Akhilesh Patidar vs Smt. Priti Patidar

1 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE RAVI MALIMATH, CHIEF JUSTICE & HON'BLE SHRI JUSTICE VISHAL MISHRA ON THE 16 th OF MAY, 2024 FIRST APPEAL No. 363 of 2021

BETWEEN:- AKHILESH PATIDAR S/O RAMESHWAR PATIDAR, AGED ABOUT 32 YEARS, OCCUPATION: AGRICULTURIST R/O VILLAGE JHARKHEDA TEHSIL SHYAMPUR DISTRICT SEHORE (MADHYA PRADESH)

.....APPELLANT (SHRI RAMANUJ CHOUBEY AND OTHERS - ADVOCATES - ABSENT)

AND SMT. PRITI PATIDAR W/O AKHILESH PATIDAR, AGED ABOUT 28 YEARS, OCCUPATION: D/O RADHESHYAM PATIDAR VILLAGE JHARKHDEA MOHALLA BADA MANDIR TEHSIL SHYAMPUR DISTRICT SEHORE (MADHYA PRADESH)

.....RESPONDENT (BY SHRI BHUPENDRA K. SHUKLA - ADVOCATE)

T h is appeal coming on for orders this day, Hon'ble Shri Justice Vishal Mishra passed the following: JUDGMENT

This is an appeal filed by the appellant-husband under Section 28 of the Hindu Marriage Act, 1955, challenging the judgment and decree dated 25.02.2021 passed in Civil Suit No.HM/51 of 2019 by the Principal Judge, Family Court Sehore District Sehore, whereby an application preferred by the husband under Section 13(1) of the Hindu Marriage Act, for granting decree of Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM 2 divorce on the ground of cruelty and desertion, was dismissed.

2. It is an admitted fact that the marriage between the appellant and the respondent was the second marriage which was solemnized on 20.04.2016 at Sehore according to the Hindu rites and rituals. His first wife committed suicide. The appellant has a son from his wife aged about 8-9 years at the time of filing of the application before the learned Family Court.

3. The facts of the case, in substance, are that the first wife of the appellant is no more and the appellant has a son from his first wife was brought to the knowledge of the respondent. Initially, she has agreed that she would take care of the child but after the marriage, she did not take care of the child. The fact

that the respondent-wife was mentally disturbed and not having uterus and, therefore, unable to conceive and not in a position to give birth to child was not brought to the knowledge of the appellant-husband. The aforesaid fact was suppressed by the parents as well as by the respondent. Just after the marriage, when she started indecent behaviour with the appellant and his family members and threats were given by her that she would commit suicide or rope the entire family in a false case of demand of dowry. On the eve of Raksha Bandhan in July, 2018, she went to her parental home and even after sufficient efforts of the appellant to resolve the matter, she did not come back. Thereafter, the appellant preferred an application under Section 13(1) of the Hindu Marriage Act for grant of divorce on the ground of cruelty and desertion.

4. The respondent-wife denied all the adverse averments and contended that no cruelty was meted out to the appellant by her as alleged. The allegation of desertion was controverted.

5. On the basis of the averment made by the parties, the issues were framed and after affording opportunity to hearing to the parties, the learned Family Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM 3 Court decided the issues in negative and held that the appellant failed to prove the grounds of cruelty and hence dismissed the application under Section 13 of the Hindu Marriage Act. The factum of cruelty as alleged by the appellant was not made out.

6. As per the pleadings, the factum of desertion by the wife since July 2018 has not been considered by the learned Family Court. The allegations levelled by the respondent-wife that the appellant is having illicit relation with another woman is baseless and unsustainable. The respondent used to give threatening that within five minutes if the appellant did not come back home then she would give poison to his mother and child. She was not willing to reside with the appellant's mother and child and was always asking the husband to throw them out of the house. She does not used to take interest in the household work and used to beat the child and did not provide food to him. The parents of the wife used to say that they would take her away only if an amount of Rs.10 Lakhs is paid. That, threatening of committing suicide and roping the entire family in a false case was being regular features of the wife.

7. It is reflected from the impugned judgment that an application under Section 25 of the Hindu Marriage Act was filed by the wife on 19.02.2020 to the effect that if the decree of divorce is being granted to the appellant, then an amount of Rs.20 Lakhs be directed to be paid to her. Another application under

Section 27 of the Hindu Marriage Act was filed by the wife for return of shreedhan or amount of Rs.5 Lakhs in lieu thereof be paid to her.

