JUDGMENT - S.M. DAUD, J.:---This appeal impugns the dismissal of a petition seeking a decree of nullity for non-consummation of marriage or in the alternative a divorce on the ground of infidelity.

2. The admitted facts are that the parties are Hindus and were married at Bombay on 22 May, 1979. In the Diwali of 1979, on the occasion of Bhaubeej Festival, there was some incident leading the husband-appellant to snatch her Mangalsutra from the neck of the wife-respondent and also to drive her out from the marital home. The intervention of relations and neighbours resulted in reconciliation but not for long. This is because on 23rd January, 1980 the appellant petitioned the City Civil Court claiming a decree of nullity on the ground that the marriage had not been consummated owing to the impotence of the respondent. Briefly, the case set out in the petition at that stage was that the respondent did not have normal genital organs which incapacitated sexual intercourse or that she had so strong an aversion to such intercourse in general, and in particular with him that the marriage could not be consummated. After some 3 years, the husband perusing a medical certificate tendered by the wife showing that she had normal genital organs, and, in fact was accustomed to sexual intercourse, sought and was granted leave to plead that the wife had committed an act of infidelity which entitled him to a decree for divorce. This was on the allegation that until these spouses lived together, consummation of the marriage had been rendered physically impossible by the non-co-operation of the wife and subsequent to the filing of the petition, the husband had no access to the wife.

3. The husband's petition was disputed by the wife who claimed that she had normal genital organs. In fact the couple had sexual intercourse on a few occasions, but these were not happy occurrences. The unhappiness was on account of the short-coming of premature ejaculation on the part of the husband. It was false to say that she had sexual intercourse with a person other than the husband. Appellant in fact had forsaken her. His brother and sister-in-law had made determined efforts to evict her from the matrimonial home. Despite the restitance put up by her, the brother had filed a suit to evict her. That suit failed and the wife continued to live in the matrimonial home. The husband was not entitled to either a decree of nullity or of divorce.

4. Appellant had filed an application for a direction to the wife to get himself examined by a medical practitioner so as to ascertain whether she had any physical or phychological incapacity for the performance of the sexual act. Judge Guttal (as he then was) who first dealt with the application rejected it and the same was challenged by means of an appeal from order to this Court. This A.O. was allowed and the matter remanded to the trial Court. At this stage, the wife produced a certificate issued by a Lecturer in Obstetrics and Gynaecology, Dr. S.V. Pardekar. She husband was not satisfied with this certificate and in fact has gone to the extent of alleging that the certificate was the result of impersonation and by practice of deceit upon Dr. Pardekar who had been falsely induced to believe that the person in relation to whom he had issued the certificate, was the respondent. This was the subject matter of a heated argument before Judge Deshmukh who rejected the contention advanced on behalf of the appellant. Against that rejection the appellant moved this Court by means of an appeal from Order. The limited relief secured by the appellant was a mandate to the wife to examine Dr. Pardekar as a witness.

5. At the trial, the parties examined themselves the wife also examining Dr. Pardekar. The trial Judge-Judge Cazi-held that the appellant had failed to prove the alternative allegations of impotency or the infidelity of respondent. Appellant was held not entitled to any relief and he was saddled with the liability to pay alimony

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