N.N. Goswamy, J.
(1) This appeal by the husband is directed against the judgment and decree dated 10-11-1983 passed by the learned Addl. District Judge whereby his petition under Section 12(1)(c) and Section 13(1)(ia) and (ii) of the Hindu Marriage Act was dismissed.
(2) It is alleged in the petition that the parties were married at Delhi on 23-11-1980 according to Hindu rites. Before the marriage the negotiations from the side of the respondent were initiated through one Jai Singh who was working in the Punjab National Bank, Delhi and was friend of the brother of the respondent. The said Jai Singh represented to the petitioner, that he used to visit his brother Vijay Bhushan Bhatnagar employed in Punjab National Bank and that he, was a good friend of Shri Virinder Roy posted in as Deputy Commissioner of Police in Delhi. During such negotiations the appellant was required to be interviewed by the said Virinder Roy and he along with the respondent represented to the appellant that she has a good physique and her age is 26 years. The appellant at that time was of 28 years. He believed the representation of the respondent and her brother. After the marriage as required by Virinder Roy and the respondent that the respondent was used to better living, the parties shifted to 301, Tagore Road Hostel, New Delhi which comprised of sufficient accommodation for comfortable living of the parties. The said premises were made available to the parties by the, brother of the appellant. It is alleged that to the surprise of the appellant from the very first day the behavior of the respondent appeared to be arrogant b ut the appellant thought that better sense will prevail and in times to come the respondent will adjust Soon after the marriage, be saw the respondent tang tablets and on his asking the respondent informed him that she was taking multi-vitamin drugs. The respondent in spite of being asked by the appellant and his mother did not do any house-hold work and was always feeling tired. It was in fact represented by the respondent that she had been under some treatment of the Physician at Lucknow who is also related as brother to her. It is further alleged that even during the sexual inter course the appellant felt that the respondent was not responding as was expected and on his query the respondent avoided the reply. After two months of the marriage, the respondent herself revealed that in fact she is three years older to the appellant. The appellant further noticed that the respondent would sit on a chair and ask every body to leave her alone. The appellant was also informed about this act of the respondent by his mother, who was staying with the parties in Tagore Hostel. The appellant requested the respondent to consult Mrs. Usha Bhatnagar, his sister-in-law a doctor working in C.G.H.S. but the respondent informed that she had been under the treatment of another doctor at Lucknow and she did not consult Mrs. Usha Bhatnagar. The appellant thereafter smelt some mischief and during his inquiries it revealed that the respondent was having fits. The appellant checked up the medicines which the respondent used to take and then he came to know that these medicines were in fact to cool down her intermittent mental disorder which was never made known to the appellant prior to the marriage. In the middle of February 1981 Virinder Roy and two unmarried elder sisters of the respondent came to the matrimonial home of the parties and against the wishes of the appellant, the respondent left Along with them without any reason or Explanationn and returned after two months. During this period, the appellant asked Virinder Roy about the concealments regarding age and mental condition of the respondent but he avoided to give any answer and always said that at that stage he could not help in any manner and it was for the appellant to adjust with the respondent in the manner he liked.
(3) It is further alleged that after the return of the respondent in April 1981 to the matrimonial home she did not allow the appellant to have sexual inter course and this also caused mental up set to the appellant, A further instance of cruelty is mentioned in paragraph 13 of the petition to the effect that on 2nd Saturday in May 1981 Vidya Bhushan Bhatnagar elder brother of the appellant came to the matrimonial home along with his .wife and children but the respondent did not show any hospitality to them. She refused to attend to them or serve any refreshment etc. When the elder brother of the appellant tried to talk to the respondent she even insulted him and thereforee that attitude of the respondent gave another shock to the appellant. It is further alleged that as and when the respondent was not in her senses because of the mental fits she used to even throw wearing clothes of the appellant outside the room and this happened on three or four occasions. It is alleged that due to these cruel acts and mental disorder of the respondent the appellant suffered heavy losses in his business. The respondent finally left the matrimonial home in October, 1981 in the absence of the appellant along with her jewellery and clothes. Since then parties are living separately and the appellant has not condoned the acts of cruelty.
