JAGANNATH MUDULI Vs. NIRUPAMA BEHERA

JUDGEMENT

(1.) THIS is an appeal under Section 19 of the Family Courts Act assailing the judgment dated 24th March, 2007 passed by the Judge, Family Court, cuttack in Civil Proceeding No. 433 of 2000. The said Civil Proceeding was registered on the basis of an application under Section 12 (1) (a) of the Hindu Marriage Act with a prayer to declare the marriage between the parties null and void and consequential direction.

(2.) BEREFT of unnecessary details, the short facts necessary for appreciating the case are as follows :-Admittedly the marriage between the appellant and respondent was solemnized on 9th March, 1985 according to Hindu rites and customs. According to the appellant-husband, in the honeymoon night he discovered that the respondent-wife had no vaginal canal and, as such, she was incompetent for cohabitation or begetting child. On his enquiry, it is" averred, the respondent-wife told him that such infirmity was inherent. While she was with her parents, she had been treated at the SCB Medical college-Hospital, Cuttack by one Dr. S. Devi, md of the Department of Obst. and gynaecology who had' advised her for recanalisation of vaginal channel, but then due to lack of funds that was not done. On the fifth day of marriage, the parents and relatives of the appellant-husband sent for the father of the respondent-wife and apprised him of the aforesaid fact and proposed medical treatment, but the latter did not agree and rather the respondent-wife left the matrimonial house along with her father since when she had been staying with her parents. After lapse of fifteen years, it is averred, the respondent-wife filed a petition before the State Women's Commission at bhubaneswar alleging her desertion by the appellant-husband. After receiving notice the appellant-husband appeared before the said Commission and the matter ended in conciliation on 26th August, 2000, the respondent-wife having withdrawn her petition. Thereafter being apprehensive of further problems to him, the appellant-husband, it is averred, filed the aforesaid petition before the Judge, Family Court alleging that the marriage between him and the respondent-wife was solemnized by practising fraud and suppression of true and material facts and that the marriage had never consummated.

(3.) AFTER receiving notice the respondent wife appeared before the Judge, Family court and filed her written statement denying the allegations levelled on her and taking the stand that the documents with regard to her treatment at the SCB Medical college Hospital were all created for the purpose of litigation. She took the plea that after her marriage she came to know that the appellant-husband had pre-marital relationship with a lady named Jyotsna which continued even after marriage. Consequently she was subjected to physical and mental cruelty and ultimately driven out of the matrimonial home.