Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 48 (JHR)

Shailesh Dhar Dubey @ Mantu Dubey v. Kiran Devi

2017-01-09

H.C.MISHRA, S.N.PATHAK

body2017
ORDER : Heard learned counsel for the appellant in the admission matter. 2. The appellant is aggrieved by the Judgment and Decree dated 21.01.2016, passed by the learned Principal Judge, Family Court, Garhwa, in M.M. Case No. 107 of 2014, whereby the suit filed by the appellant for dissolution of marriage between the parties by a decree of divorce, under Section 13 read with Section 5(b) of the Hindu Marriage Act, has been dismissed by the Court below. 3. The impugned Judgment shows that the marriage between the parties was solemnized in the year 2012. According to the case of the petitioner, the marriage could not be consummated because of the physical inability of the respondent-wife. It was stated that the respondent was unable to procreate any child or to establish sexual relationship with the petitioner. It also appears that the ground of mental disorder was also taken by the petitioner in the Court below. 4. Upon notice, the respondent-wife appeared and she denied the allegations made by the petitioner. According to the respondent's case, after the marriage, she is always ready to live with the petitioner and lead conjugal life. The respondent's case is that she was being subjected to cruelty and torture for demand of dowry and she was turned out of the matrimonial house. 5. On the basis of the pleadings of the parties, issues were framed, in which issue No. (iii) was whether the respondent is unable to have sexual relation with the petitioner and to procreate child, which may be treated as ground for divorce. Issue No. (iv) was whether the vaginal blindness is ground to grant decree of divorce and another issue was also re-casted as issue No. (v), i.e., whether the petitioner is entitle to get decree for declaration of his marriage with respondent voidable on the ground of inability of the respondent to establish sexual relation and to procreate child, due to unsoundness of mind. 6. The impugned Judgment shows that four witnesses were examined on behalf of the petitioner and three witnesses were examined on behalf of respondent. The witnesses examined on behalf of the petitioner, including the petitioner himself, stated about the physical incapacity of the respondent to consummate the marriage and they went to the extent of saying that she was transsexual. However, no medical document was proved. The witnesses examined on behalf of the petitioner, including the petitioner himself, stated about the physical incapacity of the respondent to consummate the marriage and they went to the extent of saying that she was transsexual. However, no medical document was proved. Only some photocopies were marked 'X' for identification, but no document could be proved by the petitioner in support of his case that the respondent was either physically incapable for consummation of marriage or she was mentally ill. None of the medical practitioner was examined by the petitioner in the Court below to prove the alleged ailments of the respondent. The Court below, upon appreciation of the evidence on record, decided all the aforesaid issues against the petitioner and dismissed the suit filed by the petitioner. 7. Learned counsel for the appellant has submitted that the impugned Judgment and Decree passed by the Court below are absolutely illegal and are fit to be set aside and it is a fit case in which the marriage between the parties ought to have been dissolved by way of decree of divorce, on the aforesaid grounds which the appellant had proved in the Court below. 8. Having heard the learned counsel for the appellant and upon going through the record of the case, we find that both the grounds, on which the appellant had sought the decree of divorce in the Court below, were related to the medical grounds, but no medical document could be proved by the petitioner in the Court below nor the petitioner examined any doctor who was said to have examined the respondent with respect to these ailments. In absence of any medical evidence, we are of the considered view that the Court below has rightly decided the issues against the petitioner and has dismissed the suit for decree of divorce. We do not find any illegality in the impugned Judgment and Decree passed by the Court below. 9. There is no merit in this appeal and the same is accordingly, dismissed in the admission stage itself.