear their own costs vide judgment and decree dated 21-12-1993 passed in Civil Suit No. 148-A/91. The present appeal is outcome of the aforesaid judgment and decree. 3. The facts of the case are typical in nature. It is admitted that marriage between the parties took place according to the Hindu rites on 6-2-1985 in Jabalpur. They lived together and Smt. Manju Ahuja from time to time used to visit her parental house but they started living separately since 17th July, 1985. 4. On the very first day of the marriage when the plaintiff wanted to have sexual intercourse with his wife, she refused and it is alleged that the refusal was on the basis that she does not like it and she does not want to have the issue. In spite of pregnancy preventive measures being suggested the lady did not succumb to the request of the husband and did not allow him to have relationship of husband and wife. It is stated from the side of the plaintiff that Smt. Manju Ahuja used to get hysteric only of being touched. This suggests that some allergy existed between the two. It is an old saying that the marriages are settled in heaven but performed on earth. Here the marriage was performed on the earth but the allergy come in the way, in the consummation of the marriage and maintenance of the marital life as the plaintiff has stated that she used to give threat that if any attempt for committing sexual intercourse is made by the plaintiff then she will commit suicide by consuming poison. Here the marriage was performed on the earth but the allergy come in the way, in the consummation of the marriage and maintenance of the marital life as the plaintiff has stated that she used to give threat that if any attempt for committing sexual intercourse is made by the plaintiff then she will commit suicide by consuming poison. According to the plaintiff, the defendant was having hair on the chest and the same was not like that of a lady. She used to take medicines secretly and according to the plaintiff, the defendant was impotent. 5. Whatever may be the facts, but it is not necessary to go in detail as it is a case where the parties cannot live together specially in the circumstance when right from the first day of marriage they were allergic to each other and could not have sexual intercourse instead the allegations were made against each other regarding impotency. Impotency may be of temporary nature and may be of permanent nature but it is not necessary to consider. In view of the statement made by the learned counsel for the parties, it is clear that it is not a case where both can live as husband and wife peacefully and they are satisfied with the decree of divorce. The allergy can be one of the factors of impotency. One can be impotent to a particular person but it is not necessary that impotency can be universal. So far as the decree of divorce is concerned, it is confirmed, as learned counsel for the parties have consented for it. 6. The next item is regarding the dowry. The trial Court, on the application under Section 27 of the Act directed the decree regarding the items under the dowry which were admitted by the plaintiff but the thing did not end here and for the claim of the dowry a separate application has been filed by the defendant, which is pending in the Court of District Judge, Jabalpur numbered as Civil Suit No. 2-A/86 and that suit is not decided on merit. That suit is also linked with the present appeal. In view of the fact that since I have confirmed the decree of divorce with the consent of the learned counsel for the parties, I do not consider it fit to proceed with the suit pending in the appropriate forum. That suit is also linked with the present appeal. In view of the fact that since I have confirmed the decree of divorce with the consent of the learned counsel for the parties, I do not consider it fit to proceed with the suit pending in the appropriate forum. For deciding the suit, that Court is appropriate where the suit is filed as the evidence has to be led regarding the dowry items by both the parties and the Court has to arrive at its conclusion thereby recording finding. 7. The dowry items which have been admitted by the plaintiff-respondent in the suit giving rise to the present appeal would not come in the way in deciding the subsequent suit (Civil Suit No. 2-A/86) on merit. Since it is pending before the lower Court and this Court is not expressing any opinion either way on the application under Section 27 of the Act and the order which has been passed by the trial Court as well directing for the return of the admitted dowry items would not come in the way and it would be open for the appellant to claim the entire dowry wherefor the claim is put forth under Section 27 of the Act. 8. Learned counsel for the respondent submitted that C. S. No. 5-A/91 under Section 18 of the Act and the other i.e. C.S. No. 37-A/93 under Section 25 of the Act, between Smt. Manju Ahuja v. Ajay Ahuja, are also pending in the lower Court. All the three suits may be tagged together and may be decided finally within the period as may be fixed by this Court. 9. The Civil Suit No. 2-A/86 is delinked from the present appeal and the Registry of this Court is directed to transmit the record of C.S. No. 2-A/86 to the trial Court within 3 weeks from today. All the aforesaid suits would be decided expeditiously having regard to the facts and circumstances of long pendency of the case specially on account of the present appeal. Learned counsel for the parties agree that they will cooperate in the matter and as such the suit preferably may be decided within a period of four months from the date of presentation of the certified copy of the judgment. 10. Learned counsel for the parties agree that they will cooperate in the matter and as such the suit preferably may be decided within a period of four months from the date of presentation of the certified copy of the judgment. 10. Learned counsel for the appellant has expressed the apprehension that dilatory tactics in the disposal of the case may be applied by the other side and, therefore, the applications pending therein would not be decided as directed by this Court. There is no reason to doubt that the order of this Court will not be carried out by the Court below or parties would flout the assurance as given to this Court by the learned counsel for the parties. However, the law has fully empowered the Court that if any party does not turn up or adopts dilatory tactics then to proceed with the matter ex parte and as such the apprehension seems to be unfounded. 11. The appeal is accordingly disposed of. Decree of the Court below regarding the divorce is confirmed. The trial Court is required to decide all the suits finally preferably within four months from the date of receipt of the judgment, as has been directed earlier. 12. Certified copy shall be filed by the learned counsel for the parties before the trial Court within 3 weeks from today and the parties will appear before the Court below on 20-4-1995. Certified copy be supplied within a week on payment of necessary charges.