In a petition for annulment of marriage on the ground of impotency under Section 12(1)(a) of the Hindu Marriage Act, 1955, the burden of proof lies on the party claiming a decree of nullity to establish that the other party was impotent at the time of the marriage and continued to be so until the institution of the proceedings.

M.R.SHARMA, J.

1. The facts giving rise to this appeal under Clause X of the Letters Patent can be stated in a short compass. The appellant Smt. Ushman was married to Inderjit, respondent, on February 28, 1970, at Amritsar. On March 1, 1970, she went to the house of her husband to live with him. For the period of 5 or 6 days for which they lived together and lodged together in one room at night time, it was found that the respondent was incapable of having a sexual intercourse with her. She alleged that she was left at her parents house by the respondent on March 7, 1970. She informed them of this matter and they put the respondent under the treatment of Dr. Kuldip Chand (P. W. 2) and then under the treatment of Dr. Bodh Raj (P. W. 6). However, the respondent could not be cured. She further alleged that the respondent was impotent at the time of marriage and this fact was known to him and to his parents. In a petition under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), she prayed that her marriage with the respondent should be annulled by a decree of nullity.

2. The petition was contested by the respondent who inter alia stated that the parties lived together till April 9, 1970, and that the marriage was consummated on more than one occasion. He further asserted that the appellant was taken to the house of her parents on the representation that she had to attend the betrothal ceremony of one of her relations. She went to her parental house along with all the jewellery given to her at the time of the marriage along with the jewellery of his mother and sister. When he visited the house of his in-laws he was administered poison in milk because of which he developed some internal trouble and severe stomach-ache. According to him, the appellant and her parents wanted to appropriate to themselves jewellery worth Rs. 50,000/- belonging to him. He denied to have been treated either by Dr. Kuldip Chand (P. W. 2) or by Dr. Bodh Raj (P. W. 6). On the question of his alleged impotency, he claimed that he was potent at the time of the marriage and even remained so ever thereafter.

3. On the pleas raised in the pleadings, the learned trial Court framed the following two issues:-

1. Whether the respondent Inderjit was impotent at the time of the marriage and continued to be so till the institution of this petition ? O.P.

2. Relief.

4. After recording the of 8 witnesses produced on behalf of the appellant and an equal number of witnesses produced by the respondent, the learned trial Court decided issue No. 1 in favour of the appellant by holding that the appellant was a virgin and the respondent was unable to have a sexual intercourse with her after his marriage with the appellant. The appellant was consequently granted a decree of nullity of marriage on April 3, 1972.

5. The respondent filed an appeal before this Court, which was heard by a learned single Judge who allowed the same after affirming the findings recorded by the learned trial Court to the effect that the appellant was a virgin and that the respondent had no sexual intercourse during the period she stayed with him. Inability of the respondent to have sexual intercourse with the appellant was held to be on account of some cause other than impotency.

6. In this appeal, we have gone through the evidence with the help of the learned counsel for the parties and have given our anxious consideration to the arguments raised at the bar.

7. It becomes necessary to observe at the very outset that a Court of law faces extreme difficulty in arriving at a decision about the impotency of male species because the only available witnesses who can give direct evidence of this fact are the parties to the marriage themselves. When a dispute arises, passions usually run high and the parties and their witnesses do sometimes tend to exaggerate matters. Sometimes the statements made by them contain discrepancies which tend to cloud the real issue. In such a si