The inability to prove allegations of cruelty and the contract of a subsequent marriage impact the validity of divorce claims under the Hindu Marriage Act.

JUDGMENT :

R. POORNIMA, J.

This Civil Miscellaneous Appeal has been filed as against the fair and ex-order made in HMOP No.400 of 2016 on the file of the Family Court, Madurai, dated 13.12.2022 and to grant a decree of divorce in favour of the appellant.

2.The petitioner/wife filed a petition under Section 13 (1)(i-a)(i-b) of the Hindu Marriage Act,1955 to dissolve the marriage solemnized between the petitioner and the respondent, on 11.11.2013 on the ground of cruelty and desertion. The petitioner has specifically alleged that there was a demand of dowry at the time of marriage. The respondent and his family members demanded 55 sovereigns of gold jewels and Rs.3 lakhs cash. The parents of the petitioner also agreed for the same. On the date of marriage, the father of the petitioner was able to provide only 45 sovereigns and Rs.3 lakhs cash and agreed to give 10 sovereigns of jewels within a year. But even an hour before the scheduled time of marriage, the respondent and his parents and sister threatened that unless the remaining 10 sovereigns of jewels were given, they would not agree for the marriage and staged a walk out. Thereafter, the parents of the petitioner promised that the remaining 10 sovereigns will be given within a year and on that account, the marriage was conducted.

3.The petitioner further stated that her husband is an impotent and even after one week of the marriage, they did not enjoy the conjugal pleasure and subsequently, she found that the respondent male organ was under developed. When she questioned the same, he stated that he had undergone a surgery six months before the marriage and it will be cured. In between, the father of the respondent who retired from the service on 31.01.2014 continued to reside along with the spouse and embarrassed her when she was alone. When the same was complained by the petitioner to the respondent, he has not questioned his father, but asked her to adjust him. Therefore, she suffered mental agony. When she reported the same to her mother, the parents of the petitioner informed the same to the mother and sister of the respondent. But neither they showed interest, nor felt ashamed. Rather they drove the petitioner out of the house and told her that she can live with her parents till the payment of the balance of dowry. Ever since she was living continuously with her parents at Madurai. Thereafter, she become pregnant and delivered a baby on 21.10.2014 in Booma Nursing Home, Madurai. When the petitioner contacted the respondent and informed about the birth of child over phone, he asked her to pay the dowry immediately and to adjust his father. Therefore, she gave a complaint before the District Social Welfare Officer, Madurai, on 25.05.2015. A negotiation was arranged, but failed. Though the impotency of the respondent is a ground for divorce, she did not file any petition for nullity of marriage. She wanted to live as a traditional Hindu wife. Since the respondent treated her with mental cruelty, she filed a petition for divorce on the ground of cruelty and desertion.

4.The respondent/husband denied the entire averments contained in the petition, disputing the allegation of impotency, demand of dowry and misbehaviour by his father and stated that after the marriage, they were living in the matrimonial home for a short period and thereafter, shifted to Chennai, where he was working and residing at TVS Colony, Anna Nagar West, Chennai. The petitioner become pregnant and as per the request of her parents, she went to Madurai during February 2014. He used to visit her every Saturday and Sunday at Madura