Court:Bombay High Court
Bench: JUSTICE M Dudhat
Geeta Yogesh Mehta vs Yogesh Jethalal Mehta on 4 February, 1997
Wife not giving sexual satisfaction to Husband. Husband entitled to get the decree of divorce in his favour on the ground of mental cruelty and desertion.
1. This Family Court Appeal is filed by the appellant-wife against the judgment and decree dated 30th November, 1994 passed by the Family Court at Bombay, in Petition No. A-994 of 1990.
2. Respondent-husband filed a petition for divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955, on the ground of cruelty and desertion. It was contended by the respondent-husband that he got married with the appellant-wife oil 20th December, 1985 according to Hindu Vedic rites. After the marriage, both the appellant and the respondent resided at Sion, Bombay, alongwith his family consisting of his brother and father. It is the case of the respondent-husband that since the inception of the marriage, the appellant-wife was keeping indifferent health. When he requested her to get herself examined by doctor, she refused to do so. However, the respondent-husband could not even consummate the marriage with the appellant-wife because she deliberately avoided sexual relations with him on the ground of bleeding. Ultimately, in March 1986 from the report of Dr. Agarwal, it was revealed that she was suffering from “Von Willebrand disease”. The said disease is congenital and due to which, the appellant-wife was suffering from bleeding. According to the appellant-wife, the fact that she and her relations were suffering from the said disease, was concealed from the respondent-husband at the time of settling the marriage. The respondent-husband further contended that since he was not getting any sexual satisfaction from the appellant-wife, he was suffering from mental agony and anguish and, therefore, he is entitled to get divorce on the ground of mental cruelty. He also contended that on 10.10.1986, the appellant-wife deserted him and thereafter she never returned to the matrimonial house and, therefore, he filed the petition for divorce sometime in July, 1990. The aforesaid petition was resisted by the wife by denying every contention raised by tine husband. The appellant-wife contended that in fact she was always ready and willing, to consummate the marriage, but because of the respondent-husband’s refusal, the marriage could not be consummated. The appellant-wife further con tended that she contacted her family doctor and she was advised that both of them should get medically examined. This suggestion was also put up to the respondent-husband. Because of some bleeding, she was taken to Dr. Bhatia, who examined her and found that the appellant-wife was bleeding excessively and, therefore, she was advised to do curating and sonography. The appellant-wife was admitted to the nursing home of Dr. Bhatia. According to the appellant-wife, medically, there was no defect in her to have sexual intercourse with her husband. When the doctor advised her to take bed rest, her mother-in-law compelled to do the house-hold work, due to which she again suffered bleeding and was admitted to the nursing home of Dr. Doshi. Thereafter the appellant-wife was advised to consult Dr. Agarwal, Haemotologist. Dr. Agarwal examined blood of the appellant-wife and opined that she was suffering from “Von Willebrand disease”. According to Dr. Agarwal, the said disease can be cured. Thereafter the appellant-wife was compelled to leave the matrimonial home and in fact, she never deserted the respondent-husband. She was always ready and willing to live with him. The appellant-wife further contended that the monthly income of the family of the respondent-husband is Rs. 50,000/- and she claimed alimony of Rs. 3.000/- per month. After allowing both the sides to lead evidence and hearing both the sides, the Trial Court dismissed the respondent-husband’s claim of decree of nullity. However, the Trial Court passed the decree against the present appellant-wife for divorce on the ground of cruelty and desertion. The said judgment and decree is the subject-matter of challenge in the present appeal before us.
3. Mr. Kulkarni, the learned Counsel appearing on behalf of the appellant-wife, contended that the Trial Court ought not to have passed the decree on the ground of mental cruelty and desertion. According to him, the appellant-wife or her family members never knew that she was suffering from “Von Willebrand disease”. He further contended that in fact she was ready and willing to have sexual relationship with her husband, but it was the husband who refused to have the same with her. He further contended that the appellant-wife in fact left the matrimonial house on 10,10.1986not because of the desertion but because of compulsion. Lastly, Mr. Kulkarni, the learned Counsel, contended that the Trial Court ought to have granted maintenance of Rs.3,000/- and not Rs.2,000/-. On the other hand, Mrs. Joshi, the learned Counsel appearing on behalf of the respondent-husband, contended that the Trial Court has given cogent reasoning and, therefore, the finding of fact recorded by the Trial Court on the basis of the said cogent reasoning should not be disturbed as there is no evidence whatsoever to support the contentions made by the appellant-wife.
4. The Trial Court, while coming to the conclusion, has given cogent reasonings in paras 11 to 20 of its judgment. Firstly, the Trial Court has rightly observed that the stand taken by the appellant-wife is completely contradictory to what she was stated in her deposition. It appears that in the written statement, the wife denied all the assertions made by the husband in his petition and in fact, contended that all the time she was ready and willing to have sexual relationship with the respondent-husband and it was the respondent-husband who refused to have the same. However, from the evidence of her as well as the other medical witnesses, it is clear that whatever has been stated by the husband, particularly to the effect that he could not consummate the marriage due to refusal to co-operate on the part of the appellant-wife is borne out by the evidence on record. The Trial Court has further observed that the appellant-wife hardly allowed the respondent-husband to have sexual relationship with her. This aspect is fortified from the medical evidence that doctor required to carry out the operation by cutting the septum for clearing the passage to have intercourse. Even thereafter the appellant-wife suffered from severe bleeding, due to which it was impossible for her to have any sexual relationship even after clearance of vaginal passage by the doctor. From the evidence, it appears that the husband did his best to take the appellant-wife to various specialists but inspite of that, he was unable to get the sexual satisfaction out of the matrimonial relationship. In view of this, the Trial Court was justified in coming to the conclusion that the respondent-husband suffered mental cruelty because of non-consummation of marriage with the appellant-wife.
5. We may further observe that the Trial Court has also given a cogent reasoning to come to a conclusion that the appellant-wife left the matrimonial house on 10.10.1986 and never returned to the matrimonial house. In this case, the marriage had taken place on 20th December, 1985. After the marriage, there was no consummation and thereafter the appellant-wife underwent the medical examination for bleeding. After the treatment also, bleeding continued and the appellant-wife left the matrimonial house on 10.10.1986 and till today, she has not returned. We have scanned the evidence on record and we are of the opinion that the Trial Court was justified in arriving at the aforesaid findings. In view of this, we confirm the Trial Court’s finding to the effect that the respondent-husband was entitled to get the decree of divorce in his favour on the ground of mental cruelty and desertion.
6. As regards the application of the present appellant-wife for enhancement of maintenance granted by the Trial Court of Rs.2,000/- per month, in this case, the appellant-wife in her written statement, has claimed the maintenance of Rs. 3,000/- per month. There is no specific evidence on record as to exactly what is the income of the respondent-husband. The Trial Court, after taking into consideration the business and style of living of the respondent-husband and his family, which is a joint family, awarded Rs. 2.000/- per month. According to us, since there is no other evidence, it is not necessary to disturb the aforesaid finding regarding the maintenance given by the Trial Court. We further mention that after the passing of the decree bn30.11.1994, the respondent-husband has remarried on 6.3.1995.
7. Under the circumstances, this appeal is dismissed. There shall be no order as to costs.
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