JUDGMENT : Rakesh Thapliyal, J. 1. The present First Appeal is preferred under Section 19 of the Family Courts Act, 1984 against the ex-parte judgment and decree dated 31.05.2022, passed by the Judge, Family Court, Kashipur, District Udham Singh Nagar in Original Suit No. 198 of 2020 Raj Kapoor vs. Smt. Sarika Tandon. By the said ex-parte judgment and decree, the petition filed by the appellant-husband under Section 12 of Hindu Marriage Act, 1955 seeking the declaration that the marriage solemnized on 30.06.2020 be declared as void, is dismissed. 2. The facts of the appellant’s case may be briefly stated as follows : The plaintiff/appellant got married with defendant-respondent Smt. Sarika Tandon on 30.06.2020. There was no demand of dowry, and the marriage was solemnized in the presence of their relatives. The entire expenditure of marriage at Hotel, Meals etc. was borne by the father of the plaintiff-appellant. After the marriage, the appellant-plaintiff tried to make physical relations with his wife on the first night, however, the defendant said that she is unwell and she does not want to make relations and on this, the plaintiff got annoyed with the defendant-respondent. After 2-3 days of the marriage, the plaintiff got his wife medically checked-up from a Homeopathic Doctor, namely, Dr. Rajesh Bishnoi, who prescribed some medicines after asking about the symptoms from his wife. After taking the medicines for 4-5 days, the defendant-respondent (wife) told the plaintiff-appellant (husband) that she is fine now. The plaintiff/appellant again tried to establish relations with the defendant-wife, but she kept postponing it on one pretext to another. The appellant/plaintiff gifted a mobile phone on her demand costing Rs. 12,000/- on 22.07.2020, and mother of the plaintiff/appellant also spend Rs.7000/- in shopping for Smt. Sarika Tondon. The defendant-wife, even then did not give any importance to the plaintiff. After the marriage, the family of the plaintiff also organized a function on 23.07.2020 on the occasion of a festival ^^gfj;kyh rht** . 12,000/- on 22.07.2020, and mother of the plaintiff/appellant also spend Rs.7000/- in shopping for Smt. Sarika Tondon. The defendant-wife, even then did not give any importance to the plaintiff. After the marriage, the family of the plaintiff also organized a function on 23.07.2020 on the occasion of a festival ^^gfj;kyh rht** . It is further contended by the appellant-plaintiff that till 28.07.2020, the defendant-wife had not made any physical relations with the plaintiff-appellant and at about 9:00 A.M. on 28.07.2020, the defendant-wife went with her brother Kapil Tandon to live for some days with him and she took 4 gold bangles weighing 66 Grams, (costing Rs.3,50,000/- approximately); one diamond ring costing of Rs.52,000/-; one eaxylw= with Diamond Pendulum costing Rs.90,000/-; one ring, ear tops, chain, and one Diamond pendulum costing of Rs.1,50,000/-; gold chain with Rhodium polish. The appellant-plaintiff gave also an amount of Rs.4,000/- in cash and Rs.700 for sweets. It is further contention of the appellant-plaintiff that the defendant took her cloths in a suitcase and other articles and she told the plaintiff and his family members that after Rakshabandhan and before the Bhaiadooj festival ¼HkkbZ fcUuk½ , she would come back. Before Rakshabandhan, the plaintiff-appellant made a phone call to the defendant on 01.08.2020 asking her on which date he should come to Moradabad to take her. The defendant-respondent told that she would inform after asking from her brother and sister-in-law and when there was no response then again the plaintiff-appellant made a phone call to the defendant-respondent on the next day, however, the defendant-respondent told him that her brother and sister-in-law are requesting for staying one or two more days. On the same day, i.e., 02.08.2020, another phone call was received by the mother of the plaintiff-appellant Smt. Neelima from the aunt of his wife (defendant-respondent) and she told that since no physical relations had been established between Raj Kapoor (plaintiff/appellant) and Sarika (defendant-wife) and it appears that Raj had some physical deficiency and sent him to Moradabad for medical check-up at COSMOS Hospital. After hearing this, the plaintiff was shocked as the defendant in order to hide her impotency blamed the plaintiff-appellant being physically impotent. Thereafter, father of the plaintiff/appellant talked with the family members of the defendant and gave a proposal for check-up of both, the plaintiff (husband) and the defendant (wife). After hearing this, the plaintiff was shocked as the defendant in order to hide her impotency blamed the plaintiff-appellant being physically impotent. Thereafter, father of the plaintiff/appellant talked with the family members of the defendant and gave a proposal for check-up of both, the plaintiff (husband) and the defendant (wife). The defendant and her family members refused to accept the said proposal and told that the plaintiff should be tested. After hearing this, father of the plaintiff-appellant got annoyed and said that the plaintiff would not be tested alone but both should be tested. Due to this, the differences arose between both the families. 3. Thereafter, the plaintiff-appellant preferred an Original Suit No. 198 of 2020 under Section 12(1) (a) of the Hindu Marriage Act, 1955, seeking a decree of annulment of the marriage between the plaintiff-appellant and the defendant-respondent and also for declaring the marriage as null and void. The learned Family Court issued the notices to the defendant-respondent but she had not appeared before the court below in spite of service of notice nor any objection or reply was filed on her behalf. Consequently, the Court below vide order dated 18.08.2021 ordered that the proceedings will be initiated ex parte against the defendant. 