MANJU THAKUR Vs. RAJ KUMAR

JUDGEMENT

(1.) THE appellant is the wife and is aggrieved by the judgment and decree passed by the learned District Judge, Shimla, on 20.08.2011 in H.M.A. No. 4 -S/3 of 2007 whereby the petition filed by the respondent for grant of a decree of divorce and also to declare the marriage between the parties annulled, has been allowed.

(2.) THE facts as are necessary for the adjudication of the appeal may be noticed. The respondent preferred a petition under Sections 12(1)(a), 13(1)(ia) and (ib) of the Hindu Marriage, Act, 1955. It was averred that respondent herein had lost his father long back, who was working with HRTC. After the death of his father, respondent had to seek employment on compassionate grounds with HRTC. The respondent had studied up to 7th standard and had been employed as helper/painter by the HRTC. Sh. Kameshwar Thakur was husband of sister of the appellant, who had been working as carpenter with HRTC. The respondent is from Sood community while appellant is Rajput by caste. The mother of the respondent was old, illiterate and rustic woman. Shri Kameshwar Thakur had been persuading the respondent and his mother for marriage with the appellant and on his persuasion respondent and his mother had consented for marriage. Dowry less marriage had been performed in 'Butail Dharamshala', Shimla between the appellant and respondent in accordance with Hindu rites and rituals on 29.06.2002. After marriage, the appellant had accompanied the respondent to his house and had stayed there for about a month. During this period, the appellant did not allow the respondent access to her. The appellant did not agree for marital intercourse. After some time, the appellant left for house of her parents and had stayed with her parents for about 45 days and thereafter returned to the matrimonial house. Even after visiting her parents, appellant did not agree for marital intercourse and she had not been permitting the respondent even to touch her body. The appellant had been insisting for separate accommodation. Since the marriage could not be consummated due to the conduct of the appellant, the respondent had felt intense mental and physical pain, shock and suffering. The respondent had been in depression and had been so observed by his mother. The mother -in -law of the appellant had observed her unusual conduct and even she was not observed menstruating and when asked to go for a medical check up, the appellant had started picking up quarrel with the respondent and his mother. Respondent's mother was owner in possession of one old house at Ghanahatti and the parents of the appellant belonged to nearby area. With a view to carry on with his marriage, the respondent was directed to take the appellant to his house at Ghanahatti and even at Ghanahatti, the appellant did not permit the respondent to establish physical contact with her.

(3.) THE appellant, who was the respondent below, had resisted the petition on the ground of maintainability in preliminary objections. In reply to paras on merits, the appellant admitted her marriage with the respondent on 29.06.2002 at Shimla. After marriage, the appellant had accompanied the respondent to his house and the marriage between the parties stood consummated. The appellant denied her suffering from mental and physical impotency. After staying for 1 1/2 months with her husband, the appellant had left for the house of her parents. She had stayed there for sometime and had returned to the matrimonial house. The respondent under the influence of liquor used to treat the appellant with cruelty. The appellant tolerated the cruelty meted out to her with the hope that the conduct of her husband would improve. The respondent and her mother had not been treating her well. The appellant denied having been found in doubtful circumstances with her brother -in -law Sh. Kameshwar Thakur at Ghanahatti on 12.09.2003. The respondent had deserted the appellant and she had been compelled to stay with her parents. The appellant having been pushed against the wall by the respondent had complained against the respondent and his sister to the authorities. The respondent neglected her and refused to pay maintenance under Section 125 Cr.P.C. The appellant denied that she ever treated respondent with cruelty at any stage. The respondent had suppressed material facts and he was not entitled to annulment of his marriage on the ground of impotency of the appellant.