M VENKATACHALAPATHY Vs. SAROJA ALIAS THANGAMMAL

JUDGEMENT

(1.) THE husband, who initiated proceedings against his wife under section 13 (1) (b) of the Hindu Marriage Act XXV of 1955 as amended by Act LXVI1I of 1976, is the petitioner in this civil revision petition, which is directed against the order dismissing an application filed by him to direct his wife, the respondent herein, to appear in Court and submit herself to a medical examination. THE petitioner, in the course of his application, stated that the respondent is suffering from a deformity described as infantile uterus and it was only on account of this condition, she was not able to live a normal life with the petitioner and had left the petitioner since April, 1973 and living separately and therefore, the petitioner is entitled to a decree of divorce on the ground of desertion. That application was resisted by the respondent on several grounds, which need not be noticed in detail for purposes of the present civil revision petition. Suffice it to say that the Sub-Court, Tiruchirapalli, enquired into this application of the petitioner and found that the ground of assertion put forth by the petitioner has not been established. Consequent to this finding, the application filed by the petitioner was dismissed. Aggrieved by that, the petitioner preferred C. M. A No 700 of 1979 before the District Court, Triuchirapalli, and that appeal is new pending In I. A. No. 49 of 1980, the petitioner sought a direction to the effect that his wife, the respondent herein, should appear in Court, and submit herself to a medical examination by a competent medical expert. In paragraphs 3 and 7 of the affidavit in support of that application, the petitioner had stated that the respondent had a physical deformity which rendered her unfit for normal marital life and child-bearing and that in order to establish that, it is necessary that the respondent should be examined by competent doctors. That application was resisted by the respondent herein on the ground that there is no physical deformity at all in her as claimed by the appellant and that though the petition for divorce was pending for more than three years, no application for medical examination of the respondent had been earlier filed by the petitioner. It was also further pointed out on behalf of the respondent that none of the doctors had been summoned to give evidence on their medical examination and that would establish the mala fide conduct of the petitioner. THE respondent further stated that the petitioner is romantically inclined and had also married another girl and had turned her out as well and that the application was only filed with a view to prolong the proceedings, the learned Additional District Judge, Tiruchirapalli, who enquired into this application, held that the petition filed bv the petitioner was a frivolous and unsustainable petition as, even according to the petitioner in the course of his evidence he had stated that he was not going to examine any of the doctors to establish the physical deformity of the respondent. On this conclusion, the application filed by the petitioner was dismissed. It is the correctness of this order that is challenged in this revision.

(2.) NO doubt, the petitioner has come forward with a case that the respondent suffers from a deformity known as infantile uterus which renders her incapable of leading a normal married life. The petitioner has to establish that the condition of the respondent was responsible for her having left the petitioner since April, 1973. In the course of the proceedings before the trial Court, the petitioner did not take any steps whatever either for examining the doctors or even by a. King for a medical examination of the respondent. Indeed, as has been pointed out by the learned District Judge, the definite stand that was taken by the petitioner was that he was not going to examine any of the doctors. Though the learned "counsel for the petitioner would attempt to explain that this statement was made by the petitioner in a different context, a perusal of the evidence of the petitioner indicates that he was not anxious to let in any medical evidence with reference to the alleged deformity of his wife, the respondent herein. In that state of affairs, the petitioner should be taken to have not established that his wife, the respondent herein, is having infantile uterus and therefore, he would not be entitled to the relief prayed for by him. It is only to cover up this lacuna a that the petitioner has come forward with the present application. The Court below was justified in treating this application as a frivolous application especially when, the petitioner had an opportunity to 1st in medical evidence to establish the condition of the respondent as claimed by him but did not do so.