Skip to content


Peddigari Annapurnamma Vs. Peddigari Appa Rao - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. Nos. 50 and 51 of 1960
Judge
Reported inAIR1963AP312
ActsHindu Marriage Act, 1955 - Sections 9, 9(1), 9(2) and 13(1)
AppellantPeddigari Annapurnamma
RespondentPeddigari Appa Rao
Appellant AdvocateE.L. Baghi Radha Rao, Adv. for ;G. Suryanarayana Murthy, Adv.
Respondent AdvocateK. Ramakrishna Rao, Adv.
DispositionAppeals dismissed
Excerpt:
.....suffering from leprosy - to attract section 13 (1) (iv) other spouse should be suffering from virulent and incurable type of leprosy - judicial separation or divorce can be obtained on grounds enumerated in section 9 - words 'reasonable excuse' in section 9 synonymous with any of the grounds for divorce or judicial separation given in section 9 ( no scope for application of doctrine of 'just cause'. - - so, the other condition, namely, the virulence of the disease, should also be satisfied. - although sub-section (2) lays down in terms express and explicit that nothing can be pleaded in answer which could not have been a ground for judicial separation or for nullity of marriage or for divorce it is obvious from the section read as a whole that withdrawal from the society of the..........for divorce. before this clause could come into-operation, it should be established that the disease was virulent and incurable. so, the other condition, namely, the virulence of the disease, should also be satisfied. the legislature has advisedly used both the expressions, 'virulent' and 'incurable' consequently, it is only in a case where one of the spouses has a virulent and incurable type-of leprosy that resort could be had to clause (iv).7. it was next contended by sri bagiratha rao that the word 'virulent' means only 'poisonous' and cannot be equated to an infective form of leprosy and that leprosy of any type should be considered to be a virulent one. to substantiate this proposition, he draws our attention to the following meaning given to the word 'virulent' in the.....
Judgment:

P. Chandra Reddy, C.J.

1. These two appeals arise out of O. P. Nos. 79 and 105 of 1957 respectively and raise a common question, namely, whether the respondent was suffering from a 'virulent and incurable form of leprosy' for a period of not less than three years immediately preceding the presentation of the petition (O. P. No. 79 of 1957).

2. The parties are the same in both the appeals. The wife preferred O. P. No. 70 of 1957 for dissolution of marriage by a decree of divorce under Section 13(1)(iv) of the Hindu Marriage Act alleging that her husband had been suffering from a virulent and incurable form of leprosy from the year 1953. It was alleged in the petition that their marriage took place in their childhood, that after she attained puberty the marriage had been consummated, that she led conjugal life with her husband for about six months when she discovered that he had symptoms of loathsome skin disease and that later on it was found to be leprosy which was incurable and was of a virulent type.

3. The petition was resisted by the respondent, the husband, on the grounds inter alia, that the leprosy from which he was suffering was a mild one that he took treatment in the leprosy hospital at Salur and that he was cured of the symptoms of the disease. It was his further case that it was only in 1956 that the symptoms of leprosy appeared. He also filed O. P. No. 105 of 1957 for restitution of conjugal rights with the same allegations as those contained in his counter in O. P. No. 79 of 1957.

4. In support of his contention that the leprosy he was suffering from was of a mild type and did not answer the description of a virulent and incurable form of disease, the respondent examined a skin expert attached to the K. G. Hospital, Visakhapatnam, as R. W. 1. The doctor deposed that the respondent had been suffering only from non-infective type of leprosy and that he took his nasal clipping and it did not show any positive bacilli. In cross-examination, it was elicited from the doctor that the word 'cure' could not be used In leprosy but it could be arrested from further advance, that with treatment the person suffering could improve his 'leather' (skin) and that the leprosy which the respondent was having could be arrested by treatment. The witness added : -

'He is otherwise normal for conjugal life. Conjugal life does not encourage the disease. The partner will not be particularly affected if the respondent has conjugal life. If it is infective type of leprosy, it can be contracted through contact, In the case of respondent, it cannot be transmitted through blood on cohabitation ......'

The certificate issued by the doctor (Ex. B-1), prior to his examination in Court was to the same effect.

5. Based on the opinion of this expert, the Subordinate Judge reached the conclusion that the respondent was not suffering from a virulent and incurable form of leprosy within the purview of Section 13(1)(iv) of the Hindu Marriage Act. Consequently, he dismissed O. P. No. 79 of 1957. On the same ground, he allowed the respondent's petition (O. P. No. 105 of 1957) under Section 9. In other words, a decree for restitution of conjugal rights was granted to the respondent. The aggrieved wife has preferred these two appeals.

