SUVARNABEN Vs. RASHMIKANT CHINUBHAI SHAH

JUDGEMENT

(1.) The appellant is the wife of the respondent. Her petition for nullity of her marriage with the respondent on the ground sot out in clause (a) of sub-sec (1) of sec. 12 of the Hindu Marriage Act 195 (hereinafter called as the Act) namely that the respondent was impotent at the time of marriage and continued to be so until the institution of the proceedings has been dismissed by the Judge of the City Civil Court Ahmedabad. She has come in appeal

(2.) According to the averments in the Petition which averments have not been controverted by the respondent by pleadings as he has chosen to remain absent the marriage between the appellant and the respondent took place on 8th May 1960 and the appellant went to reside with the respondent a month after that date. The appellant avers that after she went to reside with the respondent to fulfil the physical obligations of marriage the respondent avoided to do so on the ground that he was not keeping well. The appellant states that believing in the explanation she did not press him immediately but later on he found that the respondent was not able to physically consummate marriage and the respondent also admitted his inability to do so and stated that he was taking medical treatment Therefore the appellant waited. She goes on to aver in the plaint that in August 1963 the respondent left for America and came back on 16-7-1967 and when he came on 16-7-1967 the appellant went to him again but she found that there was no improvement in the physical condition and in fact the respondent did not sleep with her and slept at another place. Therefore the appellant gave a notice and then the suit is filed.

(3.) Before referring to the evidence led in the case on behalf of the appellant it would be convenient to refer to the exchange of notices between the parties. The appellant first sent a notice on 20- 7- 1967 and in that notice she set out in detail the very case which has been set out in the plaint. To that notice the respondent sent a reply on 27-7-1967 denying therein that be was not physically in a position to consummate marriage or that he did not have any physical relation with her or that he had put forward an excuse of ill-health. He however. appeared to concede in para 2 of that reply that the physical relations with his wife were little for he stated in that para. In truth as I was studying and so that there should not be any disturbance in my studies and I should be able to carry on the studies well I had informed (you) to keep as little physical relations as possible and you have misconstrued this suggestion. To that reply the appellant sent a rejoinder on 10-8-1967 reaffirming her case but offering to live with him as his wife if be got himself examined by a doctor of his choice to whom both of them may go after taking a previous appointment and if the doctor certified that he was not impotent but was potent. A copy of this last rejoinder which has been produced in the proceedings by the appellant has not been exhibited by the learned trial Judge on the ground that the acknowledgment receipt of that letter was not produced. But the fact is that such a letter has been averred to in the petition and also deposed to by the appellant as having been sent and the letter appears to have been addressed at the address to which the previous notice was sent and was received by the respondent. There is therefore no reason for not believing the petitioner that such a letter was sent. if she is believed on that point it would not be unreasonable to hold that the letter reached the respondent.