The court inferred impotency from the appellant's conduct, even in the absence of direct medical evidence, highlighting the significance of conduct in establishing impotency in cases of unconsummated marriages.

JUDGMENT :

VISHWAJITH SHETTY, J.

This Miscellaneous First Appeal under Section 19(1) of the Family Courts Act is filed challenging the judgment and decree dated 18.08.2014 passed by the Principal Judge, Family Court, Bengaluru, in M.C.No.2496/2010, wherein the petition filed by the respondent-wife under Sections 12(1)(a) and 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, 'the Act') was allowed and the marriage of the appellant with the respondent was declared as nullity, and accordingly, t he marriage was dissolved by a decree of divorce.

2. Heard the learned Counsel for the parties and also perused the material available on record.

3. Brief facts of the case as revealed from the records which would be necessary for the purpose of disposal of this appeal are, the marriage of the appellant and the respondent was solemnized on 29.10.2001 at Mani Shadakshari Kalyana Mantap, No.307, Thimmaiah Road, Off. Queens Road, Bengaluru. At the time of marriage, the respondent was working in General Post Office at Bengaluru, while the appellant was working as a Clerk in Indian Bank, Neyveli Branch, Neyveli, Tamil Nadu.

4. After the marriage, nuptial ceremony was arranged at the residence of the respondent in Bengaluru, but the appellant had refused to cohabit with her on the ground that he was not well and was suffering from high fever. Immediately thereafter, the appellant had left to Neyveli and the respondent was left back in her parents house at Bengaluru, though initially it was agreed that she would be taken to Puducherry where the parents of the appellant were residing. After a great deal of persuasion, the parents of the respondent reluctantly took the respondent to Puducherry and the respondent stayed there from 01.11.2001 to 20.11.2001, but during the said period, the appellant allegedly stayed away from the respondent throughout. While she was returning to Bengaluru from Puducherry, she was specifically instructed by her in-laws that she would be returning to Puducherry only after she obtains permanent transfer. Even when she stayed in Bengaluru thereafter, the appellant never visited her and the marriage remained unconsummated. Though the appellant had promised to the respondent that he would setup a marital house at Puducherry immediately after the marriage, no such arrangements were made.

5. In the meanwhile, the appellant was transferred to Cuddalore and after great persistence, the respondent got herself transferred to Puducherry in the year 2005. Since the appellant had failed to setup a house at Puducherry, though the appellant's parents were residing at Puducherry, the respondent was constrained to stay in a hostel accommodation at Puducherry and attend her office. In the meanwhile, in the year 2004, the appellant was transferred from Cuddalore to Punganur in Andhra Pradesh, and on 28.03.2004, the respondent along with her parents went to Punganur and met the appellant in his bank. However, the appellant did not show any concern and his response was extremely poor. Though he had assured that he would be taking a transfer to Puducherry, he never made any efforts for the same. In the year 2007, the appellant was transferred from Punganur to Proddadur in Andhra Pradesh and the respondent again went to Proddadur and requested the appellant to set up a house at Proddadur for their residential purpose. However, the appellant stoutly refused to the same. It is under these circumstances, after informing her parents that her marriage was not consummated with the appellant, the respondent had filed a petition before the Family Court at Bengaluru seeking a decree declaring the marriage as nullity and also for dissolution of the marriage by a decree of divorce.

6. In the said proceedings, the appellant had filed detailed objections denying the petition averments and contended that the marriage was not consummated for the reason the respondent was not cooperating for cohabitation since she had some gynecology problems. He contended tha