The main legal point established is that impotency at the time of marriage and at the time of the petition filing can justify a declaration of nullity of marriage under S.19(1) of the Divorce Act.

1. The petitioner in a petition under S.18 of the Indian Divorce Act (4 of 1869) asking for a declaration of nullity of her marriage with the respondent is the appellant, the ground being that the respondent was impotent at the time of the marriage and at the time of the filing of the petition and therefore there was no consummation of marriage. The learned District Judge of Trivandrum after trial dismissed the petition holding that the evidence adduced is not sufficient to prove that the respondent was impotent at the time of the marriage and at the time of the filing of the petition. The correctness of this finding was challenged before us on behalf of the appellant.

2. Though the petition for declaration of nullity was contested before the learned District Judge by the respondent there was no appearance for him in this Court. The appellant has filed C. M. P. 1055 of 1967 in the appeal for alimony pending the proceedings. The respondent has entered appearance in that petition and filed his objection. His learned counsel submitted before us at the time of the hearing of the appeal that he has no instructions to appear in the appeal and he has been instructed only to oppose the petition for alimony. The notice of appeal has been served on the respondent. It was agreed to by both counsel appearing in the petition for alimony that the petition need be disposed of only after the disposal of the appeal. We are not therefore considering the application now but we proceed to dispose of the appeal on the merits.

3. The parties to the proceedings are Syrian Christians and they were married on 2 41964 at St. Thomas Jacobite Syrian Church at Kakkanad very near Ernakulam. At the time of the marriage the respondent had been selected for the AH India Telegraph Engineering Service and was undergoing training at Bombay as Assistant Divisional Engineer. An outline of the married life of the parties can be stated thus. On the same date on which the marriage took place the appellant and the respondent were taken by the respondent's parents to their residence at Trivandrum where the parties stayed till 5-4-1964. On the evening of 5 41964 the parents of the appellant took her and the respondent to Thrikkakara where they stayed till 9 41964.On that date the parties went back to Trivandrum where they stayed with the parents of the respondent till 29 41964. The respondent had to return to duty at Bombay early in May 1964. The parties along with the mother of the respondent proceeded to Bangalore on 151964. The appellant and the respondent stayed in the Inspection Bungalow of the Indian Posts and Telegraphs Department at Bangalore till 7-5-1964, white the respondent's mother stayed at the Y. W. C. A. in Bangalore. On 7 51964, the respondent proceeded to Bombay to rejoin duty while the appellant along with the mother of the respondent returned to Trivandrum. In June 1964 the appellant was admitted in the second year of the B. A. degree class in the University Women's College, Trivandrum. During her studies there the appellant stayed with the parents of the respondent in Trivandrum. It is agreed that subsequent to the return of the appellant from Bangalore the appellant and the respondent never stayed together. On 6 81964 the appellant discontinued her studies at Trivandrum and returned to her parents at Thrikkakara. From there she proceeded to Bombay with her mother and brother and met the respondent on 12 81964 at the flat where he was staying. It is admitted that the appellant was immediately sent back and she never stayed with the respondent at Bombay.

4. It is thus seen that after the marriage the appellant and the respondent stayed together for a period of 34 days. The parties are agreed that there was no consummation of the marriage during that period. In paragraphs of the written statement the respondent stated thus:

"But that it (marriage) has not been'consummated' is admitted. But the non-consummation was not for the reason alleged in