PUSHPA Vs. DAMODAR PRASAD GOYAL

JUDGEMENT

(1.) THIS appeal has been preferred by the wife against Damodar Prasad Goyal respondent Under Section 28 of the Hindu Marriage Act challenging the judgment and decree dated 4. 8. 93 passed by the District Judge, Shivpuri.

(2.) ADMITTEDLY the appellant was married to the respondent according to Hindu rites. The respondent moved a petition praying that the marriage be declared void. It was alleged that the defendant i. e. wife was not a female and this fact was suppressed. She had no female organs and she had also no uterus. After the marriage when he wanted to have sexual intercourse he found that the defendant had no female organs. Hence the marriage relations could not be performed. She was got treated by Gynaecologist Dr. Wagh, who found that she had congenital absence of vagina and no uterus and cervix felt. The allegations were denied by the present appellant. She alleged that the petitioner (Present respondent) had illicit connection with another lady. He was living with her. She was being ill-treated. The allegations made were concocted. She had been living as a wife from 1979 and no complaint was ever made. The petitioner was estopped. It was not possible that a male Doctor would medically examine a lady. No medical examination had taken place as claimed. The petitioner had married Premkumari second time and he had suppressed this fact. The learned Trial Court after considering the entire material and hearing parties, allowed the petition and declared the marriage as nullity. Hence this appeal.

(3.) LEARNED Counsel for the appellant contended that the learned Court below has relied on medical evidence consisting of Dr. Wagh and his medical report. It has committed an error in relying upon it because Pushpa had been examined has not been proved. She denied on oath that she was never examined by Dr. Wagh. In any case, he also urged that the Doctor had said that it was curable and as such no decree for annulment could be passed.