Court: DELHI HIGH COURT
Bench: JUSTICE Mahinder Narain
SUSHIL KUMAR VERMA Vs. USHA 12.2.1986
Wife got the pregnancy terminated without the consent of the Husband and thus caused mental cruelty to him. termination of pregnancy without the consent of the husband amounts to cruelty
1.This is a husband’s appeal against the order of Shri G.S. Dhaka, Additional District Judge, Delhi, dated 30th August, 1983, whereby the husband’s petition for a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act (hereinafter referred to as ‘the Act’) was refused.
2. The parties were married according to the Hindu rites on 23-11-1980 at Delhi. The wife is stated to have left the appellant on 15th of February 1981.
3. There were various grounds taken by the husband in the petition for dissolution of marriage but in this appeal I need to mention only the grounds mentioned in paragraphs 4A, 4B and 4C of the amended petition, which read as under :—
“4A. That at the time of departure of the respondent from the matrimonial home on 15-1-81 the petitioner was not aware that the respondent was carrying a child from the loins of the petitioner.
4B. That the respondent obtained some medicines from Doctor Kirpal Singh Bakshi, Delhi on 15-1-81 and also obtained a prescription and the said medicine was meant for terminating of pregnancy and further that at the time of obtaining the medicine she had given a false address of her residence.
4C. That the respondent had also consulted, some time between the 15th to 18th January, 1981, a doctor in Nirmal Chopra Nursing Home at Sadar Bazar, Agra and the pregnancy was terminated in Agra.”
4. Thus the assertion in these paragraphs of the amended petition was that the wife is guilty of cruelty to the appellant as she has taken steps to take the medicine and entered a Nursing Home for the purposes of terminating the pregnancy.
5. The assertions made in paragraph 4A, 4B and 4C of the amended petition were controverted in the corresponding paragraphs of the written statement which read as under : —
“4A. That para 4(A) of the petition is wrong and illegal and hence denied. The para is quite ambiguous as in paras 3 and 4 of the petition, the petitioner has clearly asserted that the parties lived together as husband and wife uptil 15-2-81, and the respondent treated the petitioner with cruelty from 15-2-81 i.e. the date when the petitioner took the respondent to Agra to her parents home. But in this para it is alleged that the respondent left the matrimonial home on 15-1-81 which is quite contradictory to the contentions of the petition. The respondent did not depart from the matrimonial home on 15-1-81 but was living there alongwith the petitioner. It is wrong that the respondent was “carrying a child as alleged. The petitioner was fully aware of the condition of the respondent who while living with the petitioner was suffering from some menstrual trouble. Therefore, under the circumstances, there could not be any question of any pregnancy or of the petitioner being aware of it. The para is vehimently denied.
4B. That para No. 4B of the petition is wrong and illegal and hence denied. The para is quite ambiguous as the detailed address of the alleged doctor or the name of the medicine has not been disclosed. The respondent is not aware of any such doctor at any time nor she ever obtained any medicine or prescription from any such doctor. It may be stated that the respondent was getting her treatment for her menstrual trouble and the petitioner used to bring medicines himself for the respondent. As the respondent never herself went to any doctor named Kirpal Singh Bakshi, therefore, there could be no question of giving any address to the doctor. The petitioner is leveling false charges upon the respondent. The para is vehemently denied.
4C. That para No. 4C of the petition is wrong and illegal and hence denied. It is wrong that the respondent ever consulted any doctor in Nirmal Chopra Nursing Home at Saddar Bazar, Agra or there was any termination of any pregnancy at Agra. As the respondent was staying with the petitioner up till 15-2-81 as per his own contentions, therefore, there could be no question of visiting Agra or consulting any doctor at that place. The para is vehimently denied.”
6. The wife thus denied the fact that she had become pregnant after her marriage to the petitioner/appellant.
7. To establish the case which had been set out by the petitioner/ appellant in his petition, the appellant proved Ex. PW 1/1 which relates to the treatment of Mrs. Usha, the respondent.
It is desirable to reproduce the same. It reads as under :—
Dr. BAKSHI’S HOMOEO CLINIC
84, Sarojini Nagar Market, New Delhi.
