CHAMAN LAL BHAT Vs. RUPA DEVI

JUDGEMENT

(1.) THESE two appeals raise common questions of law and facts and we propose to decide them by one common judgment.

(2.) THE appellant husband filed a petition before the District Judge Srinagar for restitution of conjugal rights and subsequently a petition was filed by the respondent wife for anulling the marriage of the respondent with the appellant on the ground that he was impotent at the time of their marriage and continued to be so at the time when the petition was filed. The two suits were consolidated by the District Judge Srinagar and by his judgment dated 7 -9 -1964, he has allowed the petition of the wife for declaring the marriage a nullity and rejected the petition of the appellant husband for restitution of conjugal rights.

(3.) THE case of the respondent wife before the court below was that the parties were married on 14 -8 -1957 according to Hindu rites at Srinagar. Soon after the marriage the husband resided with the wife in Srinagar for about a month. Thereafter they lived for about two weeks in Dharmsalla and for about a week in Allahabad During this time the appellant husband did not have sexual intercourse with the wife as he was impotent. It was alleged by the wife Rupa Devi that eve since her marriage with the appellant, the appellant never attempted to have sexual intercourse with her and always tried to avoid her company. There were several opportunities for the husband to cohabit with her but either he tried and failed or he avoided to have any sexual intercourse with his wife and further avoided any talk on sex. The wife has further alleged that after her marriage she did not want to prosecute her studies but the appellant husband forced her to go to Allahabad in order to prosecute her studies there in M Sc Zoology. For this purpose she was taken to Allahabad by the appellant and admitted into a college there as a resident boarder. The relations between the parties appear to have been fairly cordial for about a year after which differences arose when the wife divulged the fact that the husband was impotent to her father, grand mother as also the relations of the husband The respondent got very much irritated at this conduct of the wife and he started a vilifying compaign against the wife by throwing adulterous insinuations on her character Things came to such a pass that the wife was forced to file a petition for divorce before a court at Allahabad which was subsequently withdrawn as the Allahabad court had no jurisdiction to hear such a case. Thereafter a petition for divorce under section 12 of the Hindu Marriage Act was filed before the District Judge Srinagar, The wife alleged that even up to the date of the filing of the petition she was an absolute virgin not being used to any sexual intercourse. She has produced a medical certificate to this effect and has also examined Dr. Kaw to prove her virginity.