Divorce on denile of SeX

IN THE HIGH COURT OF JUDICATURE AT MADRAS          

DATED: 26/07/2006 

THE HONBLE MR.JUSTICE P.D.DINAKARAN and THE HONBLE MR.JUSTICE P.P.S.JANARTHANA RAJA          

C.M.A.No.1905 of 2002 

P.Devaraj                      .. Appellant
-Vs-
V.Geetha                       .. Respondent
        PRAYER:   Appeal  against  the   order   dated   13.9.2000   made   in
H.M.O.P.No.308 of 1995 on the file of the Family Court, Coimbatore.

For Appellant  :       Mr.K.Kalyanasundaram
For Respondent :       Mr.A.S.Vijayaraghavan

JUDGMENT  :(Delivered by P.D.DINAKARAN,J.) 

        As  the  dispute  between the parties is very narrow, the parties were
directed to appear in person to sort our their  differences  as  requested  by
their respective  counsel.  Accordingly, both the parties appeared before this
Court on 14.07.2006.  All st were initiated by  their  respective  counsel  to
sort   out  differences  and  to  bring  the  parties  together  for  amicable
settlement.  But, unfortunately, learned counsel for both  the  parties  could
not   succeed  in  their  efforts  to  bring  the  appellant/husband  and  the
respondent/wife together.  Hence the matter stood adjourned today.
        2.  When the matter was taken up for hearing today (26.7.2006), at the
outset, this Court opined that the submissions may be made before  some  other
Bench  as  the  efforts made by the learned counsel for both sides before this
Bench ended in vain.  Howe  the  learned  counsel  appearing  for  both  sides
expressed  their view that there is no need to post this case before any other
Bench and requested us to dispose of the matter on merits.  Hence, the  matter
is heard and disposed of on merits as hereunder:-

        3.   Alleging  cruelty  and desertion against the respondent/wife, the
appellant-husband approached the Family Court, Coimbatore under Section 13  of
the  Hindu  Marriage  Act  (hereinafter  referred to as the Act) by way of a
petition in H.M.O.P.No.308 of , praying  for  dissolution  of  their  marriage
solemnized on  10.6.1988  by  a decree of divorce.  The Family Judge dismissed
the petition by an order dated 13.9.2000.  Hence, the present appeal.

        4.1.  The facts of the case giving rise to the filing of  the  present
appeals  are  that  marriage  between the parties was solemnised on 10.6.1988.
After the marriage the appellant and the respondent lived at Coimbatore.   The
respondent  avoided  the  appel  from  consummating the marriage, however with
great difficulty the marriage was  consummated.    The  respondent  complained
abdominal pain and it was suspected that she might be suffering from cancer in
the uterus.    It  was  alleged  that the appellant was not informed about the
details of ailment and the material facts were suppressed by  the  respondent.
Without the knowledge of the appellant, the respondent consented for operation
and her   uterus  was  removed  on  31.10.1988.    After  the  operation,  the
respondent/ wife was not interested in the  matrimonial  life,  and  when  the
appellant tried to have sexual intercourse with the respondent, the respondent
ill-treated the   appellant  and  refused  to  sleep  along  with  him.    The
petitioner, thus, was put to physical  and  men  tal  agony  in  view  of  the
non-cooperative attitude  of  the  respondent.   The respondent also quarreled
with the appellant on one ground or the other.  The  respondent/wife  deserted
the petitioner from 25.12.1989 and there was no cohabitation since then.

READ  No Divorce for own misdeeds

        4.2.  Based on the said allegations the appellant filed H.M.O.P.No.308
of 1995 praying for dissolution of their marriage by a decree of divorce.

        4.3.   The said petition was resisted by the respondent/wife by taking
the stand that the appellant and she had sexual intercourse, she  also  became
pregnant  and when the appellant took the respondent to the Doctor, the Doctor
informed her that she sho undergo an operation and with  the  consent  of  the
appellant, the  operation  was  performed  and  uterus was removed.  After the
operation, when the respondent went to her marital house the appellant and his
mother subjected her to cruelty and drove her away f rom their house.   It  is
submitted  that  she is not impotent, she never deserted the appellant and she
did not ill-treat the appellant.

        4.4.  The trial Court, after considering the submissions of both sides
and the evidence adduced, came to the conclusion that (i) the  respondent/wife
is  not  impotent;  (ii)  the  respondent/wife  never  refused  to have sexual
intercourse with the appellant she never treated the appellant  with  cruelty;
(iii)  the  respondent/wife never deserted the appellant, and refused to grant
the relief of divorce.  Hence, the present appeal.

        5.  Mr.K.Kalyanasundaram, learned counsel for the  appellant  contends
that:
(a) the respondent/wife never had any interest to have sexual intercourse, she
was  non  co-operative, the marriage was not consummated for considerable time
and she deserted appellant from 25.12.1989;

(b) the above said non-cooperative and rigid attitude of  the  respondent/wife
amounts to physical and mental cruelty; and
(c)  the  respondent/wife  underwent  surgery of removal of uterus without the
knowledge of the appellant/husband.

        6.  In  opposition,  Mr.A.S.Vijayarghavan,  learned  counsel  for  the
respondent made submissions supporting the impugned order for the very reasons
stated in  it.   In his argument, he reiterated the submissions that were made
before the trial Court.