(4) The petition was contested by the respondent-wife. The factum of marriage was admitted but the allegations of concealment of material facts and cruelty were denied It was admitted that the negotiations were initiated by Jai Singh at the instance of the elder brother of the appellant Vijay Bhatnagar. It is further pleaded in the written statement that the appellant had made full enquiries about the respondent and .he and his other relations had consented to the marriage only on being satisfied on all aspects. The various meetings between the parties have also been mentioned in the written statement. It has been admitted that the accommodation at Tagore Hostel was provided by the brother of the appellant and it was at the instance of the appellant himself. The further fact of the appellant's mother having stayed with the parties in Tagore Hostel is also admitted. By denying the alleged cruelties, it is pleade ) that right from the beginning of the marriage it was the appellant who started finding faults with the respondent and with other members of her family. Within three or four days of the marriage, the appellant started complaining about the insufficient dowry and other presents. As a result of that she was being harrassed by the appellant and his mother and both started asking her to bring more articles and cash from her relatives every now and then. The respondent did make arrangements to meat some demands but could not meet all of them as the demands went on increasing day by day and from time to time. All the valuables including the jewellery and other articles given in marriage of the respondent were kept by the appellant and the whereabouts of those articles have not been disclosed to her at any stage. In spite of all this mal-treatment and harassment caused to her, she had not complained to her relatives anything about it thinking that good sense will prevail and things will settle down in due course of time However, the things developed to the extent that the appellant did not mind insulting and humiliating the respondent in the presence of other also on the ground that she had not brought enough dowry. She denied having taken any tablets or medicine or her having any mental disorder. According to her, the accusations were false to the knowledge of the appellant. It is alleged in the written statement that the appellant, who is a heavy drunkard, used to return back in the house in the mid-night and expected that the respondent should meet the sexual desires of the appellant beyond a course of nature. It is stated that the respondent had a good physique but because of the cruelties and ill-treatment meted out to her by the appellant, her health was shattered. The question of her having fits did not arise as she was always physically fit. The respondent had gone to the extent of giving beatings and maltreating the respondent in the month of January 1981. The treatment of the appellant meted out to the respondent caused mental agony. In spite of that the appellant continued to stay in the matrimonial home and was turned out of the home in October 1981. She had no means of livelihood and was solely dependent no her brothers and sister-in-law for a long time. Finding no way out she undertook the teaching job, which also is not very well paid and she has shifted to separate accommodation in Balbir Nagar Extension, Shahdara. She is spending her life in misery and harships.
(5) The appellant filed the replication wherein he denied the allegations revealed in the written statement and re-iterated the averments made in the petition.
(6) On the pleadings of the parties, the learned Addl. District Judge, framed the following issues :
1. Whether the consent of the petitioner was obtained by fraud as to the material facts or circumstances concerning the respondent as alleged 2. Whether after the solemnization of the marriage, the respondent treated the petitioner with cruelty 3. Whether the respondent has been suffering intermittently from mental disorder 4. Relief.
(7) The appellant in support of his case examined himself as Public Witness 1 and his brother Vidya Bhushan Bhatnagar as Public Witness 2, and closed the case. In rebuttal the respondent examined herself as Public Witness 1 Mrs. Sneh Bhatnagar, sister-in-law of the appellant as Rw 2 Vinay Bhatnagar, brother of the appellant as Rw 3 and Jai Singh as Rw 4. There is no documentary evidence. On consideration of the entire evidence on record which consists of only the oral evidence of the witnesses mentioned above, the learned trial judge came to the conclusion ;
(1)The allegations under Section 12(1)(c) of the Act, can not be looked into as admittedly the petition was not maintainable, for the simple reason, that the same as filed beyond the period of one year as prescribed from the date when admittedly the appellant came to know of the alleged concealments regarding age and mental disorder. (2) In any case, the allegations made by the appellant are false In view of the clear statements of the brother and the sister-in-law of the appellant, who have deposed that the respondent was not suffering from any mental disorder and her behavior was always good. (3) The learned trial judge having had the occasion to watch the respondent in court and in the witness box, came to the conclusion that there was no sign of any mental weakness what to say of mental disorder. (4) The specific allegations regarding the incident of May 1981 towards the elder brother of the appellant was proved to some extent, but that itself was not sufficient to dissolve the marriage by a decree of divorce.
