ORDER
I. Panduranga Rao, J.
1. The Original Petition has came up for consideration of making the decree nisi absolute by virtue of the directions given by a Division Bench of this Court in O.S. Appeal No. 5 of 1993.
2. O.P. No. 3 of 1992 is filed by the wife seeking a decree for the nullity of her marriage with the respondent which has taken place on 6-6-1991 at Hyderabad. An ex parte decree dated 25-9-1992 was passed by me under Section 18 of the Indian Divorce Act, 1869 declaring that the marriage between the petitioner with the respondent performed on 6-6-1991 is null and void.
3. Subsequent to passing of the above decree, the respondent herein filed Application No. 521 of 1992 under Section 5 of the Indian Limitation Act to condone the delay of 18 days in filing the petition to set aside the ex parte decree. That petition was dismissed on 4-2-1993. It is stated that challenging the order in Application No. 521 of 1992, the respondent herein filed O.S. Appeal No. 2 of 1993, but he did not pursue the matter. Consequently, O.S.A. No. 2 of 1993 was dismissed as withdrawn on 12-2-1993.
4. The respondent however presented O.S. Appeal No. 5 of 1993 on 22-4-1993 against the judgment in O.P. No. 3 of 1992.The Division Bench while confirming the finding that no sufficient grounds are made out by the appellant for belated filing of the application to set aside the ex parte decree, however, disagreed with the finding that the consent of the wife was obtained by practising fraud on her. The Division Bench further held that the evidence adduced on the aspect of cruelty is irrelevant because cruelty is not one of the grounds on which a decree of nullity can be granted. The Division Bench however observed that it is well settled that a person may be impotent qua a particular person of opposite sex though he/she may be otherwise potent; that it is enough, if on the basis of evidence, it can be said that the impotence was peculiar towards his wife and consequently agreeing with the finding of the single Judge, the learned Judges held that the marriage is liable to be declared as null and void on the ground of impotency which is one of the grounds imentioned in Section 19 of the Indian Divorce Act. The learned Judges following the Full Bench decisions of Madras High Court in Sumathi Ammal v. D. Paul, AIR 1936 Mad. 324 and Swamidoess Joseph v. Edward, : AIR1955Mad341 held that a decree for nullity under Section 19 should, in the first instance, be a decree nisi and that though Section 16 in terms does not apply to a decree of nullity, the practice obtaining in England in the Courts of Divorce and Matrimonial causes should, as far as possible, be applied. The learned Judges, therefore, converted the decree granted by this Court as a decree nisi subject to making the same absolute after a period of six weeks. That is how the matter has come up before me for making the decree absolute.
5. The learned Counsel for the respondent raised a preliminary objection that it is for the wife to apply for making the decree absolute and inasmuch as the wife has not filed such application, that matter cannot be considered by this Court. That contention cannot be accepted because the Division Bench in O.S. Appeal No .5 of 1993 while holding that Section 16 of the Indian Divorce Act does not in terms apply to a decree of nullity, however, following the earlier decisions of Madras High Court modified the decree passed by this Court as a decree nisi with a direction that the said decree is subject to making the same absolute by the Court after a period of six weeks. It is, by virtue of the directions of the Division Bench that matter has come up before me for consideration.
6. The learned Counsel for the respondent-wife relying upon Routh v. Routh, : AIR1964Cal474 argued that in a divorce suit by the wife on ground of impotency of the husband, impotency must be permanent and incurable and that medical inspection of the husband is essential. In this case, the evidence of P.W.1 which is corroborated by letters shows that her marriage has not been consummated. The petitioner explained how the attempts on her part to consummate the marriage did not become fruitful. In fact, the Division Bench, acting upon the evidence of P.W.1 which is corroborated by Ex.A-6 - letter written by the husband containing categorical statement that the petitioner herein still remained virgin even six months after the marriage held that as a matter of fact the marriage was not consummated on ground of impotency of the respondent. Consequently, the Division Bench held that a reasonable inference could be drawn from the testimony of P.W.I coupled with the factum of the non-consummation of the marriage that the respondent herein was impotent at least in so far as the petitioner-wife is concerned.
7. When basing on the material evidence, the Division Bench in O.S. Appeal No. 5 of 1993 has modified the finding by holding that the husband was impotent in so far as the wife is concerned and basing on that finding, a decree nisi is granted, the only question that remains for consideration before this Court would be 'whether there is any legal objection for making the decree absolute'?
8. The learned Counsel for the petitioner relying upon a decision in Williams v. Williams, AIR 1936 Rangoon 499 argued that it is only a third person that has right to object for a decree nisi being made absolute and that the respondent has no right to show cause against the decree nisi being made absolute.
9. By filing application Nos. 54 and 55 of 1994, the respondent-husband wants to over-come the finding given by this Court already that there are no grounds for setting aside the ex parte decree. These two applications Nos. 54 and 55of 1994, if allowed, will have the effect of setting aside this finding that having full knowledge of filing the original petition, the husband has refrained from contesting the case at the appropriate time. That finding having become final by reason of the withdrawal of O.S. A. No. 2 of 1993 the respondent cannot make an attempt to set at naught that finding by filing Application No. 54/94 and thereby seeking permission to cross-examine the wife on the aspect of the alleged impotency. The husband filed an Application No. 55 of 1994 to produce the letters of the wife dated 3-11-1991 and 4-11-1991 and also to produce the medical evidence. The production of medical evidence may not be relevant in the light of the finding of the Division Bench that the husband is impotent qua the wife. The learned Counsel for the respondent-husband (applicant in Application No. 55 of 1994) submitted that the letters dated 3-11-1991 and 4-11-1991 were filed by way of additional evidence in the appeal. But the judgment of the Division Bench does not indicate that any such documents were filed by way of additional evidence nor did the appellate Court give a direction to this Court to consider those documents by way of additional evidence while considering the case for the purpose of making the decree absolute. The effect of allowing the Application Nos. 54 and 55 of 1994 will be setting aside the finding of the appellate Court arrived at basing on the material on record, which cannot be permitted.
10. In the result, the Application Nos. 54 and 55 of 1994 are dismissed and the decree nisi is made absolute in O.P. No. 3 of 1992. No costs.