R.N.Mittal, J. - (1.) This appeal has been filed by Bakhshi Ram, against the judgment of the District Judge, Ambala, dated May 3, 1975, by which his marriage has been annulled by granting a decree of nullity in favour of Smt. Amarjit Kaur.
(2.) Briefly the case of Smt. Amarjit Kaur, Petitioner, was that she was married to Bakhshi Ram in April, 1969 at Ambala Cantt. She alleged that her husband had been suffering from incurable impotency at the time of marriage and remained so till the date of filing the petition under section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act). She also alleged that a fraud was played on her father by telling him prior to the marriage that Bakhshi Ram was aged only 19/20 years, whereas he was, in fact more than 30 years of age at the time of marriage. The wife filed a petition for annulment of marriage under section 12 of the Act. The petitioner was contested by the husband who controverted the aforesaid allegations in the written statement. He inter alia, pleaded that lie was potent at the time of marriage and remained so thereafter and that no fraud had been played on the father of the petitioner. He also pleaded that the Court had no jurisdiction to try the petition. The learned District Judge, on the pleadings of the parties, framed the following issues:- 1. Has this Court no jurisdiction to try this petition ? 2. Is the petitioner entitled to a decree for annulment of her marriage with the respondent on the grounds mentioned in the petition ? 3. Relief. The learned counsel for the husband conceded that the Court at Ambala had the jurisdiction to try the petition. Issue No. 1 was, therefore, decided accordingly. On issue No. 2 the learned District Judge has held that Bakhshi Ram was impotent on the day of his marriage with Smt. Amarjit Kaur, that he continued to remain so till the presentation of the petition, and that it fraud was played on the petitioner's father regarding the age of Bakhshi Ram. In 'view of the findings on issue No. 2, the learned District Judge granted a decree of nullity in favour of the petitioner.
(3.) The first question that arises for determination is as to whether or not the appellant was impotent at the time of his marriage and continued to be so till the date of filing the petition. In order to determine the question, the wife produced her father Gurcharan Singh, A. W. 1, Dr. P.N. Chhabra, A. W. 2, and Badri Nath of Faruga Khalsa High School Ambala Cantt., A. W. 3. She also appeared as he, own witness, Badri Nath A. W. 3, deposed that according to the record of the School, she was born on Jan. 10, 1955. The said fact is not now disputed by the counsel for the appellant. Thus she was about 14 years of age at the time of marriage. Gurbachan Singh, A. W. 1, in his statement said that he went to enquire about Smt. Amarjit Kaur in village Khajoorla, District Kapurthala, the village of the husband, as she was not sent for about a year to his house. She told him that Bakhshi Ram, respondent, was impotent at the time of marriage and continued to remain so even subsequently. In spite of medical treatment, the disability had not been removed. He further deposed that he enquired from Bakhshi Ram about the aforesaid fact and he admitted that he was in fact importent. The other members of the family, according to the witness, sought his permission that Smt. Amarjit Kaur should he got remarried with Sunder, younger brother of Bakhshi Ram or Tota, son of another brother of Lakhshi Ram, which suggestion was not accepted by him thereafter, he stated that he brought Bakhshi Ram and Suit Amarjit Kaur to Ambala Cant and got him treated there. Dr. P.N. Chhabra, Chief Medical Officer, Ambala, A. W. 2, deposed that in pursuance of the cyder of the Court, Bakhshi Ram appellant appeared before him on March 6, 1974, for medical examination. He examined and found him to be impotent. He goes on to say that he asked Bakhshi Ram to master hale, but he could not get complete erection of his penis and could not give semen. He further says that be asked Bakhshi Ram to appear on the next day, that is, March 7, 1974, but he did not turn up at day or on any subsequent day. He has given his report, Exhibit A. 1, wherein the aforesaid facts are stated. His statement is challenged by learned counsel for the appellant on the ground that prior to the order passed by the Court for the examination of Bakhshi Ram, he (Bakhshi Ram) got himself examined from Dr. Chhabra and he issued a certificate dated April 25, 1972, Exhibit D ' wherein the doctor had certified that there was thing to suggest that he was incapable of doing sexual intercourse. He submits that the doctor has made a contradictory statement and no reliance Auld be placed on it. In cross examination, a question was put to Dr. Chhbra to that effect and he replied that at that time he had not asked Bakhshi Ram, respondent, to masterbate. From the reply it appears that Chhabra might have made mistaken report on the basis of the observes. The certificate, however, does not show that the witness was deposing rely or that he was unable to give proper explanation regarding it. Smt. Amarjit Kaur, petitioner, in her statement supported the statement of her her, Gurbachan Singh. She also deposed that the appellant was wanting to remain like a wife of Sunder and Tota. She, however, refused to do so. On this, differences arose in the family and Sunder murdered his elder ether, Krishan, and Krishna's wife, Smt. Kartar Kaur in her (witness's) presence. At the time of trial of Sunder, she was belaboured by her husband who threatened that in case she deposed against the murder, she would also be killed. As a result thereof, she became terrified and din not Support the prosecution aversion. In spite of that Sunder was awarded life imprisonment. It is not denied by the appellant that Sunder murdered his other and sister-in-law and was sentenced to life imprisonment. The appellant, however, denied that he was impotent. A specific question was at to him in cross-examination to the effect that during the period Smt. Amarjit Kaur stayed with him, he had not been able to perform sexual intercourse with her as he was impotent. In reply, instead of replying to question and denying the allegation, he stated that when Smt. Amarjit kaur had been staying with him, she used to touch his feet. In the morning cry day, it is clearly established from the above statements that the appellant was impotent at the time of marriage and remained so even thereafter till the date of filing the petition.;