VIPUL M. PANCHOLI, J.

1. This appeal is filed against the judgment and order dated 15.09.2009 passed by the learned Judge, Family Court No.3, Ahmedabad in Family Suit No.1051 of 2000 by which the petition filed by the petitioner – husband for obtaining a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act has been dismissed.

2. Brief facts are as under:

2.1. The present appellant – original petitioner – husband filed Family Suit No.1051 of 2000 before the Family Court, Ahmedabad under Section 13(1)(ib) of the Hindu Marriage Act for decree of divorce. Initially, in the said petition, the petitioner stated that marriage of the petitioner was solemnized on 08.05.1997 with the respondent. It was further stated that after the marriage they started their marriage life at Ahmedabad. However, after a period of one month, the respondent wife informed the petitioner that she did not have any interest in enjoying marriagelife. Thus, she did not perform her marital duties as a wife. She was avoiding to enjoy the marriage life under one pretext or the other. It was alleged that on 15.12.1997, the respondent – wife left the matrimonial home and thereby she had deserted the petitioner. Hence, the aforesaid petition came to be filed by the petitioner husband on 08.02.2000 inter alia praying for a decree of divorce under Section 13(1)(ib) of the Hindu Marriage Act.

2.2. The petitioner filed an application Exh.37 for the amendment of the petition/plaint. The Family Court allowed the said application by an order dated 01.10.2007, which was challenged by the respondent – wife before this Court. This Court, vide order dated 21.01.2008 passed in Special Civil Application No.26988 of 2007, dismissed the said petition and therefore the plaint was amended. It is alleged in the amended plaint that the engagement of the petitioner had taken place with the respondent before one year of the date of the marriage. However, before the marriage or even after the marriage also, the respondent or her parents did not inform the petitioner that the respondent was not having uterus. It is alleged that before the marriage the respondent and her parents ought to have informed the petitioner about the said problem of the respondent. Thus, the fact that the respondent was not able to conceive was suppressed by the respondent and her parents. It was further alleged that after the marriage, the respondent was avoiding to enjoy the marriage life and therefore she was taken to a Doctor. The said Doctor examined the respondent and opined that respondent was not having uterus. When the petitioner came to know about the said aspect, he was shocked. Thus, the respondent has given mental torture to the petitioner. The prayer clause was also amended and thereby it was prayed that a decree of divorce be issued in favour of the petitioner under Section 13(1)(ia) of the Hindu Marriage Act on the ground of cruelty.

2.3. The respondent – wife appeared before the Family Court in response to the summons issued and filed her reply at Exh.15 and denied all the allegations levelled against her by the petitioner – husband. She denied that she had left the matrimonial home. It was alleged by the respondent that she was forcibly taken to the Gynecologist with a view to prove that she is not having uterus. She denied the allegation that she does not have uterus.

2.4. The petitioner filed his rejoinder vide Exh.23 and reiterated the allegations which he had levelled in the petition. The respondent also filed reply Exh.41 in response to the application of amendment given by the petitioner.

2.5. Initially, the issues were framed vide Exh.25 on 08.09.2003. However, after granting the amendment application, the plaint was amended by the petitioner and therefore once again the issues were reframed vide Exh.74 on 05.01.2009.

2.6. The petitioner filed his affidavit at Exh.79 in lieu of his oral examination-in-chief, whereas, the respondent filed her affidavit at Exh.91 in lieu of her