Impotency at the time of marriage is a ground for nullity of marriage under Section 12(1)(a) of the Hindu Marriage Act, 1955.

ORDER :

CHANDRA REDDY, J.

1. These appeals are directed against the order of the District Judge, West Godavary, dismissing the appellant's petition (O.P. No. 108 of 1956) under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and accepting the respondent's petition (O.P. No. 127 of 1956) under Section 12(1)(a) of the said Act for annulment of the marriage.

2. The appellant and the respondent were married on 15-5-1955. Admittedly, the marriage was not consummated though the nuptial ceremony fixed a week after the marriage was gone through. According to the appellant, this was due to his having fever on those days, while it is the case of the respondent that consummation could not take place because he was impotent. There are also differing versions as to why the respondent did not live with the appellant. It is alleged for the respondent that the appellant was not anxious to have her with him because of the defect mentioned above, while it is the appellant's version that the respondent's relations were anxious to have the marriage dissolved, so that they could misappropriate the jewels presented to her at the time of the marriage. Be that as it may, the appellant filed the petition for the relief mentioned above. The respondent, filed a counter with the recitals that the appellant being an impotent man could not claim the relief of restitution of conjugal rights and that for this reason her marriage should be declared null and void. She also initiated separate proceedings for this relief under Sec. 12(1)(a) of the Act. Both the petitions were tried together and the learned Judge delivered a common judgment with the result indicated above.

3. The only question that arises for consideration in these appeals is whether the appellant was really impotent. The case of the wife was that on the nuptial night her husband did not talk to her and did not have sexual intercourse pretending to be ill and that she had the same experience with him whenever they were let into the bed-room, the appellant always complaining of being ill and taking medicine for fever. The respondent found this to be a mere pretence to avoid marital life with her. Though she questioned him several times as to what his sickness was, he stated that he was having some defect which if disclosed would pain her very much. It is also her evidence that in August 1955 when the appellant came to her house he slept outside the room and when he was taken to the doctor, the doctor stated that the appellant was impotent. Her version is confirmed by P.W. 2 a relation of the appellant and by P.Ws. 3 and 4.

4. The appellant sought to support his version by his evidence and that of R.W. 1 the doctor. The doctor deposed that his examination of the appellant did not disclose anything from which it could be said that he was suffering from incurable impotency or that he was physically unfit to have sexual inter-course. In cross-examination he admitted that he had not made a note of the tests he carried out for finding as to whether the appellant was impotent. He has not noted any secondary sex characteristics. He further admitted that the testis were underdeveloped and would state that the potency may or may not depend upon their development, and that re-productive ??? were not normal. While the appellant was nearly thirty years old at the time of his giving evidence, the doctor stated that he was only eighteen or nineteen years old and that there was the possibility of developing potency later on. It is futile to believe that a person in the position of the appellant, aged thirty years, could develop potency in later life. It is not as if that he was in the adolescent stage. Moreover, on his own showing, the appellant was not having normal potency which a person of his age should have. We do not, therefore, regard the testimony of the doctor as lending much assistance to the appellant's case.

5. The appellant's evidence itself does not support the theory of h