( 1 ) JYOTSNABEN Ratilal appellant - original respondent has filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 16-4-2001 passed by the learned Joint District Judge, Jamnagar in Regular Civil Appeal No. 57 of 2000 whereby the learned Appellate Judge has allowed the appeal of the original appellant and was pleased to quash and set aside the judgment and decree passed by the learned Civil Judge (SD), Jamnagar dated 9-8-2000. The learned Appellate Judge by his judgment further directed that the marriage between the present appellant i. e. Jyotsnaben and the present respondent i. e. Pravinchandra Tulsidas which took place on 27-6-1988 is declared as null and void under Section 12 (1) (a) of the Hindu Marriage Act, 1955 (hereinafter will be referred to as the "act")

( 2 ) THE facts leading to this appeal are as under: 2. 1 the marriage between Pravinchandra Tulsidas original petitioner -respondent- herein was solemnized with Jyotsnaben original opponent - appellant herein on 21-6-1988. (Hereinafter the parties i. e. the respondent husband will be referred to as the petitioner and the appellant wife will be referred to as the opponent for the sake of convenience ). After the marriage was performed when the petitioner tried to cohabit with the opponent, the petitioner came to know that the opponent wife has no vagina and the petitioner - husband was not able to perform sexual intercourse. The petitioner husband also came to know that he was being deceived by the opponent wife. Dr. Miliben Bijendrasinh Dodia (is examined vide exh. 16.) who was a Medical Officer and was working in the Gynecology Department of Irvin Hospital, Jamnagar and she has examined the opponent Jyotsnaben in this case. She has produced all the medical papers in this behalf. From the medical report it appears that coitus of the vagina was only 0. 5 inch deep. In view of this physical defect in the vagina, such lady would not be able to have satisfactorily sexual intercourse. She has no uterus. It was first stated that she has no regular monthly manstrual cycle. This means there was no process of discharging blood or other material from the uterus in sexually mature non-pregnant woman at the intervals of about one lunar month until the menopause. She cannot give birth to a child. This examination was done through leproscope.

( 3 ) IN view of the aforesaid facts and circumstances, though the petitioner husband lived with the opponent wife for some period, ultimately on 18-4-1994 he filed the application u/s 12 (1) (a) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act" for the sake of brevity) for annulment of the marriage and prayed for decree of nullity on the ground that the marriage has not been consummated owing to the impotence of the opponent. Whatever was stated in the medical report, the petitioner has stated the same thing in his application filed u/s 12 (1) (a) of the Act.

( 4 ) JYOTSNABEN wife - opponent has filed her reply to the said application vide exh. 27. She has denied the contentions raised by the petitioner in this behalf. She has stated that marriage was solemnized on 21-6-1988 and thereafter they both were living as husband and wife. She has further stated that there was defect she was ensured that because of plastic surgery the same can be cured and she may be able to perform marital obligation. The said reply was filed on 30-7-1994.

( 5 ) BEFORE the trial Court the petitioner was examined vide exh. 14. In his deposition he has reiterated the aforesaid facts. He has deposed that the opponent wife was examined by Dr. Miliben Dodiya and she has clearly opined that the opponent wife has no uterus and she is not able to conceive child. Before the marriage the opponent wife did not inform the petitioner in this behalf. Dr. Miliben Dodiya Exh. 16 who has examined the opponent has also stated whatever earlier I have stated about the wife she has stated