Judgment :- 1. This is an appeal from an order dismissing a husband's petition under S.12 of the Hindu Marriage Act (25 of 1955) for a decree of nullity annulling his marriage to the respondent on the ground that the latter was impotent at the time of the marriage and continued to be so until the institution of the proceedings. The parties are Brahmins. The marriage was on 29-1-1960 and the petition was filed on 27 51961. 2. We shall for convenience refer to the parties as the husband and the wife. The allegations in the petition were that, when the husband and the wife began to live together, the husband found that the wife was impotent, a fact not disclosed by the wife's parents to the husband's parents who arranged the marriage, and that he took her to her parents' house so that she could be given necessary treatment. The wife's parents told him that she was treated for curing the structural malformation but even after that the marriage could not be consummated as the defect continued. According to the husband the defect is incurable. The wife objected to the granting of the order stating that she was not impotent, that she had capacity for sexual intercourse and that they had lived together as husband and wife. According to her the petition was filed on account of avaricious nature of the husband who insisted on getting more jewellery and other articles than were given at the time of the marriage. Evidence was taken and the petition was dismissed holding that the wife was not impotent, at any rate, on the date of institution of the proceedings. 3. The principal witness in the case was Dr. Ponnamma (CPw. 2), the Professor of Obstetrics and Gynecology in the Medical College, Trivandrum. She had treated the wife after the marriage. She brought the case sheet containing material facts and gave evidence. She deposed that the wife's parents brought her to the S. A. T. Hospital for treatment and that she treated her from 20 71960 to 20 81960. She performed a minor surgical operation. The notes prepared by the doctor when she first saw the wife are: "The complaint was dyspruenia and pain in the vulval region. It means difficulty in coitus. Introstus (entrance to the vagina) very narrow. Admits one finger. Two fingers cannot be passed in. She performed a minor surgical operation. The notes prepared by the doctor when she first saw the wife are: "The complaint was dyspruenia and pain in the vulval region. It means difficulty in coitus. Introstus (entrance to the vagina) very narrow. Admits one finger. Two fingers cannot be passed in. There is marked spasm of sphincter of vagina. Speculum cannot be passed in. Uterus and Adenexa normal in size and position. Advised Perineotomy". Counsel asked her: "When you saw her first, was it possible for a normal man to have sexual intercourse with her?", and her answer was "Difficult". She added: "Perineotomy is enlarging the opening to the vagina by operative procedure. This operation was done on 20 71960. After the operation there was improvement in the local condition. Speculum could pass and two fingers could be introduced. Opening was sufficiently large and the wound was healed". A pointed question was then put: "After the operation could a normal man have sexual intercourse with the woman", and her answer was "Yes". She also made a note before the patient was discharged that two fingers could be introduced. She added: "The function has to be tested. For that there must be co-operation between the two." In cross examination she stated that this defect was one which could be cured by an operation. 4. The evidence of CPw. 2 to which we attach great importance shows that the structural defect was removed by the operation performed by her. The husband was not satisfied with this evidence and he applied to the court to order the wife to be examined by one of his doctors named by him in the application. The wife readily agreed and she was accordingly examined on 15121961 by Dr. Chandramathy Amma who sent a report Ex. C-1 to the court. Her report reads: "Depth of her vagina is 31/2" and a vaginal speculum could be introduced easily without causing any discomfort or pain to her. This shows clearly that there is no defect causing incapacity in sexual intercourse. There is no malformation, structural or other defects in her genital organs making her incapable of sexual intercourse". The opinion was given in these terms: "I am of opinion from the observations made at the time of examination and the facts mentioned overleaf that she has no defects making her incapable of sexual intercourse". There is no malformation, structural or other defects in her genital organs making her incapable of sexual intercourse". The opinion was given in these terms: "I am of opinion from the observations made at the time of examination and the facts mentioned overleaf that she has no defects making her incapable of sexual intercourse". Counsel for the appellant argued that the report of Dr. Chandramathy Amma should not have been relied on as she was not examined in the case. There is no force in this argument. On the application of the husband, Dr. Chandramathy Amma was appointed commissioner to examine the wife and report on her condition after the operation. If the husband wanted to prove that her conclusions were wrong, he should have taken steps for her examination. The report of a commissioner appointed by court is evidence in the case and forms part of the record. 5. The husband admitted that he had not attempted sexual intercourse with the wife after she underwent the operation. Though the opinion of a doctor, however eminent, is by no means conclusive, we have no hesitation in accepting the medical evidence, especially in the absence of any counter evidence. It has been clearly established that the malformation of the vagina was one which could be eradicated and was eradicated as a result of a successful operation which CPw. 2 described as a minor operation. 6. The true test of incapacity has been stated by Karminski J., in S. v. S., (1954) 3 All E. R.736, in these terms: "The true test of incapacity was the practical impossibility of consummation." In S. v. S. the husband's petition was dismissed by Karminski, J., and the decision was confirmed by the Court of Appeal. The medical evidence in that case was that a malformation of the wife's vagina could be set right by plastic surgery. The present case is a much stronger one as the evidence is that a minor operation was successfully performed which made normal intercourse possible. 7. Counsel for the appellant drew our attention to an answer given by the wife in cross examination: "CPw. 2. It was argued that this was an admission that there was no improvement in her physical condition even after the operation. This has to be read in the context and it appears to us that what she meant was that there was nothing abnormal. 2. It was argued that this was an admission that there was no improvement in her physical condition even after the operation. This has to be read in the context and it appears to us that what she meant was that there was nothing abnormal. She could not say more, as the husband had not permitted her to live with him after the operation. 8. There is some substance in the contention of the wife that the real complaint of the husband is that she was not provided with as much jewellery and other articles as he expected. This is clear from the letter, Ex. D-1, written by him to his father-in-law on 5 21960. Further, the husband admitted in cross examination that he had written to his wife that she should have ornaments weighing 18 sovereigns when he comes next or his conduct would change and that what all would take place in such an eventuality remained to be seen. This explains his reluctance to take his wife with him even after the operation. On the evidence the only conclusion possible is that reached by the judge, namely, that the wife was not impotent at the time of the institution of the proceedings. We therefore confirm the order of the learned judge and dismiss the appeal with costs, including counsel's fee of Rs. 100/-. As a sum of Rs. 100/- has been paid towards costs of the respondent, pending this appeal, the same will stand adjusted towards costs ordered. Dismissed.