SMT. INDU PATHAK Vs. DR. S. K. PATHAK

JUDGEMENT

(1.) This is an appeal arising out of the decree passed under section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act,) declaring the marriage between the parties as void and annulling the same by a decree of nullity on the ground that the marriage has not consummated owing to the impotency of the appellant.

(2.) Dr. Sri Kishan Pathak (hereinafter referred to as 'Pathak') was married to respondent Indu Kumari on April 5, 1969 at Gwalior according to Hindu Rites. The case of Pathak was that consummated owing to the impotency of Indu Kumari the marriage between the parties was not consummation of marriage from the very inception and showed repugnance to the sexual act and whenever Pathak desired to exercise is conjugal rights, Indu Kumari stated weeping and threatened to shout if Pathak forced her for performing the sexual intercourse. According to the petitioner, Indu Kumari left the marital house on April 19, 1970 and was since then living in her father's house at Gwalior and she has refused to return and live with Pathak. It was alleged that Indu Kumari showed invincible repugnance to the sexual act with Pathak, with the result that the consummation of marriage was impossible and that Indu Kumari was impotent with regard to Pathak and on that ground a decree declaring the marriage to be void and a nullity was prayed for.

(3.) In her written statement, Indu Kumari admitted that the marriage took place on May 5, 1969 but she denied the case set up by Pathak about non-consummation of marriage and about absence of sexual intercourse. According to Indu Kumari she never resisted the consummation of marriage but she allowed Pathak to have sexual intercourse with her several times. It was stated by her that she never resisted Pathak from exercising his conjugal rights and that she always allowed Pathak to have sexual intercourse and that she enjoyed the same and they lived together as husband and wife.