J.P. Jain, J.
1. The judgment and decree of the District Judge, Jodhpur, dated 13-3-74 has given rise to this appeal by Ganpat Raj whose petition for annulling the marriage with the respondent has been dismissed.
2. The appellant Ganpat Raj filed a petition under Section 12 of the Hindu Marriage Act on 22.8.73, against. Smt. Usha with the allegation that the parties were married at Jodbpur on 3-7-72. After the marriage the respondent came to the petitioner's home only twice and that too under the pressure of her father. But she did not allow the marriage to be consumated According to the petitioner there could be no consumation of the marriage until the date of the petition. He accordingly prayed for the annulment of the marriage on the ground that Smt. Usha was impotent on the date of the marriage and continued to be so until the date of the petition. Smt. Usha did not put in appearance respite of notice. The case proceeded exparte. In support of his contention Ganpat Raj examined himself as P.W. 1Gulab Mehra his sister-in-law, wife of his brother Narpat Raj as P.W. 2, Ganpat Jain as P.W. 3 and Mohan Raj Mehta, his father as P.W. 4. The learned Judge after having discussed the evidence and the relevant vant law on the point held that the marriage had not been consumated. But the refusal on the part of Smt. Usha to submit herself to sexual intercourse was due to obstinacy. The learned Judge refused to inter that she was in any way incapciated or psychologically impotent. He dismissed the petition of Ganpat Raj.
3. On behalf of the appellent Mr. P.C. Mathur read out the evidence before me. Smt. Usha put in appearance through Shri Ranamal Mehta. The contention of Mr. Mathur is that the conduct of Smt. Usha soon after the marriage and all efforts to persuade Smt Usha to resume her martial Objection having failed give rise to an irresistible inference that the respondent had uncontrolable and invincible repugnance to the sexual intercourse with the petitioner. He also referred to Kishore Sahu v. Mrs. Snehprabha Sahu AIR 1943 Nagpur 185. He referred to some decisions referred to in Nagpur Case at page 191 of the report. Those decisions were not placed before me as Mr. Mathur admitted that he could not lay his hands on the full reports of those cases.
4. After having carefully gone through the evidence, it is no doubt borne out, that there have been no consumption of marriage. As a matter of fact Ganpat Raj admitted that on the first night after the marriage Smt. Usha refused to share his bed and she told him bluntly that her marriage has been performed against her wish Second time she visited her husband's house, P.W. 1 stated she fled away from the house after jumping from the window. Those days Ganpat Raj was in service at (sic). According to his deposition his people tried to persuade Smt. Usha to accept Ganpat Raj as her husband as a fait accompli but she was not prepared to accept him as her husband. Smt. Gulab Mehta is the brother's wife of Ganpatraj She is also related ro Smt. Usha. She stated that she was at her father's place which was the, same as the 'Nanihal' of Smt. Usha, Soon after the marriage she found one day Smt. Usha at her Nanihal where Smt. Gulab Mehta was also staying on that occasion. She also stated that Sent. Usha's marriage was done against her wish and she was not prepared to reconcile herself to the marriage. Ganpat Jain P.W. 3 is cousin of the petitioner. According to him he talked over the matter with the brothers of Smt. Usha but his efforts failed. Mohan Raj Mehta P.W. 4 deposed on the same lines that at once soon after the marriage she refused to accept his son as her husband. Within next 15 days she visited his house a second time but after a while she ran away from the house after jumping through the window. He also admitted that Smt. Usha's grievance was that her marriage has been brought about by coercion from her father. He also talked over the matter with the father of Smt Usha and her father persuaded Smt. Usha for sometime but ultimately he expressed his helplessness in the matter. From this evidence the best that can be inferred is that the marriage between the parties was performed against the wish of Smt. Usha, and after the marriage she was not able to reconcile herself to accept Ganpat Raj as her husband. This is also borne out that on two occasions when she was at her father in law's place she told in a straight forward manner that she was not repared to accept Ganpatraj as her husband and she refused to submit herself to sexual intercourse. The evidence does not disclose that how long the efforts continued. This petition was filed after more than one year of the marriage. None of these witnesses stated that Smt Usha was given some time to Calm down and the efforts to persuade her to come to her husband's house continued. From this evidence it is difficult to conclude that it was on account of impotency physical or psychological that she refused the consummation of the marriage. On the face of it this was a deliberate refusal as the was not interested in the marriage with the petitioner and it was brought about against her wish.
5. My attention has been invited to two cases referred to in the aforesaid Nagpur case. One is (1910) 27 TLR. 429 and the other one is (1910) 27 TLR. 421. In the first case the couple stayed together for one day. In the second case the couple had never lived together at all. Facts of the first case are clearly missing in this report and as noticed earlier that the full report had not been placed for reference. As regards the second case some facts are available in the report itself. In that case couple did not live together at all after marriage. But it appears that the wife did not appear and refused to submit to a medical examination. The court deciding that case had to proceed on the evidence of the husband and the letters from the wife to him saying that he idea of consumating the marriage was absolutely repugnant to her. Thus this made all the difference In the present case there is no evidence worth the name that the idea of consumating the marriage was repugnant to her. That apart, no attempt was made by the petitioner in the trial Court to get her medically examined to find out if she was physically or psychological impotent. The reference of these two cases, therefore, does not help the appellant. The nearest case to the present case is Bnj Vallabh v. Smt. Sumitra 1975 RLW 53. It was decided in that case, alter having considered various authoririties, that mere non consumation of marriage due to wife's refusal for cohabitation after marriage and then after staying away from the husband does not prove wife's impotency and cannot be ground for annullment of marriage. The Nagpur case was also discussed in that case.
6. That apart, Mr. Ranamal oa one of the hearings in this case ins formed this Court that Smt. Usha is prepared to go back to her husband. With a view to reconcile the matter I directed the parties and their counsel to appear in my chamber. On being asked Smt. Usha expressed her unconditional willingness to go to her husbands house and discharge her marital obligations. But it was regretting that the appellant Ganpat Raj was nut prepared to accept her word. He clearly stated before me that he is unable to take her back. Thus the effort on my part to bring about reconciliation failed. This, however, establishes one thing that Smt. Usha has climed down and became soft towards Ganpat Raj with the lapse of time. It appears that she is now prepared to accept the realities of life The fact that she was unable to reconcile herself to the marriage, which was admittedly performed against her will does not give rise to the inference that she was physically or psychologically impotent. This fortifies my view which has been taken on the evidence discussed above.
7. In the result I find no substance in this appeal and it is hereby dismissed. The parties will bear their own costs of appeal.