HIG^H COURT OF CHHATHSQMtH AT_BHASPTOR. DIVISIONBBBICH: H<MPBI^»IRTT.,P.SHARa«Aai HO»'BLB^MR.I.. JHAaPBffAR. JJ. .ea> V SV APPEAL (Mt Mo. 33/2009 * • • . . APPBtiLANT Jaggaaath Sahu S/o Laaatoodar Damodar Sahu agcd daout 29 years, R/o vfflage Padigaon, Tluma fusore, Tah & District Ra%a[h(CQ) -"•• RE8PONDBMT Versua Chitra Reteha @Rajkunaar W/o JagaimaQa. Sahu Aged about Zlyears Kali Maadir Khctipara Kharsia Tah. Khaisia District Raigarti(CG) AppUcaUon undelr Sectlon 19 (i) oftlte E'anaHT Coarts Act *> &s hesent: • . . !' • ' ' : 1 • • . Shri N.K. Malviya, couhsel for the appeUant. None for flie Eespondent. C«AL-.JUDGMKtT (Passedon 16&June,2010) The foUcwiag judgment of fhe Court was passed by T. P. Sharma, J. 1. ChaUenge ia this appcal is to fhc judgment and decrec dated 10.09.2008, passed by the Princlpal Judge, Fanuty Court, Raigarh iu Civil Suit No.45-A/2007, whereby, ftic leamed Judge pf fhe Fanaily Court has dissolvcd the marri^e between fhc partiesby passing a decree ofdivorce under Scctiou31 (l) offhe Hindu Marriage Act, 1955 (in short tbe Act). x s*-. '•-\ :1 V ^ f: 2. The judgment aud decree is chaUenged on ftie ground that without aay proof of impotency of the appeUaat herein, Court below has decreed ttie suit and thereby comniitted iUegaUty, 3. Brief facts necessary for disposal of this apped are that fhe parties are Hiadu legaUy wedded spouses. Their inarriage was soleiniuzed on 19.5.2005. As per allegations of fhe respondeat, ttie appeBant is iinpotent aad not abte to dischaige his inantal obUgation. On fhe ground of impotency of fhe appeUaat, respondent has filed fhe petition for dissolution of marriage by a decree of divorce. 4. The appeUant has chaBenged the aUegatioas and has clauned that he is not aa impotent person. He is able to discharge his marital obUgation and he has discbax^ed his niarital obUgation. 5. . On fhe baste ofaverments ofthe parties, Court below has fi-amed issues and after affording opporturtUy of hearing to fhe parties, Court below has decreed fhe suit aud dissolved the niarriage by a decree ofdivorce. 6. We have heard Shri N.K. Malvya, leamcd counsel appearfag on behalf of the appeUaut. Noue present on behalf of fhe respondent alfhough semee ofnotice, perused fhe iiupugned judgineut and decree. 7. Leamed counsel for the appeHant vehemenlty argued Ifaat Court below has mentioned the fact in para 22 of fhe iinpugned judgmeut and decree that ttie re^spondent has filed an application for grant of laainteiiance under Section 125 of the Gode of Cruainal Procediire, 1973, in which,. Rs.700/- nioafhty inninteuaace has been awarded to fhe respondent. The v s~. ^v ^~.t.. -»» V 's^, respondent has speci&caUy stated fhat she has dischatged her inarital ObUgation and she has resided wifh. ffaie appellaat for a long tune. This shows that fhe prcsent appeUaat is not an iinpotent person. Even fh.c respondent/wifc has not examined any Doctor to prove Iier vugurily in. abscncc of any cohabitation on account ofnnpotency ofthe appeUant/husband. 8. In order toappreciate the arguments advanced on behalfof fhe parties, we have examined the cvidencc adduced on behalf of the parties. 9. Respondent has substantiaTly deposed in hcr evidcnce that fhe appeUant is an impotent person and he is not able to discharge his inaritel ot)l^ati.on. 10. On the ofher haad, appeUaut has dcposed fhat hc is not an impotent person aud he has discharged fais niarital obligation. The respondent tvaa filed a copy ofoiie document vide Bx. D/1, ia which, she has luentioned that she is leaving the housc offhe appellant on account of hcr iUness, but shc bas not inentioned fhe fact fhat she is leaviug the house on account ofimpotency of her husband. 11. Im.potency aad factuia of cohabitation with a vitgia lady caa be weU proved by aiedical pvidence, but bofh. fhe parties have not adduced aay naedical evidcncc ia case of inarital dispute speci&calty relatiag to temunation of relatfonship by a decree of divorce or declaration =of vaamays null aad void. The Famity Courte are required to save fhe relations af fhe fiist instanoe and ia case ifsuch te not possible then in appropriate case, decree pf divorce caa be passed, •12. Iu the present case wlule p^sing the decrfee Court below has uot considered thc fact that both fhe parties were haymg 'nn1 '.^.sSSS^*^^^-1- Y^l? ^i.^7*1 c;,1 opportunily of medicaUy examiae fheiasclves and also by the inedical expert iu support of fheir claua, but bofh the parties have not done so aad they have fafled to adduce evidence in this regard. In fhese circumstances, onty on fhc basis of uncorroborated oral evidence, a decree of divorce is not just and reasonable. 13. Consequentty, we are offhe considered vicw that unpugned judgment and decree is not sustaiaable under the }aw. The appeal is atlowed. The judgmeat and decree inapugned is hcreby set aside. The case is remitted back to the Paauty Court, Raigarii for providin^ au opportunily of production of inedical evidcnce aad after appreciating fhe medical cvidence, Court below shall pass fhe order afi-esh. 14. Parties are directed to remaia present before tfae Judge Panuly Court Raigarh on 28.7.2010 ia further progress of the case. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge fv 'v s'. '-.•'»'