IN THE HIGH COURT OF KARNATAKA, BANGALORE.' DATED THIS THE 25¢: DAY OF OCTOBER,_;2~0l,_'Q: PRESENT THE HONBLE MRJUSTICE L. 3 'J THE HON'BLE MR. JUS*I*I.§fE MFA.NO.446_1 QF"2'dVQ8VVV(MC) BETWEEN: Sri.Ravinanda G0w;:a§;,.;:.'* ._ 2; S/oflasharath:_Naiéd 33 'years, ._ Ramaéiuemdra Raddy Building, ' Pritchand Road, M Robertson Pet, K.G.F «~ 563 113 RESPONDENT
(By Sri.S.Balan 8: Assts, Advocate)
MFA filed U/s. 28 of the Hindu Marriage
the Judgment and Award dated: 04.03.2008 ” .g_
M.C.NO.55/2000 on the file Of Civil Judge
rejecting the petition filed U / s.12 of~’Hin-du Marriage Act for
divorce.
This MFA having been hetard andrelservedandgg
on for pronouncement of Judgerneiirt this’–.da’yf,
J., delivered the following: — ”
JUDSMEN®M_
Appellant is the petifionerg Civil Judge
[Sr.Dn.], 1″ the judgment and
decree M.C.i\lo.56/ 2000 passed
by the C_§S:Vi1″¢’Judg€” KGF, filed this appeal.
filed a petition under Section 12 of
Hindt1l”lV£ar1’iagejfXet seeking for annulment of marriage
l°».__o11VV the of impotency of respondent or in the
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alternative grant a decree of divorce dissolving the
marriage solemnized on 23-6- 1999.
3. The brief facts of the case are as fo11ows:’_.§:”” 99
The petitioner and respondent, are ”
husband and wife. Their marriage
23-6-1999 as per the Hindu KGFQTT
The respondent lived in Vthe maritai;’ho’:1se. “Tire petitioner
was working at Bangalore. the house
early in the and the night. The
petitioner’ ‘during the stay of the
respondentlinltihe the petitioner and his
family niernbers that she has no respect for the
eiders’~pai’ticiilarly to the mother of the petitioner. Many
tirnelshshelias’I=.niisbehaved with other family members.
‘theW;AVudi month she had been to her parental
14-7-1998. On 6-8-1999, she informed the
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petitioner that she is pregnant. However on 30-8-1998,
she informed the petitioner that she had undergone
abortion. in Vi€W of that the respondent was
the medical test on 2-9-1999. fifhe
examined her reported that the all
pregnant and the respondent’ hhaveiheuinenstrual” 9
cycle at all. She has taken §r.K’asturi on
28- 10-1999 for a few days lL}Ti«:F,’9,V.’1:1A–;.1:E3:1_f_’If_iiII10I’1iE11 house
on 3-11-1999. the petitioner,
the respondent.VV.wi;is’A:brought’]bac’k the marital house on
19- 1- 1 999:. _ ‘ the marital house once
again on any reasonable cause and
:.deserte;i””the: petitioner? ‘
_ in his petition alleges that the
:19″»….vparentsrof t.he’3..V_r.espondent suppressed the fact that the
– -.fj’j;respondentV__Ais an impotent and unable to beget a child, it
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is impossible to lead a marital life with the respondent.
He issued a legal notice to the respondent oallingotipon
her to join him. After four months, she has
the said notice agreeing to joi1’1__.t.he4 ,4_’_i.”VI’h_e’
petitioner has alleged that the
cover up her latches had “under”
Section 498-»A of IPC and seetiongefatgandt4 or Dowry
Prohibition Act before theV_jtj,risdieti.–o.rial_~police and that
the matter is :peoneitieiiat:.oTn. Since the
respondent is an:..i;tnpotent:,’t_’ she not in a position to
maintain the ‘rnarital’V”li.:fe» the petitioner filed a petition
seeking for anr1ul’H1,erj1_t or marriage.
