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Divorce Act (IV of 1869)-

-- Ss. 18, 19 & 20 - Nullity of marriage - Impotency-Husband admitting to have undergone medical treatment for impotency on two occasions but to have - not been cured-Husband further admitting to have had no child from his former wife-Medical report stating husband's examination having not revealed anything debarring him from sexual intercourse, held, rightly found by lower Court to be no conclusive proof of such husband's potency in circumstances.

Petitioner in person.

Sh: Nisar Qutab for Respondent.

Date of hearing : 18th February 1978.

MUHAMMAD RAFIQ TARAR, J.-Bashiran petitioner filed a petition under sections 18 and 19 of the Divorce Act of 1869 in the Court of District Judge,

Sahiwal, seeking dissolution of her marriage with Bakhsha respondent on various grounds contained in paras. 2 to 6 of the petition. The respondent resisted the petition. On the pleadings of the parties the learned trial Judge framed the following issues :

(1) Is the respondent impotent O. P.

(2) Did the marriage of respondent with one Mst. Rehmata subsist at the time of his marriage with Mst. Bashiran the petitioner. If so what is its effect 7 O. P.

(3) Was Mst. Bashiran the petitioner subjected to cruelty and physical violence so long as she lived with the respondent 7 O. P.

(4) Have not the parties colluded with each other to have a judicial divorce 7 O. P.

(5) Relief.

The parties adduced their evidence before the learned trial Judge who found issues Nos. 1 and 4 in favour of petitioner and passed a decree of nullity of marriage in her favour which is now before us for confirmation under section 20 of the aforesaid Act.

2. In support of her case the petitioner examined five witnesses including herself and also tendered a certified copy of the statement of the respondent made in the previous suit to show that he was impotent. In rebuttal the respondent examined three witnesses. Dr. Shabbir Suleman, Medical Officer, Civil Hospital, Okara, stated that he examined the respondent but "could not find any thing which could debar him from performing sexual intercourse". (DE) The learned counsel for the respondent contends that section 18 of the Act requires proof of impotency at the time of marriage as well as at the time of the presentation of the petition but there was no such evidence on the record, therefore, the finding of the learned trial Judge on issue No. 1 is unsustainable.

3. We have gone through the record. The order of the learned District Judge shows that the petitioner had filed a petition earlier against the respondent which was subsequently withdrawn with permission to file a fresh suit. In those proceedings the respondent made a statement on 10-10-1974 wherein he admitted that Mian Bandesha had medically treated him for impotency for about a month and Dr. Nazar Muhammad of Wan Radha Ram had also treated him for the same for about ten days but he was not cured. He further admitted that he did not have any child from his former wife Mst. Rehmat Bibi. Appearing as her own witness the petitioner stated that the respondent was impotent. The finding of the learned District Judge that the "report Exh. DE is not the conclusive proof of the potency of the respondent", is well-founded. In view of the statement of the petitioner and the admission made by the respondent in his statement dated 10 10-1974, the learned District Judge rightly held that the respondent was impotent. In the circumstances, no exception can be taken to his finding on issue No. 1. The decree passed by him is, therefore, confirmed.

S. A. H. Decree confirmed.

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