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7. Mr. Dalvi has attacked the evidence of the petitioner and contended that the case now made out by the petitioner is different from the one in the petition. He says that initially in the notice of the advocate, case was made out of misrepresentation as to the virginity of the respondent, while the case sought to be made out in the petition is that of concealment of the evidence of prolapse and of impotency and in the evidence there are further embellishments. In support he refers to a statement "my client has reasons to suspect, taking into consideration, the medical report and your behaviour and the surrounding circumstances, that you were not a virgin and wanted to conceal the fact from my client, and that, that was one of the main reasons why you were refusing to have sexual intercourse with my client and have the marriage consummated". However, the notice has to be read as a whole. Moreover, a notice is not a pleading and not to be interpreted as a pleading. The notice does mention that the marriage had not been consummated till the date of the notice due to the impotency of the respondent. It is further stated that she was examined by Dr. Bhatia and she had given a certificate to the effect that it was found that the hymen was torn and that there was a second degree prolapse of the uterus, indicative of non-virginity. It would appear that the words 'indicative of non-virginity' are the inference drawn by the petitioner or his advocate based on the facts disclosed in the certificate. Then follows a sentence relied on by Mr. Dalvi followed by another sentence in the same paragraph "that you have suppressed the material facts and your sexual lapse and defect, which were within your knowledge". It is, therefore, clear that the notice proceeds on the basis of non-disclosure of sexual lapse i.e., loss of virginity before marriage as also concealment of sexual defect viz., prolapse. I do not think that either the petition or the petition read with notice are open to the attack made by Mr. Dalvi.

13. This brings me to the examination of the respondent by Dr. Bhatia. It is admitted that the respondent was taken to Dr. Bhatia. According to Dr. Bhatia's evidence she had examined the respondent and had found that she had second degree prolapse of cervix, that the cervix was hypertrophied and that the hymen was torn. She gave a short certificate dated 27th August, 1976, giving only this details. There is another certificate issued by her dated 28th August, 1976, on record which says that the cervix was hypertrophied and elongated, hanging outside the vagina and that the cervix was about 2 1/2" long. The uterus was retroverted and of normal size. It further states that the respondent confided that she was having masturbation to satisfy herself before marriage and that she had no sexual contact with her husband after marriage. The second certificate has been seriously challenged and attacked on behalf of the respondent, particularly, the alleged confiding regarding masturbation and not having sexual contact with the husband. There is no doubt that the manner in which the certificate is produced and was sought to be surreptitiously put in the record justifies the severe attack. However, it is to be noted that this attack was not made when Dr. Bhatia was giving evidence and she was not asked any question on this certificate or as to how the same came to be issued. When this certificate or as to how the same came to be issued. When this certificate was marked as exhibit, D-11 do not find any record of any objection having been raised. It appears that thereafter the petitioner was recalled and cross-examined. The value and effect of the certificate has to be considered in the light of the circumstances. The second point of attack regarding this certificate is that Dr. Pancholi has stated in his evidence that it was not necessary to enquiry about masturbation while considering the question of prolapse of uterus. However, in view of absence of cross-examination of Dr. Bhatia on both the points, this attack is difficult to sustain, though the attempt to surreptitiously put this certificate in, has to be strongly deprecated. However, that default on the part of the petitioner cannot be used to cast reflection on the integrity of Dr. Bhatia, without she having been given an opportunity to meet the attack. It was wrong on the part of the advocate to put in two certificates while tendering one certificate. The petitioner may not have disclosed the said certificate earlier to the Advocate and may have disclosed this certificate afterward or that the Advocate through some mistake had failed to include the same in the list of documents or in the affidavit of documents. Whatever may be the reason, it ought not to have been handed over to the Court Officer for identification in the guise of producing one certificate. However, in view of Dr. Bhatia's evidence this certificate cannot be completely rejected. Dr. Bhatia has stated in her evidence that she had asked the respondent if she had any sexual intercourse and the respondent had told her that she had not undergone any sexual intercourse. She further says that the respondent told her that respondent was indulging in hand masturbation since last 3 years to satisfy her sexual lust. She was further stated that normally cervix will not come out in the case of prolapse of uterus, unless there is a rupture of hymen. The she has stated that she had maintained notes of examination of the respondent and the notings showed that the respondent had told her that she had no sexual contact with her husband, the petitioner. It is, therefore, clear that she had maintained notes which support her evidence and the second certificate which is challenged appears to be based on the notes made. In the whole of her cross-examination, I do not find any attack on the second certificate by suggesting that it was subsequently procured with a view to bolster up the petitioner's claim and was false. If I accept that, the certificate was issued on 28th August, 1976, then the certificate must be accepted as genuine. In her cross-examination no case has been made out of the certificate of 28th August, 1976, having been issued in collusion with the petitioner by antedating it. It will be unjust to pass any comment on the integrity of a doctor of having antedated the certificate without her being given a chance to offer an explanation or producing evidence in support of the certificate under challenges. If this attack was to be made she should have been asked for an explanation as to the reason why this was issued and the circumstances in which it was issued. Secondly, the question about necessity of asking question as to masturbation was also not put to Dr. Bhatia. If she was asked the question she could have explained as to what led to that question. It is possible that this question arose naturally. Congenital prolapse is of rare occurrence. Normally prolapse of the uterus is the result of several child births and does not result suddenly. If a patient come with an ailment, particularly such as prolapse, which admittedly requires time to develop and if doctor finds such an ailment at an advanced stage and when it is known that the person is recently married, the doctor examining would naturally ask as to since when the ailment started. Such a question in normal course can lead to a question of when and how the hymen was ruptured. The normal reply to that would be in the absence of there being any history of premarital sexual intercourse, that hymen must have been broken by reason of taking part in sports or due to masturbation and son in response to such a question the respondent could have admitted masturbation. Therefore, there is nothing unusual in the question having been asked or the response which was given by the respondent. There is no reason to disbelieve the evidence of Dr. Bhatia and I accept the same. If this is accepted it will naturally follow that the respondent was suffering from prolapse of uterus to her knowledge since prior to her marriage.

