JUDGMENT
S.N. Aggarwal, J.
1. The marriage of Bhajan Lal appellant had taken place with Usha Rani respondent on 19.4.2000. They lived together upto 16.9.2000. No child was born from this wedlock. The respondent left for her parental home on 17.9.2000. The appellant filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on 15.6.2001. On the other hand, the respondent-wife got a case registered against the appellant and his parents under Sections 406/498A IPC in Police Station City, Bhatinda on 14.7.2001. Thereafter the respondent filed a divorce petition against the appellant on 24.8.2002.
2. It was alleged by the respondent in the divorce petition that the appellant did not cohabit with her even when she had offered herself for sexual intercourse. Her parents had spent Rs. 2,50,000/-on her marriage. The gold ornaments, silver ornaments, coloured Television, Fridge, Washing Machine, Cooler, clothes and utensils were given in the marriage. The appellant and his parents were not satisfied. They started maltreating the respondent and treated her with cruelty. They also demanded Rs. 50,000/-for the business of the appellant. This demand was repeated by them on 15.8.2000 when the appellant and his parents had come to her parental house. When the parents of the respondent expressed their helplessness to fulfil the illegal demand of the appellant on 17.9.2000, she was beaten and turned out of the house. The parents of the respondent had arranged a panchayat on 1.10.2000 but the appellant and his parents were not willing to keep the respondent in their house till their demand was fulfilled. Hence, the divorce petition.
3. The version of the appellant as pleaded in the written reply was that the respondent has not come to the Court with clean hands and has suppressed material facts. The respondent has not led any evidence in the petition for restitution of conjugal rights filed by the appellant against her and it was consigned to the Record Room on 29.11.2002. The appellant was ready and willing to keep the respondent as his wife even today. It was denied if any dowry was demanded from the respondent or her parents or if the parents of the respondent had spent Rs. 2,50,000/-on the marriage or if they had given gold/silver ornaments or other articles in the marriage. It was admitted that the parties had separated from each other on 17.9.2000. It was denied if the appellant had refused to cohabit with the respondent. He had cohabited but no child was born from this wedlock. It was denied if any demand of Rs. 50,000/-was made from the respondent or her parents or if she was maltreated, beaten or turned out of the house on 17.9.2000. It was pleaded that the appellant was working as Machine Operator in Swaraj Company at Mohali but his services were terminated on 9.6.2000. The respondent was under the impression that after the marriage, she would reside at Chandigarh or Mohali but after the services of the appellant were terminated, the parties shifted to Sirsa. She refused to live with the appellant. The appellant had taken a panchayat to the house of the respondent and her parents on 4.2.2001 but the respondent refused to accompany the panchayat to the house of the appellant. Hence, it was prayed that the parties are living separately because of the fault of the respondent herself and the dismissal of divorce petition was prayed.
4. In support of her case, the respondent-wife examined her father Sunder Mal as PW-1, her maternal uncle Sanjeev Kumar as PW-2 and the respondent herself appeared as PW-3. She also placed on the file copy of the FIR got registered against the appellant and his parents, Exhibit A-1 and the copy of charge sheet, Exhibit A-2.
5. On the other hand, the appellant had examined Ram Sarup, mediator of the marriage as RW-1, Heera Lal, who had gone in the panchayat with the appellant and his parents on 4.2.2001 as RW-2. Dr. Suresh Kumar appeared as RW-3, Dr. Dharminder Singh as RW-4 and Dr. Sanjiv Goyal as RW-5. The doctors proved the sexual potency of the appellant. Bhajan Lal appellant himself appeared as RW-6 and closed his evidence.
6. On the basis of this evidence, the learned trial Court came to the conclusion that the parents of the respondent were well off and an amount of Rs. 2,50,000/-must have been spent on the marriage of the parties. It had also come in the evidence of the respondent that gold ornaments, Fridge and other articles of daily use were given in the marriage by the parents of the respondent. The trial Court also came to the conclusion that since the appellant had lost the job on 9.6.2000, the version of the respondent was most probable that the appellant and his parents had raised the demand of Rs. 50,000/-for starting the business of the appellant. The trial Court reached the conclusion that the appellant had failed to perform his conjugal rights by refusing to have sexual intercourse with the respondent by which the respondent had suffered mental cruelty. Accordingly, the divorce petition filed by the respondent-wife was accepted and the divorce decree was granted by the learned trial Court vide judgment and decree dated 15.12.2003.
7. The present appeal was filed by the appellant-husband.
8. The submission of learned Counsel for the appellant was that it was a simple marriage. There is no evidence of mal-treatment of the respondent. It was submitted that the respondent had left the house of the appellant of her own accord and the appellant was willing to bring her back and had also filed a petition for restitution of conjugal rights in a competent Court of law. The appellant had taken panchayats to the parental house of the respondent. He was potent and always cohabited with the respondent. It was a different matter that no child was born from this wedlock. The allegations of the respondent were emphatically denied if the appellant had failed to cohabit with the respondent or had refused to cohabit with her. He was sexually potent. Hence, it was prayed that the divorce decree granted by the learned trial Court be set aside.
9. On the other hand, the submission of respondent-wife was that no allegation was made by the respondent in the divorce petition if the appellant was impotent but since the appellant had failed to perform his conjugal duties by refusing and failing to have sexual intercourse with the respondent, it amounted to mental cruelty. Reliance was placed on the judgment of the Hon’ble Supreme Court reported as Samar Ghosh v. Jaya Ghosh 2007(2) Recent Criminal Reports 515.