Name Mrs. Usha
Age……………Ref. No. A/1359
Address : Sec. IX, House No. 62,
R. K. Puram, N. Delhi.
Menstruation delayed by 4 days.
Pt. complaining of
“Nausea. Usually colour of blood is bright red with clots. Menstruation period last 4-5 days.
Rx. Pulsatilla 30/8 doses O.I.D.”
8. This was the record of Dr. Bakshi’s Homoeo Clinic relied by the petitioner/appellant. Dr. Bakshi appeared himself as a witness as PW 1, who proved this record.
9. It is to be noted that the address given by Usha to Dr. Bakshi was Sector IX, House No 62, R.K. Puram, New Delhi. It is the admitted case that this address was of the brother of Usha, respondent, who was then living at that address. It is peculiar that in spite of the fact that she was living with the appellant at that time, she choose to give the address of the brother instead of the house address of the appellant.
10. The appellant/petitioner also relied upon Ex. PW 6/1, which is a consent letter, thumb marked by some person, of Chopra Nursing and Maternity Home, 16/1, Gurudwara Road, Sadar Bazar, Agra. The contents of this Ex. PW 6/1 are also important, the same reads as under :—
Dr. “(Mrs) Nirmal Chopra
M.B.B.S., M.S. (Obst & Gyn.)
Chopra Nursing & Maternity Home
16/1, Gurudwara Road, Sadar Bazar, Agra-1
Phones : Nursing Home—63626, 66955, Residence—63500
GOVERNMENT APPROVED PREGNANCY TERMINATION CENTRE
Patient’s Name : Smt. Usha Chopra xx xx
Wife of Sh. Sushil Kumar xx xx
Age : 25 years, Children : x x
Date of admission : 17-1-1981, Time : 8.30 A.M.
Date of discharge : 17-1-1981, Time : 4.00 P.M.
Diagnosis : Incomplete Abortion xx xx
Nature of Operation : D & C xx xx
xx xx xx xx”
The address of the person giving consent is noted as House No. 195/E, Idgah Colony, Agra. The letter is signed by Smt. Krishna Devi Chopra, who is stated to be the mother of the appellant/petitioner.
11. In the discharge slip, which is Ex. PW 6/2, which was issued by Chopra Nursing & Maternity Home, it is mentioned that the patient’s name is Smt. Usha Chopra, w/o Mr. Sushil Chopra, House No. 195 7/E, Idgah Colony ; Date of admission—17-1-81 and the date of Discharge—17-1-81. The diagnosis is stated to be Incomplete Abortion, and the result : D & C done. Follow up treatment of medicine is also mentioned in this discharge slip.
12. The petitioner/appellant as PW 2 has deposed that the respondent had gone to Agra along with her mother on 15-1-1981 and on 19-1-1981, she was left at his house by her parents. The appellant/petitioner has also deposed that on 16-4-1982, he found two prescriptions lying in the drawer of dressing table, one of which was from the Clinic of Dr. Bakshi at New Delhi and the other from some clinic at Agra. Reading of Exs. PW/1/1 makes it clear that the symptoms which were given by Mrs. Usha to Dr. Bakshi, keeping in view that she was married, that she has missed her period by four days and that she is suffering from nausea would make it clear to anyone who is educated, and it is stated that the respondent is educated, that she was pregnant. For what she took the medicine from Dr. Bakshi ? It could be that the medicine given by Dr. Bakshi was for the purposes of commencing the delayed menstruation. (Practical Materia Medica by Clarks, Vol. III, page 921). There is no evidence on the record whether this medicine was in fact taken by the respondent.
13. What happened at Agra, i.e. Chopra Nursing & Maternity Home makes everything absolutely clear. A D & C was done. D & C stands for “Diagnostic Curettage” (Every-Woman, A Gynecological Guide For Life, By Derek Llewallyn-Jones, Third Edition, page 352).
14. Stedman’s Medical Dictionary 1966, 21st Ed., page 393 defines “Curettage’’ as “A scraping of the interior of a cavity with the curette for the removal of new growths or other abnormal tissues, or to obtain material for tissue diagnosis”. Diagnostic Curettage is usually an abortion, a medical termination of pregnancy. It may also be resorted to when there is an incomplete abortion, to avoid complications. By this method the womb of the patient is scraped and the matter therein, be it a foetus or any other matter which requires investigation, removed.
