Muni Lal Verma, J. - (1.) The appellant is the wife of Jai Singh respondent. She moved a petition for annulment of marriage, under Sec. 12 of the Hindu Marriage Act. She averred that the she was married to the respondent on June 12, 1962 and her Muklawa ceremony was performed in the month of May, 1968, and she went to the house of the respondent. The respondent did not consummate the marriage and had no sexual intercourse during the 3 months she stayed with him at his house and she had then found that he was impotent. Therefore, the claimed decree of nullity under Sec. 12 of the Hindu Marriage Act on the ground that the respondent was impotent at the time of marriage and he continued to be so till March 31, 1971, when she made the petition. The said petition was contested by the respondent. He admitted the factum of marriage, but controverted bar other material allegations. There upon, the following issues were settled ;- 1. Whether the respondent was impotent on the date of the marriage and continued to be to till the date of institution of the case ? 2. Relief. 2. On Aug. 25, 1972, the appellant entered the witness box. She made her statement in examination he was going to be cross-examined, she made a statement, to the effect that it the respondent alter medical examination, proved himself to be potent and could show that he could have penetration, her petition might be dismissed, the respondent too made a statement that if he failed to prove himself to to potent on medical examination, the petition could be decreed. Thereupon, the respondent was directed to submit to medical examination by the Chief Medical Officer, Karnal, who examined him on Oct. 9, 1972, and made a report to the Court, indicating that there was nothing to suggest that the respondent was incapable of performing the sexual intercourse. On receipt of the said report, the learned district Judge, Karnal, proceeded to dismiss the Petition. He did not record the statement of the Chief Medical Officer who had medically examined the respondent, he did not record the statement of the respondent that he had submitted to the medical examination by the Chief Medical Officer. He did not complete the statement of the appellant which had been left incomplete on Aug., 25, 1972. Aggrieved by the dismissal of the reunion recorded by the learned District Judge, the appellant has appealed.
(2.) Shri Ram Rang, learned counsel for the appellant, has made a statement today that the appellant has withdrawn the oiler which she had made on Aug. 25, 1972. It is well settled that there is no estoppel against the statute. Therefore, the appellant cannot be forced to abide by the offer which the made on Aug. 25, 1972. She has legal right to prove that the respondent was important at the time of marriage and he continued to be so till the institution of these proceedings. The said legal right cannot be declined to her, especially when he has now withdrawn the offer made by her on Aug. 25, 1972. Whatever is the value or effect of that offer, the same would to available to the respondent under law. The deport dated Oct., 1972 sent by the Chief Medical Officer who examined the respondent which could constitute evidence in the legal sense. It is only the deposition of the Chief Medical Officer who examined the respondent which could constitute evidence. This, as indicate above, has not been done. In the absence of examination of the said Chief Medical Officer on oath by the Court, is report could not be given the status of evidence. The statement the appellant stands Incomplete for the obvious reason that she had r been cross-examined, much less re-examined. She had not been given t opportunity to adduce evidence which she desired to produce. On the aforesaid state of evidence I am inclined to agree with the learned counsel for the appellant that the petition has not been disposed of by the trial Court in accordance with law. In that view of the matter, the dismiss of the petition cannot sustain.
(3.) Mr. Verma, learned counsel for the respondent, contends the appellant has intentionally withdrawn the offer which she had made on Aug. 25, 1972, because of the report of the Chief Medical Officer having gene against her and that she had given up her grounds for seeking the decree for nullity by implication. I am not expressing my opinion on the question as to whether the withdrawal of the offer made by the appellant on Aug. 25, 1972, is bona fide, or mala fide because my doing may prejudice the cause of the parties. However, it would be open to t respondent to show that the withdrawal of her aforesaid offer has been mala fide, when the petition is tried on merits. Sec. 12 of the Hind Marriage Act gives a right to the appellant to seek a decree of nullity on that the respondent was impotent at the time of marriage proving and he continued to be so till the institution of the proceedings The said legal right cannot be snatched away from her and she cannot be debarred to prove the grounds sfor seeking the decree for nullity, simply because she had made offer, referred to above, on Aug. 25, 1972 especially when she has now withdrawn the said offer. It would be open to both the parties to prove and disprove the in impotency of the of the time of manage and thereafter till the institution of theta proceedings. In the result, this appeal succeeds and I allow it and set aside the impugned judgment and send back the case to the trial Court to decide on merits after giving opportunity to the parties to lead evidence. Bot the learned counsel do not press for costs. Therefore, the parties will bear their own costs of the appeal. The parties have been advised through their counsel, to appear before the District Judge, Karnal, April 4, 1975. Appeal allowed.;