“to»t–he notice issued by the Civil Judge
(VS~r=..Dn’.’};Vtlive:_’resp0–ndent entered appearance and filed her
.»ao,./.._,.vobjectio’ns. _ denied the averments made in the
‘i-«l’.j’j;petit.ion. ” However, admitted the marriage and
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relationship. She has stated that after the marriage, she
stayed in the marital house from 23–6~l9V9’9;’:””._Vti1l
l4«~7–1999 and in view of Audi month,
parental House. Due to their marital _life;”*:the’re’_¥Wa:s
symptoms of pregnancy out of
undergone a test in St.JohnsVCv1inicalhiaboratolrgrélvand the” V
report was positive. ‘§he”i’eafter”,”‘she taker: ‘treatment
in Government Materr1ityH_H7osp.ital. informed by
the Doctors that?__’Vsii;e.ha.s:~.got abortions. The
symptoms of Vinfolrjnlied to the petitioner
earlier and._the_ spon’tarIeo’u_s”abortions was also informed
to the Vpetitioner svubsequently. On 23–8~1999, the
fespondenst-rejoinedVdlthepetitioner and she was subjected
to’V”r~.v’}7?hen the pregnancy report was negative
“because ofspontaneous abortions. Dr.Kasturi, who had
“the respondent to the medical test reported
thatdduedd to the abortion, the respondent is suffering from
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anemic and advised for nutritious food and suggested
treatment to the respondent. The petitioner in order to
avoid medical expenditure and other expenditure towards
nutritious food, sent her to the parental
parents took her to the Sharn’s Clinic and_.t1ft=’§”ci.tVi’Iitfefi”it
been given. Further, respondent in…[her-,9sta’tem’ent..,.oi”
objections alleges that the Fpetitiozner
Rs.2.00 lakhs to do the l)_usinespsI’:-Sinee, ttlieifathfier of the
respondent expressed pay the said
amount, the petitioner respondent
for dowry.V7_ To she had filed a
petition u_nderw. of IPC. The respondent
:.oorit.ended a.tha’t.sheHhas’ not deserted the petitioner on the
otherV’ii.and.’;petitioner has deserted her and sent her
Iltback her ‘parental house on 23-1-2000. She is hale
Aheualthyfi; she is fit physically, mentally and also
Iiledielaliy; she is not an impotent and she is ready to
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undergo any medical test with any Doctor as per the
choice of the petitioner and sought for dismissaV1’e’ofi.the
petition.
6. On the basis of the pleadingsfoii
Judge (Sr.Dn.), KGF, has framed the”fo1ioWingi- V
(i) Whether the petitiovfier’ hasV”‘p1’fox}ed.’:’:§the
marriage of resoorident
is null and void’ asthCe:.ii’réfsfJQndent is
impotent’? _
(ii) is entitled for a
decree * as claimed by the
_ peti”tiorier’?_
(i’iii).”C’ Wh:a1;order?”‘V
:petit’io_rIer in order to prove his contention
as P.W.1 and got the documents
” §’,x.P.1 to Ex.P.5. The respondent examined
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herself as R.W.1 and got marked the documerxts as
Ex.R.l and Ex.R.2.
8. The Civil Judge [Sr.Dn.) after’00’consideririgx”«t_he5era1 0
and documentary evidence let in bytthe-joartilesheldll
Nos.1 and 2 in negative its
judgment and decree dated lflpleased to
dismiss the divorceA.petition.:._ 0
9. Being aggrie:x”;ed” and decree dated
4-3-2000, the petitioner has
filed this apA1oe.._a’l. 0 A’
};j’0′.«Sri;§l:’iG2,,’-L.:Chandra1*n’ohan, learned counsel appearing
forlycointended that the judgment and decree
by the below is contrary to law and facts of
0 ;cacse.. The court below has grossly erred in accepting
stateinent of respondent that she is ready and willing
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to undergo medical check-up and dismissing the petition
is erroneous in law. The material on evidenc’e””=ei’early
shows that the respondent had deserted appelliant.
Further, she is an impotent and itis in1po«ssib3e” tovlead
marital life with an impotent. persdonhlfl The,’..’murf’t loeloiilvap
without appreciating the oral aunrdi’docunienitaxyvligevidence
dismissed the petition; wfnicli is.’.erroneous in law and
sought for dismissal of the’*sa:me- the appeal
11. On the and Associates,
learned respondent contended
that the court. “considering the oral and
docurnentary ext/idenicle led by the parties found that the
appeliant made out a case for annulment of
rnarriagei’ ar1d.f;al:so a decree for divorce. Accordingly,
_7~.._dis:nissed.. the petition. There is no infirmity in the order
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passed by the court below and sought for dismissal of the
appeal confirming the order passed by the court below.
12. We have carefully gone through the arg1i1<ne.nts
addressed by the learned counsel for the
considered the oral and docu1nenta_.ry.efvid_enee*:}jed°'oy.VthoeuV'
parties.
13. It is not in disputellltihat the andel
respondent are legally vweddepd””eouple.. The-«irwrriarriage
was solemnized on 236- stayed in
the marital._ and in View of audi
month (Ashatla’)li she _\7.l}ent.:’to4the parental house. Due to
thgwed1§;c1;:’iand nst’ayv__t_i_nvthe marital house till 14–7-1999,
therewllwas–.a=syrnptom of pregnancy to the respondent.
She test in St.Johns Clinical Lab and the
._l_f_areport wasltpositive. She has informed the appellant
the same, however, there was spontaneous
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abortions. The same was also informed to the appellant.
The appellant has taken the respondent for test.
The Doctor reported that respondent was
pregnant. It was the allegationrof
Doctor informed him that respon’dentV.d-idol: not’;
menstrual cycle at all. been
produced by the appellan_t:”to nor he has
produced the report. of alleges
that the she is unable to
beget a ch.ild~.. she was very rude
and used to the elder members of
the family _vparticu’la_rl’yV to it mother.
»A ‘ojthepr hand, the respondent denied the
I’*,__Vallegations’lofuftheiappellant. She states that the mother
_ ‘the petitioner had taken her to Dr.Katuri at Bangarpet
the”_«Doctor reported that in View of spontaneous
abortions, the respondent is anemic. She suggested for
nutritious food and also suggested for treatmerltfi.;:”‘Ifo
avoid the said expenditure the appellant
respondent to the parental house,” She d
the appellant demanded dowry of A’ V
15. The appellant, in etzide:nee”‘~-deposed. that their
marriage has been .At_’é.::.2’I3{~6–1999, the
respondent stayedliri till 14«–7~’5199-9
and their He has deposed
that the house on 23-1-2000
and he haslliasued as per EX.P.l calling upon
respoindentllltov the appellant. The respondent has
Vtaefper EX.P.2 expressing her Willingness to
join thelappell-alnt. H-oixkever, in the cross~’exaInin.atio;1,
_ ____apppe1Ia:nt..has.vexpressedthat he is not ready to take the
to the marital house. The respondent in
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her notice has stated that she is ready to undergo any
medical test with any Doctor as per the choice ‘a’o_fgthe
appellant. However, the appellant is not
medical tests done. In the cross:e2_(ami’n’a’tion. ‘”he’,haVs’
deposed that he is not ready for any:’_’.’m;ed’ica’l
Further, the appellant has Vld:ep.osed’ that note
produced any medical report that th’e’~re’spondent
is an impotent and also he.\.,:_:has.1l__not taken the
respondent for lTh.e._.:appellant has not
examined any his contention that
the respondent’ and she is not in a
position V to beget’ ‘any’, clh_i»ld~~~.”‘:
other Vh’and; the respondent examined herself
as’ l._.R.E_V.’ 1 Vt’l.reiterated the averrnents made in the
l”°”statem’e__nt of objections in the exarnination–in–chief. The