15. The examination of Dr. Nirmai Chopra, PW-4 was conducted on commission at Agra. She was most evasive in her answers and was unwilling to produce the record of Chopra Nursing Home. She has stated that records could only be produced by the owner of the Clinic, who was PW-6. It is only after the examination of Mr. Kuldip Chopra, PW-6, on commission as a witness by the petitioner, that the copies of consent slip and discharge slip were produced and marked as PW 6/1 and PW 6/2. It appears that there was reluctance on the part of Dr. Nirmai Chopra and Dr. Kuldip Chopra to produce the records of Chopra Nursing & Maternity Home. It is possible that this was due to the fact that the respondent belongs to a Chopra family who also resides at Agra and that Kuldip Chopra and Nirmai Chopra were known to the father and mother of the respondent, i.e. to say J.P. Chopra and Krishna Devi Chopra.
16. Another interesting feature which is canvassed by Mr. Joseph is that, when the commission proceedings were to be held at Agra, for recording of evidence, it was specifically desired that Krishna Devi Chopra and Usha Chopra, should attend the commission proceedings to facilitate the identification of the person to whom the Exhibits PW 6/1 & PW 6/2 related. Neither the respondent Usha, nor her mother Krishna Devi Chopra presented themselves at the time of examination of Dr. Mrs. Nirmai Chopra.
17. From the above stated facts it is quite apparent that the respondent had got pregnant after having married the appellant ; that she did not want this child and so she had the pregnancy terminated.
The appellant has deposed that he had not given his consent to the respondent for the termination of her pregnancy.
18. Whether termination of pregnancy would or would not amount to cruelty has been the subject matter of a judgment which is reported as Deepak Kumar Arora v. Sampuran Arora, I (1983) DMC 182 (DB). A division bench of this court has observed at page 185 thus :
“If, however, a wife undergoes abortion with a view to spite the husband then it may, in certain circumstances, be contended that the act of getting herself aborted has resulted in a cruelty.”
19. In my view whether or not an abortion would amount to cruelty would also depend upon whether one of the parties desired the child, and did not consent it. The situation had arisen in White v. White, 1948 (2) All.ER 151, in which case the husband had insisted upon the practice of “Coitus Interruptus”. This he did to ensure that the petitioning wife, in that Case, who was anxious to have a child, did not get pregnant. The court held that this practice adopted by the husband, which denied the wife a chance to have a child, amounted to cruelty.
20. In this country everyone wants to have at least one child, if not more, and in fact one of the primary ends of the marriage, as has been stated as far back as 1845 in DE v. AG, 163 ER 1039, is to have progeny. It was stated that two principal ends of matrimony “are a lawful indulgence of the passions to prevent licentiousness ; and the procreation of children, according to the evident design of Divine Providence”.
21. I am of the view that aborting the foetus in the very first pregnancy by a delibrate act, without the consent of the husband, would amount to cruelty.
22. It is important to bear in mind that it is no more the requirement of law that cruelty must be of such kind that it should be a cause of danger to life and limb. The old provision which existed in Section 10 of the Hindu Marriage Act was taken out, from that section, and re-enacted as a part of Section 13 by virtue of the Amendment made by the Marriage Laws (Amendment) Act, 1976. Since the Marriage Laws (Amendment) Act, 1976, Section 13(1)(ia) only requires that the “other party has treated the petitioner with cruelty”.
23. I find from the judgment of the Additional District Judge that he has not noted the judgment of this court reported as I (1983) DMC 182 (DB), which was delivered on 21-9-1982, nor has he noted the judgment in White v. White, nor has he appreciated the meaning and effect of Ex. PW 1/1, PW 6/1 and PW 6/2. These documents clearly show that D&C operation had been performed on the respondent at Agra. The respondent had even denied that she had become pregnant and she had obviously denied that she had an operation.
24. In the facts and circumstances of this case I hold that the respondent is guilty of cruelty towards the appellant, and the appellant is entitled to a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.
25. I set aside the judgment of the Additional District Judge, dated 30th August, 1983 and grant a decree of divorce in favour of the appellant and against the respondent under Section 13 (1) (ia) of the Act.
There will be no order as to costs.