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The learned Judge then proceeded to observe that he had to deal with the matter by looking at the practical aspect if the marriage can be consummated. The basis for interference of the Court is not the structural defect but the impracticability of consummation. He held that the evidence showed that the wife knew about her condition but took no steps to rectify it earlier and then granted decree of nullity.
24. The next case is Samar v. Sadhana. , That was the case of a wife who he prior in the marriage undergone operation for removal of uterus and as such was alleged to e impotent at the time of marriage and untill for constimmation or bearing child, It is held in that case (at p. 414) :-
Therefore, even when coition is difficult or painful it will amount to impolency but just because a woman cannot bear a child will not be impotency as contemplated by the laws govering divorce. I would like to add to this definition the words "that the condtion of the partner is such as to cause aversion or abhorrence in other rpartner to having intercourse."
25. Then comes the case of Samar v. Snigdha, Prior to the amendment of 1976, the ground for nullity under Hindu Marriage Act was "that the respondent was impotent at the time of the marriage and continued to be so untill institution of the proceedings." There is a change in law, with the amendment of the relevant provisions which now reads "that the marriage has not been consummated owing to the impotency of respondent" while interpreling the amended provisions, the Calcutta High Court has held:-
28. However, following observations in the case are material 9at p. 184) "Before the Marriage Laws (Amendment) Act, 1976 it was necessary to prove that the respondent was impotent at the time of marriage and continued to be so untill the institution of the proceedings. As a result of the Marriage Laws (Amendment) Act., 1978, the petitioner has now to establish that the marriage has not been consummated owing to the impotence of the respondent. It is common case that the provisionss of Ameded Act are attracted in view of the express provision made by Sec. 39 of the Marriage Laws (Amendment) Act, 1976."