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2. Heard rival arguments canvassed on the earlier dates. Perused the record and proceedings including the depositions of the witnesses examined by the rival parties. This is an appeal filed by the wife challenging :

- the judgment and decree of nullity under Section 12 of the Hindu Marriage Act on the ground of impotency under Section 12(1)(a), and

7. The Family Court had annulled the marriage between the parties by decree of nullity on the ground of impotency of wife under Section 12(1)(a) of the Hindu Marriage Act, 1955. Said section reads as under :-

"12. Voidable marriages. - (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(ii) ............."

9. On going through the substantive evidence of the rival parties and their witnesses what is held by the Family Court so far as the prayer for nullity of the marriage is that the impotency of the wife has been proved by the husband, as she was incapable of procreation. What is held by the Family Court, is that, inability to give birth to a child presupposes that the woman is impotent and as such a valid ground as contemplated by Section 12(1)(a) of the Hindu Marriage Act, 1955. Considering the catena of judgments, some of which are cited before us by the parties, it must be said that the view taken by the Family Court is erroneous and the Family Court guided itself by wrong principles in accepting infertility of a woman equivalent to her impotency.

[Yuvraj Digvijay Sinhji v. Yuvrani Pratap Kumari] iii. 2002(3) ALL MR 945 (S.C.) [Praveen Mehta v. Inderjit Mehta]

27. So far as the first two authorities are concerned, at the cost of repetition, we must say that impotency is one of the grounds for nullity of the marriage in view of Section 12(1)(a) of the Hindu Marriage Act, 1955. However, there is a marked distinction between infertility and impotency. In the absence of any material on record showing the impotency, or to be more specific, frigidity of the wife so as to render the consummation of the marriage impossible, it cannot be said that the provisions of Section 12(1)(a) of the Hindu Marriage Act are attracted.