( 1 ) THIS is an appeal from the judgment and decree declaring the marriage between tarachand and Smt. Shantibai a nullity on the ground of her impotency under section 12 (1) (a) of the Hindu Marriage Act, 1955.

( 2 ) THE parties were married at Indore on 28th November 1960. The husband belongs to Khandwa. where she lived with him till June 1962. During that period, she sometimes visited her parents at Indore. The husband alleged in the petition that he made several attempts to consummate the marriage but she did not allow him to do so and at every such attempt she abused him and showed repugnance to the act by withdrawing herself from his bed and even from the room. The wife resisted the petition and, denying her own incapacity for copulation, contended that in fact it was he who showed strong abhorrence, so that a sexual union could not be possible in spite of her repealed attempts.

( 3 ) ADMITTEDLY, there has been no consummation of the marriage. The parties had no sexual connection on a single occasion, although they lived in the same house for several months. The peculiarity of this case is that each spouse charges the other with impotency. In the trial Court both the parties were medically examined. According to Dr. Narbadabai Joshi (P. W. 4) and Dr. (Miss) Pushpa Gupta (P. W. 5), the private parts of the appellant are normal and the opening of the uterus is also healthy, although the uterus is somewhat of a smaller size than the normal one. Her secondary sex characters are normally developed. She is fit for copulation. Dr. Godbole (P. W. 7), who examined the husband, has found that his sexual organs and the secondary sexual characters are well developed and he is capable of performing sexual intercourse

( 4 ) THIS being the medical evidence with regard to the physical fitness of both the parties, and the couple being full of youth, if in spite of living under the same roof for months together there was not a single act of coition, the irresistible and the only conclusion is that one of them is impotent and was so at the lime of the marriage. However, this by itself is not sufficient to declare the marriage a nullity. In England a decree of nullity can be sustained if either party--even the petitioner--is impotent. (See for instance Harthan v. Harthan, 1948-2 All ER 639 ). But our law is different; under Section 12 of the Hindu Marriage Act, the petitioner's own infirmity does not afford a ground for a decree of nullity. The petitioner must establish impotency of the 'other party' to the marriage

( 5 ) IN a case such as this, it is a difficult task to find which of the parties is responsible for the frustration of consummation, because it is the parties themselves who possibly can give direct evidence on the issue. Such difficulty also arises when copulation between the husband and the wife has to be proved, but, there, such evidence as convinces a reasonable man of its having taken place is sometimes available. Even so, it is the duty of the Court to scan the evidence of the parties and make every endeavour to reach the truth. Tarachand says that on the first night when he attempted coition, she pushed him back, jumped from the bed and ran away from the room. This conduct she repeated on the following night. He could not consummate on either of those two nights. She, in fact remained in the verandah outside. On the third day, her lather came and took her to Indore. Thereafter, on the occasion of Holi, the petitioner brought herback from indore. She lived with him at Khandwa upto Rakhi (Shrawan Purnima ). During those four months also, he made repeated attempts to have sexual union with her, but every time she exhibited repugnance to the act. On the Rakhi day her father took her to Indore. The petitioner brought her back in Bhadon (the next month)from when she stayed continuously with him upto the next Holi, but the same story repeated itself every time he attempted to co-habit with her; so on and so forth.