The central legal point established in the judgment is that impotency, as defined under Section 12 (1) (a) of the Hindu Marriage Act, refers to the practical impossibility of consummation and the incapacity to have sexual intercourse, with full and complete penetration being an essential requirement.

K. S. CHAUHAN, J.

( 1 ) THIS appeal under Section 28 of the Hindu Marriage Act, 1955 has been preferred by the appellant being aggrieved by the judgment and decree dated 29. 07. 2005 passed by the II Additional District judge, Hoshangabad in Hindu Marriage Case No. 39-A/2002, whereby the application filed by appellant under Sections 11 and 13 of the hindu Marriage Act (treating it as application under Section 12 of the act) has been dismissed.

( 2 ) THE admitted facts are that the marriage of the appellant was performed with the respondent on 13. 03. 2001 at village Kesla, Tahsil itarsi, District Hoshangabad and now they are living separately since 2001.

( 3 ) THE facts of the case are that after the marriage the respondent stayed with the appellant only for two days but the marriage could not be consummated because she was in her periods. Thereafter on 16. 03. 2001 she went to her maternal house and when she returned she made an excuse that she has some problems of her kidneys, therefore, again marriage could not be consummated. On 08. 04. 2001 and 20. 12. 2001 the appellant took respondent to a Gynecologist Dr. R. K. Shrivastava who after conducting certain tests opined that respondent is incapable of conceiving and physically incapable of performing sexual intercourse. Since the marriage has not been consummated owing to the impotency of the respondent, he is entitled to get decree of nullity under Section 12 of the Hindu marriage Act, 1955.

( 4 ) THE respondent submitted written statement denying the allegations made by the appellant mainly contending that she never told the appellant that she was in periods or was having the kidney problems. She never refused to cohabit with him. He has performed sexual intercourse several times with her. It was also pleaded that the appellant is a rich person and earns Rs. 5 lacs annually. It was also pleaded that during the pendency of the suit he has performed second marriage with another lady Kesar Bai @ Guddi and is residing with her, therefore, the suit is not maintainable and deserves to be dismissed.

( 5 ) ON the basis of the pleadings of the parties the trial Court framed the issues. Both the parties adduced evidence. After appreciating the evidence, trial Court found that the appellant has failed to prove his case and dismissed the petition. Being aggrieved by the impugned judgment and decree, the instant appeal has been filed on the grounds mentioned in the memo of appeal.

( 6 ) LEARNED counsel for the appellant submitted that the court below has not appreciated the evidence in proper perspective. Dr. R. K. Shrivastava (AW-3) Gynecologist has given the medical evidence. The case of the appellant is supported by medical evidence hence the finding of the court below is contrary to record. Learned counsel further submitted that the respondent has refused to live with him and is living separately since 2001. The trial Court has committed an illegality in dismissing the petition hence the appellant is entitled to get decree of nullity.

( 7 ) RESPONDENT was served and was being represented by her counsel but on the date of hearing learned counsel of respondent did not appear to argue the matter.

( 8 ) THE main point for consideration in this appeal is that whether the court below has committed an illegality in dismissing the petition filed by the appellant for nullity of marriage.

( 9 ) THE relevant provision of Section 12 (1) (a) of the Hindu marriage act, 1955 runs as follows: 12 (1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to the impotence of the respondent. (b ). . . . . . (c ). . . . . . (d ). . . . . . . . . . .

( 10 ) ACCORDING to appellant Vinay Kumar (AW-1), the respondent is impotent. He has deposed that the marriage was performed on 13. 03. 2001. The respondent lived with him