10. The record has been perused. The submissions have been considered.
11. It deserves notice that it was denied in para No. 3-A of the written reply filed by the appellant if the parents of the respondent had spent a sum of Rs. 2,50,000/-on her marriage or if gold ornaments/ silver ornaments, Television, Fridge, Washing Machine, Cooler and utensils etc. were given in her marriage to the appellant. However, these pleadings were contradicted by the evidence led by the appellant, which need be noticed. It was admitted by Ram Sarup, RW-1 that father of the respondent was Inspector in Tele Communication Department. Another brother of the respondent was a shop-keeper and one of her brothers was also an Advocate and his wife was a teacher. He also admitted that 21 members had gone in the marriage party and the members of the marriage party were nicely served. It was also admitted by him that Washing Machine, gold ornaments and Fridge etc. were given by the parents of the respondent in the marriage. Heera Lal RW2 had also admitted in his cross-examination that the marriage of the parties was performed at Dhillon Palace, Bhatinda. He contradicted RW1 by stating that the marriage party was served in a simple way. He also denied if any Fridge, Television or ornaments were given. The appellant himself appeared as RW-6 and admitted that the father of the respondent was an Inspector in Tele Communication Department and one of her brothers was an Advocate and that gold ornaments, Fridge, Bed and other articles of daily use were given by the parents of the respondent in the marriage.
12. From these statements, therefore, it is clear that the parents of the respondent-wife are well off, that the marriage was performed in Dhillon Palace, Bhatinda, the members of the marriage party were treated nicely and the parents of the respondent had given gold ornaments, silver ornaments, Fridge, Bed and other articles of daily use in the marriage. From these admissions in the evidence of the appellant, it can be concluded that the parents of the respondent might have spent Rs. 2,50,000/-on the marriage of the parties and dowry articles were given in the marriage.
13. The version of the appellant himself is that his services were dispensed with on 9.6.2000. This version of the appellant makes probable the version of the respondent that the appellant and his parents had raised demand of Rs. 50,000/-from the respondent and her parents so as to enable the appellant to start the business. This version of the respondent is proved by her while appearing as PW-3 and she is supported by her father Sunder Mal, PW-1 and her maternal uncle Sanjeev Kumar, PW-2.
14. These allegations although proved by the respondent could not be sufficient in isolation for divorce but what is more significant is the neglect of the respondent by the appellant from sexual cohabitation. On this aspect, the respondent while appearing as PW-3 has conclusively deposed that she had offered herself for sexual intercourse but the appellant could not cohabit with her and he had failed to have sexual intercourse with the respondent at all. Although this fact is denied by the appellant but the version of the respondent is made more probable by the fact that no child was born from this wedlock even when they lived together for about five months. Not even pregnancy had taken place. No evidence has been led by the appellant-husband to show if the child could not be born or pregnancy could not take place because of some medical defect in the husband or medical defect in the wife. Therefore, the version of the respondent-wife that the appellant had failed to cohabit with her sexually is clearly proved.
15. The appellant-husband has led evidence to show that he was sexually potent and there was no disability in the appellant to have sexual relations with the respondent-wife. For that purpose, he examined Dr. Suresh Kumar, RW-3, Dr.Dharminder Singh, RW-4 and Dr. Sanjiv Goyal RW-5. These witnesses have proved that there was no abnormality in the appellant in having sexual intercourse.
16. There is a lot of difference whether a person is sexually potent or not and whether he had sexual intercourse with the respondent or not. These witnesses only proved that the appellant is in a position to have sexual intercourse with his wife but these witnesses did not prove nor they can prove if the appellant had refused or had failed to sexually cohabit with the respondent.
17. The submission of learned Counsel for the appellant was that if a husband is sexually potent, there is no reason for him to deny cohabitation with his wife and, therefore, sexual cohabitation between the two has to be presumed.
18. This submission has a counter version as well that if the appellant had sexually cohabited with the respondent then there was no reason for the wife to leave the matrimonial home. The non-cohabitation by one spouse with the other even when the other is offering for it is certainly mental cruelty. The respondent had pleaded that the appellant had failed to sexually cohabit with the respondent in spite of the fact that she had offered herself for cohabitation. She has deposed on the same lines and,therefore, merely because the appellant is sexually potent, it cannot lead to the presumption that he has cohabited the marriage. The respondent, therefore, has clearly proved that the appellant failed to perform his matrimonial duties by not having sexual intercourse.
19. The Hon’ble Supreme Court Samar Ghosh’s case (supra) has given certain illustrations which amount to mental cruelty and not having intercourse in spite of physical capacity and without valid reasons is one illustration which amounts to cruelty. It was held by their Lordships of the Hon’ble Supreme Court in para No. 85 of the judgment as under:
85. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) to (xi) …
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) & (xiv) …
20. Since the respondent has clearly proved that the appellant had failed to have sexual intercourse with her in spite of the fact that she had offered herself to him and in spite of the fact that he was sexually potent to do it, it amounts to mental cruelty.
21. Therefore, the learned trial Court was fully justified to grant divorce decree in favour of the respondent-wife.
22. There is no merit in the present appeal and the same is dismissed.