When non examination of doctor is not fatal in hindu marriage petition proceeding?

Taking the first point first, it may be noted that the court below has based its judgment on medical report of J.P. Memorial Hospital by Dr. S. Khanjuja. He has reported that the defendant wife has no ovary and as such she cannot conceive. Her uterus is also defective. It is a stated that the said doctor has not been examined to prove the medical report. But on bare perusal of the record, we find that there appears to be no dispute between the parties with regard to essential fact that the respondent wife cannot conceive. The husband in his statement has deposed besides many other things, that the respondent is unable to conceive and he was defrauded. In the statement of the respondent wife, the aforesaid fact has not been disputed at all. She in her short deposition has stated only this much that she was being ill treated by her husband and was turned out from the house. The husband is in job of printing sarees at Bombay. There appears to be no serious dispute with regard to vital fact that the respondent wife does not possesses ovary. 
In para-5 of the petition, it has been stated that the parents of the respondent got married the respondent with the petitioner fraudulently when they had full knowledge that the respondent has no ovary and she had no menstruation cycle ever at her parental house. The said paragraph of the petition has not been denied specifically by the respondent wife in her written statement. Reply is given in para-5 of the written statement. In para-5 of her written statement, there is a general denial. The written statement consists 14 paragraphs but in none of them, it has been stated that the allegation of the husband that she has no ovary has been denied specifically. The allegation of fraud has been pleaded in para-5 of the petition, has also not been denied in specific term. The only defence which can be read out from the written statement is that she was treated with physical cruelty and was subjected to abusive language calling her as Banjh (infertile lady) and used to demand of dowry. In absence of any specific denial and coupled with the evidence led by the parties; and keeping in view of Section 20 sub-section (2) of the Hindu Marriage Act read with section 10 of the Family Courts Act, we do not find substance on the facts of the present case, in the argument that medical report is not proved. Noticeably, except making a denial, the respondent wife has not led any evidence which she could have led easily in rebuttal. The plaint allegation having not been denied shall be treated as correct and uncontroverted. 

The petition was initially filed under Section 13 of the Hindu Marriage Act and the amendment was allowed by the order dated 20th July, 2005. The husband was permitted to convert the petition under Section 12 of the Hindu Marriage Act. He was also permitted to add the plea that on medical examination it has become clear that she has no ovary and the marriage is useless and there cannot be a relationship of husband and wife between the parties. The amendment was incorporated on 20th July, 2005 and the time was given to file additional written statement fixing 26th September, 2005. The order-sheet dated 26th September, 2005 records that no additional evidence was filed and the date was fixed for evidence. Evidence was recorded thereafter and the judgment was pronounced. This also leads to the conclusion that the pleadings with regard to lack of ovary remained uncontroverted by the present appellant and thus, is an admitted fact between the parties. Therefore, on uncontroverted pleadings and evidence even if, the medical report is put aside for the time being, the husband has proved his case. 

ALLAHABAD HIGH COURT
FIRST APPEAL NO. 319 OF 2006 

Parvati Devi  V Dharm Chandra Seth

Hon'ble Prakash Krishna,J 
Hon'ble Arvind Kumar Tripathi (II),J. 

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