- (1.) This appeal arises out of the judgment of the Additional District Judge, Gurgaon, dated November 30, 1976, by which the petition filed by Kundan Lal present appellant against his wife Kanta Rani respondent under section 12 of The Hindu Marriage Act (hereinafter called the Act) for annulment of the marriage, in the alternative under section 9 of the Act for restitution of conjugal rights, was dismissed.
(2.) It is not disputed that the parties were married in October 1959 at Gurgaon and they lived thereafter in matrimony till January, 1975. According to the appellant, he never cohabited with the respondent throughout these fifteen years on account of her being "averse to the sexual life." The appellant in fact specifically alleged that the respondent was impotent at the time of the marriage and continued to be so until the filing of the petition before the trial Court. On these allegations, the appellant prayed for a decree of nullity of marriage. He further alleged that on January 18, 1975, the respondent left him without any excuse and had not returned to him since then. Based on this allegation, the appellant claimed an alternative relief of restitution of conjugal rights. The aforesaid allegations were controverted by the respondent who asserted that in fact she had been turned out of the house by the appellant of January 18, 1975, after he had got another woman by the name of Shrimati Malti to live with him.
(3.) The following issues were framed by the trial court to decide the controversial points: 1. Whether the respondent was impotent at the time of marriage and has continued to be so upto the date of the filing of the application ? OA 2. Whether the respondent has withdrawn from the society of the petitioner without reasonable excuse ? OA 3. Relief. On issue No. 1 the trial Court recorded a finding that it was not proved that the respondent was impotent either at the time of the marriage or latter on. Under issue No. 2, it was held that the respondent was justified in withdrawing from the society of the appellant in view of his conduct and hence he was not entitled to any relief by even way of restitution of conjugal rights. The petition of the appellant was, thus 'dismissed.;