BRIJ VALLABH Vs. SUMITRA

JUDGEMENT

(1.) THIS appeal arises out of an action by appellant, husband, against the respondent, wife for a decree of nullity on the ground of impotency of the latter The respondent did not appear in the trial Court and the District Judge, who tried the case did not accept the plea of the appellant, Brij Vallabh. He having failed in the Court of District Judge, has come in appeal.

(2.) PARTIES are Hindus and they were married on 3. 7. 72 at Jodhpur according to Hindu rites. Sumitra's father Shri Motilal Gupta was residing at Bhopal He had come to Jodhpur with family to perform the marriage of Sumitra. They staved at Jodhpur for about two weeks. According to Brij Vallabh Sumitra stayed at his house on 8th and 9th July, 72 after the marriage. On 8th July, Brij Vallabh and Sumitra slept in one room. It has been alleged that when Brij Vallabh wanted to have a physical union with Sumitra she resisted and refused to submit herself to sexual intercourse She left the room and slept outside. She was made to understand by the relations of Brij Vallabh but she did not accept to go to bed with Brij Vallabh. Sumitra is said to have told the people that she has been forced to marry Brij Vallabh and she is not prepared to accept him as her husband. Next day she slept in a different room and on the following morning she left the place and went to her parental home She with her father went to Bhopal and she did not return to her husband's house ' It is also alleged that the marriage was not consummated and inspite of efforts Smt Sumitra did not agree to come back to her husband's house. She has become a lecturer in Sophia College, Bhopal. It has been pleaded in the petition that the physical or the mental condition of the respondent from the time of marriage till the date of filing the petition was such as to make the consummation of the marriage a practical impossibility On this basis it was alleged that the respondent was impotent at the time of marriage and has continued to be so till the day the petition was filed for decree of nullity The respondent did not appear in the trial court inspite of service.

(3.) LEARNED counsel for the appellant has placed reliance on two cases ; one is G. vs. G. (3) and G. vs. G. (4 ). In the case G. vs. G. (3) the husband filed a petition for nullity on the ground of his wife's impotency. She denied the fact that she was frigid. She rather alleged that the husband was incapable and has never consumated the marriage. She also asked for a decree of nullity. It was admitted in this case that the marriage had not been consumated. The Court held, without going to the question as to who was the guilty party that it was evident that the marriage has not been con-sumated and could not have been consumated in future also. The Court annulled the marriage for the reason that it was satisfied that "quoad hunc et quoad hunc". The court further observed that the two people should not be tied up together for the rest of their lives in a state of misery. The position in the case before me is entirely different. Sumitra has not appeared nor is there any allegation on her part that her husband was impotent and the marriage was not consumated on account of her husband's fault. Whereas in the case referred to above it was both the parties alleging impotency of each other and claimed a decree of nullity.