Impotency, as defined under Section 12(1)(a) of the Hindu Marriage Act, is a ground for nullity of marriage.

Tej Shanker, J.

1. This appeal Under Section 28 of the Hindu Marriage Act has been filed against the judgment and decree dated 1.11.91 passed by the Seventh Additional Judge to the Court of District Judge, Gwalior, decreeing the claim of the respondent Harish Kumar for annulment of the marriage Under Section 12(1)(a) of the Hindu Marriage Act (hereinafter referred to as the Act).

2. The petitioner, Harish Kumar, alleged that he and respondent No. 1, Smt. Geetadevi, were married on 10.12.1980 and respondent No. 1 came to Gwalior. On that date as well as on next day other customs were performed. Ultimately on 15.12.1980 the brother of respondent No. 1 took her after Vidai. In the night of 10.12.80 at about 12 hours there was noise of firing. The relations of the respondents disclosed that dacoits had reached there and an encounter was going on. On the next day at the time of Vida the ornaments were not sent on account of fear. In the night of 11.12.80 and subsequent nights till 14.12.80 respondent No. 1 remained sleeping and did not wake inspite of efforts. He thought that she might have been tired. But on 6.1.81 though she pretended that she was sleeping, he found that she did not have female organs and consequently she was not fit for cohabitation. He disclosed this fact in the morning to his father and the news spread in whole of the house. She was taken to a Specialist Lady Doctor and was also admitted in the hospital. After investigation it transpired that there was no possibility of cohabitation. She did not have uterus. She had only a hole for urination. On 18.1.81 her brother Padamchand took her. The fact that defendant No. 1 had no female organs and she was naturally deficient was known to her from before. He was kept in dark and was not disclosed this fact. Thus, the marriage was performed by practising fraud. He came to know this fact for the first time on 6.1.81 and thereafter when she was medically examined. He was, therefore, entitled to get the marriage annulled. The defendant wife in her written statement denied the allegations made by the petitioner except the factum of marriage. She asserted that when his brother Padamchand came to take her demand of Rs. 40,000/- was made and she was not sent. The allegations made by the petitioner are false and concocted. All the articles including cash amounting to Rs. 25,000/- were taken by he petitioner, his father and brother at the time of Vidai of the Barat. On 12.12.80 i.e. on the first night there was cohabitation and the petitioner had been enjoying her society. She had stomach ache and hence a Lady Doctor was consulted. In case any certificate was got prepared it was fictitious and collusive. She was a complete female and was fit to perform her marital obligations. Learned Trial Court formulated issues that arose from the pleadings of the parties, took evidence, heard parties and after considering the entire material on record concluded that the plaintiff has proved his case. It, therefore, granted a decree for annulment of the marriage on the ground of impotency. Hence this appeal.

3. The learned Counsel for the appellant contended that the evidence on record does not prove impotency and the learned Court below committed an error in recording a finding in favour of the petitioner. He also urged that in case the Court comes to the conclusion that there is no sufficient evidence, a fresh opportunity be given to the appellant to adduce evidence as is necessary for the disposal of the case by remanding it to the learned Trial Court. He also pointed out that an application was moved by the appellant for her re-examination which was wrongly refused by the learned Trial Court.

4. Learned Counsel for the respondent urged that the fact that the appellant was impotent has been fully established from the material on record. This fact was within her knowledge and was suppressed. The factum that she never mensurated was also suppressed. All these facts go to show that the pl