RAJPAL SOOD Vs. SANEHLATA KAPOOR

JUDGEMENT

(1.) By this appeal under Sec. 28 of the Hindu Marriage Act, 1955, the appellant/husband challenges the dismissal of his suit for divorce which he filed on the allegation that the respondent was guilty of mental cruelty is not permitting access to him and also on the ground of her impotency.

(2.) The spouses were married on 14-10-1977. For two or three days they lived together at the appellant/plaintiffs's place in Bhopal where from they went to Nainital and to Delhi. They returned to Bhopal on 9-11-1977, the respondent went to her parents place at Jhansi and has not come back to the appellant since then. Thus, the spouses did not live together even for a period of it month after their marriage. On Nov. 20, 1977, the appellant served a notice on the respondent and filed the suit on Jan. 27, 1978. On Jan. 31, 1978, summons of the suit were directed to be served on the respondent. The order sheets of the lower Court disclose that at about 3 00 P. M. the appellant again appeared in the Court with his Advocate Shri Gulab Nihlani. The respondent also appeared and an application was filed on her behalf consenting to the decree fer divorce. She was identified by Shri K C. Chhugani, Advocate. The lower Court took that application as a part of the written statement only and did not choose to act upon it. The matter proceeded and the respondent then then was represented by Shri T. R. Yadav, Advocate. Written statement was filed denying the allegations in the plaint. The respondent in order to prove her potency and her ability for sexual intercourse got herself medically examined, produced medical report (Ex. D/1) and also examined Dr. (Mrs ) B. Gulati as D. W. 1. The appellant oily examined himself. After full trial, the suit has been dismissed on the finding that the appellant could not prove the allegations. The lower Court has placed reliance upon the testimony of Dr. (Mrs) B. Gulati.

(3.) Shri G. S. Nihlani, Advocate who appeared for the appellant, argued that the approach of the lower Court was faulty and that the probabilities of the case were in favour of the appellant. After drawing the attention of this Court to the application dated 23-10-1980 filed in the lower Court, learned counsel offered that the appellant is ready to have the company of the respondent to show her aversion to sex. Learned counsel also referred to the respondent's application dated 31-1-1978 and submitted that no useful purpose would be served if the spouses are forced to live together and the marriage tie is not broken. As against this, Shri M.M. Sapre, learned counsel for the respondent submitted that no cruelty has been proved and the case of impotency of the respondent is not even properly set out in the plaint. It was also submitted that the offer made by the application dated 23-10-1980 and reiterated before -this Court was not bona fide. After hearing the learned counsel for the parties, I am of the opinion that the appeal must be dismissed.