        7.1.  Even though treating the spouse with cruelty  is  a  ground  for
divorce  under  Section  13(1)(i-a) of the Hindu Marriage Act, cruelty has not
been defined under the Act but  in  relation  to  matrimonial  matters  it  is
contemplated  as  a  conduct  of  such  t  which  endangers  the living of the
petitioner with the respondent.  Cruelty consists of acts which are  dangerous
to life,  limb  or health.  Cruelty for the purpose of the Act means where one
spouse has so treated the other and manifested such feelings toward s  her  or
him  as  to  have  inflicted  bodily  injury,  or  to  have  caused reasonable
apprehension of bodily injury, suffering or to have injured health.    Cruelty
may be  physical  or  mental.    Mental cruelty is the conduct of other spouse
which causes mental sufferi ng or fear to the matrimonial life of  the  other.
Cruelty,  therefore,  postulates  a  treatment  of  the petitioner with such
cruelty as to cause a reasonable apprehension in his or her mind that it would
be harmful or injurious for the petitioner to live  wi  th  the  other  party.
Cruelty,  however,  has to be distinguished from the ordinary wear and tear of
family life.  It cannot be decided on the basis  of  the  sensitivity  of  the
petitioner  and has to be adjudged on the basis of the course of conduct which
would, in general, be dangerous for a spouse to live with the other.

READ  Divorce : Cruelty,Irretrievably broke down,

        7.2.  In the instant case, the  trial  court,  after  considering  the
averments  made  in  this  regard  and the evidence led in support of thereof,
found on facts that the appellant failed to prove the allegations  of  cruelty
attributed  to  the  respondent,  and same in our considered opinion, needs no
reconsideration.

        8.1.  It is well settled that no decree of divorce could be granted on
the ground of desertion in the absence of proof.  Desertion, for the purpose
of seeking divorce under the Act, means the  intentional  permanent  forsaking
and  abandonment  of  one  se  by  the  other without that others consent and
without reasonable cause.  In other words it is a  total  repudiation  of  the
obligations of  marriage.    Desertion  is not the withdrawal from a place but
from a state of things.  Desertion, therefore, means  withd  rawing  from  the
matrimonial obligations  i.e.  not permitting or allowing and facilitating the
cohabitation between the parties.

        8.2.  The proof of desertion has  to  be  considered  by  taking  into
consideration  the  concept  of  marriage  which  in  law legalises the sexual
relationship between man and woman in the  society  for  the  perpetuation  of
race,  permitting  lawful indulgence in p on to prevent licentiousness and for
procreation of children.  Desertion is not a single act complete in itself, it
is a continuous course of  conduct  to  be  determined  under  the  facts  and
circumstances of  each  case.    If a spouse abandons the other in a sta te of
temporary passion, for example, anger or disgust without intending permanently
to cease cohabitation, it will not amount to desertion.  It has always  to  be
kept  in  mind  that  the question of desertion is a matter of inference to be
drawn from the fa cts and circumstances of each case.

READ  SC: Divorce - Mental Cruelty

        8.3.  In  the  instant  case,  when  the  respondent/wife,  after  the
operation,  went to her marital house, it is the appellant and her mother, who
subjected her to cruelty and sent her out.  Moreover,  the  appellant/husband,
after  the  above  dispute with the pondent/wife, married one Priyalakshmi and
has two children through her.  It is also not disputed that on a report by the
respondent/wife, the police prosecuted the appellant and convicted  him  under
Section  494  of  the  Indian  Penal  Code  and sentenced him and the same was
confirmed by the lower Appellate Court and now, an appeal  is  pending  before
the High Court.  Under such circumstances, the ground of desertion, the aid of
which  is  sought  by  the  appellant  for  seeking  divorce, also deserves no
consideratio n.

        9.1.  It cannot be disputed that a woman without a uterus is quite fit
for sexual intercourse.  Impotency is incapacity  for  sexual  intercourse  or
when coition  is  difficult  or painful.  The presence or absence of uterus is
quite immaterial to the ques whether a woman  is  impotent  or  not.    Merely
because the uterus of a woman is removed, she could not be held to be impotent
and that could not be a ground to declare the marriage void, vide Samar Som v.
Sadhana Som, AIR 1975 Calcutta 413. 

        9.2.   In  the  case  on  hand,  the  marriage  was  consummated,  the
respondent/wife also became pregnant, and only to save her from the  impending
danger  of  escalation  of  uterus cancer, she was operated and her uterus was
removed.  Even though it is alleged he appellant that the  removal  of  uterus
was  done  without  his knowledge, the trial Court recorded that the appellant
during his cross-examination, admitted that the  respondent  was  admitted  in
Ramakrishna  Hospital  for  the purpose of operation and the appel lant was in
the hospital  and  according  to  R.W.2,  Dr.Tmt.Mrudubashini,  who  performed
surgery,  consent  was  obtained  from  the appellant for operation, and these
facts substantially establish that the appellant was aware of the  removal  of
the uterus of the r espondent.

        For the reasons aforesaid, we dismiss this appeal and affirm the order
of the Family  Court.  No costs.  Considering the trauma and agony suffered by
the respondent/ wife, who appeared before us, and her request for  maintenance
and  return  of  ornament  we  make  it clear that she is always at liberty to
approach the Court concerned by filing necessary petition for maintenance  and
the same shall be considered on merits as and when filed.
To:The Family Court Coimbatore.

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