4. In support of his case, the plaintiff examined himself as PW1. By filing an affidavit of evidence paper no. 12-Ka and examined his father as PW2 by filing of an affidavit of evidence, i.e., paper no. 13-Ka. The plaintiff as PW1 and his father as PW2 stated in their affidavits that the defendant used to postpone the physical relationships. The Family Court after examining the PW1 and PW2, who had filed their evidence through affidavits, came to the conclusion that since the plaintiff and the defendant had not got medically checked-up and since there is no material on record showing that the defendant is impotent and due to the impotency she refused to make physical relationship with her husband, the Family Court finally came to the conclusion that the husband has failed to prove that his wife is impotent and, as such, the plaintiff failed to prove the condition as required for declaring the marriage voidable and dismissed the suit of plaintiff/appellant vide order dated 31.05.2022. 5. We have carefully gone through the Judgment as well as the record of the present appeal. 6. 5. We have carefully gone through the Judgment as well as the record of the present appeal. 6. On perusal of the judgment passed by the Court below, it appears that the suit of the plaintiff-appellant was dismissed without framing any issue. Not only this, the Court below failed to appreciate that there is no rebuttal evidence on record regarding impotency of the respondent. There is a specific averment that despite all efforts, the defendant was not agreed for physical relationship with the husband, even for a single day such relationship was not established, which amounts to mental cruelty with the plaintiff-appellant. 7. At this juncture, the reference of section 12 (1) (a) of the Hindu Marriage Act, 1955 is being made, which is reproduced herein below, which reads as under : 12. Voidable marriages.— (1) Any marriage solemnised, 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: — [(a) that the marriage has not been consummated owing to the impotence of the respondent. 8. In order to interpret the aforesaid provisions, it is very necessary to consider what is the meaning of Consummation. “The most commonly accepted definition of consummation is the sexual intercourse between two people prior to or following the wedding. However, in some holy writings, it is explicitly stated that there should be no hindrance or contraception utilised during penile-vaginal contact. A marriage is stated to be all about creating a family of parents and legitimate offspring, as well as satisfying the sexual desires of one or both of the partners. A marriage is considered a failure if it cannot be completed through sexual relations because of one or both partners’ inability to engage in them owing to medical or considered to be legally married. In common law marriages, an annulment is also possible. This is also the origin of many of the world’s most famous bedtime rituals.” 9. In reference to this, Gauhati High Court in the case of Debashis Chakraborty vs. Mausumi Bhattacharjee reported in 2007 SCC Online Gau 20 has held in Para 18 that impotency can be due to physical or psychological reason, there is no rule of law requiring that in a petition under Section 12 (1) (a), the evidence of the petitioner must received independent corroboration. The evidence of the petitioner alone can be accepted as sufficient to justify passing of a decree. Quality not quantity would determine sufficiency of evidence as provided by Section 134 of the Evidence Act. In this a reference is being made of the decision of Bombay High Court in the case of P. vs. K., reported in 1981 SCC Online Bom 135, wherein in para 21, the question of impotency has been dealt with and while dealing this question, the decision of Full Bench of Madras High Court in the case of K. Balavendram vs. S. Harry, AIR 1954 Mad 316 (FB) was also taken into consideration. The relevant portion of the said judgment is as follows : “(4) Impotency has been understood by judges in England in matrimonial cases as meaning incapacity to consummate the marriage, that is to say incapacity to have sexual intercourse, which undeniable is one of the objects of marriage. The question is, what does “sexual intercourse” mean? We cannot do better than refer to what has been considered to be the leading decision on this topic, namely – D.E. v. A.G.’ (1845) 163 ER 1039. In that case, the husband prayed for a declaration of nullity of his marriage with the respondent who was married to him on the ground that carnal consummation was impossible by reason of malformation of his wife’s sexual organ. Dr. Lushington dealt with the point namely, what exactly is to be understood by the term “sexual intercourse”, because as he said everyone was agreed that in order to constitute the marriage bond between young persons, there must be the power, present or to come, of sexual intercourse. Dr. Lushington stated “sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect intercourse; Yet, I cannot go the length of saying that every degree of imperfection would deprive it of its essential character. There must be degrees difficult to deal with, but if so imperfect as scarcely to be natural. I should not hesitate to say that legally speaking, it is no intercourse at all. If there be a reasonable probability that the lady can be made capable of a ‘vera copula’ of the natural sort of coitus, though without power of conception I cannot pronounce this marriage void. I should not hesitate to say that legally speaking, it is no intercourse at all. If there be a reasonable probability that the lady can be made capable of a ‘vera copula’ of the natural sort of coitus, though without power of conception I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipient, imperfect and unnatural coitus, I would pronounce the marriage void.” 10. Apart from this, refusal to have physical relationship is also categorised as a case of “mental cruelty”. The Hon’ble Apex Court in the case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 , categorised the causes of mental cruelty. The extract of para (xii) of para 101 of the said judgment is being reproduced here as under : (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. 