SOHANPAL JAISWAL Vs. SMT. SHANTI DEVI

JUDGEMENT

(1.) THE appellant -petitioner has filed the present appeal under the provisions contained in the Hindu Marriage Act, 1956, challenging the judgment & decree dated 20.12.1997 passed by the Additional District Judge No. 1, Bharatpur, (hereinafter referred to as "the court below") in Misc. Civil Case No. 11/96, whereby the court below has dismissed the petition of the appellant filed under Section 13 of the Hindu Marriage Act. The short facts giving rise to the present appeal are that the appellant -petitioner is the husband of the respondent -non petitioner. They had married on 10.07.1966. The appellant filed the petition seeking divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty, desertion and on the ground that the respondent was suffering from venereal disease. The court below after considering the evidence led by the parties, dismissed the said petition vide the impugned judgment & decree, against which the present appeal has been filed.

(2.) IT has been sought to be submitted by the learned counsel Mr. M.C. Jain for the appellant that the court below should have drawn adverse inference against the respondent that she was suffering from the venereal disease as she had refused to get herself medically examined, in view of the order passed by the High Court dated 29.05.1997 in Civil Revision Petition No. 627/1997. He also submitted that the respondent had deserted the appellant since 1981 and was staying separate. According to him, the court below has misappreciated the evidence on record and has erred in not holding that the respondent was subjecting the appellant to mental cruelty.

(3.) HAVING regard to the submissions made by the learned counsel for the appellant and having gone through the record of the case, more particularly the impugned decree passed by the court below, it appears that the marriage between the appellant and the respondent had taken place on 10.07.1966 at Bharatpur. Though, the appellant had filed the divorce petition before the court below on the ground that the respondent was suffering from venereal disease, as according to him she had tumors in the uterus, the appellant had failed to produce any medical evidence in support of the said allegation. Of course, the High Court while passing order in the revision petition had observed that the court below would be free to draw adverse inference against the respondent, if she did not show her willingness for the medical check up, the court below has rightly not drawn the adverse inference, in absence of any other medical evidence produced by the appellant, except the oral allegation made by him in his evidence. It is also pertinent to note that undisputedly the respondent was staying in the house of the appellant only, though in different floors of the same building where the appellant was staying, and therefore, it could not be said that the respondent had deserted the appellant. If the respondent was staying separate in the house of the appellant, the court below has rightly held that such an act could not be said to be a desertion for granting the decree of divorce. The appellant had also not produced any evidence except his oral statement with regard to the alleged cruelty committed by the respondent. Thus, considering the totality of the facts and circumstances, this Court does not find any illegality or infirmity in the impugned order passed by the court below. In that view of the matter, the appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.