AMARENDRA CHAUDHARY Vs. NALMI CHAUDHARY

JUDGEMENT

(1.) This First Appeal by the husband under Section 23 of the Hindu Marriage Act, 1955, hereinafter called 'the Act' is directed against the judgment of the Addl. District Judge, Delhi dismissing the appellant/husband's petition under Section 12 of the Act for annulment of the marriage solomnised between the parties on the ground that the respondent/wife was impotent at the time of the marriage and continued to be so until the institution of the petition. The appeal has been filed in the following circumstances.

(2.) The appellant and the respondent were married on Jaunary 31,1971 according to Hindu rites, the respondent/wife was about 16 years of age at the time of marriage. After the marrige. the parties lived as husband and wife for a total period of little over three months at defferent places, and since, July, 1971 when she left the appellant's home with her father, the respondent has been living with her parents. There is controversy between the parties as to whether the marriage was duly consummated, if the respondent was impotent from the beginning and continued to be so, the reasons for the rupture between the parties, the manner in which the appellant treated the respondent and the circumstances in which she left his care. It, however, appears that by his counsel's notice of October 12, 1971, copy of which was produced and exhibited at the trial as Ex. P2, the appellant sought restitution of conjugal rights by the said notice from the respondent in course of which, it was made out that the marriage had been "properly consummated", that the respondent lived happily with the appellant during the short period they lived together, that the appellant was aware of the "difficulties and limitations" of the respondent and that the respondent's act of leaving the care of the appellant was "thoughtless and wanton desertion" of the husband, that the respondent's parents had the impression that she had been neglected and had suffered from "fits and faints". It was 'further alleged that the respondent's withdrawal from the appellants society was unjustifided. The notice threatened the respondent with legal action "for restitution" of the appellant's conjugal rights There is no reference in the notice either of the physical or psychological fear of the respondent for coitus or of any aversion to interecou"e generally or with the appellant or of any doubt on the part of the appellant that the respondent was otherwise impotent from the very beginning. In reply to this notice, however, the respondent's father wrote to the counsel a letter of November 5, 1971, a copy of which was also produced and exhibited at the trial as Exhibit P. 3., setting out what appears to be the respondent's version of the circumstances in which she left the care of the husband. In the said letter, it is made out that since her marriage, the respondent has been -'extremely unhappy" on account of "inhuman treatment" meted to her by the appellant which appeared to the respondent's father to be attributable to "compliance of disgraceful conduct" which was demanded of her by the appellant and which was resisted by her. It was further alleged that the appellant "i flicted mental and physical tortures on her, rather she was subjected to brutal acts at Delhi" to the extent of "driving her out" from the appellant's residence. The letter proceeds to describe the then state of the respondent in the following terms:

(3.) The letter thus justifies the refusal of the respondent to join the appellant and advises patience and restraint to the appellant, In a separate letter addressed to the counsel, which was produced in original and exhibited as Ex. P4 at the trial; the respondent affirms the allegations made in her father's reply to the counsel and maintained that because of the inhuman treatment meted out to her, she had developed fits and recites an incident when she fainted when the appellant went to her father's residence to bring her back:. This was followed by the petition out of which this appeal has arisen by which the appellant sought annulment of the marriage on the ground that the respondent had been impotent from the beginning and continued to be so, and is grounded on the allegation that the marriage had never been consummated, that on the very first night of the marriage the respondent showed complete absence of desire for coitus, excused herself by fear of resultant pain, expressed absence of desire for conjugal intercourse even on the following night, exhibited extreme repugnance to the sex act and did not permit the appellant to consummate the marriage. It was further alleged that there was no change in the attitude of the respondent and the appellnt made an attempt at coitus on July 5. 1971 to allay her fears, was able to achieve partial penetration but had to abondon the attempt because the respondent started crying. It was further alleged that on occasions, the respondent would show "nervousn ss and fear and developed hysterical fits"' on the very mention of the coitus. In her reply to the petition, the respondent denied the averment that the marriage had never been consummated but did not specifically assert that it had been so consummated but characterised the allegation made in the petition as being false and drew attention to the admission made in the aforesaid notice of the ' counsel to the effect that the "marriage was properly consummated." This is how the matter was dealt with in para 2 of the reply.