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Zarina Bhatti Vs. Anthony Butt - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberMatrimonial Reference No. 1 of 1983
Judge
Reported inAIR1984P& H340
ActsDivorce Act, 1869 - Sections 19
AppellantZarina Bhatti
RespondentAnthony Butt
Excerpt:
.....to the petitioner but owing to sexual impotency he altogether failed to respond thereto. --1. whether the respondent was impotent both at the time of marriage as well as at the time of filing the divorce petition and as such the marriage between the parties is null and void? no meaningful challenge was levelled against her in cross-examination either aw-3 sardar masih, the father of the petitioner, then stepped into the witness box and proved documentary testimony on the record as well. he has equally remained unshaken in the cross-examination and the acceptance of both these witnesses by the trial court is obviously well merited. the petitioner will be entitled to her costs as well......bhatti herself which inevitably in a case of this kind, is the primary evidence. her stand in cross-examination remained wholly unshaken by the somewhat short cross-examination which seems to lack direction or thrust. indeed it was elicited in her cross-examination itself that the petitioner was fully prepared to get herself medically examined from a lady doctor with a view to establish that she was still virgin and the marriage had not been consummated. it is in this context most significant that the respondent-husband at no stage even attempted to avail of this offer and the learned district judge was very right in drawing an inference adverse to the respondent on this score. we are entirely in agreement with the assessment and acceptance of the evidence of the petitioner-wife.7......
Judgment:

S.S. Sandhawalia, C.J.

1. This is a reference under the Divorce Act, 1869, for the confirmation of a decree granted by the leamed District Judge Gurdaspur, declaring the marriage of the petitioner-wife with the respondent as null and void.

2. Zarina Bhatti had presented the petition under S. 19 of the Divorce Act, 1869, for a decree of nullity of marriage. Therein, she averred that she was married to the respondent according to Christian rites on 5th June, 1981, at Dhariwal. Thereafter, the petitioner lived together with the respondent at diverse places and particularly at Dhariwal till April, 1982. It is alleged that the marriage was never consummated by carnal copulation owing to the impotency of the respondent-husband. It is specifically averred that on noticing the frigid and evasive attitude of the respondent, the petitioner herself took the initiative to make amorous advances to the petitioner but owing to sexual impotency he altogether failed to respond thereto. Ultimately, in despair, she mentioned this fact to her relatives and in the mutual discussion that followed, the respondent admitted the fact of his physical disability. It is averred that by reason of his impotency or malformation the respondent was legally incompetent to enter into the marriage contract and was still impotent at the time of the filing of the petition.

3. In contesting the petition, the respondent-husband controverted the allegations made on behalf of the petitioner and took up the plea that he was physically and mentally potent and the marriage was duly consummated. It was averred that he was willing to have himself examined by a panel of doctors in proof of his stand. An allegation was raised that the petitioner had refused to live with him at his place of posting or at Dalhousie where his parent lived and had presented the petition on false allegations to procure divorce. On behalf of the petitioner replication was filed reiterating her earlier stand.

4. From the aforesaid pleadings of the parties, the following issues were framed:--

1. Whether the respondent was impotent both at the time of marriage as well as at the time of filing the divorce petition and as such the marriage between the parties is null and void?

2. Relief.

5. In support of her stand the petitioner herself stepped into the witness box as AW-1 and examined her brother's wife Smt. Kiran Bhatti AW-2 her father Sardar Masih Bhatti AW-3. Dr. R. P. Bhola AW-4 and father Hya Cinth of St. Francis 'Church Alverna' Dalhousie, AW-5. Opportunity was pointedly given to the respondent-husband to lead evidence in rebuttal. Instead of doing so, he and his counsel even defaulted to put in appearance and the Court was compelled to close the evidence. The learned District Judge, after an elaborate discussion of the oral and documentary evidence accepted the unrebutted testimony adduced on behalf of the petitioner and decided the material issue No. l in her favour. Consequently, he granted a decree declaring the marriage of the petitioner with the respondent as null and void and submitted the case to this Court for confirmation of the same.

6. In this judgment of confirmance, we deem it unnecessary, indeed wasteful, to traverse the same ground over again which has been so competently covered by the judgment granting the decree nisi. Reliance has rightly been placed on the testimony of AW-1 Zarina Bhatti herself which inevitably in a case of this kind, is the primary evidence. Her stand in cross-examination remained wholly unshaken by the somewhat short cross-examination which seems to lack direction or thrust. Indeed it was elicited in her cross-examination itself that the petitioner was fully prepared to get herself medically examined from a lady doctor with a view to establish that she was still virgin and the marriage had not been consummated. It is in this context most significant that the respondent-husband at no stage even attempted to avail of this offer and the learned District Judge was very right in drawing an inference adverse to the respondent on this score. We are entirely in agreement with the assessment and acceptance of the evidence of the petitioner-wife.

7. In corroboration of the categoric and firm stand of the petitioner, there is the testimony of AW-2 Kiran Bhatti, the wife of her brother. No meaningful challenge was levelled against her in cross-examination either AW-3 Sardar Masih, the father of the petitioner, then stepped into the witness box and proved documentary testimony on the record as well. He has equally remained unshaken in the cross-examination and the acceptance of both these witnesses by the trial Court is obviously well merited. AW-5 father Hya Cinth also rendered his testimony on oath and significantly not a single question in cross-examination was directed against him.

8. Dr. R. P. Bhola, SMO Civil Hospital, Gurdaspur, had then stepped into the witness-box and proved on record Report Exhibit A-5 with regard to the medical examination of the respondent-husband. His testimony on the point is indeed tell tale and it again deserves highlighting that not a single question by way of cross-examination was directed against him. The learned District Judge was thus right in placing implicit reliance thereon and holding that the medical testimony went wholly, if not conclusively, in support of the petitioner's case.

9. We may mention here that on the date fixed for the rebuttal testimony, neither the respondent nor his counsel chose to put in appearance (despite the zealous efforts made on behalf of the petitioner and by the Court itself) and no option was left with the Court but to close the evidence by a detailed order on the l8th Jan. 1983. Equally, on the date fixed for arguments, namely, 22nd Jan. 1983, the counsel for the respondent, though present, had no submission to make to the Court.

10. Having heard the learned counsel for thc petitioner and the respondent and on perusing the record ourselves, we find not the least ground to take a view other than that lucidly arrived at by the learned District Judge. The learned counsel for the respondent had no meaningful argument except the bizarre one that Dr. R. P. Bhola should have himself attempted to induce erection in the respondent and thereafter alone opined about his impotency. Learned counsel for the respondent had offered no criticism whatsoever to the other testimony adduced on behalf of the petitioner. The only irresistible conclusion herein is that the petitioner is entitled to a decree of nullity of marriage.

11. In the result, we allow the reference and confirm the decree nisi. The petitioner will be entitled to her costs as well.

12. Reference allowed.


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