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Smt Pooja Arya vs Vijay Kumar on 22 April, 2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 48/2016
Smt. Pooja …. Appellant

Versus
Vijay Kumar …. Respondent
Mr. Sharad Sharma, Senior Advocate, assisted by Mr. J.S. Bisht,
Advocate for the appellant.
Mr. B.S. Bhandari and Mr. K.K. Tiwari, Advocates, for the
respondent.

Judgment reserved on: 21.4.2017
Judgment delivered on: 22.4.2017

Hon’ble Servesh Kumar Gupta, J.

This second appeal has been directed against the
judgment and order dated 15.2.2016 passed by the learned
District Judge, Almora in Civil Appeal No. 39/2015. A
matrimonial divorce petition no. 30/2014 was instituted on
2.4.2014 by husband Vijay Kumar against his wife Smt.
Pooja Arya seeking dissolution of the marriage under
Section 13(1)(i-a)(i-b) of the Hindu Marriage Act, 1955.

It is pertinent to mention that both the spouses are
the residents of the same place Indira Basti, Ranikhet,
District Almora. They tied their nuptial knot on 14.7.2009.
So, it can be inferred that wife could have arrived to her
matrimonial home not earlier than the morning of
15.7.2009. When in the coming night, the husband
attempted to consummate the marriage, she denied on the
ground of undergoing the menstrual cycle and this denial
went on as such up to the night of 18.7.2009. On
19.7.2009, Smt. Pooja came to her parents’ house for some
worship and lived their up to 23.7.2009. Nothing has been
indicated in the averments of the husband that he further
tried for cohabitation in the intervening night of
23/24.7.2009. So, that night also could not be of any avail
2

for marriage consummation. On 24.7.2009, both spouses
came to Nainital for the purpose of honeymoon and stayed
in a local city hotel, but nothing has been explicitly
explained regarding the establishment of spousal relations
in the intervening night of 24/25.7.2009.

It was pleaded by the husband that in the evening
of 25th July 2009, he found that Smt. Pooja eloped
suddenly. He inquired from some local persons at Tallital,
where he gathered the information that Smt. Pooja left with
some young man for Haldwani. So, apprehending some foul
play on the part of Smt. Pooja, he also followed her to
Haldwani, where at bus stand he found her sitting alone in
a bus. By that time, it was late evening, but somehow they
both returned to Nainital. Parents of both were informed,
who also arrived in the intervening night of 25/26.7.2009.
So, mutual settlement or the talks to mitigate the
bitterness inter se continued for the whole night, but in
this way the marriage could not be consummated in that
night too. They checked out the hotel in the morning of 26th
July 2009, and it appears that then Smt. Pooja left along
with her own family and did not live in the house of her
husband in the intervening night of 26/27.7.2009.

Since there had been quite bitterness between the
two and their respective families, so on 27.7.2009,
application for mutual divorce was moved in the Court.
They did not dispute that both were residing separately.
But unfortunately, mutual divorce petition was rejected by
the Court on 7.9.2012, whereagainst First Appeal was filed,
which was permitted to be dismissed as withdrawn with
liberty to file proper divorce suit in the competent Court. In
pursuance of that liberty, this matrimonial petition was
launched by the husband, which was decreed by the
learned Civil Judge (Junior Division) on 3.9.2015,
3

whereagainst First Appeal has also failed. Hence, feeling
dissatisfied, the wife has come up before this Court in this
Second Appeal.

Following substantial questions of law were framed:

(i) Whether a judicial officer could
derive the expertise like a bio-technocrat to
record this finding?

(ii) Whether an issue under Section
13(1) and Section (i-b) decided against the
husband could result into decreeing of a suit
under Section 13(i-a)?

I have heard the rival contentions of the parties and
perused the papers on record. I feel that the learned
District Judge has manifested his observations with
miniscule details about the women menstrual cycle as well
as the keenness of the spouse, and predominantly the
husband, to enter into cohabitation just after the marriage.
He has expressed the view that in the intensity of such
keenness, sometimes even the restraint of menstrual cycle
is ignored.

I think that although a judge or a lawyer is
supposed to have some knowledge about everything, but in
such type of personal matters, where the
keenness/intensity to establish the physical relations or
the menstrual cycle vary from person to person, all the
same just after the marriage, a judicial officer could not be
expected to derive an expertise like a bio-technocrat to
record the finding, in question. I answer the first
substantial question of law accordingly.

Further the longevity of the menstrual cycle may
also vary from circumstances to circumstances in a
particular lady and it may also have its dependence upon
many other factors including the social or surrounding
4

atmosphere. So, the longevity of the menstrual cycle in the
present case (as the case of the lady was) from 15.7.2009 to
18.7.2009 (in all, four days) may not be totally impossible.
Rather, in the normal circumstances, it is quite a natural
period.

Thereafter it was only the night of 23/24.7.2009.
However, the husband has not pleaded that any attempt
was ever made on his part in this regard. When they came
to Naintial for honeymoon on 24.7.2009 in the intervening
night of 24/25.7.2009, nothing has been specifically
averred as to why the relations between the two could not
be established then. As is evident, thereafter no suitable
occasion arrived for the purpose because the relations had
been bitter enough and Smt. Pooja Arya had left for her
native home. However, it may be said that ever since the
solemnization of the marriage on 14.7.2009 when the
couple spent the intervening night of 23/24.7.2009 in the
house of husband, then disregard of the initiation on the
part of the husband, Smt. Pooja could have made attempt
on her own to court her husband for the purpose and
thereafter she would have grasped the opportunity in the
intervening night of 24/25.7.2009 in the hotel at Nainital.
It is just possible that on account of her shyness, there
might not have any attempt on her part and thereafter their
relations became so estranged and quarrelsome that it was
not possible.

It was urged by the learned Counsel of the
respondent that 8 years since the marriage have elapsed.
Husband is an army soldier. He is no more inclined to
continue this marriage any further. On the other hand, the
Court also feels that there was some reluctance on the part
of Smt. Pooja as well to consummate the marriage happily
with her husband. So, it may tantamount to some cruelty
5

on her part too. Although she had not deserted her
husband, that is why his averments in the petition under
Section 13(1)(i-b) have not been accepted by both the
Courts below, but the Courts duo have accepted the
petition under Section 13(1)(i-a) of the Act. I have also not
been persuaded to take a different view in this regard. At
the same time, I feel that the Courts below should have
exercised the power under Section 25 of the Act for
granting the permanent alimony and maintenance. I
answer the second substantial question of law accordingly.

Consequently, I do not find any force in this appeal.
It is hereby dismissed. However, permanent alimony of
rupees four lakhs is granted to the appellant Smt. Pooja
Arya and the same shall be payable by the husband Vijay
Kumar within three months. I think this amount is justified
as the marriage could not be consummated and thus the
virginity of Smt. Pooja Arya remained intact. No sooner did
the payment of permanent alimony is made/deposited in
the Court below by way of account payee draft, the decree
of divorce shall come into effect. Impugned decree is
modified to the above extent only.

Let the LCR be sent back.

(Servesh Kumar Gupta, J.)
Prabodh

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