Judgment:
ORDER
DR. M.K. Sharma, J.
1.The present appeal arises out of the ex parte judgment and order dated 14th August, 1997 passed by the Additional District Judge dismissing the petition filed by the petitioner under Section 12(1)(a) of the Hindu Marriage Act in which the petitioner prayed for annulment of marriage by a decree of nullity.
2. Case of the petitioner as pleaded in the said petition filed under Section 12(1)(a) of the Act was that he was widower and the respondent was a divorcee and they were married according to the Hindu rites on 6th June,1996 at Delhi. It is alleged in the petition that the marriage of the parties could not be consummated owing to the impotency of the respondent and that both the parties lived together up to 28th July, 1996 when the respondent left for her sister's home and that there was no consummation of marriage at all due to the behaviour, conduct and impotency of the respondent. It is also alleged that even the parties to the proceedings went to Nainital and had opportunities to share the bed during nights but in spite of that no sexual intercourse could took place between the parties as the respondent was not capable of any intercourse.
3. The respondent did not appear to contest the aforesaid petition in spite of service of the process and, thereforee, the trial court ordered for proceeding the case ex parte as against the respondent. The matter accordingly proceeded ex parte as against the respondent and ex parte evidence was recorded. The petitioner herein examined himself as PW-1 and also produced Dr.(Mrs.) Preeti Sehgal as PW-2. The petitioner in his evidence reiterated the statements made in the petition. Dr. (Mrs.) Preeti Sehgal, who was examined as PW-2, stated that on 23th June, 1996 she talked to the respondent about her difficulty and the respondent disclosed to her that her Previous husband used to try have sex with her and that she used to feel painful spausmatic contractions and as such doing of sexual intercourse used to become difficult and so she was unable to perform the sexual intercourse. She also deposed that she had observed that the respondent was having impotency problem but in spite of that the respondent did not agree for taking treatment from her.
4. The Additional District Judge, by his impugned judgment and order dated 14th August, 1997 dismissed the aforesaid petition of the ground that mere oral allegation of the petitioner and the opinion said to have been formed by the doctor produced by him as a witness is of no consequence in the absence of any medical examination of the respondent.
5. Counsel appearing for the petitioner submitted before me that medical examination of the respondent is neither required nor is mandatory for the purpose of obtaining a decree of dissolution of the marriage under Section 12 of the Hindu Marriage Act and that every case is to be judged on the basis of its facts and evidence on record. It was also submitted that when there is a case of non-consummation of marriage and of unrebutted evidence and no denial of the fact that the marriage was not consummated, the court below should have granted a decree of nullity of marriage.
6. In support of his submission, the learned counsel relied upon the decisions in Yuvraj Digvijay Singh Vs . Yuvrani Pratap Kumari : [1970]1SCR559 , Smt. Sucharita Kalsie v. Sh. Rajinder Kishore Kalsie reported in 1978 MLR 37 and in Moina Khosla Vs . Amardeep Khosla : AIR1986Delhi399 .
7. I have considered the submission of the learned counsel appearing for the petitioner in the light of evidence of on record and also in the light of the decisions relied upon.
8. Here is a case where specific allegations have been made by the petitioner that there was non-consummation of marriage due to respondent's refusal arising from the incapacity due to impotency. He has also stated specifically that the marriage between the parties here to could not be consummated owing to the impotency of the respondent. He has also categorically stated in his deposition that she has refused to be examined by a Doctor so that the real cause of impotency could be known. In support of his case, he has also produced a Doctor who, although his close relation, has deposed that she talked to the respondent who told her that she had problem in having sexual intercourse as she feels painful spausmatic contractions at the time of such sexual intercourse. She has also categorically stated that she talked to the respondent for taking treatment from her which was refused by the respondent.
9. The aforesaid evidence adduced by the petitioner goes unrebutted and unchallenged. In spite of service of summons the respondent did not appear in the trial court and thereforee, the matter had to be proceeded ex parte as against her, Thus, the opportunity which was available to the petitioner to request the court for sending the respondent for a medical examination also could not be exercised due to non appearance of the respondent in the case. Thus, there was no remedy or opportunity available to the petitioner by which be could sought for an order to from the court to have the respondent medically examined in order to find out the veracity of his statement.
10. In the case of T. Rangaswamy Vs . I. Aravindammual : AIR1957Mad243 it was held that there is no minimum standard of proof necessary and that even uncorroborated testimony of the petitioner is sufficient if it can be believed. It was further held that in cases of this nature, corroboration can only be obtained from the evidence of the other party to the marriage.
11. In my considered opinion, thereforee, the Additional District Judge was not justified in drawing an adverse inference against the petitioner be-cause of non- examination of the respondent by a Doctor and for not obtain-ing and /or producing a medical report in support of the claim of the petitioner.
12. The respondent did not appear and thereforee, there was no challenge to the statements of the petitioner and also of his witness.
13. As the aforesaid evidence on record goes unrebutted and unchallenged, in my considered opinion, no corroboration of the testimony of the peti-tioner was necessary in the form of medical examination and report of the Doctor. Other party to the marriage could have been a competent witness to rebut the contention of the petitioner, but she had chosen not to appear and contest the proceedings.
14. Thus in my considered opinion, the learned Additional District Judge was not right in dismissing the petition. I, thereforee, allow the appeal and grant the petitioner a decree for nullity under Section 12-A of the Hindu Marriage Act. AppeaL allowed. Let a decree sheet be prepared accord-ingly.