RAJINDER KAPUR Vs. MAN MOHAN SINGH TANDON

JUDGEMENT

(1.) MRS. Rajinder Kapur has appealed against the order of the District Judge, chandigarh, whereby her petition filed against her husband, Shri Man Mohan singh, respondent, for annulment of marriage under Ss. 12 (1) (a) and (c) or in the alternative for judicial separation under Section 10 (1) (b) of the Hindu Marriage act, 1955 has been dismissed. The allegations were that before the marriage the respondent had been falsely representing to the petitioner that he was employed with a firm at Chandigarh on a salary of about Rs. 1000/- to Rs. 1200/- per month and that he had obtained the petitioner's consent to the marriage by practicing a fraud. The other allegation is that the respondent was impotent at the time of the marriage and had continued to be so until the filing of the petition. The alternative relief of judicial separation was sought on the ground that the respondent had treated the petitioner with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious for her to live with her husband.

(2.) IT is the common case of the parties that they had been meeting on the sly for a period of about three or four years before they had been ultimately married on 18th February, 1968. The appellant is an educated lady of about 28 years of age who has been working as a teachers in a school at Chandigarh for the last so many years at a salary of about Rs. 200-300 per month. Before the marriage, the respondent was employed as a salesman with a firm having its head office at chandigarh. His headquarters were however at Amirtsar but his touring job took him to a number of places like Ambala, Morinda, Chandigarh, Delhi, etc. Both parties had relatives at some of these stations and this fact had made it possible for them to meet secretly even before the marriage. It may also appear that the parties were keeping up a sustained correspondence before and after the marriage and it is natural to believe that the evidence of such conquests in life would be treasured and preserved by the parties. The respondent had produced more than a hundred letters written by the appellant and it is rather hard to believe that the appellant with her education and independent resources was not in a position to preserve any of the love letters received by her. The letters that she had been writing to the respondent before and after the marriage may suggest that she is rather passionate type and the medical evidence examined in the case seems to put her in the 'over-sexed' category. Most of these letters leave no doubt in mind that these meetings arranged on the sly, at the risk of incurring the displeasure of the appellant's parents, were not always on such a high platonic plane that the close intimacy or proximity would have left the appellant ignorant of any deficiency or weakness in respondent's manly vigor, if it had existed. Some of the letters written by the appellant, soon after the marriage, to the respondent or to his relations, like Exhibit R-100, may show that the appellant was at complete peace with the world and felt fully satiated as a recently married bride should be. A man put on a trial for a period of three or four years would not be able to hide his weakness when the meetings had been so very passionate as may appear from the letters written by the appellant. The appellant was not prepared to get herself medically examined and the reason that she gave was that the respondent had been tinkering with the problem of discharging his marital obligations. It would have been possible for any doctor to say with some degree of certainty whether the present condition of the appellant's genitals was due to a mere superficial tinkering or whether it furnished evidence of sustained cohabitation as husband and wife. The appellant's refusal to allow any medical examination of her person could, therefore, be taken as a corroboration of the respondent's statement that he had sexual intercourse with the appellant scores of times even before the marriage.

(3.) THE respondent had allowed himself to be medically examined by two doctors during the proceedings. If there was any initial hesitation on his part it was only because he had been advised by his counsel that the appellant should also offer to get herself medically examined. But that as it may, the evidence of Dr. Pritam singh, Chief Medical Officer, at Chandigarh, has to be accepted with some care. It may appear that the doctor had interrogated the respondent on two or three sittings and had jotted down some notes in a diary. This diary had not been produced in the Court when the doctor first appeared in the witness box on 27th june 1969. The doctor, however, stated that the diary in which he had taken down the notes could be produced, if required. The trial Court, thereupon adjourned the case to the next day to enable the doctor to bring the diary. On the adjourned hearing the doctor stated that the diary had been misplaced and that certain parts of his report had been completed by him during the interval from his memory and also from the notes in his diary. If the notes in the diary were available for preparing the report a day earlier, there was no satisfactory reason why the diary should have been withheld from the Court the next day. It would, therefore, be natural to conclude that if the doctor had produced the diary, he would not have supported him on all the points that he had mentioned in his report Ex. A-3/a-B. The doctor had brought in irrelevant considerations in his report when he mentioned the presence or percentage of sperms in the respondent's semen. He admits in his cross-examination that the presence or absence of live sperms has nothing to do with one's potency. Not withstanding all this, the respondent was reported to have 30 to 35 percent healthy and motile sperms in his semen. This estimate had been prepared by the doctor on rough and ready observations and not on the basis of any scientific formula. The doctor had not cared to observe the respondent's male organ with regard to its state of erection at the time of the seminal ejaculation. He had found a normal physical development of the respondent's sex organs. The opinion given by this doctor that the respondent was suffering from psychic impotency is based on certain answers said to have been given by the respondent during his interrogation. Since we cannot rely on the doctor's notes prepared from his memory or on the basis of entries in the diary which he does not like to produce for the scrutiny of the Court, his report has little evidentiary value. Even according to these notes the respondent used to have sexual intercourse with the appellant at one time. All that this report, based on unreliable data and notes, may seem to suggest is that if the respondent was found wanting by comparison it was only because the appellant was suspected of being unnaturally over-sexed. The opinion of the doctor may, therefore, appear more natural and convincing. Dr. C. L. Sehgal, P. W. 7, a private medical practitioner at Gaziabad had been consulted as the respondent's work takes him to that station quite often. The doctor has been in service in the Irwin Hospital at New Delhi and in the U. P. Provincial Medical Service for a number of years. He found the respondent's generative organs and testicles well developed. There was normal-formation or defect. The respondent was found to be having normal organs and was declared fit to perform the sexual act. This evidence is more consistent with the conduct of the parties before and after the marriage and the letters that the appellant had been writing to the respondent. The appellant has not produced the letters that she had received and the natural inference is that if produced, these letters would throw a flood of light on the case, which would not suit the appellant.