BHASKAR PANDURANG MAHATMA Vs. MEERABAI BHASKAR MAHATMA

JUDGEMENT

(1.) In which Court does first appeal under section 28 of the Hindu Marriage Act ("The Act of 1955" for short) against the originial decree passed by Assistant Judge lie, is a principal point of law to be determined in this Second Appeal at the behest of the husband (the original petitioner) who has filed a petition for divorce under section 13 (1) (i-a), (i-b) and (iii) of the Act of 1955. The petitioner succeeded in the trial Court and a decree for divorce was granted but only under section 13 (1) (i-a) and (iii). However, the first appeal by the wife before the District Judge succeeded resulting into the dismissal of the petition.

(2.) The substance of the petition is as under : The marriage between that parties took place on 30-5-1974. It was consummated. The petitioner is a resident of village Wathoda Shukleshwar about 20 miles away from Amravati. The parties have a male child born on 15-10-1977. The wife suffers from mental disorder and gets fits after sexual intercourse, as a result she becomes unconsious and remains in that condition for 2-3 days without taking any food or water. After the medical treatment she recovers but the disorder is repeated after the intercourse. The petitioner is in the prime of his youth. Marriage without sex is an anathema. He is unable to have sex with his wife and is leading a miserable and unhappy married life. The petitioner cannot live with the wife under the circumstances. The wife's brother and maternal uncle frequently came to the village. They were informed about this unfortunate state of affairs. As a result, they took her to village Shendurjana Khurd, where her parents live. The wife also treated the petitioner with cruelty, abused him and behaved in a most indifferent manner. She never cared for the husband. Since last two years she was living with her parents and had deserted the husband.

(3.) The defence is as under : The allegations about mental disorder, cruelty and desertion are all false. The petitioner always insisted that she should sign a divorce-deed but the respondent refused and therefore she was beaten and constantly ill-treated. Ultimately, she was sent to her parents' place. Because of the beating and ill-treatment, she got a shock and the fits that she got some times was the result of the ill-treatment. The respondent was willing to stay with the petitioner.