Madhura Ashish Desai vs Mr. Ashish Sharad Desai
2021 Latest Caselaw 3491 Bom

                                                                  wp-13584-18.doc

BDP-SPS




                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CIVIL APPELLATE JURISDICTION
                           WRIT PETITION NO. 13584 OF 2018

          Madhura Ashish Desai                          ..... Petitioner.
               V/s
          Mr. Ashish Sharad Desai                       ...... Respondent.


          Mr. Ashutosh M. Kulkarni for the Petitioner.
          Mr. S.S. Ambekar i/b Shriya Gune for the Respondent.

                              CORAM: NITIN W. SAMBRE, J.

                              DATE:     FEBRUARY 24, 2021

          P.C.:-

          1]       Petitioner/Wife filed HMP No.166 of 2010 under Section 12 of

the Hindu Marriage Act wherein Trial Court passed a decree of nullity

of marriage on 2/9/2013. Feeling aggrieved, Respondent/husband

preferred Regular Civil Appeal No. 360 of 2013 questioning the

aforesaid judgment and decree. In the said appeal, application-

Exhibit-19 came to be moved by the Respondent/husband, praying

therein directions to Civil Surgeon to get the Respondent examined

through expert doctor and submit a report regarding erectile response

and normal sexual capacity. The said application came to be resisted

by the Petitioner. However, learned lower appellate court allowed the

wp-13584-18.doc

same vide order impugned dated 17/10/2018. As such, this Petition.

2] The learned Counsel for the Petitioner/wife would urge that

provisions of Order 41 Rule 27 ought not to have been invoked by the

Respondent at the stage of hearing of the appeal, particularly when

such attempt was already made by the Respondent during pendency of

the suit. According to him, facts which are sought to be brought on

record by Respondent/husband were well within his knowledge and

he could have brought the same before the Court at the relevant time.

That being so, order impugned is not sustainable as the same is

beyond the scope of Order 41 Rule 21 of CPC.

3] While countering the aforesaid submissions, learned Counsel for

the Respondent/husband would urge that the Court, after having

satisfied itself about requirement under Rule 27 of Order 41, has

passed the order impugned. According to him, no prejudcie would be

caused to the Petitioner in case if additional evidence as is sought to

be produced is permitted. The learned Counsel then would urge that

the Petitioner will get chance of cross examining the witness including

the Respondent.

wp-13584-18.doc

4] I have considered the rival submissions in the light of provisions

of Order 41 Rule 27 of the CPC, which deals with production of

additional evidence at appellate stage. Provisions of Order 41 Rule 27

can be invoked for production of additional evidence, may be oral or

documentary, in case if court below has refused to admit evidence

which ought to have been admitted and against whose judgment and

decree appeal is preferred. The party is also permitted to produce

additional evidence, provided he establishes that in spite of due

diligence, such evidence was not within his knowledge or could not,

after exercise of due diligence, produce the same during trial. In case if

appellate court requires such document to be produced or any witness

to be examined to enable it to pronounce the judgment, the

production of additional evidence is permitted.

5] As far as decree of nullity of marriage is concerned, same is

based on the ground of impotency of the Respondent/husband. The

Trial Court while appreciating the evidence on record has taken note

of the marriage performed on 12/12/2009 and has appreciated the

evidence of the Petitioner and her father so as to consider her case of

wp-13584-18.doc

annulment of marriage on the ground of impotency.

Respondent/husband has examined Dr. Avinash Badne at Exhibit-67.

However, Court below observed that from the evidence of the said

witness of the Respondent, it cannot be inferred that the Respondent

was potent and as such the Court has drawn adverse inference against

the Respondent. However, the said witness has failed to produce

medical certificate issued in favour of the Respondent and secondary

evidence which is placed on record was not accepted. In that view of

the matter, it appears that the Respondent was prompted to move

application-Exhibit-19 which is allowed by the impugned order.

6] If we consider nature of evidence which is sought to be brought

on record, fact remains that want of medical certificate is relied upon

by the court below in passing decree of annulment of marriage. It has

to be noted that the said findings would cast a stigma on the

Respondent throughout his life. So as to establish that he is sexually

competent to consumate the marriage, it appears that he has invoked

provisions of Order 41 Rule 27 by moving the application. Pursuant

to the order impugned, I am informed that the Respondent has already

undergone medical examination in the Civil Hospital, Sangli so as to

wp-13584-18.doc

determine his potency and the report is already produced on record of

the appellate court.

7] Respondent/Plaintiff who intends to produce additional evidence

has tried to prove the fact of his sexual competency by examining

witness and as such has shown his due diligence at the time of trial.

However, the doctor who was examined has failed to produce the

certificate of medical fitness of the Respondent and a such the

requirements under Order 27 Rule 1(aa) are prmia facie satisfied.

8] In that view of the matter, I am of the opinion that the Court

below was justified in invoking provisions of Order 41 Rule 27 of CPC

particularly having regard to the facts of the present case. In any case,

prejudice is not likely to be caused to the Petitioner, particularly when

the Petitioner will get appropriate opportunity of cross examining the

witness.

9] In the result, no case for interference is made out. Petition as

such fails and same stands dismissed.

wp-13584-18.doc

10] At this stage, learned Counsel for the Petitioner submits that the

order passed by this Court be stayed for a period of four weeks.

Considering the facts and circumstances of the case, stay as prayed is

granted. Proceedings before the Trial Court not to be continued for a

period of four weeks from today.

( NITIN W. SAMBRE, J. )