Arijit Pasayat, C.J.

This is a reference under S.20 of the Indian Divorce Act, 1869 (in short 'the Act'), seeking confirmation of the decree annulling the marriage between the petitioner (hereinafter referred to as the wife) and the respondent (hereinafter referred to as the husband)

2. Factual position as presented by parties, sans unnecessary details is as follows:-Wife filed the petition under S.18 of the Act for declaration of her marriage between the husband null and void. The marriage was solemnized in accordance with Christian religious rites at St. Antony's Church, Kurumpanadom on 11.9.1995. They lived together till 29.11.1995. At the time of marriage, wife was employed in Oman as a Staff Nurse. Eventhough they lived together till 29.11.1995, the marriage was not consummated on account of her husband's impotency. Though he was unable to perform sexual intercourse, he was not willing to consult a doctor. On 29.11.1995 she left for Oman and returned in October, 1996 on leave. The husband in the meantime secured a job in Saudi Arabia. The wife told the husband's relatives about the non-consummation of their marriage. Certain letters were also sent by her to the husband and there was response from him. In the petition seeking annulment of marriage it was indicated that the husband was impotent at the time of marriage and at the time of institution of the suit and therefore the marriage was liable to be declared as null and void.

3. The respondent entered appearance. Counselling was done. Parties were not prepared to live together. The husband filed objection and denied the allegations. He took the positive stand that the marriage was consummated. An allegation was made that since wife wants to re-marry a person, who is financially sound, after getting divorce, this petition was filed. It was also submitted that he had a thorough medical checkup at Mundadanpadom Hospital. It was found that he was perfectly potent. The doctor had also issued a certificate to that effect.

4. Wife was examined as PW1.On the request made by her, she was examined by a Gynacologist attached to Government Hospital, Ernakulam. The purpose of the examination was to prove that she was a virgin and to expose the falsity of the husband's stand. The doctor who examined her was examined as PW2. In examination-in-chief she stated that for the first two days after the marriage the husband had not even made an attempt to have sexual contact with her. On the third day, he asked the wife to have sexual contact, but it was found that sexual intercourse with him was not possible. Though after some efforts the husband tried to have sexual intercourse and repeated attempts were made by the wife to arouse him sexually, he failed. That, according to the wife, is sufficient to prove that the husband was impotent. The doctor had confirmed that the wife was virgin.

5. Learned Judge, Family Court, Ernakulam, on a consideration of the evidence held that the husband was impotent. Though a certificate issued by Dr. Abraham about the potency of the husband was filed, no effort was made to tender evidence of Dr. Abraham in Court. Accordingly, it is held that there was no consummation of marriage on account of the impotency of the husband. The petition filed by wife was allowed by declaring the marriage to be null and void.

6. When the matter was taken up there was no appearance on behalf of the husband. Learned counsel for the petitioner highlighted the conclusions of learned Judge, Family Court.

7. Ss.18 and 19 appearing in Chapter IV of the Act, deal with nullity of marriage and read as follows:

S.18. Petition for decree of nullity:- Any husband or wife may present a petition to the District Court or to the High Court, prating that his or her marriage may be declared null and void.

S.19. Grounds of decree:- Such decree may be made on any of the following grounds:-

(1) that the respondent was impotent at the time of the marriage and at the time of the institution of the