RITA NIJHAWAN Vs. BAL KISHAN NIJHAWAN

JUDGEMENT

(1.) This letters patent appeal is directed against the order of the learned single judge, dated May 14, 1970, affirming the order of the Additional District Judge, Delhi, dated May 15, 1969, by which the application of the pertitioner/appellant wife under Section 12 (l)(a) of the Hindu Marriage Act, 1955, (hereinafter to be called the Act) for annulment of the marriage with the respondent-husband by a decree of nullity on the ground of importency or in the alternative for grant of a decree for judicial separation under Section 10 (1) (a) and (b) of the Act, on the ground of desertion and cruelty, was dismissed.

(2.) The marriage of the parties took place in Delhi on April 14,1954. At the time of the marriage the appellant was about 16 years and the respondent was about 30 years. It was alleged in the petition that after the marriage the parties stayed in Delhi for about 10 days and though the respondent tried for sexual intercourse with the appellant but could not consummate the marriage as he could not get proper erection and got discharged before he could perform the act. The respondent had some inferiority complex and could not perform the Act. Thereafter the respondent was transferred to Gwalior and the parties lived there but the respondent was not capable of doing the act of sexual intercourse there also. After a year of stay in Gwalior, the respondent was transferred to Dholpur where they stayed for two years and there also the respondent was not able to perform the act of sexual intercourse. It was further alleged that the petitioner was at the time of her marriage unaware of the sex life and for that reason was not able to understand that the respondent was not able to do sexual intercourse because of his impotency. In 1957 the appellant's cousin sister Shashi came to stay with them at Dholpur and from her she came to know the facts about true married life. She complained to the husband who promised that he would get himself treated by some 'hakims' for this purpose and started taking some medicines. The respondent was thereafter transferred to Bhopal where the parties lived for three years. At Bhopal the respondent was getting medicines from Delhi and he got somewhat better and the petitioner got preg- nant although there was no normal and complete sexual intercourse between the parties as there was some penetration. The petitioner bore a son from the husband who was born in February, 1959. It was maintained that this was only a temporary phase and the respondent was again not able to perform the act of sexual intercourse. By this time the appellant and her parents had also come to know and though the respondent was asked to get himself treated, he refused to do so and on thcontrary started treating her with cruelty. The respondent was thereafter transferred to Rangat in Andaman where the parties stayed for about a year. Thereafter he was transferred to Port Blair and the parties stayed there upto 1962. It is alleged that it was only on the persuasion of the respondent and the assurance given by him that he will treat himself and become potent that the appellant went to Nasik in the end of 1962. Thereafter the respondent was transferred to Bombay in 1963 when she came to reside with her parents. It is alleged that in 1963 when the appellant was sure that it was impossible for her to live with the respondent and she could not tolerate the cruelty any more, she joined the institute of catering Technology, Bombay and passed her examination of Hotel Management in the year 1966. During this period the respondent was posted at Kanpur and the appellant went there and stayed for about 4 or 5 days but the respondent had become from had to worse. Even in 1964 the appellant went and lived with the respondent but found that the position had not improved. Prayer was accordingly made for the necessary reliefs.

(3.) The respondent denied the allegations. It was denied that the respondent suffered from any complex much less inferiority complex. The allegations about the sexual inability of the respondent or there being incomplete intercourse/insufficient penetration were characterised as baseless and false. On the other hand, the parties enjoyed harmonious relations and led a very happy married life till the year 1965 when there was an abrupt and unfortunate turn at the instigation of her parents who were unduly flared up by the rightful demand of the respondent for the return of his loan with them. It was denied that there was any occasion or necessity for treatment for any sexual deficiency or disability as alleged in the petition. The allegations about the beating being given by the respondent to the wife were also denied as being imaginary and baseless. The allegation of impotency was denied and so was the suggestion that the respondent had got himself treated for it. It was also maintained that the respondent had himself at his expense got the wife admitted in the institute of Catering and Technology at Bombay with a view to ameliorate the status and financial position of the family. It was maintained that it was during this period of 1964 to 1966 that some unfortunate circumstances/influences have worked on her that have created a wedge between the two loving spouses for reasons best known to her. On the pleadings of the parties the following issues were framed:-