lNJ^iEJi_ON'BLE HIGH COURT OF JUDICATURE AT BILASPUR (CG) ;-.;.,^;.,m" 88! F. A. (M) N0........^S.,........../20U . ~ FIRST APPEAL UNDER SECTION_A9|_1L_FAMILY COURTS Act, 1984. APPELLANT APPLICANT ^-•;'<Sy^-0. RESPONDENT NON APPLICANT ^X) Chaman Singh Rajput, S/o Yavan Singh Rajput, Aged about 27 years, ^. Occupation - L.I.C. Agent, R/o Ramnagar Supela, Bhilai, Tahsil and District Durg (CG.) Smt. Shraddha @ Lokeshwari Rajput, W/o Shri Chaman Singh Rajput, Aged about 26 years, Occupation - Teacher, Posted at Village Bidauri, Block Chhuikhadan, District Rajnandgaon (CG.) R/o Village Kosmi, Tahsil Daundilohara, District Durg (CG.) ^ / HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE SHRI I.M. QUDDUSI, & HON'BLE MR. G. MINHAJUDDIN, JJ. FirstAppeal (M) No. 45 of 2011 z^ Appellant Applicant Respondent Non-Applicant Chaman Singh Rajput Vs Smt. Shraddha @ Lokeshwari Rajput JUDGMENT FORCONSIDERATION Sd/- G. Minhajuddin Judge ^.9.2011 HON'BLE SHRI I.N!. QUDDUSLJ jy. Sd/- DR. I.M.Quddusi Judge POST FOR JUDGIVIENT ON^^ SEPTENIBER, 201 1 Sd/- G. Minhajuddin Judge HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE SHRI I.M. QUDDUSI, & HON'BLE MR. G. MINHAJUDDIN, JJ. Appellant Applicant Resppndent Non-ApDlicant Firet Appeal (M) No. 45 of 2011 Chaman Singh Rajput Vs Smt. Shraddha @ Lokeshwari Rajput Present: Mr. Sanjay S. Agrawal, counsel forthe appellant. Mr. Shrawan Agrawal, counsel for the respondent. JUDGMENT (Delivered on ^ September, 2011) Per G. Minhaiuddin. J 01. This appeal has been filed by the appellant/plaintiff under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree dated 15.3.2011 passed by II Additional Principal Judge, Family Court, Durg, in Civil Suit No.67-A/10, whereby and whereunder application of the appellanVplaintiff under Section 12 read with Section 5(ii) ofthe Hindu Marriage Act, 1955, for annulment of marriage between the appellant/plaintiff and the respondent/defendant by a decree of nullity, has been rejected. 02. The undisputed fact of the case are that marriage was solemnized between the appellant/plaintiff and the • respondenVdefendant as per Hindu customs on 6.7.2008 at Bhilai, Distt. Durg and reception was held on 7.7.2008 by the appellant/plaintiff at Bhilai. 03. As per averments made in the application of the appellant/husband, after marriage, the respondent/wife came -^p-B-nsT '^ ^.. x -"A .-^' ^. to the residence of the appellant/husband on 7.7.2008. For the first time on 14.7.2008, the appellanVhusband tried to establish physical relationship with the respondent/wife, when he came to know that the respondent/wife is suffering from some physical deficiency. Thereupon, on 15.7.2008 the appellant/husband took the respondent/wife to Dr. Kiriii Koura, Gynecologist and got her medically examined, and then he was informed by the dQctor that uterus (ovary) is missing in the respondent/wife and she cannot procreate chitdren. When the appellant/husband asked the respondent/wife about the same, she disclosed that she never have had MC and in the year 1996, though she was treated for the same, but of no avail. The respondent/wife is not having vaginal opening. The parents of the respondent/wife by suppressing this material fact have got the marriage of the respondent solemnized with the appellant. The respondent/wife is residing at her maternal home since 15.7.2008. When the parents of the respondenVwife were informed about the same, they told the appellanVhusband that the respondent/wife will be sent back to him after vaginal operation, there is no need to procreate children and the appellant/husband can adopt any child from the family of the respondent/wife. The appellant/husband objected to this, whr&reupon mother of the respondent/wife told that marriage has already been solemnized, treatment is going on, therefore, he (appellant) need not worry about it and ,-they. shall make arrangement for adoption. Thus, the parents of the respondent/wife by suppressing the above r 2 ^ mentioned material fact and practicing fraud upon the appellanVhusband have got this marriage solemnized and therefore, he prayed for annulment of marriage by a decree of nullity. 