11. Now, another question arises to whom the burden of proof lies in proving that the respondent is impotent. Admittedly, in the present case, the plaintiff-appellant bears the burden of proving that the defendant-respondent is impotent. It’s thought to be crucial that the information is only shared between the two people involved that is the husband and the wife. Medical tests are often used as evidence in cases of infertility. Moreover, proof of impotency is critical because merely accusing someone of being impotent is not being enough because there will be no proof but only one person’s word against another. No doubt, an examination by a medical professional is regarded the most reliable evidence of impotence. In the event that a person refuses to take a medical examination, the marriage is declared null and void. A person, who accepts accusation of impotence and then rejects the text, is awarded an annulment as well. Unless for an option to take the test or not, but if they refuse to do so without providing legitimate justification, the Court will award them an annulment. 12. The learned counsel for the appellant relied upon the decision rendered by the High Court of Kerala in the case of Antony vs. Francisca 1988 SCC Online Ker 156. In this case, the stand of the husband was that in spite of his earnest efforts, he was unable to have sexual intercourse with the respondent-wife. 12. The learned counsel for the appellant relied upon the decision rendered by the High Court of Kerala in the case of Antony vs. Francisca 1988 SCC Online Ker 156. In this case, the stand of the husband was that in spite of his earnest efforts, he was unable to have sexual intercourse with the respondent-wife. It is his further case that whenever he approached the respondent for sexual intercourse, she used to get disturbed and her mental balance appears to be lost. In spite of several attempts made by the respondent to impress her about the necessity for sexual union in a marriage, she was unable to change her attitude. It was his case that several attempts were made through the members of both the families to persuade the respondent to change her attitude, all these attempts had failed. In the counter-statement filed by the respondent-wife accepts its attempt that the marriage has not been consummated. She further taken the stand that her mental state is that it is impossible for her to make sexual intercourse with the petitioner. She further states that she does not believe that there is any possibility of her being able to attain such mental capacity or wish to have sexual intercourse with him. Consequently, the Kerla High Court confirmed the decree of nullity of marriage on the ground of impotency of the wife. The another judgment, which has been relied upon by the learned counsel for the appellant is in the case of Sucharita Kalsie vs. Rajinder Kishore Kalsie, 1974 Online Delhi 155. 13. In the present case, in spite of service of notice upon the defendant-wife neither she appeared before the court below, nor filed any objection and, hence, there is no rebuttal to the allegations as made against the defendant-respondent and since there is no rebuttal, the court below erred in law in dismissing the suit ex parte. 14. Apart from this, there is no counter-statement of the defendant-respondent, and there is no rebuttal in spite of service of notice. 14. Apart from this, there is no counter-statement of the defendant-respondent, and there is no rebuttal in spite of service of notice. The wife never presented herself before the court below, therefore, the stand as taken by the plaintiff-appellant in a petition filed under Section 12(1)(a) of Hindu Marriage Act, 1955, cannot be disbelieved and due to un-rebuttal of the statement as made in the petition filed under Section 12 (1)(a) of the Hindu Marriage Act, 1955, the court below committed a manifest error in dismissing the suit ex parte. 15. We have gone through the said judgement as cited by the learned counsel for the appellant and also examined the facts of the present case. The conduct of the respondent-wife is also very relevant since she did not even appear before the Family Court in the petition preferred by the appellant-husband under Section 12 of the Hindu Marriage Act, 1955. Despite this, the Family Court dismissed the petition ex parte by observing that there is no evidence on record which shows that the defendant is impotent. Such observation cannot be sustained when the petition was filed with a specific averment that since the day, the marriage was solemnized, there is no physical relationship of the appellant-plaintiff (husband) with the defendant-respondent (wife). 16. In our view, the learned Family Court was not right in dismissing the petition and, as such, the judgment and decree passed by the Family Court dated 31.05.2022 in Suit No.198 of 2020 Raj Kapoor vs. Sarika Tandon, is set aside. In view of the observations as made above, we allow the appeal and declare the marriage between the parties as null and void on account of impotency of the respondent. No order as to costs.