KAN SINGH, J.—This is a wifes appeal and is directed against the judgment and decree of the learned District Judge, Jaipur District annulling her marriage under sec. 12 of the Hindu Marriage Act, 1955, hereinafter to be referred as the "Act", on the ground of wifes impotency and her consequent in capacity to consummate the marriage.

2. Smt. Laxmi Devi, the wife, and Babulal, the husband, were married according to Hindu rites on 17-2-67. According to the husband, appellant Smt. Laxmi Devi had no vagina and was thus impotent at the time of the marriage and continued to be so till the present proceedings for annulment under sec. 12 of the Act were instituted on 3-7-69. The husband relied on a certificate Ex. 1 given by one Dr. E. Peters (D.W. 3) who examined the wife on 6-1-68 and found that the wife had no vagina.

3. The wife resisted the application. She denied that she was impotent. According to her, she had a vagina and after the marriage she had been sleeping with her husband and the marriage had been duly consummated. She proceeded to say that she had been ill-treated by her husband and his people and was turned out of the home after being releaved of the ornaments given to her by her parents. She added that the husband wanted to marry one Mst. Pishta daughter of one Chhangan Lal of Manoharpur and to rest;ain the marriage she had to file a suit in the court of Munsif, Shahpura and it was at that stage that the husband came forward with the allegations that the wife was impotent She further took the stand that her father got her treated and she was found to possess all the female characteristics and further as a result of a surgical operation her vagina was reconstructed on 9-7-68 She was thereafter examined on 13-4-69 by Dr. Padma P. Mirchandani and she certified that the wife had all the female characteristics.

4. The main issue that thus arose in the case was whether the wife was at the time of the marriage impotent and continued to be so till the presentation of the petition and had not consummated the marriage. Babulal, the husband, examined himself as P. W. 1. The wife examined hereself as D.W. 1 and further produced Dr. Padma P. Mirchandani D. W. 2 and Dr. E. Peters D. W. 3 in her evidence. Subsequently the husband made a request that the wife be got examined by Dr. Miss Chandrawati Saxena, Professor, S.M.S. College, Jaipur and accordingly Dr. Saxena examined the wife and gave evidence as P.W.2.

5. The learned District Judge accepted the evidence of Babulal as correct. He further relied on the certificate issued by Dr. E. Peters, Ex, 1, wherein she had stated that it was a case of vaginal atresia and that there was complete absence of vagina. Another certificate of Dr. Peters Ex. A/2 dated 27-6-68 was also referred to in which Dr. Peters had diagonised the wifes trouble as atresia vagina and advised Williams operation. Further Dr. Peters stated that the operation was performed by her on 9-7-68 and patients vagina was reconstructed. Thereafter the wife was discharged on 17-7-68. D. W. 2 Dr. Padma P. Mirchandani had examined the wife on 13 4-69 and certified vide Ex. A/l that Smt. Laxmi had all the female characteristics. One more certificate Ex. A/4 given by a Clinical Tutor, Zenana Hospital, Jaipur and countersigned by Dr. E. Peters was also produced in which it was stated that Smt Laxmi had been admitted to the Zenana Hospital, Jaipur on 10-2-70 for rexamination and it was found that she had a vagina 3 long admitting two fingers and that she was fit for intercourse.

6. Taking into consideration the statements of the medical witnesses as also the various certificates and the direct testimony of the husband the learned District Judge had no hesitation in reaching the conclusion that the wife was impotent at the time of the marriage. He found the wifes statement to the effect that she had been having sexual intercourse with the husband to be wholly unreliable.

7. The learned Judge then considered the next question whether th

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