Judgment

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, Confirming the judgment of the District Judge, Delhi, dismissing the petition filed by the appellant under Section 12 of the Hindu Marriage Act, 1955 (Act XXV of 1955) (hereinafter called the Act.)

2. At the conclusion of the hearing of the appeal on April 28, 1969 we had indicated our conclusion that no interference with the judgment of the Hindu Court was called for and that the appeal is dismissed without any order as to costs. The detailed reasons for our decision were to be given later. Accordingly we hereby give our reasons for coming to the said conclusion.

3. The appellant had married the respondent according to Hindu rites on April 20, 1955. 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 no consummated. The appellant filed an application before the District Judge at Delhi, on March 15, 1960 under Section 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. In brief the case of the appellant was that since his marriage he had made frequent attempts to consummate it but due to an invincible and persistent repugnance on the part of the respondent to the act of consummation, he had failed to achieve it and, as such, the marriage had remained unconsummated. He further averred that his wife the respondent, was impotent at the time of the marriage and continued to be so until the filing of his petition. According to him the impotency of the respondent was responsible for the non-consummation of the marriage.

4. The respondent-wife contested the application on various grounds. She emphatically denied that she had shown any repugnance whatsoever to the act of consummation of marriage. 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 consummating the marriage. She specifically averred that the consummation could not take place because the appellant was suffering from some physical disability or impotency and that he never made any attempt at consummation. She repudiated the allegation that she was either impotent at the time of the marriage or that she was impotent at the time of the institution of the proceedings. She reiterated that the appellant was physically and emotionally unable to consummate the marriage and he had made a false excuse of impotency of the wife as being the cause for non-consummation of the marriage and he had made a false excuse of impotency of the wife as being the cause for non-consummation of the marriage. She further stated that the appellant was physically and sexually impotent, and consequently, unable to perform the normal sexual functions and, in view of this, he had never expressed his willingness, by his conduct or behaviour, to consummate the marriage even though the parties lived together for a number of years and had occupied the same bed in the same room.

5. 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. The material provisions of the Act under which the application was filed by the appellant is Section 12 (1) (a) which is as follows :

"12 (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable any 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 continued to be so until the institutio