A peculiar aversion to the sex act with the spouse, leading to the inability to fulfill marital duties, can constitute impotency under Section 12(1)(a) of the Hindu Marriage Act.

( 1 ) THIS First Appeal by the husband under Section 23 of the Hindu Marriage Act, 1955, hereinafter called the Act is directed against the judgment of the Addl. District Judge, Delhi dismissing the appellant/husband s petition under Section 12 of the Act for annulment of the marriage solomnised between the parties on the ground that the respondent/wife was impotent at the time of the marriage and continued to be so until the institution of the petition. The appeal has been filed in the following circumstances.

( 2 ) THE appellant and the respondent were married on Jaunary 31,1971 according to Hindu rites, the respondent/wife was about 16 years of age at the time of marriage. After the marrige. the parties lived as husband and wife for a total period of little over three months at defferent places, and since, July, 1971 when she left the appellant s home with her father, the respondent has been living with her parents. There is controversy between the parties as to whether the marriage was duly consummated, if the respondent was impotent from the beginning and continued to be so, the reasons for the rupture between the parties, the manner in which the appellant treated the respondent and the circumstances in which she left his care. It, however, appears that by his counsel s notice of October 12, 1971, copy of which was produced and exhibited at the trial as Ex. P2, the appellant sought restitution of conjugal rights by the said notice from the respondent in course of which, it was made out that the marriage had been "properly consummated", that the respondent lived happily with the appellant during the short period they lived together, that the appellant was aware of the "difficulties and limitations" of the respondent and that the respondent s act of leaving the care of the appellant was "thoughtless and wanton desertion" of the husband, that the respondent s parents had the impression that she had been neglected and had suffered from "fits and faints". It was further alleged that the respondent s withdrawal from the appellants society was unjustifided. The notice threatened the respondent with legal action "for restitution" of the appellant s conjugal rights There is no reference in the notice either of the physical or psychological fear of the respondent for coitus or of any aversion to interecou"e generally or with the appellant or of any doubt on the part of the appellant that the respondent was otherwise impotent from the very beginning. In reply to this notice, however, the respondent s father wrote to the counsel a letter of November 5, 1971, a copy of which was also produced and exhibited at the trial as Exhibit P. 3. , setting out what appears to be the respondent s version of the circumstances in which she left the care of the husband. In the said letter, it is made out that since her marriage, the respondent has been - extremely unhappy" on account of "inhuman treatment" meted to her by the appellant which appeared to the respondent s father to be attributable to "compliance of disgraceful conduct" which was demanded of her by the appellant and which was resisted by her. It was further alleged that the appellant "i flicted mental and physical tortures on her, rather she was subjected to brutal acts at Delhi" to the extent of "driving her out" from the appellant s residence. The letter proceeds to describe the then state of the respondent in the following terms:

"2. All the acts of your client have created such a terror in the mind of my daughter Nalini that whenever the name of your client is uttered in her presence, she becomes nervous and when any suggestion is put to her to go to your client the magnitude of her nervousness causes faints to her and at tinges, she becomes delirious. I have since got her medically examined at Panichobh which, as a matter of fact ought to have been done at Delhi when she was in the company of your client as she had developed this disease there. She has developed a