ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. This appeal has been filed by the original plaintiff-husband being aggrieved and dissatisfied with the judgment and decree dated 12-1-2011 passed by the learned Family Court, Junagadh, in Family Suit No.26 of 2010 (old Hindu Marriage Petition No.55 of 2005) ((hereinafter referred to as “the learned Family Court” for short) whereby the suit filed by the husband was dismissed.

2. Facts in short are that marriage of the parties was solemnized in 1967 as per Hindu customs. According to the plaintiff-husband, defendant-wife requested him not to desert her and that she would permit him in future for marriage with other lady. As the plaintiff felt that defendant was not physically fit as a woman, divorce took place as per their customs on 16-10-1991. Thereafter, plaintiff got married with Lalitaben on 17-10-1991 and a baby girl named Komal and a baby boy named Satish were born out of said wedlock. The plaintiff therefore filed a suit to declare the marriage with the defendant as nullity. However, the learned Family Court after framing the issues and after hearing the parties dismissed the suit. Hence, the present appeal.

3. Heard learned advocate, Mr.R.C.Kakkad for the plaintiff-

husband.

4. Learned advocate, Mr.Kakkad for the plaintiff-husband contended that the learned Family Court while considering the matter has framed the following issues:

“1. Whether plaintiff proves that the defendant was unfit for marriage and the procuring a children?

2. Whether plaintiff proves that the marriage was void ab-initio?

3. Whether plaintiff proves that marriage has not been consummated during to the alleged impotence of the defendant ?

4. Whether plaintiff proves that the defendant is impotence ?

5. Whether plaintiff is entitled for relief as prayed for ?

6. What order and decree ?”

4.1 Mr.Kakkad further contended that although aforesaid issue Nos.1 to 5 could not have been decided without medically examining the wife, they were decided and replied in negative. Drawing our attention towards the provisions of section 12 of the Act, he contended that as the marriage has not been consummated owing to the impotence of the wife, learned Family Court ought to have decreed the suit in favour of the husband. Section 12 of the Act reads as under:

“12. Voidable marriage (1) Any marriage solemnized, 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; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [was required under section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978] the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-

section (1), no petition for annulling a marriage (a) on the ground specified in clause (c) of sub-

section (1), shall be entertained if -

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or, wife after the force had ceased to operate or, as the case may be, the fraud had been discovered :

(b) on the ground specified in clause (d) of sub- section (1) shall be entertained unless the Court is satisfied -

(i) that the petitioner was at the time of marriage ignorant of the facts alleged;

(ii) that proceedings have been institute