( 1 ) THIS is an appeal under Section 28 of the Hindu Marriage Act (herein called the Act ) filed by Smt. Sushila Devi Aggarwal, challenging the decree of annulment granted by Miss Usha Mehra, Additional District Judge, Delhi, by her judgment passed on 11th November, 1980, on a petition filed by the respondent herein, Shri Vijay Kumar Aggarwal.

( 2 ) THE case of the husband was that the parties to the petition were married on 20th February, 1977, at Faridabad (Haryana ). After the marriage they came to Delhi and lived for about 2 to 3 days. During that period the marriage was not consummated as the parties could not have any sexual intercourse. Thereafter, the wife left for her parents house. When she came back after about ten days or so she stayed at Delhi with her husband for another ten days and again left for her parents house. The case of the husband was that during the period of stay of his wife at Delhi she never mensturated. During the days when the wife was staying with him after her first visit to Faridabad the husbad tried to have sexual intercourse with his wife. According to him he could not penetrate for more than an inch or so , all his efforts to commit sexual intercourse were frustrated. In 1977 at the time of Diwali, the wife (appellant herein) had again left for her parents house at Panipat, where her father had since been transferred from Faridabad. In January, 1978, she came back to Delhi. As the husband had not been able to consummate the marriage till that time he took her for medical examination. It was at that time found that the wife had a plastic surgery by which an artificial vagina had been put in. She had no uterus and she had never mensturated.

( 3 ) ALLEGING that his wife was impotent he sought a decree of nullity under Section 12 ofk the Act. Ts averment contained in the petition was denied by the wife in her written statement. Her case was that although she was not capable of bearing children she was capable of having sexual intercourse. In fact, she stated, the marriage had been consummated.

( 4 ) ON these pleadings the following two issues were framed :

" (1) Whether the marriage has not been consummated owing to the impetency of the respondent ? (2) Relief. "

( 5 ) THE learned Additional District Judge after going through the evidence of the husband and the medical report. Exhibit R/l, has found that the wife is impotent and accordingly granted a decree of nullity. It may be noticed that after the evidence of the respondent herein, Vijay Kumar Aggarwal, had been recorded and the evidence closed by his counsel on 21st May, 1980, learned counsel for the respondent stated, "i do not want to lead any evidence". Thus, no evidence has been led on behalf of the appellant herein.

( 6 ) IN his statement the husband had supported the averments made in the petition as noticed by me above. It is his case that he did not know that by plastic surgery on artificial vagina had been created in his wife; that the marriage had not been consummated because he could not penetrate for more than an inch or so and that his wife was impotent. These facts brought out in examination-in-chief have not been challenged. Whatever the case averred in the examination-in-chief it is now to be taken for granted, because no questions have been put to the husband in cross-examination. That in this case the vagina had been artificially created; that the marriage had not been consummated and that whenever the husband attempted to consumnate the marriage, penetration was not for more than an inch or so stand proved. Great reliance was placed by the learned counsel for the wife on the report of the Medical Board who had examined the wife on 19th December, 1979. That report is Exhibit R/l. The opinion of the doctors of that Board was that Sushila Aggarwal "is capable of sexual life". Before analysing the contention it is worthwhile to re-produce the report :

"identification marks (1) Cut on the upper side