04. In her reply to the said application, the respondent/wife refuting the allegations of the appellant/husband, averred that after the marriage was fixed, the appellant and the respondents used to jneet and she had not suppressed anything from the appellant. Even she had informed the appellant about his earlier treatment and given him the copy of medical report of the doctor in this regard. The appellant was well aware of this fact and had agreed to accept the respondent. After marriage when there was some difficulty in physical relationship, they had consulted the gynecologist, who had advised the respondent for operation, for which the appellant had consented. Thereafter, the appellant/husband had dropped the respondent/wife at her maternal home for operation. During the course of treatment of the respondenVwife, the appellant had come to know that the respondenVwife is not having uterus and she cannot become mother, .even then the appellant/husband had assured the . ., respondent/wife to keep her. After the operation being successful, intimatiofi was given to the appellant/husband in this regard, but he resiled from his promise to keep the respondent/wife and demanded Rs. 5 lac for keeping the resppndent/wife with him. After marriage, the appellant/husband continued to have physical relationship ^ ^ with the respondent/wife, though there was some difficulty and for that, they had consulted the doctor, who advised for operation. Since the operation has been successful, they can now establish physical relationship without any problem and merely on the ground that respondent/wife is not able to procreate children, marriage between the appellant and the respondent cannot be annulled. 05. The questions to be decided in this appeal are as follows: - (i) Whether on the date of marriage i.e. 6.7.2008, the respondent/wife was suffering from such physical deficiency, which rendered her incapable to establish physical relations with the appellant/husband and to procreate children? (ii) Whether the marriage of the respondent with the appellant was got solemnized suppressing the above mentioned material fact from the appellant? (iii) If the answers of the above two questions are in the affirmative, then its effect? 06. Heard learned counsel for the parties, perused the record of the Family Court as also the impugned judgment. 07, This is not in dispute that marriage of the appellant with the respondent was solemnized on 6.7.2008 at Durg and rjeception was held.on 7.7.2008. According to the statements made in the petition under Section 12 read with Section 5(ii) of the Hindu Marriage Act, 1955, after marriage the appellant for the first time got opportunity on 14.7.2008 to establish physical -relation with his^wife_ (respondent) and then only, he •5" discovered that the respondenVwife had no vaginal opening, on account of which sexual intercourse could not be performed and consequently, marriage could not be consummated. The appellant/husband on the very next day i.e. 15.7.2008 got his wife (respondent) examined by a gynecologist Dr. Kirti Koura, who after examining the respondent and getting ultra sonogrpahy done, informed the appellant and the respondent that the respondent is not having vaginal opening as well as uterus, on account of which she cannot procreate children. After this, according to the appellanVhusband, he had left his wife (respondent) at Chhuikhadan, Distt. Rajnandgaon, where she was posted as Shikshakarmi because she had to join her duties. 08. The appellant/husband has alleged that the above mentioned physical deficiency in the respondent/wife was well within the knowledge of the respondent/wife as well as her parents, but by intentionally suppressing this material fact and by practicing fraud upon the appellant, that the parents of the respondent/wife got marriage between the appellant and the respondent solemnized. On this ground, the appellant had filed a petition under Section 12 read with Section 5(ii) ofthe Hindu Marriage Act, 1955 for annulment of marriage by a decree of nullity. 09. The respondent/wife had filed reply to the appellant's petition and had refuted all the averments made therein as false and baseless. The respondent/wife has averred that all the facts were made. known to the appellant/husband before marriage ) J&. and nothing was suppressed from him and even after knowing about the fact with regard to physical deficiency in the respondent, the appellant had agreed to marry the respondent because she was in service as Shikshakarmi, whereas the appellant was unemployed at that time. 10. To substantiate the averments made in the petition under Section 12 read with Section 5(ii) of the Hindu Marriage Act, 1955, the appellant/husband, in addition to himself as PW-1, has examined Smt. Durga, Ashwani Kumar Singh and Pawan Singh as PW-2, PW-3 & PW-4 respectively. On the other hand, the respondent/wife, in addition to herself as DW-1, examined Ajay Shrivastava, Smt. Kala and Ku. Bhakti Bala as DW-2, DW-3 & DW-4 respectively. Besides this, the respondenVwife had filed documents Ex.D/1 and D/2. The document of Ex.D/1 relates to the respondent's vaginoplasty operation, which was done at Gindodi Devi Hospital, Charitable Hospital & Research Center, Khursipar, Bhilai, and - the document of Ex.D/2 is the certificate issued by Dr. Savita Mishra, MBBS, MD-IMS (BHU), J.L.N. Hospital, Bhilai, regarding fitness of the respondent to resume a normal marital life after undergoing vaginoplasty operation. 