8. Heard the counsel for the respondent and perused the record.

9. The learned Family Court framed the issues based on the rival contentions. The husband examined himself and the witness Mukesh Patidar as PW1 and

Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM 4 PW2 and exhibited the documents as Ex.P/1 to Ex.P/12 while the wife examined herself and the witness Pawan Patidar as DW1 and DW2.

10. The husband as PW1 pleaded that before the marriage, he gave information to the respondent and her family members about his first marriage and that he has a son from his wife and after the marriage, he came to know that the respondent is mentally unsound. Her behaviour was not usual, nor she does the household chores. The wife suspected his character. He came to know after marriage that she does not have a uterus and as such not attained menarche. In the month of July 2018 on the eve of Raksha Bandhan, she left the matrimonial home and started to live with her parents. She took all her jewellaries and articles. Since then she had willfully deserted the husband and kept him deprived of his conjugal rights. Thereafter, he tried his level best to save the marriage, but the wife never supported and she was not ready to live with him. The sonography report shows that the uterus is absent in terms of Ex.P/11. The standard of proof required in matrimonial disputes is of the preponderance of evidence. The statement of this witness on the above account remained unchallenged. His testimony is duly corroborated by Mukesh Patidar (PW2) who happens to be his cousin.

11. On the other hand, the wife as DW1, in order to justify her conduct of living separately, alleged that she was ousted from her matrimonial house and she was beaten by husband on the ground that she could not become a mother but no complaint regarding cruelty or torture being made to her was made by her at any point of time. In her cross-examination, she admitted that she stayed with the appellant for some days.

12. The learned Family Court after referring to the evidence tendered by both the parties, has dismissed the petition filed by the husband holding that the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM 5 allegation of cruelty as well as desertion could not be proved by him. While doing so the Family Court had referred in detail to the evidence that had been tendered and in that light insofar as the allegations. However, the entire record does not reflect specifically that there is a counter to the allegation levelled by the husband regarding the fact that the mental status of the wife as well as her illness and the fact that she would not become a mother at any point of time as she was not having uterus was being suppressed by her as well as the family members and by making such suppression, the marriage was solemnized. When the aforesaid fact came to the knowledge of the husband, the wife started reacting in an abnormal manner.

13. There is no dispute to the fact that the first wife of the appellant has passed away and he was having a son from his first wife and the said fact was brought to the knowledge of the respondent and despite of the same, she agreed to perform the second marriage but she herself has not disclosed her actual status and suppressed the material information that she will not be able to conceive and give birth to a child as she is not having uterus which has virtually ruin the entire martial life of the appellant. The respondent was not in a position to perform the marital obligations with her husband.

14. In the case of Smt. Alka Sharma vs Abhinesh Chandra Sharma reported in AIR 1991 MP 205, it has been observed that the husband was held entitled for decree of nullity of marriage on the ground under Section 12(1)(c) of the Hindu Marriage Act when it was found that his consent was obtained by concealing the fact that the wife is suffering from Schizophrenia. It is thus fairly well settled that when the respondent is found to be suffering from incurable mental disorder viz. Schizophrenia, it may amount to cruelty to the spouse

Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM 6 applying for divorce and at the same time when such serious disease was not informed to the appellant-husband and it was concealed from him at the time of obtaining his consent for marriage, it furnishes a cause of action for declaring the marriage a nullity under Section 12(1)(c) of the Act.

15. The marriage mandates both the parties to disclose material facts beforehand. Concealment of material facts amounts to cruelty, fraud, and many times becomes a valid ground for divorce under Section 13 of Hindu Marriage Act. In this context, in somewhat similar circumstances, reference may be made to the judgment rendered in the case of Smt. Urmila Devi vs Narinder Singh reported in 2006 SCC OnLine HP 26 wherein it is held :

