RAMESH MAVJI VORA Vs. CHARU RAMESH VORA

JUDGEMENT

(1.) ON 17-4-1989, the parties married. However, allegation of the appellant is that on 14-12-1989, the respondent-wife left the company. On 20-9-1991 the petition was filed by the appellant for divorce on the ground of desertion and cruelty and decree of nullity on the ground of physical impotency of respondent-wife and non-consummation of the marriage. The Family Court rejected the petition on the ground of desertion as the statutory period as prescribed under section 13 was not complete. The learned Judge also rejected the ground of impotency as there was no sufficient medical evidence. Consequently, the petition was dismissed. Hence this appeal by original petitioner-husband.

(2.) HEARD Mr. Lalwani for the appellant. None for the respondent present though served. We do not propose to interfere with the finding so far as the ground of desertion is concerned. Undisputedly, petition was prematured in view of section 13 of the Act. As we have pointed out, there was non-consummation of marriage between the parties. However, evidence of the respondent indicated that the appellant, was responsible, for there is no child out of the wedlock. The appellant on 18-8-1995 applied to the Family Court for referring the respondent for medical examination by a competent medical authority. Though this application was not opposed, the Family Court rejected the same.

(3.) WITH the assistance of the learned Counsel, we have perused the reasoning. Suffice it to say, that the reasoning is not sound. Having regard to the controversy as involved, reference as sought by the appellant was just and necessary for adjudication of the dispute. In view of this, we set aside the impugned Judgment and decree dated 26-11-1996, and remit the matter back to the Family Court with a direction to refer both appellant and respondent for medical examination to ascertain their potency and after receipt of the report decide the issue as averred by the appellant and dispose of the petition, according to law.