Concealment of material facts, such as the respondent's vasectomy operation, constitutes fraud in obtaining consent for marriage under the Indian Divorce Act, leading to the nullity of the marriage.

This is a petition u/ss.18 and 19 of the Indian Divorce Act, 1869. Petitioner is the wife. She prays for a declaration that the marriage between her and respondent is null and void.

2. The material averments made by the petitioner which are germane for disposal, are as follows: Petitioner then a spinster of 22 years of age was married by respondent, a widower aged 42, on 12-6-1978 at the C.S.I. Immanuel Church, Ernakulam. From the date of their marriage till 17-12-1980 she lived with respondent as his wife. At the time of celebration of the marriage respondent was by reason of his impotency legally incompetent to enter into the contract of marriage. The marriage was fraudulently brought about without disclosing the fact that respondent was impotent. He is a well to do lawyer practising at Parappanangadi. He had three grown up children; two daughters and a son. He having lost his wife, mother of the children, was eager to marry again. Petitioner's father is an Ex-serviceman getting a meagre pension of Rs.204/- per month. He has eight children: five daughters and three sons. Petitioner is the eldest among the children. Mr. N.V. Antony, a friend of the petitioner's father was approached by the sister of the respondent living at Fort Cochin and the offer was attractive in as much as it was made clear that no dowry need be paid nor any ornaments need be given. Petitioner's father and mother requested Mr. N.V. Anonty to ascertain whether the respondent had undergone vasectomy as he had three children and all are fairly grown up. Her parents were assured that he has not undergone vasectomy. Even-after living with respondent with regular carnal copulation for nearly two years, petitioner did not conceive and ultimately he in a weak moment confided to her that he has undergone vasectomy. Petitioner had the natural desire to become a mother. Respondent having wilfully and fraudulently suppressed the fact of having undergone vasectomy to entrap petitioner, assured that he will get back potency by undergoing recanalisation operation at Vellore. On that assurance both went to the Medical College, Vellore and consulted an expert doctor. As the doctor was about to leave India, he fixed a later date for operation. The respondent on coming back home embraced the Penthocost denomination along with his children. Operation or treatment being opposed to his new faith, he became adament that he would not undergo operation. Respondent was thus impotent at the time of marriage and he continues to be so even now. He began to behave cruelly towards the petitioner. He did not like her continuance as C.S.I. Jacobite Christian. On that account he began to manhandle her. Finding that she can no longer lead a happy married life and her dreams to become a mother frustrated, she sought asylum with her parents from 17-12-1980. Respondent is not maintaining her. O.P. 9467/86 moved by her for a declaration that the marriage between the parties is null and void happened to be dismissed on account of the filing of a joint statement. A petition was filed for reviewing that judgment as R.P.40/88. While disposing of that Review Petition this court observed:

"The earlier proceedings will not prejudice the right of the petitioner to file a fresh Original Petition for the same relief."

Hence this petition for reliefs mentioned earlier.

3. Respondent filed a detailed counter affidavit. The averments made therein are as follows: The grounds justifying the passing of a decree declaring the marriage null and void have not been made out in the Original Petition. There is no allegation that respondent was incapable of entering into sexual intercourse either at the time of marriage or there-after. The averment that the marriage was fraudulently brought about without disclosing the fact that respondent was impotent is base-less and hence denied. It is true that respondent has undergone vasectomy operation at the time when his first wife was seriously laid up with tuberc