Petitioner must prove respondent's continuous impotence for annulment under Section 12(1)(a); medical evidence showed both potent.

JUDGMENT :

C.V. Karthikeyan J.

The respondent in O.P.No.46 of 2008 on the file of VII Additional Family Court, Chennai, who was the petitioner in O.P.No.1448 of 2008 again on the file of the same Court, has filed the present two appeals, aggrieved by the common judgment in O.P.Nos.46 and 1448 of 2008, dated 31.12.2019.

2. O.P.No.46 of 2008 had been filed by the husband, respondent herein, seeking a judgment and decree to annul the marriage solemnised between him and his wife, appellant herein, on 25.10.2006, on the ground of non consummation of marriage due to impotency of the wife/appellant.

3. O.P.No.1448 of 2008 had been filed by the wife, appellant herein, under Section 9 of the Hindu Marriage Act,1955, seeking restitution of conjugal rights, to resume the marital life with the respondent herein.

4. By common order, dated 31.12.2019, O.P.No.46 of 2008 was decreed and the marriage between the appellant and the respondent was annulled, while O.P.No.1448 of 2008 was dismissed. This common order necessitated the filing of the present two appeals.

5. In O.P.No.46 of 2008, which had been filed under Section 12 (1) (a) of the Hindu Marriage Act,1955, it was contended by the respondent herein that the marriage between him and the appellant took place on 25.10.2006 and that they both knew each other even before the marriage. It was also contended that the marriage was not consummated due to the impotency and abnormal behaviour of the appellant herein. It was further contended that the appellant’s behaviour was strange and she avoided cohabitation citing medical grounds. It was also contended that the appellant rejected cohabitation even on the first night of the marriage, raising flimsy grounds. It was contended that there was an inherent defect of impotency on the appellant and an acute inferiority complex had been developed in her behaviour towards the respondent herein. It was also stated that owing to this, the respondent herein was put to unusual stress and was subjected to nervousness, due to which he underwent treatment. It was further contended that both of them went to a Psychiatrist - Dr.Rudharan. It was also contended that the marriage was not consummated and the appellant was responsible for the same and, therefore, alleging that she was impotent, the petition had been presented under Section 12 (1) (a) of the Hindu Marriage Act,1955, seeking a direction to declare the marriage as null.

6. The appellant herein, filed a counter affidavit, denying and disputing all these contentions. She stated that it was the respondent herein, who was abnormal and psychic in nature. It was also contended that the respondent underwent psychiatric treatment, which was not revealed prior to the marriage. She further stated that though Dr.Rudharan was consulted, it was only to assess the respondent about his problems. She also contended that the respondent had a suicidal mentality.

7. In O.P.No.1448 of 2008, which had been filed by the appellant herein under Section 9 of the Hindu Marriage Act, she contended that even though there were differences between them, she still sought restitution of conjugal rights and was interested in living with the respondent.

8. In his counter to the said petition, the respondent herein raised the same allegations, which he had stated in O.P.No.46 of 2008, alleging that the appellant was not capable of living a normal marital life and therefore he was not interested in leading a marital life with her.

9. Both the petitions were taken up for joint trial and a common order was pronounced on 31.12.2019 by the VII Additional Family Court, Chennai. The learned Family Court Judge, after examining the evidence adduced on both sides, observed that on 22.12.2007, the appellant herein had returned to the matrimonial home after prolonged stay at her relatives place, opened the bed room, called the respondent inside and closed the door with a huge bang, dragged the respondent to the bed, sat on him forcibly, and started to strangu