6. The short question that falls for decision in these appeals is whether the leprosy from which the respondent was suffering is of a virulent and incurable type. Sri Bagiratha Rao, learned counsel for the appellant, urges that the disease from which the appellant has been suffering from should be regarded as an incurable one, having regard to the evidence of the expert, who stated that the word 'cure' could not be used in leprosy and, therefore, the wife is entitled to invoke Section 13(1)(iv). We do not think that this argument is admissible. Assuming that leprosy cannot be cured completely as stated by the doctor, that, by itself, would not enable a spouse to get a decree, for divorce. Before this clause could come into-operation, it should be established that the disease was virulent and incurable. So, the other condition, namely, the virulence of the disease, should also be satisfied. The legislature has advisedly used both the expressions, 'virulent' and 'incurable' Consequently, it is only in a case where one of the spouses has a virulent and incurable type-of leprosy that resort could be had to Clause (iv).

7. It was next contended by Sri Bagiratha Rao that the word 'virulent' means only 'poisonous' and cannot be equated to an infective form of leprosy and that leprosy of any type should be considered to be a virulent one. To substantiate this proposition, he draws our attention to the following meaning given to the word 'virulent' in the Steadman's Medical Dictionary (19th Edition):

'Extremely poisonous; noting a markedly pathogenic micro-organism.'

We do not think that the meaning given in this dictionary is of any help to the appellant. It only means that the disease is considered to be extremely poisonous when it is of a malignant type. The meaning of 'Virulent' as given in the Chambers XXth Century Dictionary is highly poisonous or malignant; venomous; acrimonious'. It is thus clear that every form of leprosy cannot be-considered to be virulent but only that which is malignant or venomous. In the face of the evidence of the expert, it is difficult to postulate that the leprosy from which the respondent was suffering could come under the category of a virulent one. We, therefore, find it difficult to disagree with the opinion of the lower Court on this aspect of the matter.

8. It was alternatively argued by Sri Bagiratha Rao, learned counsel for the appellant, that even on the hypothesis that the respondent did not have a virulent form of leprosy, the wife could oppose a petition for restitution of conjugal rights, if she had a 'reasonable excuse' to withdraw from the society of the husband and that leprosy, which is a loathsome disease, would surely afford a reasonable excuse within the scope of Section 9 of the Hindu Marriage Act. The learned Counsel urged that Section 9 (1) should be read independently of Section 9 and that if it appears to the Court that the disease is of such a nature that it would entitle one of the spouses to withdraw from the society of the other, the relief of restitution of conjugal rights should be refused.

9. To substantiate this, Sri Bagiratha Rao called in aid a passage from Mulla's Hindu Law (12 Edition) occurring at page 811. It reads:-

'Although sub-section (2) lays down in terms express and explicit that nothing can be pleaded in answer which could not have been a ground for judicial separation or for nullity of marriage or for divorce it is obvious from the Section read as a whole that withdrawal from the society of the other for a reasonable excuse, or what is often described as a just cause, would be a plea which if established would be a good defence. And despite Sub-section (2) it seems equally clear that it would be open to the respondent in answer to plead that there was no valid and subsisting marriage between the parties.'

10. We find it difficult to assent to this view. A perusal of the two sub-sections would clearly establish that this argument is unsubstantial. Section 9 provides: -

(1) 'When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.'

11. It is manifest that the 'reasonable excuse' contemplated by Sub-section (1) must be one which would afford a ground either for judicial separation or for nullity of marriage or for divorce. What the reasonable excuse envisaged by Sub-section (1) is indicated in Sub-section (2). We have, there-fore to look to Sub-section (2) to see what the reasonable excuse is. Consequently, it is not open to either of the spouses to plead any excuse other than those indicated in Sub-section (2) of Section 9. In our opinion, unless the ground relied upon by one of the spouses for opposing a petition under Sub-section (1) could be relied upon as furnishing a cause of action for judicial separation or for nullity of marriage or for divorce, it would not afford a valid defence.

12. We are unable to subscribe to the opinion expressed by the learned author in the passages extracted above. The author overlooked the fact that the legislature by enacting sub-section (2) has made 'reasonable excuse' synonymous with any ground which could be the foundation for a petition for judicial separation or for nullity of marriage or for divorce. There is, therefore, no scope for invoking the doctrine of just cause with reference to the section. Further, the author seems to have overlooked the fact that Sub-section (2) includes all grounds for nullity of marriage. That being the position, we fail to appreciate the significance of the sentence 'and despite Sub-section (2), it seems equally clear that it would be open to the respondent in answer to plead that there was no valid and subsisting marriage between the parties.' We are, therefore, unable to agree with the opinion contained in the passages extracted above. If as already observed, a mild form of leprosy with which the respondent is attacked cannot be a ground either for judicial separation or for divorce, it would not entitle the wife to oppose the petition for restitution of conjugal rights.

13. In the result, both the appeals are dismissed. But there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //