An annulment of marriage under Section 12 of the Hindu Marriage Act, 1955, renders the marriage void ab initio, and the parties are free to remarry without any legal impediment.

AJIT SINGH BAINS, J.

1. The parties to the present appeal, who are Brahmins, were married on 13.02.1960, at Amritsar. Due to unfortunate circumstances, the parties did not lead a harmonious married life and frustrated by the extremely unhappy situation, the appellant made an application u/s. 12 of the Hindu Marriage Act, 1955 (hereafter briefly called the Act) on 11.07.1961, before the trial Court for annulment of the marriage on the ground that his wife Shrimati Radha respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings. Various other pleas were also taken in the petition. It was also mentioned in the petition that his wife Shrimati Radha had an innate aversion and invincible repugnance to sexual intercourse. Shrimati Radha denied the allegations in her written statement and categorically asserted that she was capable of sexual intercourse and that actually she and her husband were leading good sexual life. On the pleadings of the parties, following issues were framed by the trial Court:-

"(i) Whether the application is not in proper form ?

(ii) Whether any fraud was committed on the petitioner. If so, what was that fraud and with what effect ?

(iii) In case issue No. 2 is proved in favour of the petitioner, when did he come to know of the fraud ?

(iv) Whether it is not necessary to appoint any guardian of the respondent ?

(v) Whether the application is within time ?

(vi) Whether the application has not been presented in collusion with the respondent?

(vii) Whether the application has been presented without unnecessary delay ?

(viii) Whether the respondent was impotent at the time of the marriage and is still so and was so till the presentation of the petition ?

(ix) Whether the respondent was idiot or lunatic at the time of the marriage and continued to be so even afterwards ?

(x) Relief.

2. The trail Court by its judgement dated 6.03.1965, allowed the application of the appellant and passed a decree for annulling the marriage between the parties and thus the suit was decreed. Against the judgment and decree of the trial Court Shrimati Radha filed an appeal (F. A. O. No. 29-M of 1965) which came up for hearing before the learned single Judge. This appeal was dismissed on 1.08.1966, by P.D. Sharma, J., on the preliminary objection that a copy of decree sheet of the trial Court was not annexed with the grounds of appeal. Against this judgment the respondent-wife filed Letters Patent Appeal No. 263 of 1966 which was allowed on 18.04.1968, and the case was sent back to the learned single Judge for fresh decision on merits. It was in these circumstances that first appeal from order came up before Gurdev Singh, J. who allowed the appeal and set aside the judgment and decree of the trial Court vide his judgment dated 13.10.1972. It is against this judgment that the present appeal has been filed under Clause X of the Letter Patent by the husband.

3. The learned counsel for the appellant has raised a preliminary objection that the appellant having remarried after the grant of the decree for nullity of the marriage between the parties by the trial Court, no relief can be granted to the respondent. It may be stated here that after the dismissal of the first appeal of the respondent-wife on preliminary objection by P.D. Sharma, J., on 1.08.1966, the appellant remarried soon thereafter. On remand by the Letters Patent Bench, first appeal of respondent-wife, was allowed by Gurdev Singh, J., on 13.10.1972, when the appellant, Promod Sharma, had already remarried. This point is not dealt with by the learned single Judge and it seems that it was not raised before him. Since it is a legal point, it is allowed to be taken at the Letter Patent stage.

4. I find merit in the preliminary objection raised by the learned counsel for the appellant. The marriage between the parties was declared null and void by the trial Court on 6.03.1965. The respondent-wife filed first appeal wh