1. The appellant's marriage with respondent stands dissolved by the impugned decree of divorce granted under S. 13 of the Hindu Marriage Act, 1955(for short, the Act). For this the ground which has been accepted by the lower Court is that the appellant has been cruel to the respondent-husband inasmuch as she refused to be a child in spite of his persuasion. During a child in spite of his persuasion. During the period (30-3-1975) to 10-1-1977) they lived together the respondent impregnated her twice but both the times she got herself aborted. Incompatibility in matters of temperament and status had also been attributed to the appellant.
2. The primary contentions of the learned counsel for the appellant are that firstly kit is not established as a matter of fact that the appellant was impregnated by the respondent at any time and, secondly, even if this is accepted to have been established, the abortion or termination of pregnancy at the instance of the appellant does not amount to cruelty to respondent.
3. After hearing the learned counsel for the parties at some length in the light of the evidence on record, I do not find any merit in any of these two contentions. The factum of appellant's pregnancy is well established on record by the evidence of Dr. Satnam Kaur PW 8, Sudatshan Kumar, Pharmacist P.W. 3 and Kewal Ram laboratory assistant PW 4, besides the oral evidence including that of the respondent himself and the supporting evidence of Hari Bansh Kumar PW 7 auditor from the office of the Accountant General, establishing the reimbursement of certain medical k bills, he evidence of the first two witnesses is supported by the documents i.e., Exhibits P-2 and P-9, Vide Exhibit P-2 which is an extract from the laboratory register of Out Door Patients who had been referred for carrying out certain tests, it is manifestly established that on Dec. 30, 1976, vide Entry, No. 37798, urine of Satya wife of Siri Ram, who was diagnosed to be pregnant was taken for laboratory test. Exhibit was taken for laboratory test. Exhibit P-9 is the certificate which had been issued by Dr. Satnam Kaur for purposes of reimbursement of the medical bills and in this certificate it is mentioned that Satya wife of Siri Ram was suffering from pregnancy. In the face of this conclusive evidence, I find it difficult to accept the bald assertion of the appellant as RW 1 that she never became pregnant from the respondent. This denial on her part, which on the face of it, borders on false-hood, goes a long way to convince me about the genuineness of the case of the respondent. I am satisfied that I can believe every word of respondents statement, who has not exaggerated his case and has told the truth. It is on record that respondent's himself and his parents were always crazy to have a child in the family but the appellant always dashed their hopes by resorting to termination of pregnancy. This conduct of the appellant, to my mind, undoubtedly amounts to cruelty if not physical, mental at least and the respondent is well within his right to claim the decree of divorce on that ground. Learned counsel for the appellant has not brought to my notice any judgment in support to my notice any judgment in support of his contention that in he given facts and circumstances of this case the action of the appellant in terminating the pregnancy twice in spite of all the insistence on the part of the respondent and his family members to have a child would not amount to even mental cruelty. On the other hand, learned counsel for the respondent has referred to me a judgment reported a Forbes v. Forbes (1955) 2 All ER 3111, wherein this aspect of the matter has been considered and pronounced upon. This is what has been laid down:
'If a wife deliberately and consistently refuses to satisfy her husband's natural and legitimate craving to have children, and the deprivation reduces him to despair and affects his mental health, the wife is guilty of cruelty.'
Section 13 of the Act was drastically amended vide Act No 68 of 1976, Before the amendment, cruelty was only a ground for judicial separation under Section 10 of the Act and for divorce. Further to its concept a caveat had too been tagged by the legislature that it should be such as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious that it will be harmful or injurious for the petitioner to live with the other party. Now that legislative standard has disappeared. This change has been prompted by the legislative developments in England i.e. S. 2(1)(b) Divorce Reforms Act, 1969. Vide that amendment element of 'injury or likelihood of injury to health' has been abolished and the corresponding ground in England now is that 'the respondent--has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent'. (See Chap. 2 of 59th report of Law Commission of India). Now if the wife deliberately and consistently refuses to satisfy husband's natural and legitimate craving to have a child, the deprivation reduces him to despair and it maturely affects his mental health. This is more so in the case in hand where the parties to the litigation are Hindus. In this sort of case the Court has to attach due weight to the general principle underlying the Hindu law of marriage and sonship and the importance attached by Hindus to the principle of spiritual benefit of having a son who can offer a funeral cake and libation of water to the manes of his ancestors. It would be no answer to say that it is now open to the respondent to adopt a son.
4. In the light of the above I unhesitatingly affirm the reasoning and conclusion of the lower Court and thus dismiss this appeal as totally without merit. I, however, refrain from burdening the appellant with costs in spite of the fact that she has been paid up-to-date the amount of maintenance granted to her pendente lite at the rate of Rupees 100/- per month from the date of the institution of this appeal.
5. Appeal dismissed.