15. The first question which arises for consideration is whether a case for annulment has been made out on the ground that the consent of the husband was obtained by fraud with regard to any material fact or circumstance concerning the wife. What is fraud within the meaning of Section 12(1)(c) of the Act has been the subject-matter of a number of decisions : The meaning to be given to the Word fraud in this section is different from the interpretation given to this word under the Contract Act. When negotiations of marriage are taking place there is talk between both sides. There may be some minor exaggerations. There may also be some concealment. It is only if the non-disclosure is of a material fact that it will amount to fraud. Concealment or mis-representation of every small fact may not be fraud sufficient to justify for annulment of marriage. In case any fact or circumstance is concealed which is of such a nature that it shall materially interfere with happy marital life it will definitely be a material fact or circumstance. In my opinion, withholding of any such fact which if disclosed would have resulted in the husband not agreeing to the marriage is a material fact. In the present case if the wife had disclosed to the husband that she was not having menses or that she had earlier been administered medicines and thereafter had scanty menses, the husband in all probability may not have agreed to get married.

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21. The next question which comes up for consideration is whether the marriage has not been consummated owing to the impotence of the wife. The law with regard to impotence has been very succinctly laid down by the Apex Court in Yuvraj Digvijay Singh v. Yuvrani Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM 7 Pratap Kumari, AIR 1970 SC 137, wherein the Apex Court held that a party is impotent if his or her mental or physical condition makes consummation of marriage a practical impossibility.

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28. With regard to the impotence in my view even as stated by the Apex Court in Yuvraj Digvijay Singh's case, AIR 1970 SC 137 (supra) impotence can be both physical or psychological. The doctor in this case has clearly stated that the wife is not impotent, therefore, in physical terms it cannot be held that the wife was impotent. However, impotence may be psychological. Impotence is the incapacity to consummate the marriage for physical or psychological reasons. Therefore, a mental defect or mental block which precludes the consummation of marriage is as much a ground for annulment as a physical shortcoming. The mere absence of a physical or anatomical defect is not reason enough to hold that the marriage cannot be dissolved. In case it is proved that sexual life is virtually impossible due to some mental apathy which is likely to be permanent the Court must annul the marriage. The Court dealing with such question has to take a practicable and reasonable view on the basis of the evidence led before it.

9. In the present case the husband in my view has proved beyond doubt that the attitude of the wife towards sex is cold and repugnant. Therefore, I am of the opinion that she is psychologically impotent and the marriage has not been consummated due to this reason.

16. In the present case, the appellant has sought for relief of divorce on the ground of cruelty and desertion on the part of the respondent. The wife has suppressed the material fact that she was having some abnormality and as such no physical relation could be made between the parties and that she was not in a position to conceive and deliver a child. Moreover, the allegation is not against the husband that he has deserted his wife but the allegation is against wife that she has deserted her husband. Therefore, the initial burden was on husband to prove that they are living separately since long period before filing the petition, and separation is without his consent and the wife has left her matrimonial home. In the present matter, these conditions were proved by the husband and thereafter burden shifted to the wife to prove that act could not be attributable Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM 8 to an animus deserendi and she is living separately due to reasonable cause. However, the wife had failed to prove the same and consequently, the husband is entitled for decree of divorce on the ground of desertion also. The findings of Family Court in respect of issue No.2 is hereby set aside.

17. From the discussion as aforesaid, we are of the considered view that learned Family Court has failed to appreciate the evidence adduced by the parties in right perspective, and therefore, the findings returned by the learned Family Court that the appellant could not make out a case for divorce on the grounds mentioned in the application cannot be approved. Having thus considered, the learned Family Court has committed an error in dismissing the application preferred by the appellant-husband under Section 13(1) of the Hindu Marriage Act. Thus, we hold that the appellant is entitled for a decree of divorce.

18. Thus, in the totality of the facts of the present case and in view of the law down in the case of Smt. Urmila Devi (supra) as well as the evidence available on record, the impugned judgment and decree passed by Principal Judge, Family Court, Sehore in H.M. Case No.51 of 2019 dated 25.02.2021 are hereby set aside. Consequently, the application filed by appellant-husband under Section 13(1) of the Hindu Marriage Act is allowed and the marriage solemnized between the appellant and the respondent on 20.04.2016 is dissolved by a decree of divorce.

19. In view of the above discussion, the appeal stands allowed and disposed off.

20. Let a decree be drawn accordingly. Record of the Family Court be returned along with copy of judgment and decree.

Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM 9 (RAVI MALIMATH) (VISHAL MISHRA) CHIEF JUSTICE JUDGE VV

Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 5/24/2024 1:13:05 PM