( 1 ) THE unsuccessful petitioner in O. P. No. 149 of 1973 on the file of the Second Additional Judge, city Civil Court, Hyderabad, has filed this appeal. She failed in her attempt to secure a declaration that her marriage with the respondent was a nullity on the ground covered by section 12 (1) (a) of the Hindu Marriage act.

( 2 ) WE may mention that this appeal has been heard once by our learned brothers Sheth and Jeevan Reddy, JJ, and was allowed. But this judgment was set aside and the appeal was restored on the application of the respondent s Counsel on the ground that he has not noticed the posting of the appeal in the cause list and that was why be was absent when it was heard and disposed of. We would like to point out that we have heard the appeal afresh and are deciding the case without any reference to the judgment rendered by our learned brothers.

( 3 ) WE will refer to the parties as they were arrayed in the original petition. The date of the marriage between the parties is not in dispute. It is 2nd june, 1972. The petitioner, however, would say that the nuptial ceremony was fixed and ostensibly performed on 29th of June 1972. The respondent, however, would say that it took place in October, 1972. The actual date of the ceremony, however, is immaterial for the decision in the case. It is the positive case of the petitioner that her marriage has never been consummated by the respondent on account of his impotency. He clearly confessed to his inability to perform the sexua act. Still she lived with him for some time but without any sexual contact between them. Thereafter she filed the petition for a declaration that their marriage was null and void by virtue of section 12 (1) (a) of Hindu Marriage act. The respondent takes up the definite stand that he has been potent and has consummated the marriage and has had sexual intercourse with the petitioner several times before she left him for her parents house. He attributes lack of bona fides to the petitioner in filing this petition because he had refused to leave his parents house and to live with her parents.

( 4 ) THE lower Court found, as a fact, that the petitioner remained a virgin till after the filing of the petition and until she was examined by the doctor. Still it came to the conclusion that the petition should be dismissed because the petitioner had failed to prove that the respondent was impotent by the date of the filing of the petition. In fact the lower Court also expressed the view that it was not proved that the respondent was impotent.

( 5 ) IN this appeal Sri M. Ramamohana rao, learned Counsel for the appellant wife raises two contentions viz. , firstly that the lower Court went wrong in thinking that the petitioner was required to establish that the respondent was impotent on the date of the petition also and secondly that the petitioner had failed to prove that the respondent was impotent.

( 6 ) AS far as the first contention is concerned it need not detain us for long. There is an amendment effected to section 12 (1) (a) by Amending Act lxviii of 1976 by virtue of which clause (a) of section 12 (1) has been recast to the following effect:"any marriage solemnised, whether before or after the commencement 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 marriage has not been consummated owing to the impotence of the respondent. "by virtue of section 39 of the Amending act LXVIII of 1976, it is the amended law that should apply to and goverall pending matters. Therefore it is conceded by the learned Counsel for the respondent and rightly so because of section 39 of the Amending Act, that what should be examined by the Court is whether the petitioner has succeeded in showing that the marriage has not been consummated owing to the impotence of the respondent. It is not, therefore, necessary, as the lower Court thought on the basis of the old law, for the