SANJAY KUMAR GUPTA Vs. SUNITA DEVI

JUDGEMENT

(1.) The husband, Sanjay Kumar Gupta has filed this First Appeal against the judgment and decree dated 17.01.2001 passed by Sri Pradeep Kumar, the learned Additional District Judge, Vaishali at Hajipur in Original Suit No.5 of 1997 whereby the learned Court below dismissed the application for divorce filed by the appellant under Section 13 of the Hindu Marriage Act.

(2.) The appellant filed the application originally for judicial separation. However, it appears that the plaint was amended in the year 1999 and a decree for divorce and in the alternative for adecree for nullity of marriage was prayed for. The appellant''s case is that marriage took place between them on 26.02.1996. At the time of marriage, it was not disclosed to the appellant that the respondent was suffering from eye disease i.e. retina pigmentation which is incurable eye disease and affect children also. This fact was fraudulently concealed prior to marriage negotiation. Had the aforesaid fact been disclosed, the petitioner would not have married with the respondent. After marriage, the respondent lived in the house of petitioner from 27.02.1996 to 02.03.1996 and then her brother took her. She went with her brother taking all the ornaments and she never brought again the said ornaments. The petitioner brought her on 28.05.1996 and then for the first time, he came to know that the wife is suffering from the said eye disease. The petitioner obtained photocopy of prescription from the father-in-law and got her treated by eye specialist doctor at Lehariasarai and Dr. S.P.Sinha at Muzaffarpur. Then he took her to Delhi and treated her by Dr. Arun Shetty, famous eye specialist in Apollo Hospital and also by Dr. Ausafur Rahman who told the petitioner that the disease is incurable and also told that the children that may be born from the respondent may also be affected. At that time, the respondent was pregnant. Hearing that the child will be affected by the said disease, the respondent desired to abort the child to which the petitioner and his father was not agreeable but they succumbed to the desire of the respondent and the child was aborted on 07.09.1996 by lady doctor, Sushma Sinha at Hajipur. Thereafter, she went to her parent''s house on the day of Chhath on and thereafter, in spite of repeated request, the respondent never came back to the petitioner''s house.

(3.) The further case is that on 31.12.1996, the grandmother of the petitioner expired. When she was informed to come to the petitioner''s house, she did not come. On 14.01.1997, the petitioner went to bring her and requested to fix a date for Ruksadi but the respondent and her father abused and the petitioner was not even asked to sit. This uncalled for treatment of cruelty with the petitioner came as severe shock to the petitioner. When the petitioner asked directly to the respondent as to whether she will go with him, she said that anybody who will try to take her from her Naihar would be beaten with Chapals. The petitioner then returned. The petitioner was again sent by his father with Rabindra Prasad on 19.03.1997 but the respondent and her father repeated the same threatening. Then the petitioner suggested for divorce by consent whereupon the respondent stated that when she did not recognize the marriage at all, there is no question of signing any petition. She also told that if anybody will come to take her, his leg would be broken. Because of this unparliamentarily behaviour of the respondent and her father, it has become absolutely impossible to continue to remain married. On these grounds, the appellant prayed for decree for divorce.