The burden of proof in cases of impotency, the significance of rebuttal evidence, and the error in dismissing a suit ex parte without proper consideration of evidence.

JUDGMENT :

Rakesh Thapliyal, J.

1. The present First Appeal is preferred under Section 19 of the Family Courts Act, 1984 against the ex-parte judgment and decree dated 31.05.2022, passed by the Judge, Family Court, Kashipur, District Udham Singh Nagar in Original Suit No. 198 of 2020 Raj Kapoor vs. Smt. Sarika Tandon. By the said ex-parte judgment and decree, the petition filed by the appellant-husband under Section 12 of Hindu Marriage Act, 1955 seeking the declaration that the marriage solemnized on 30.06.2020 be declared as void, is dismissed.

2. The facts of the appellant’s case may be briefly stated as follows :

The plaintiff/appellant got married with defendant-respondent Smt. Sarika Tandon on 30.06.2020. There was no demand of dowry, and the marriage was solemnized in the presence of their relatives. The entire expenditure of marriage at Hotel, Meals etc. was borne by the father of the plaintiff-appellant. After the marriage, the appellant-plaintiff tried to make physical relations with his wife on the first night, however, the defendant said that she is unwell and she does not want to make relations and on this, the plaintiff got annoyed with the defendant-respondent. After 2-3 days of the marriage, the plaintiff got his wife medically checked-up from a Homeopathic Doctor, namely, Dr. Rajesh Bishnoi, who prescribed some medicines after asking about the symptoms from his wife. After taking the medicines for 4-5 days, the defendant-respondent (wife) told the plaintiff-appellant (husband) that she is fine now. The plaintiff/appellant again tried to establish relations with the defendant-wife, but she kept postponing it on one pretext to another. The appellant/plaintiff gifted a mobile phone on her demand costing Rs. 12,000/- on 22.07.2020, and mother of the plaintiff/appellant also spend Rs.7000/- in shopping for Smt. Sarika Tondon. The defendant-wife, even then did not give any importance to the plaintiff. After the marriage, the family of the plaintiff also organized a function on 23.07.2020 on the occasion of a festival ^^gfj;kyh rht**. It is further contended by the appellant-plaintiff that till 28.07.2020, the defendant-wife had not made any physical relations with the plaintiff-appellant and at about 9:00 A.M. on 28.07.2020, the defendant-wife went with her brother Kapil Tandon to live for some days with him and she took 4 gold bangles weighing 66 Grams, (costing Rs.3,50,000/- approximately); one diamond ring costing of Rs.52,000/-; one eaxylw= with Diamond Pendulum costing Rs.90,000/-; one ring, ear tops, chain, and one Diamond pendulum costing of Rs.1,50,000/-; gold chain with Rhodium polish. The appellant-plaintiff gave also an amount of Rs.4,000/- in cash and Rs.700 for sweets. It is further contention of the appellant-plaintiff that the defendant took her cloths in a suitcase and other articles and she told the plaintiff and his family members that after Rakshabandhan and before the Bhaiadooj festival ¼HkkbZ fcUuk½, she would come back. Before Rakshabandhan, the plaintiff-appellant made a phone call to the defendant on 01.08.2020 asking her on which date he should come to Moradabad to take her. The defendant-respondent told that she would inform after asking from her brother and sister-in-law and when there was no response then again the plaintiff-appellant made a phone call to the defendant-respondent on the next day, however, the defendant-respondent told him that her brother and sister-in-law are requesting for staying one or two more days. On the same day, i.e., 02.08.2020, another phone call was received by the mother of the plaintiff-appellant Smt. Neelima from the aunt of his wife (defendant-respondent) and she told that since no physical relations had been established between Raj Kapoor (plaintiff/appellant) and Sarika (defendant-wife) and it appears that Raj had some physical deficiency and sent him to Moradabad for medical check-up at COSMOS Hospital. After hearing this, the plaintiff was shocked as the d