ORDER :

(Goutam Bhaduri, J.)

1. Heard.

2. The present appeal is by the husband against the dismissal of a petition seeking divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. The dismissal order was passed in Civil Suit No.98A/2015 by Third Additional Principal Judge, Family Court, Durg on 07.5.2018.

3. The brief facts in this case are that the appellant was earlier married and got divorced from his first wife in the month of July 2010. From the first marriage a son was born, who was aged about 10 years at time of second marriage. The husband stated that to secure future prospect and to provide parenthood to the son, the husband again married with respondent P. Padmavati on 06.3.2011 at Arya Samaj, Bhilai. The husband stated that before the second marriage, past was disclosed to the second wife including about the son. It is further pleaded that before the second marriage he went through vasectomy (Nasbandhi) as he did not want any further child in future. The respondent/wife also acceded to such arrangement to accept son from the first wife to be their only son. The husband further alleged that after two years of marriage, things went normally but subsequent to it, the wife expressed her desire to have a child. Being objected by husband, the son was subjected to torture and pressure was exerted on the husband to have a child of their own. In furtherance of such object, by way of IVF (In Vitro Fertilization) the wife got pregnant from the eggs and sperms of outside donors. The husband alleges that he wanted to donate his sperm, but instead of taking the sperms of the husband, the wife got pregnant from sperms of unknown donor. After she got pregnant she underwent the treatment for removal of extra embryo in her womb and eventually twin daughters were born on 23.9.2014. Subsequent to it, atmosphere at home became totally hostile and the wife in front of the friends used to make sarcastic comments on the husband that he is not capable to give birth to child. The husband further alleged that the wife used to abuse and extend the threat that the husband would be inculpated in some false case, therefore, under these circumstances, the husband kept silence and eventually they started living in the same house but separately with different kitchen, having different source of access. The husband stated that because of the abuse and mental cruelty meted out to the husband by the wife, as she got pregnant by sperm of outside donor, he is entitled to divorce as they cannot go along further.

4. Per contra, the wife alleges that when the proposal for marriage was considered because of the fact that the husband had gone through vasectomy, her family members initially refused to marry him, but husband promised that after the marriage he will get himself operated to have a child and on such assurance & promise, the marriage was performed. Non-applicant/wife further alleged that she was in service and was a working lady but after the marriage, as per the wish of the husband, she left her job. The wife further stated that she has no degree of discomfort with the son named Mukul and with the consent of the husband she got pregnant through IVF procedure. It was further stated that after she got pregnant, three embryos were found in the womb, as such, with the consent of the husband, she again got operated to remove one embryo. The allegation of use of abusive language and sarcastic comment against the husband were denied and stated that the husband is not entitled for any divorce on the ground stated in the application.

5. The husband examined himself and one witness SRB Krishna (PW-2) and the wife examined herself alone. The learned Family Court dismissed the application for divorce holding that neither cruelty has been proved nor it has been proved that the husband promised the wife to begot a child after the marriage and the application was dismissed.

6. Learned counsel for the appellant/husband would submit that the husband being a d