The main legal point established in the judgment is that impotency must exist at the time of marriage and continue until the institution of the proceedings, as per Section 12(1)(a) of the Hindu Marriage Act.

Veena Birbal, J.

1. Present is an appeal under Section 28 of the Hindu Marriage Act (hereinafter referred to as ‘the HMA’) filed by the appellant/husband against the impugned judgment/decree dated 9th September, 2002 by which the petition of the respondent/wife under section 12(1)(a) of the HMA has been decreed and the marriage between the parties has been annulled by a decree of nullity on the ground of impotency of the appellant/husband.

2. Briefly the facts relevant for the disposal of the appeal are as under:-

The marriage between the parties was solemnized on 11th February, 1997 at Delhi according to Hindu rites and ceremonies. At the time of marriage, respondent/wife was 23 years of age and appellant/husband was 34 years of age. Respondent/wife had alleged that her marriage was not consummated due to impotency of the appellant/husband. It was alleged that on the first night of marriage, respondent/wife fully cooperate with appellant but because of feeble erection in the male organ he could not consummate the marriage. Thereupon, appellant/husband started saying that he was feeling tired and then parties went to sleep. In the morning, the respondent/wife enquired from him as to why he could not do the sexual intercourse. The appellant/husband replied that it was a new experience for him and that everything would be all right in due course of time. The same thing was repeated for about a week and the appellant continued giving assurances to respondent/wife that everything would be alright in due course of time. For full one week, the appellant/husband could not consummate the marriage owing to his impotence. It was alleged that appellant/husband was able to produce only a very feeble erection and some little ejaculation without penetration and then it would be followed by complete collapse leaving behind a trial of agony and frustration for the respondent/wife. It was alleged that on 17th February, 1997, respondent/wife had told her elder sister Seema that appellant was not able to consummate the marriage who in turn had told the same to her mother. Both of them advised her to have patience and to wait for few more days.

3. On 14th March, 1997, appellant/husband went for tour and returned back on 30th March, 1997. Even thereafter there was no consummation of marriage and appellant/husband had assured that everything would be all right and he would get himself treated. She had further alleged that on 5th April, 1997, appellant/husband had picked up a quarrel with the respondent without any reason. On 8th April, 1997, respondent/wife was dropped at her parental home. It was alleged that appellant/husband again went to tour and came back on 15th April, 1997. On 18th April, 1997, they had gone to Vaishno Devi. On 21st April, 1997, they had come down to Jammu where appellant had quarreled with her. On 23rd April, 1997, her parents had taken the respondent with them. It was alleged that during the period respondent had stayed in the matrimonial home, appellant was not able to consummate the marriage owing to impotency. The respondent/wife had prayed for annulment of marriage on the ground of impotency of appellant.

4. The appellant/husband had filed written statement admitting his marriage with respondent/wife. He had denied the allegations of impotency. According to him, parties to the marriage were having sexual intercourse regularly as long as they lived together and the allegations that he was undergoing treatment was baseless. The appellant had alleged that he had always been willing to live and stay with the respondent/wife but the respondent/wife was not willing due to the instigation of her brother-in-law and other family members.

5. On the pleadings of the parties, following issues were framed:-

(i) Whether the marriage between the parties has not been consummated owing to the impotency of the respondent as alleged?

(ii) Whether the petitioner is entitled to the relief claimed?

(iii) Relief.

6. In suppor