A. Gopal Reddy, J.
1. This civil revision petition is filed under Article 227 of Constitution of India challenging the order, dated 21-2-2005 passed by the Senior Civil Judge, Tanuku in I.A. No. 1774 of 2004 in O.P. No. 59 of 2004.
2. The above O.P. was filed by the respondent herein, who is the husband of the petitioner, seeking divorce. The Court below, on 17-9-2004 allowed the O.P. granting ex parte decree of divorce by nullifying the marriage in between the petitioner and the respondent. The petitioner filed I.A. No. 1774 of 2004 under Section 5 of the Limitation Act to condone the delay of 53 days in filling a petition under Order 9 Rule 13 of Civil Procedure Code to set aside the ex parte decree of divorce. It is stated that her marriage with the respondent was performed on 20-4-2004 and the O.P. for divorce was filed in June, 2004 itself and in the absence of any exceptional circumstances for filing the petition for divorce, the Court should not have entertained the O.P. and could not have granted a decree for divorce particularly, when the O.P. was filed with a view to demand additional dowry. In the absence of any permission granted permitting the respondent-husband to file the petition for divorce, the same could not have been entertained. On receipt of summons, according to the petitioner, she contacted the respondent and his grand-mother, but they made a demand for additional dowry. When the mediation was failed, she contacted an advocate at Tadepalligudem to pursue the matter, who promised to look after the matter, but as he had not shown any interest, the ex parte decree came to be passed. By filing a counter-affidavit the respondent contested the application stating that he waited for 70 days after passing of the ex parte decree and as there was no contest from the petitioner side, he contracted second marriage on 28-11-2004 with one Kamisetti Padmavathi, D/o. Venkata Rao of Mokkala Thippa Village, Mummidivaram Mandal, East Godavari District. Since the O.P. itself is filed under Section 12 of the Hindu Marriage Act, 1955 ('Act' for short) there is no bar for entertaining the O.P. before the expiry of one year period. The petitioner failed to show satisfactory reasons for her absence in contesting the divorce petition and hence, sought to dismiss the application.
3. The Court below, by the impugned order, dismissed the application holding that the petitioner failed to show satisfactory reasons for condoning the delay of 53 days in filling the set aside petition. The Court below observed that though the petitioner stated that she engaged an advocate at Tadepalligudem to defend the matter, failed to furnish his name and she did not state whether she signed the vakalat requesting the advocate to file the same and to defend the matter. As per the docket of the Court below, as the petitioner was called absent on the first hearing date i.e. on 3-9-2004, she was set ex parte and the matter was posted for ex parte evidence to 17-9-2004. The Court below by observing that the affidavit was originally drafted to condone the delay of 44 days from 18-10-2004 to 1-12-2004, later, the date i.e., 1-12-2004 was altered as 9-12-2004 and the affidavit was prepared on 10-12-2004, whereas, the petition that was attached to the affidavit is dated 1-12-2004, came to the conclusion that the petitioner approached the Court only on 1-12-2004 and the delay for that period was not properly explained.
4. When the revision was taken up for admission, this Court ordered notice before admission on 16-8-2005 and the entire record from the Court below was called for. Pursuant to the notice, the respondent appeared through the Counsel.
5. Heard the learned Counsel for the petitioner as well as the learned Counsel for the respondent and perused the entire material available on record.
6. Admittedly, there is a delay of 53 days in filing a petition under Order 9 Rule 13 Civil Procedure Code. Only for the first hearing date i.e. on 3-9-2004 there was no representation on behalf of the petitioner, but the Court below set the petitioner ex parte and posted the matter to 17-9-2004 for ex parte evidence. The ex parte decree was came to be passed on 17-9-2004 itself. In the present I.A. though the petitioner tried to give some explanation for condoning the delay, the Court below rejected the same. Having regard to the fact that the matter relates to matrimonial dispute, the Court below ought to have afforded another opportunity to the petitioner to contest the matter.
7. Be that as it may, coming to the facts of the case, no-doubt, the O.P. was filed under Section 12 of the Act. In the affidavit, accompanied to the petition, the respondent, at Paras 3 and 4, pleaded as under:
3. After the marriage the first night was arranged at the house of the respondent as part of nuptial ceremony the respondent is aversed towards the petitioner and refused to consummate the marriage and proclaimed that she treats the petitioner as her elder brother and called him Annayya. Thus the marriage could not be consummated due to the strange attitude of the respondent. The petitioner was shocked at the attitude of the respondent and waited for some days expecting change in her attitude. There is no change in the attitude of the respondent towards the petitioner and the elders intervention proved futile due to the adamant attitude of the respondent.
