HARPRASAD SANTORE Vs. ANITA SANTORE

JUDGEMENT

(1.) THE appellant husband feels aggrieved by the Judgment dated 19 -11 -90 passed by Shri R.K. Shrivastava, District Judge, Hoshangabad in Civil Suit No. 41 -A/89 dismissing his application for divorce under Section 12(l)(a) of the Hindu Marriage Act (hereinafter referred to as the Act) and has preferred this appeal challenging the legality and validity thereof under Section 28 of the Act.

(2.) THAT the parties were married on 7 -3 -88 and lived together upto 11 -6 -89 does not seem to be in dispute. The appellant in his application alleged that the respondent left his home on 15 -6 -89 and did not return so far. He also alleged that during this period, the respondent could not bear any child. He also alleged that there was no consumation of marriage as the respondent's vagina was not well developed and ovary was missing. He further alleged that though her breasts were developed, she was not able to engage in sexual act because of absence of ovary. The appellant further alleged that the respondent was treated by one Dr. Smt. Kalyani at Hoshangabad who had opined (hat the respondent was not till for sexual intercourse. He therefore alleged that she was impotent and therefore their marriage was liable to be dissolved under Section 12(1)(a) of the Act.

(3.) THE learned Judge by his order dated 2 -7 -90, relying on a decision of this Court in Maya Gohiya v. Premlal, 1990 JLJ 346, held that the burden of proving allegations made in the plaint was on the appellant and since the respondent was not willing to submit herself to medical examination, no commission for examination could be issued. The appellant's application for issuing a commission for respondent's examination was therefore dismissed.