LAWS(P&H)-1975-4-6

PROMOD SHARMA Vs. RADHA

Decided On April 03, 1975
PROMOD SHARMA Appellant
V/S
RADHA Respondents

JUDGEMENT

(1.) The parties to the present appeal, who are Brahmins, were married on 13th February, 1960, at Amritsar. Due to unfortunate circumstances, the parties did not lead a harmonious married life and frustrated by the extremely unhappy situation, the appellant made an application under Section 12 of the Hindu Marriage Act, 1955 (hereinafter briefly called 'the Act') on 11th July, 1961, before the trial Court for annulment of the marriage on the ground that his wife Shrimati Radha respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings. Various other pleas were also taken in the petition. It was also mentioned in the petition that his wife Shrimati Radha had an innate aversion and invincible repugnance to sexual intercourse. Shrimati Radha denied the allegations in her written statement and categorically asserted that she was capable of sexual intercourse and that actually she and her husband were leading good sexual life. On the pleadings of the parties, following issues were framed by the trial Court:--

(2.) The trial Court by its judgment dated 6th March, 1965, allowed the application of the appellant and passed a decree for annulling the marriage between the parties and thus the suit was decreed. Against the judgment and decree of the trial Court, Shrimati Radha filed an appeal (F. A. O. No. 29-M of 1965) which came up for hearing before the learned single Judge. This appeal was dismissed on 1st August, 1966, by P.D. Sharma, J., On the preliminary objection that a copy of decree sheet of the trial Court was not annexed with the grounds of appeal. Against this judgment the respondent-wife filed Letters Patent Appeal No. 263 of 1966 which was allowed on 18th April, 1968, and the case was sent back to the learned single Judge for fresh decision on merits. It was in these circumstances that first appeal from order came up before Gurdev Singh, J., who allowed the appeal and set aside the judgment and decree of the trial Court vide his judgment dated 13th of October, 1972. It is against this judgment that the present appeal has been filed under Clause X of the Letters Patent by the husband.

(3.) The learned counsel for the appellant has raised a preliminary objection that the appellant having remarried after the grant of the decree for nullity of the marriage between the parties by the trial Court, no relief can be granted to the respondent. It may be stated here that after the dismissal of the first appeal of the respondent-wife on preliminary objection by P.D. Sharma, J., on 1st August, 1966, the appellant remarried soon thereafter. On remand by the Letters Patent Bench, first appeal of respondent-wife, was allowed by Gurdev Singh, J. on 13th October, 1972, when the appellant, Promod Sharma, had already remarried. This point is not dealt with by the learned single Judge and it seems that it was not raised before him. Since it is a legal point, it is allowed to be taken at the Letters Patent stage.