( 1 ) THE petitioner husband has filed this appeal under the Hindu Marriage Act 1955 hereinafter referred to as the Act as his original petition for obtaining decree of the nullity of his marriage or for divorce had been dismissed by the trial Court.

( 2 ) THE short facts Which have given rise to this appeal are as under:the petitioner and the respondent are Brahmins by caste. The petitioner is deaf and dumb from the birth. the petitioners father originally resided at Umreth while the original place of residence of the respondent is Vaso. But the parents of both parties had been residing at Ahmedabad since many years. According to the petitioner he was married to the respondent at Vaso on 15th April 1954 according to the religious rights and as per the custom of the community It is the petitioners case that he relied upon the representations made by the respondents father to the petitioners father. After the marriage the respondent came to reside with the petitioner when he found that her mental condition was defective and she was insane and did not know how to lead a married life with the petitioner. These facts were not known to the petitioner at the time of the marriage and so the petitioner contended that as the respondents mental condition was incurable he was entitled to a decree of nullity of his marriage or in the alternative to a decree of divorce. After the exchange of notices the petitioner has filed the present petition for the aforesaid reliefs. By her written statement Ex. 24 the respondent denied that the marriage which was legally performed was on the mere representations of her father. The respondent averred that a writing Ex. 93 had been prepared as per the custom of the community at the time of the engagement and the petitioner and his parents and others had seen the respondent talked with her and given approval to the engagement. There was also another ceremony known as `kunvaro Mandvo and thus the petitioner and his parents had ample opportunities of seeing her and talking to her and observing her. The case of the respondent was that while she stayed with the petitioner the petitioner and his parents used to taunt her as she did not bear a child even after long time after the marriage and they did not keep her and this petition was filed only to get a divorce so that the petitioner could marry again. The respondent denied that she was mentally defective. The trial Court held that the petitioner had failed to establish that the respondents was an idiot or lunatic at the time of the marriage or that her mental condition had not been disclosed at the time of the marriage. The learned Judge further held that the petitioner had further failed to establish that the respondent was of an unsound mind for the relevant period or that the said mental condition was incurable. Finally the learned trial Judge held that the petitioner was guilty of delay and even if he had established the ground there was no case for granting the relief. Accordingly the petition was dismissed. The petitioner has filed the present appeal.

( 3 ) AT the hearing Mr. Vakil raised two points:- (1) That the expression unsoundness of mind had a wider connotation and would include even a person like the respondent who was a mentally defective and whose defect was congenital; (2) On the facts of the case the learned Judge ought to have held that the respondent was of incurably unsound mind and should have passed a decree for divorce.

( 4 ) IN order to appreciate the first contention of Mr. Vakil it would be proper to consider the scheme of the relevant sections of the Act. Sec. 5 provides for conditions for a Hindu marriage and sec. 5 (ii) provides that a marriage may be solemnized between two Hindus if the following conditions is fulfilled viz. neither party is an idiot or a lunatic at the time of the marriage. Sec. 10 (1) (e) provides for a decree for judicial separation if either party to a marriage had been continuously of unsou