( 1 ) THE petition from which this appeal arises was instituted by the appellant Prajapati Ganesh Idaji against his wife Hastuben Hemraj - the respondent in the City Civil Court at Ahmedabad for obtaining a decree for the annulment of his marriage with Hastuben which had taken place on 28th February 1960 under sec. 12 (1) (a) of the Hindu Marriage Act 1955 hereinafter to be referred to as the Act inter alia alleging that she was impotent at the time of the marriage and has continued to be so until the institution of the petition. The opponent respondent resisted the petition inter alia contending that the allegations of impotency made against her were false and that since the petitioner thought that she will not be able to bear any children he has filed this petition by making false allegations with a view to obtain divorce from her.

( 2 ) THE learned Judge of the City Civil Court raised the issue as to whether the respondent was impotent at the time of marriage and continued to be so until the institution of this petition so as to enable the petitioner to obtain decree for annulment of his marriage with her under sec. 12 (1) (a) of the Act. In his opinion while at the time of the marriage or rather in the initial days of their married life the petitioner-husband found it impossible to have consummation of the marriage with her but that did not so continue after she had undergone the operations in September 1960 and that she was therefore not impotent at the time of the filing of the petition. He was therefore not entitled to a decree for the annulment of his marriage with her under sec. 12 (1) (a) of the Act. In the result the petition came to be dismissed with costs. Feeling dissatisfied with that decision passed by Mr. T. U. Mehta Judge City Civil Court VIII Court Ahmedabad the petitioner has come in appeal.

( 3 ) THE parties are Hindus. The marriage between the parties took place on 28th February 1960 according to Hindu rites and the custom prevailing in their caste. This was his second marriage with her-the first wife having been given divorce according to custom in their community. He has one daughter by his first wife. The petitioners case was that on the very first night after his marriage he found it impossible to have sexual intercourse with his wife the respondent on account of some structural defect in her vagina. According to him the vagina of the respondent was found to be too short to allow full penetration and he was then not able to consummate the marriage on the first night. Some time after while he had tried to have sexual intercourse with her he found some white substance having nasty order coming out of her vagina and which made further acts of copulation impossible for him. When the matter was brought to the notice of the respondent elders he was told that she was suffering from fistula. He had then seat her to her parents place where she took some treatment. But even after the treatment was taken by her as his evidence discloses when she returned to his house he found the same difficulty and that way it was not possible for him to have any sexual intercourse with her.

( 4 ) THEREAFTER during the period from 18th September 1960 to 30th October 1960 the respondent was admitted as an indoor patient at the Vadilal Sarabhai Hospital Ahmedabad where she had undergone some surgical operations. From the evidence of Dr. Miss Saudaminiben Pandya Ex. 40 it appears that on her examination during that period at the Hospital she was found to have a short vagina and that it was communicating with the rectum. By short vagina she meant to convey that her vagina was not of normal length. She had then performed three operations on her namely (1) colostomy (2) vagina plasty and (3) repair of recto vagina fistual as well as closure of colostomy From her evidence it further appears that in her opinion after those Operations were performed on her partner viz. her husband would be able to have normal coitus with