SARDAR MANJIT SINGH Vs. BAUTY CHATURVEDI

JUDGEMENT

(1.) The present appeal is directed against the judgment dtd. 20/2/2021 passed in Matrimonial Case No. 102 of 2019 (C.F. No. 102 of 2019) by the Court of Principal Judge, Family Court, Madhubani whereby and whereunder the application filed by the appellant-husband under Sec. 12 of Hindu Marriage Act, 1955 for declaring his marriage with respondent-wife as null and void has been dismissed.

(2.) Briefly stated the fact of appellant's case is that marriage of appellant with respondent was solemnized on 31/7/2015 in Arya Samaj Mandir, K-1319 Sector 9 Vijay Nagar, Ghaziabad, (Uttar Pradesh). Subsequently the marriage was registered before the Registrar (Hindu Marriage), Ghaziabad, Uttar Pradesh. It is claimed by the appellant that appellant and respondent solemnized marriage as per Hindu Customs and Ceremony on 12/6/2017 at Madhubani, Bihar and thereafter the respondent-wife returned to her parental home (maike). It is further averred in the petition that marriage was not consummated. It is further averred that both parties resided at common place, namely, Mangaurani Road, Near Hanuman Mandir, Sankat Mochan Colony, Ward No. 7, P.S. Madhubani, District Madhubani, Bihar, which is father's house of the appellant. During course of residing at common place, as mentioned above, respondent-wife never co-habitated or never established sexual relationship with the appellant, taking excuse on one or other pretext. It is further averred in the petition that no physical relation was established between the appellant and respondent thereby marriage has not been consummated. It is further claimed that treatment of respondent-wife started at Jyoti Punj Hospital situated at Boring Road, Patna and lastly the Gynaecologist after various examinations and medical test informed the appellant-husband that respondent-wife suffered from Blind Vagina and she could not established sexual relationship. It is claimed by the appellant himself that said query was inquired from the respondent and she admitted that she was aware of the physical and medical fact that she was not able to have a normal physical and sexual relationship with husband and she concealed the aforementioned factual aspects. It is further averred in the petition that on 16/4/2018, the appellant came to know about the respondent having Blind Vagina and she was not in a position to establish sexual relationship and since 16/4/2018 both parties are living completely separate from each other and prayer has been made to declare the marriage of appellant with respondent null and void on the ground of female sexual dysfunction (FSD).

(3.) Learned counsel for the appellant submits that all the process have been exhausted but the respondent-wife did not turn up before the Family Court and case was fixed for ex parte hearing against the respondent-wife on 6/1/2020. Learned counsel further submits that there is a specific averment in the petition that on account of FSD of the respondent, the marriage has not been consummated but the learned Principal Judge, Family Court has not specifically made any contention on the said ground. Hence, the judgment dtd. 20/2/2021 is not tenable and sustainable in the light of fact that the Family Court has taken into account irrelevant material which has no concern with the averment made in the petition. Learned counsel further submits that it has been specifically contended in para- 17 and 18 of the petition that on account of Blind Vagina both parties are living separately from each other and the said fact was not in the knowledge of the appellant prior to 16/4/2018 and it has also been specifically asserted by the appellant that he came to know regarding the said fact on the basis of medical examination of a lady doctor and the said fact has not been taken into account by the Principal Judge, Family Court, Madhubani and the impugned judgment has been passed without appreciation of the facts as asserted in the petition.