case of the respondent is that the marriage took
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place between the appellant and respondent
on 23-64999 and on the same day nuptial ceremonyjwas
celebrated in her parental house and the marriage..”w’as
consummated . After the marriage, they
husband and wife. During the aucli
to her parental house where-.__she”aunderwent.__rr1e}§:lical:”;
tests. It is found that th_er’e..:_was of
pregnancy. Subsequentlgn. informed that
there were spontan.eou’sW 7 ~,’l’he appellants
Dr.Kasturi;._g The the mother of the
appellant _that”due_tjo lt’h’e’~~~abortion she was anemic and
I-advisecleto be under medication and good diet to maintain
normal- The appellant in order to avoid
ln”‘Ve:x;penditure’,’ the respondent to her parental house
it deserted the respondent. In her cross»
eivgamination, the respondent has denied the suggestion
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of the appellant’s counsel that there is no satisfactory
sexual intercourse with the appellant. Further4,sh._e:*has
deposed that on 23-8-1999, she was with
and she had sexual intercourse o_n….the said” ”
has denied the suggestion of the
there was no intercourse betweerithern c:lue._t”o if
17. It is the case of the..appVeiia.nt. that the-qresipondent
had left the marital Without
sufficient reason. he issued a
legal notice calling toconie back to the marital
house and lleirespondent sent a reply notice
accepting the offerywiand wanted to stay in the marital
thevzcfappellant. However, the appellant is not
‘J.wagreealole ford-“.”p:.*;1qgevVlsame. The respondent informed the
_:’_p’_:«_appye1lant she would undergo any medical test with
i):o.’c’_tor as per the choice of the appellant. The
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specific case of the respondent is that she is not an
impotent and due to wedlock, there was of
pregnancy. However, there were spontaneous{abortion-s_§’
Hence it is clear that she is not an .iIn_potc’r1t,”havle”‘
and healthy and she is physically tolbleglet
support of his contention, nott
examined any Doctors, ~.’.l’o decl’a.relV'”that the particular
lady was an impotent, must be
produced before” of the oral
assertion made the’ .ap.:Tpella’ntl,’; a decree of divorce
cannot be? of irnpotency. The
impotency is inabili.ty_ to-._p’crform sexual intercourse, even
after tlie°fair trial. Inthe instant case, the specific case
of the; it is that the marriage has been
due to the wedlock, there was a
it pregnancy. Due to premature, it was
spontarieously aborted. That apart, the appellant himself
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issued a notice to the respondent calling upon her to join
him in the marital house. If the respondentV.Vlis’._an
impotent, the question of issuing notice callingwuiiiojn
respondent to join. him in the marital h_*ou’se:l’.’;does_’_notll”
arise. Even in the notice issued, he riot”
allegations regarding impotenc§f:~~._oVHence,’ ll”afjp’elllantl”
has not made out anyicasesi”‘fo.r:’;.gifant lof”‘di\}:’orce or
annulment of the 12 of the
Hindu Marriage in the
petition alleging’. stubborn, and she
had scantl’respe’ctl’fo’r.:le»l,der:”members of the family, no
material has before the court or to show
particu.1-ar vvincidelntiii which she has disrespected the
eld’er_s;_:,l’falosence of the same, the case of the
lilo’-A…..appe1la1fltl be accepted. The court below after
~ jeon’sideringV_ti1e oral and documentary evidence led by the
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parties, dismissed the petition filed by the appe1lar;t___by a
Well considered order.
18. We do not find any ground to_JiI1t_¢rfe:te'”wi.:i§f_i;
considered order passed by the co’e41rt–.’_A_beVloyv..
pass the following
The appeal filed by
Parties to__. be.ar’Alth’eir H V
._L_