The burden of proving impotency in a marriage is on the party alleging it, and the mere refusal of the other party to submit to a medical examination does not justify drawing an adverse inference against them.

Gulab C. Gupta, J.

1.The appellant husband feels aggrieved by the Judgment dated 19-11-90 passed by Shri R.K. Shrivastava, District Judge, Hoshangabad in Civil Suit No. 41-A/89 dismissing his application for divorce under Section 12(l)(a) of the Hindu Marriage Act (hereinafter referred to as the Act) and has preferred this appeal challenging the legality and validity thereof under Section 28 of the Act.

2. That the parties were married on 7-3-88 and lived together upto 11-6-89 does not seem to be in dispute. The appellant in his application alleged that the respondent left his home on 15-6-89 and did not return so far. He also alleged that during this period, the respondent could not bear any child. He also alleged that there was no consumation of marriage as the respondent's vagina was not well developed and ovary was missing. He further alleged that though her breasts were developed, she was not able to engage in sexual act because of absence of ovary. The appellant further alleged that the respondent was treated by one Dr. Smt. Kalyani at Hoshangabad who had opined (hat the respondent was not till for sexual intercourse. He therefore alleged that she was impotent and therefore their marriage was liable to be dissolved under Section 12(1)(a) of the Act.

3. The respondent admitted the marriage and slaying together for about 15 months-but denied that during this period she was not able to engage herself in sexual intercourse. She however admitted that her menstruation was not regular but denied everything else. She asserted that she was a fully grown up woman, capable of engaging in sexual intercourse and therefore prayed that the petition be dismissed. The appellant, during the trial, made a request to the learned District Judge to direct the respondent to submit herself to medical examination. The respondent in her reply to the said application, denied that the ground of impotency was not capable of being proved by her medical examination alone and therefore submitted that her medical examination was not necessary. She further stated that she is not willing to submit herself to medical examination.

4. The learned Judge by his order dated 2-7-90, relying on a decision of this Court in Maya Gohiya v. Premlal, 1990 JLJ 346, held that the burden of proving allegations made in the plaint was on the appellant and since the respondent was not willing to submit herself to medical examination, no commission for examination could be issued. The appellant's application for issuing a commission for respondent's examination was therefore dismissed.

5. Thereafter, the appellant examined himself and closed his case. Similarly the respondent examined herself and closed her case. The learned District Judge, on examination of material on record, was of the opinion that the evidence does not establish that the respondent was impotent and not able to consumate the marriage. That is how the petition was dismissed and the matter is in this Court for consideration in this first appeal.

6. Section 12(1)(a) of the Act provides that if any party to the marriage was impotent at the time of marriage and continued to be so until the institution of the proceedings, the marriage would be voidable at the instance of a party to the same and liable to be annulled by a decree of nullity on that ground. Explaining the meaning of the word the Supreme Court in Yuvraj Digvijay Singh v. Yuvrani Pratap Kumari, AIR 1970 SC 137 hold that a party is impotent if his or her menial or physical condition makes consumation of the' marriage a practical impossibility. The condition must be one which existed at the time of the marriage "and continued to be so until (he institution of the proceedings. The Court therefore held that "in older to entitle the appellant to obtain a decree of nullity as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings