PIR BAKHSH Vs. MTMUHAMMAD-UN-NISSA

JUDGEMENT

(1.) THE plaintiff, who was Mahomedan, sued for the dissolution of a marriage on the ground of her husband's impotency which she alleged had been existing, at any rate, from the commencement of the time of their married life. Both Courts have held that she was entitled to a decree. THE marriage took place somewhere, as near as I can ascertain, about nine years prior to the date of the suit. It is urged here now that there is no finding that impotency existed all through the period of marriage and that it did not date from marriage and that it did not date from some date subsequent to the marriage. This is not a ground that the defendant can take now. His case was never that though he was impotent now, he had been capable during some period of the marriage and that there had been any change in his condition. His statement merely was that he was now and always had been capable. I do not think this ground, therefore, is open to him now. Next, it is urged that a period of a year ought to have been allowed subsequent to the date of the suit to enable him to prove his fitness for married life. THE passage read to me from Tyabji's commentary is merely an indication that where the parties have not had an opportunity of cohabiting, 12 months should be allowed to the defendant, husband, before any decree is passed on the ground of his impotency. THEse are the only grounds urged before me. THEre is no force in this appeal which is hereby dismissed with costs including counsel's fees in this Court on the higher scale.

(2.) AS the appeal is being dismissed the cross-objections are not pressed.