15. This brings me to the evidence of Dr. Pancholi. He says that when the respondent was first brought to him, she had second degree prolapse and such prolapse will not prevent intercourse if proper manipulation is done, i.e. pushing of the uterus with the hand either by husband or wife. This would clearly mean that intercourse is not possible before such manipulation. If that be so, it again makes it impossible to believe the version of the respondent they were having normal relations and that she did not know anything about her condition. If the husband had found that this was the position, he would have immediately questioned her and taken her to a doctor instead of waiting for about 2 months before doing so and going on a pilgrimage rather than have the condition treated. The evidence of Dr. Pancholi again shows that at the time of examination, Dr. Pancholi and the respondent had discussions about her married life. He says that he had asked the respondent about what was the complaint and she had replied that she had no complaint but that some other doctor had told her that her uterus was lying outside the vagina. Dr. Pancholi further says that even in lying down positions the uterus was lying outside by about half an inch. This makes it impossible to believe that the respondent did not knew of her condition. He then proceeds to say that feeling of bearing down and heaviness could have been felt with the prolapse of uterus. This means that the respondent could not have been unaware of her condition as she pretends. He then says that the respondents did not have difficulty in walking or rubbing of thighs and that she did not have any complaint of pain, etc. and that such case of prolapse can remain unnoticed. This evidence of Dr. Pancholi may be true but the date of lack of symptoms is obviously based on the history given by the respondent who obviously was trying to hide from the outset any knowledge of her conditions and therefore, the facts as given by the respondent and related to the doctor cannot be relied upon to come to the conclusion that the respondent did not experience any ill-effect of her condition prior to the marriage.

16. Apart from this evidence of Dr. Pancholi, which leads me to reject the evidence of respondent, the evidence of Dr. Pancholi also does not inspire much confidence in respect of possibility of intercourse without manipulation. As aforestated he has asserted in examination-in-chief that prolapse will not prevent intercourse if proper manipulation is done. Then in cross-examination he says that it is not true to suggest that prolapse in which the uterus comes out by half inch in lying position or comes out one inch in standing position is medically a sexual defect. Then he says that for each act of intercourse in case of prolapse of uterus, the uterus has to be pushed up before performing the act or a rubber pessary has to be inserted to avoid frequent manipulations. Inspite of this he proceeds to say that sexual act can be performed even without manipulation of any kind and then asserts that full free and natural intercourse with a woman suffering from prolapse of uterus is possible with or without manipulation. I do not think that his evidence on this aspect of the matter can be accepted and the only conclusion is that the intercourse is possible only after manipulation which cannot be said to be free and normal intercourse.