Honble SHARMA, J.–In this appeal, the wife is the appellant. She has assailed the decree of nullity dated September 17, 1994 of the learned Judge Family Court Ajmer whereby the petition filed by the respondent husband under Section 12 of the Hindu Marriage Act, 1955 (for short, "Act") was allowed and marriage between the two was annulled on the ground that it had not been consummated owing to the impotence of the wife.

(2). The respondent husband in the petition sought relief to declare the marriage of respondent with the appellant, a nullity. It was averred in the petition that the marriage of the two had taken place on March 6, 1992 as per Hindu rites at Ajmer. After the marriage there was no marital and physical relationship between the two. Inspite of efforts of respondent the appellant did not cooperate right from the first night of the marriage. Due to this indifference attitude of the appellant, the respondent was living a life of tension which had affected his family and social status. On the first night of marriage the appellant told respondent that she did not want to enter into marriage. She was grown in such an atmosphere that the institution of marriage was fake for her and she did not prepare herself to live with the respondent mentally. In such circumstances she was not in a position to establish any type of relations with the respondent and they could live as friends. She also did respondent that she was dedicated physically and mentally to Kumari Aruna Sharma, who was her Guru, God, Teacher and everything. The respondent thus on the ground of impotency of appellant prayed to declare the marriage as null and void.

(3). The appellant filed reply and denied the allegations made by the respondent. She stated that the respondent himself did not behave properly with her and on March 6, 1992 the respondent ousted her of the room saying that the marriage was held in compulsion and he had love affairs with some other girl. It was denied that the appellant had even refused to establish bodily relations with the respondent. The averments made in regard to Aruna sharma were also denied. In the additional pleas the appellant stated that no cause of action for filing the application did ever arise. The respondent being an Advocate concocted false story just to get rid of the appellant right from the first day of the marriage.

(4). On the basis of pleadings of the parties learned trial Court framed as many as five issues. The appellant and respondent respectively examined five and three witnesses. Thereafter on hearing final submissions learned Family Court allowed the petition as indicated above.

(5). Learned counsel for the appellant criticised the impugned judgment and raised following points:

(i) No ground under Section 12 of the Act has been made out. Though the respondent has not specifically taken out a ground under Section 12(a) of the Act the learned Family Court has granted a decree. Section 12(a) provides that the marriage could be annulled by a decree of nullity on the ground that the marriage has not been consummated owing to the impotence of the respondent. In the instant case the husband took a ground in the pleadings that there was no intercourse between the parties and also as alleged that as per information of the respondent she was impotent. The later ingredient of impotency is an ingredient which ought to have been proved for bringing a case for decree of nullity. The respondent has totally failed to prove this aspect of the matter. He had only relied on the information said to have been given by the appellant herself. The respondent husband was not having any knowledge of this fact not he claimed either in the petition or in his statement. The alleged admission/information of the appellant that she was impotent is not enough for giving a decree of nullity particularly when she has denied this fact in reply to the petition as well in her statement.

(ii) Respondent filed the petition on the basis of an imaginary

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