Unfounded allegations of impotency can constitute mental cruelty, warranting divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

ORDER :

Amitendra Kishore Prasad, J.

1. The present appeal has been filed by the appellant-husband being aggrieved by the judgment and decree passed by the Learned Additional Principal Judge, Family Court, Janjgir (C.G.) dated 22.09.2023 (Annexure A/1) in Civil Suit No.133-A/2022, whereby the Trial Court had dismissed the application of appellant-husband seeking divorce under Section 13 of the Hindu Marriage Act, 1955.

2. In this case, it is an admitted fact that the marriage between both parties was solemnized on 02.06.2013 at Radhanagar Post, Krishnanagar, Tehsil Ramanujganj, District Balrampur (Chhattisgarh). It is also admitted that the appellant had filed a petition under Section 10 of the Hindu Marriage Act, 1955 against the respondent-wife. However, as the applicant-husband did not pursue the matter, the petition was dismissed by the trial Court.

3. Facts of the present case, in brevity, is that respondent-wife is the legally wedded wife of the appellant-husband, and they have no children from their marriage. After the wedding, the appellant- husband was posted at Charcha Colliery, Baikunthpur, about 200 Km from the respondent-wife’s parental home. The respondent stayed briefly at her in-laws' house but repeatedly returned to her parental home. She allegedly pressured the appellant-husband to either get transferred to her village or quit his job and threatened to leave him. The appellant-husband had filed a case for restitution of conjugal rights, which he later withdrew after the respondent-wife assured the Court of resuming marital life. Later, a dispute arose involving allegations of an affair, causing social humiliation for the appellant-husband. The respondent-wife then left without informing him and later filed a false molestation report, which she withdrew. Despite occasional short stays with the appellant-husband, the respondent-wife mostly lived separately. In 2015, a family dispute led to a police report by the respondent's brother-in-law. She also filed a false complaint in 2016, briefly reconciled, and then left again. After the appellant-husband’s transfer to Champa in June 2016, she stayed with him for a week in 2017. Since then, there has been no physical relationship between them. The appellant-husband alleged that the respondent-wife refused to leave her Anganwadi job and has been mentally and physically harassing him. Therefore, he has filed this instant divorce appeal.

4. In her written statement, the respondent-wife party has denied all the facts except the admitted ones, and stated that the appellant- husband is seeking divorce solely because he is unable to fulfill his marital duties towards the respondent-wife. She has expressed her willingness to live with the appellant-husband. Therefore, this appeal is liable to be dismissed.

5. Learned Family Court after appreciating oral and documentary evidence, the application for divorce filed by the present appellant- husband under Section 13 of Hindu Marriage Act, and the said application was dismissed by the trial Court.

6. Mr. Anish Tiwari, Learned counsel for the appellant-husband submits that the trial Court has erred in law while not considering the vital evidence in this matter. The factum of cruelty has duly been proved by the appellant-husband, however, it has been illegally not considered by the Family Court. There is specific allegation made by the husband that respondent-wife is not willing to cohabit with the husband. He goes on to submit that he has filed an application under Section 9 of the Restitution of Conjugal Rights only upon assurance of respondent-wife, he has withdrawn the application on 25.06