(8) In view of the aforesaid findings, the learned trial judge dismissed the petition. In the present appeal filed by the husband I have been taken through the pleadings and entire evidence on record. While agreeing with the endings regarding concealment of age and mental disorder, I do not propose to go into the same in details for the simple reason that petition under section 12(1)(c) relating to the said allegations is no maintainable, for the simple reason that the same has been filed beyond the period of one year. The appellant has admitted in the petition that he had come to know about the mental disorder and the wrong date given by the respondent as early as in February, 1981, and he had in fact asked the brother of the respondent to explain these mis-statements. The present petition was filed in October 1982-Obviously in view of the statutory provisions, the said petition was not maintainable to that extent.
(9) The only other allegations which remains is under clause (iii) of sub-section (1) of section 13 which is to the following effect :
'(III)has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.'
(10) The initial ingredient of this provisions is that the illness, is of such a kind that the petitioner cannot reasonably be expected to live with the respondent. The appellant has not made even an allegation to that effect and there is no such averment in statement. In the absence of the same, this plea of the appellant has also failed. In any case, what is alleged in the petition is that the respondent used to take some tablets and some medicine and used to sit in a chair and would like to be alone. It is also alleged that on enquiries by the appellant, it was revealed that the respondent was having fits. This story set up by the appellant even if taken to be correct does not lead to the conclusion that the illness was such for which the appellant could ' not reasonably been expected to stay with the respondent. All that is said, is that he came to know that she was having fits and it is not stated in the petition that he saw her having such fits. He was unable to tell the medicine which she was having either in the petition or in his statement. Admittedly the mother of the appellant was staying with the appellant and the respondent in the matrimonial home who could have been the best witness to say whether the respondent had any such ailment and of what gravity. She has not been produced for reasons best known to the appellant. The only other witness who has appeared for the appellant is silent about such fits etc. and he has never seen the appellant in such a condition. On the contrary, the other brother of the appellant and sister-in-law of the appellant have appeared as witnesses for the respondent. They have categorically deposed that the respondent was not suffering from any mental disorder and her behavior towards the appellant and other members of the family was always good. No suggestion was put to them in the cross-examination that their relations with the appellant were in, any way, strained. On the contrary, they have deposed that their relations, with the appellant were cordial. In this situation, the appellant cannot be believed on the aspect that the respondent was suffering from any mental disorder.
(11) As regards the specific instance of May 1981 regarding the treatment of the respondent towards the elder brother of the appellant who visited their matrimonial home; the case of the appellant is that when his elder brother visited the house with his family, the attitude of the respondent towards him was rude and insulting. She did not serve tea or any refreshment to him. It is also stated that when the elder brother came to the house, the respondent did not come out of the room and that when the said elder brother went to the bed room of the respondent he was asked to go and was insulted. The said elder brother has appeared as PW2. He deposed that he had gone to the house of the appellant in,May 1981 along with his wife and children. When his children entered the room of the respondent they were asked to leave the room on the ground that the respondent wanted to take rest. He has not stated that even he was asked to leave the room or was in any way insulted by the respondent. He has further stated that the respondent did not serve tea or refreshment but the same were served by his mother who was present in the house. Even if I believe the entire statement of Pw 2, all that it gives is that he was served with tea and snacks but not by the respondent but by his mother. This, in my opinion cannot possibly be considered to be a cruelty because there were two ladies in the house and any of them could have served the tea or snacks but assuming that he was not served with tea or snack can it be said that the cruelty was so grave that the marriage has to be dissolved for this reason. The answer can only be in the negative.
(12) For the reasons recorded above, I do not find any merit in this appeal which is hereby dismissed. Since there is no appearance for the respondent,. I leave the parties to bear their own costs.