Research › Search › Judgment

Orissa High Court · body

2005 DIGILAW 249 (ORI)

AJAYA KUMAR SAMAL v. JYOSTNAMAYEE SAMAL

2005-04-13

A.S.NAIDU, PRADIP MOHANTY

body2005
PRADIP MOHANTY, J. ( 1 ) BY this application under Section 19 of the Family Courts act, the appellant seeks to challenge the judgment and order dated 5-4-2000 passed by the Judge, Family Court, Cuttack in Civil proceeding No 182 of 1998 By the impugned order, the prayer of the appellant for a decree of divorce against the respondent has been refused. Against order of S P Acharya, Judge, family Court, Cuttack, D/- 5-4-2004. ( 2 ) THE case of the appellant is that he married the respondent according to Hindu rites and customs on 7-6-1975 and both led their marital life till October, 1975. It is alleged that on the Chauthi (fourth) night, for the first time the appellant met with the respondent and wanted to cohabit with her, but he failed as there was difficulty in cohabitation. He alleged that the respondent was an impotent. He further detected that the respondent had no female organ and had no capacity for cohabitation. Thereafter, he wanted to get the respondent examined by a physician, but she avoided the same and left his company. The further case of the appellant is that the respondent herself admitted that she was an impotent. With these allegations, the appellant filed a petition under Section 13 of the Hindu Marriage Act read with Section 7 of the Family Courts Act with a prayer to pass a decree of divorce against the respondent wife. ( 3 ) THE respondent-wife filed written statement totally denying the allegations levelled against her. ( 4 ) IN support of their respective cases, both parties adduced evidence. The appellant examined only himself as P. W. 1. On the other hand, the respondent examined herself as O. P. W. 1 and her mother as O. P. W. 2. No documentary evidence was produced by either of the parties. The learned judge, Family Court, after considering the evidence on record, dismissed the petition with the finding that the husband had totally failed to discharge his onus in proving that the wife was an impotent. Hence the present appeal. ( 5 ) LEARNED counsel for the appellant submits that the Judge, Family Court has gone wrong in not accepting the presumption though the respondent has admitted that after the marriage, which took place in the year 1975, she had stayed in her matrimonial house only for four months. Hence the present appeal. ( 5 ) LEARNED counsel for the appellant submits that the Judge, Family Court has gone wrong in not accepting the presumption though the respondent has admitted that after the marriage, which took place in the year 1975, she had stayed in her matrimonial house only for four months. He also submits that the medical certificate, which has been relied upon by the respondent, was obtained after hearing was concluded and only two days betore pronouncement of the judgment. Therefore, the said certificate should not have been relied upon to come to the conclusion that the respondent is not impotent and barren. ( 6 ) THE appellant seeks for a divorce on the ground of Impotence of the respondent. In his pleadings, he has also stated that the respondent was all along unable and incompetent to enter into the bond of marriage and to give birth to any child. In his evidence as P. W. 1, the appellant has stated thus :-"there was difficulty in cohabitation. 1 observed that the respondent was an impotent. She looks like a female but has no female organ. She has no capacity for cohabitation. "there is no other evidence, either oral or documentary, to corroborate the aforesaid statement. Though the witnesses examined on behalf of the respondent, who included the respondent herself and her mother, have been cross-examined, nothing has been elicited from them. ( 7 ) BURDEN lies with the appellant to prove that the respondent is an impotent. He has not examined any doctor or any near relation to prove this fact. Thus, he has totally failed to discharge his primary burden. The submission of the learned counsel for the appellant that the Judge, Family Court, went wrong in accepting the medical certificate, which was obtained two days before pronouncement of the judgment and was not marked as an exhibit, may be correct. But that will not have any effect on the fate of the case in view of the fact that the appellant has not discharged his initial burden of proving his case. In a case of the present nature, an applicant cannot shift his onus and say that it is the other side who is required to disprove the allegations made by him. In a case of the present nature, an applicant cannot shift his onus and say that it is the other side who is required to disprove the allegations made by him. ( 8 ) SINCE the appellant has totally failed to prove the allegations made by him, his petition for divorce has to fail, for which the judge, Family Court, has rightly dismissed the same. We do not find any illegality or irregularity in the impugned order. Thus, the present appeal is devoid of any merit and is accordingly dismissed. Appeal dismissed.