11. From perusal of the lower Court record, it is found that on 31.12.2008, an applicatjon under Section 151 of CPC was filed on behalf of the appellant/husband for getting the respondenVwife examined by a Medical Board, which was allowed on 6.2.2009 and the respondent/wife was directed to appear beforej!the Medjcal Board, Durg. Pursuant to the said 9 ^ 12. direction, the respondenVwife had appeared before the Medical Board and the Medical Board after examining her had submitted its report dated 2.6.2009, which has been marked as Ex.P/1 on 15.3.2011. In the said report, it has been mentioned that because of limited resources available to the District Medical Board, Durg, it would be proper to obtain final opinion from the Medical College, Raipur. Thereafter, again an application under Section 151 of CPC was moved by the appellanVhusband on 2.12.2009 for getting the respondent/wife examined by Medical College, Raipur in view of the report of the District Medical Board, Durg dated 2.6.2009. The said application was also allowed on 20.1.2010 and the respondent/wife was directed to appear before the Medical College, Raipur for getting herself examined. Pursuant to this direction, the appellant/husband had remained present in the Medical College, Raipur, but the respondenVwife did not turn up, on account of which the Family Court had drawn an adverse inference on 6.3.2010 against the respondent/wife. In the instant case, the appellant/husband has sought annulment of his marriage by a decree of nullity under Section 12 read with Section 5(ii) of the Hindu Marriage Act, 1955. Although.the report called from the District Medical Board, Durg dated 2.6.2009 has been marked as Ex.P/1, but none of the members constituting the District Medical Board, Durg has been examined by the Family Court for the purpose of proving the said rep^rt (Ex.P/1 ). From perusal of the said -^. % report (Ex.P/1), it is clear that the District Medical Board has not claimed opinion expressed by it to be final, but has requested the Couri: to take a final opinion from the Medical College, Raipur. Deciding the instant appeal, which relates to matrimonial matter either way, in the absence of final opinion of an expert, would not be proper as the same will have far- reaching consequences so far as married life of the parties are concerned. 13. In view of this, it would be appropriate to remit the matter back to the Family Court for getting the repori:s available on record proved as per provisions of the Evidence Act by examining the authors of the reports and also for obtaining final opinion of Medical College Hospital Raipurwith regard to the respondent/wife's physical deficiency. 14. In the result, the appeal is allowed in part. Without expressing any opinion on the issues framed above, by setting aside the impugned judgment and decree, the case is hereby remitted back to the Family Court for reconsidering the matter afresh and disposing it of in accordance with law, in the light of observations made above. 15. Parties shall be free to adduce further evidence, if they so desire, and to file additional documents as well, if any. The Family, Court shall get Ihe respondent/wife examined by an expert in the department of Gynecology at Medical College Hospital Raipur and obtain a report in this regard. The report so obtained shall also be proved by examining the author of 1 ^ 3 <%a ^/ the report. Parties shall be given due opportunity to cross- examine the said expert. 16. The Family Court shall make every endeavour to dispose of the case as early as possible, preferably within a period of three months from the date of appearance of the parties. 17. Parties shall appear before the concerned Family Court on \Y]-\\-2-i\\ 18. LCR be sent back to the concerned Family Court forthwith. 19. It is made clear that nothing in this order shall be construed as an expression of opinion by this Court on the merits of the case. Sd/- I.M-Quddusi Judge Sd/- G. Minhajuddin Judge r .._ ^!.fSK<-'-i^~ —' —a'