Gokal Chand Mital, J. - (1.) The parties to this appeal are Christians and were married on 17-6-1979. They lived together till May, 1980 during which period, the marriage could not he consummated because of malformation of uterus and under-development of vagina due to which penetration could not take place. The husband got examined his wife from the doctors who confirmed that penetration or cohabitation was not possible under the existing circumstances. Consequently, the husband claimed decree of nullity of marriage under the Indian Divorce Act, 1869 (hereinafter referred to as the Act). The wife contested the petition and denied the allegations. On the contest of the parties, following issues were framed:- l. Whether the respondent was impotent at the tine of marriage and at the time of institution of this petition ? OPP 2. Relief.
(2.) After evidence was led, the trial Court by judgment and decree dated 24-11-1981 dismissed the petition after recording findings that it was true that the parties had not been able to cohabit or consummate the marriage due to malformation of uterus and under-development of vagina because from the medical evidence it was proved that it was not possible to insert even the tip of the index finger. However, on the basis of the medical evidence, that it was curable by performing operation, it was concluded that the husband failed to prove that the impotency of the wife was permanent and incurable. In this behalf several decisions were relied upon by the Court below. This is husband's appeal in this Court.
(3.) Notice has been served on the wife but she has failed to appear. Accordingly, I proceed to decide this appeal ex parte.;