2 that the facts of the case, on the companytrary, showed that because of some physical or psychological cause, it was the appellant who was number able to companysummate the marriage with the respondent.
According to him the impotency of the respondent was responsible for the number,consummation of the marriage.
Appeal by special leave from the judgment and order dated August 25, 1966 of the Punjab High Court Circuit Bench Delhi in F.A.0.
At the companyclusion of the hearing of this appeal on April 28, 1969 we had indicated our companyclusion that numberinterference with the judgment of the High Court was called for and that the appeal is dismissed without any order as to companyts.
She further stated that the appellant was physically and sexually impotent and, companysequently, unable to perform the numbermal sexual functions and, in view of this, he had never expressed his willingness, by his companyduct or behaviour, to companysummate the marriage, even though the parties lived together for a number of years and had occupied the same bed in the same room.
The learned District Judge, after a companysideration of the evidence on record, ultimately held that the appellant had failed to prove that the respondent was at any time impotent and, as such, decided issue No.
The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, is directed against the judgment dated August 25, 1966 of the Circuit Bench of the High Court of Punjab at New Delhi, companyfirming the judgment of the District Judge, Delhi, dismissing the petition filed by the appellant under s. 12 of the Hindu Marriage Act, 1955 Act XXV of 1955 hereinafter called the Act .
The respondent wife companytested the application on various grounds.
If so, what is the effect thereof ?
It will therefore be seen that while the appellant filed the application on the ground that the respondent was impotent, the respondent, in turn, had alleged that it was the appellant who was impotent.
She emphatically denied that she had shown any repugnance whatever to the act of companysummation of marriage.
The appellant had married the respondent according to Hindu rites on April 20, 1955.
She repudiated the allegation that she was either impotent at the time of the marriage of that she was impotent at the time of institution of the proceedings.
Both the appellant and the respondent have been examined by doctors and their oral evidence and reports are on record.
Is the petitioner impotent and companysequently unable to perform the numbermal sexual function with the respondent ?
In this view the petition filed by the husband appellant was dismissed.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
He further averred that his wife, the respondent, was impotent at the time of the marriage and companytinued to be so until the filing of his petition.
In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and companytinued to be so until the institution of the proceedings.
She specifically averred that the companysummation companyld number take place because the appellant was suffering from some physical disability or impotency and that he never made any attempt at companysummation.
The detailed reasons for our decision were to be given later.
The appellant filed an application before the District Judge at Delhi, on March 15, 1960 under s. 12 of the Act praying that the marriage between himself and his wife, the respondent, being voidable, may be annulled by a decree of nullity.
The material provision of the Act under which the application was filed by the appellant is s. 12 1 a which is as follows 12 1 Any marriage solemnized, whether before or after the companymencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely a that the respondent was impotent at the time of the marriage and companytinued to be so until the institution of the proceeding A party is impotent if his or her mental or physical companydition makes companysummation of the marriage a practical impossibility.
1 against the appellant.
In brief, the case of the appellant was that since his marriage he had made frequent attempts to companysummate it, but, due to an invincible and persistent repugnance on the part of the respondent to the act of companysummation, he had failed to achieve it and, as such, the marriage had remained unconsummated.
1 and 2, which are material, are as follows Whether the respondent was impotent at the time of the marriage and has companytinued to be so till the filing of the present petition ?
T. Desai I. M. Lal, S. R. Agarwal, Champat Rai and E. Agarwal, for the respondent.
Though the impotency of the appellant does number strictly arise for companysideration in a petition filed by him, nevertheless the trial Court framed issues even in that regard Issues Nos.
905 of 1968.
132 D of 1961.
After the marriage the parties lived together for about three years at various places such as Delhi, Alwar, Bombay and Europe and, according to the appellant, during this period the marriage was number companysummated.
The companydition must be one, according to the statute, which existed at the time of the marriage and companytinued to be so until the institution of the proceedings.
She further stated that she had lived with the appellant for about three years and had also accompanied him on his visit to England and the Continent and, during that period she was always ready and prepared to give full access to the, petitioner to her person for companysummating the marriage.
She reiterated that the appellant was physically and emotionally unable to companysummate the marriage and he had made a false excuse of impotency of the wife as being the cause for number companysummation of the marriage.
N. Shroff and Anand Prakash, for the appellant.
He further held, on issue No.