4. The petitioner is entitled to request the Hon'ble Court for a decree of divorce on the ground of non-consummation.
With the above pleading, the respondent sought for the relief as under :
9. a) grant a decree of divorce by nullifying the marriage between petitioner and the respondent.
8. Since the O.P. itself was filed under Section 12 of the Act to annul the marriage between the petitioner and the respondent by a decree of nullity, it is convenient to consider the submissions in the context of Section 12(1)(a) of the Act, which reads as under :
12 (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable any may be annulled by a decree of nullity on any of the following grounds namely :
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
X X X X X
9. Unlike prohibition for filing an application under Section 13 of the Act, there is no prohibition for filing an application for annulment of marriage by a decree of nullity, but the party, who seeks to annul the marriage, has to satisfy that the marriage has not been consummated owing to the impotence of his/her spouse. In Rangaswami v. Arvindammal : AIR1957Mad243 , the Madras High Court observed that the marriage would be avoided or dissolved on the ground of impotence if it is established that at the time of the marriage either of the spouses was incapable of effecting the consummation either due to structural defect in the organs of generation rendering complete sexual intercourse impracticable or due to some other cause.
10. A party is impotent if his/her mental or physical condition makes consummation of marriage a practicable impossibility. Amendment to Clause (a) by Act 68 of 1976, places emphasis both on factor of consummation and impotency. Merely because the respondent is set ex parte, the same will not dispense with the burden of proof, which cast upon the person, who seeks annulment of the marriage for non-consummation of marriage owing to impotence of the spouse. In the case on hand, there is no evidence to believe the case of the respondent-husband that the petitioner-wife has persisted in her attitude of exhibiting repulsion to the sexual act. It might be due to lack of proper approach by the respondent-husband for consummating the marriage and he might have been responsible for non-consummation. It should be pleaded and established that the marriage cannot be consummated in future in spite of the fact that the respondent-husband attempted to consummate the marriage, petitioner-wife had always resisted his attempts to consummate the marriage. The impossibility must be practical and it should be established by the respondent-husband.
11. The facts in Brij Vallabh v. Sumitra , are identical to the facts of the case on hand, wherein the husband sought for a decree of nullity of marriage against his wife on the ground of her impotency. The evidence was that it was only one night after the marriage that the husband attempted to consummate the marriage, but the wife deliberately refused to submit because she had been forced to marry him against her wish and soon after she went to her parents and in the absence of any second attempt made by the husband, the Rajasthan High Court held that it could not be assumed that the wife was incapable for sexual intercourse or a victim of such an invincible repugnance to the physical act. The husband failed to establish impotency of his wife on the day of marriage and its continuation until the institution of proceedings. It further held that though the respondent-wife did not appear in the trial Court, the District Judge rightly rejected the plea of the appellant-husband for granting a decree of nullity of the marriage and accordingly dismissed the appeal.
12. In the entire pleadings set out in the O.P. or in the affidavit filed in lieu of chief-examination, nowhere it is alleged by the respondent that the marriage was not consummated due to the impotence of the petitioner, where the same has to be declared as a nullity. Though the respondent filed the O.P. under Section 12 of the Act with the pleading, referred to above, requested the Court for a decree of divorce on the ground of non-consummation. It is well settled that in a proceedings, even if the respondent is set ex parte, it is the duty of the Court, before granting an ex parte decree, to satisfy itself whether the requirement of law has been complied with or not, by the petitioner.
13. Having regard to the fact that the allegations levelled against the petitioner in the O.P. do not satisfy the requirement of Section 12(1)(a) to annul the marriage by a decree of nullity, I am of the considered opinion that the Court below ought not to have entertained the O.P. under Section 12 of the Act and it could not have granted a decree of divorce declaring the marriage as nullity without satisfying the ingredients of Section 12 of the Act. The Court below has committed incurable legal infirmities in passing the ex parte decree, which cannot be sustained under law.
14. Accordingly, the civil revision petition is allowed. The order under revision is set aside and I.A. No. 1774 of 2004 is allowed and consequently the application under Order 9 Rule 13 of C.P.C. is allowed. The Court below is directed to frame appropriate issue after considering the counter-affidavit to be filed by the petitioner herein in opposition of the O.P., within two weeks from the date of filing of such counter-affidavit by the petitioner and dispose of the O.P., afresh in accordance with law uninfluenced by any of the observations made by this Court in the present revision or by it in the impugned order. No costs.