A.N. Mody, J.
1. The appellant (original petitioner) the husband, and the respondent (the original respondent) were married on 20th June, 1976. The appellant and the respondent were both Hindus and were about 36 and 27 years of age respectively at the time of marriage. Due to certain unfortunate circumstances, the husband was driven to file a petition for nullity within a short time which he did on or about 30th November, 1976.
2. The petition proceeds to make the following allegations. The marriage had not been consummated owing to the impotency of the respondent. On the very first night the respondent refused to have sexual intercourse saying that for one year she would not have sexual intercourse with the appellant. The respondent appeared to be very much upset at the approach of the appellant to consummate the marriage and was averse to any sexual act. It was decided by the petitioner and his elders to take the respondent on a pilgrimage so that there might be a change in her mentality and outlook by the blessing of God. Even during pilgrimage the matter did not improve. Soon after return from pilgrimage on 29-7-1976 the respondent's father had come to the petitioner's house and the petitioner complained to her father about the behaviour of the respondent. Father ignored the complaint. The respondent's attitude continued. Then followed a medical check up on 27-8-1976, by Dr. Bhatia when it was discovered by the petitioner that the respondent was suffering from second degree prolapsedd of the uterus. This was indicative of non-virginity. Taking into consideration the medical report and the odd behaviour of the respondent and the surrounding circumstances, the petitioner had reasons to suspect that the respondent wanted to conceal facts from the petitioner and that was one of the main reasons why she was refusing to have sexual intercourse with the petitioner and have the marriage consummated. It was clear from the conduct of the respondent and that of her parents that fraud was committed and that the marriage had been brought about by fraud and misrepresentation. The respondent and her parents had suppressed material facts about sexual lapse and defect. The petitioners' consent to the marriage was obtained by fraud and misrepresentation as to the material fact or circumstances concerning the respondent. In any event, the respondent was important at relevant time and there was non-consummation by reason thereof. The petitioner prayed for annulment of the marriage under section 12(1)(a) and (c). In the written statement the respondent denied that marriage was not consummated or that she refused to consummate the marriage or was averse to sexual act or that she was impotent at any time. It is alleged that she was taken to Dr. Bhatia on 27th August, 1976 but the respondent did not understand the result of the said examination. It is denied that the respondent suffered from sexual defects before her marriage and it is averred that neither she nor her parents were aware of any defect at any time before or after the marriage.
3. Mr. Nesari for the appellant has taken me through the evidence and the judgment and contended that the learned trial Judge has not correctly appraised the evidence and on the balance ought to have accepted the evidence of the petitioner and Dr. Bhatia and rejected the evidence of the respondent as unreliable and that of Dr. Pancholi as not very reliable on certain aspects of the matter in view of contradictions and that if the evidence of petitioner and Dr. Bhatia is accepted, the grounds for nullity stand proved.
4. Before considering the evidence of the petitioner, I will deal with the evidence of the respondent as in my view her evidence is completely unreliable and the petitioner's evidence not being inherently unreliable will have to be accepted, irrespective of some discrepancies.
5. In her examination-in-chief, she says that after marriage, the petitioner and she resided together at Goregaon. After the marriage, in the month of July 1976, they went South for visiting various temples and visited them and visited Palghat and Madras. She says that they left for pilgrimage on 8th July and returned back on 29th July, 1976. It is stated that during the travel they stayed with the relatives in Madras and Coimbatur and at other place in lodges. She claims that all throughout the relations with the petitioner were normal. She has sexual intercourse with her husband, the petitioner, whilst travelling in the South and at their stay at Goregaon. She says that after return from her travel she was taken to Dr. Bhatia who examined her. She then says, and this is important, that at the time of her examination by Dr. Bhatia, she did not notice any ailment concerning her organ. She says that she was not experiencing any difficulty with her organ and her husband did not at any time tell her that there was anything wrong with her sex organ. This statement of her is obviously a false statement. It is the evidence of both the doctors that she had a second prolapsedd of uterus with elongated and hypertrophied Cervix. The of cervix was of about two inches. It is impossible that atleast when Dr. Bhatia examined her she would not have noticed this condition. Mr. Dalvi in the course of his arguments advanced a contention that the medical opinion is that the organ viz., uterus will not come out if the hymen extract and that the cervix and the uterus can come out only after the rupture the hymen. In the absence of any evidence as to a rupture prior to the, it must be presumed that the rupture took place during the intercourse after marriage and only thereafter that the cervix and hymen could not emerged out of the vagina. Assuming that this contention of Mr. Dalvi contended, it is sometime after the intercourse that the intercourse that the said organ must have come out. As per the evidence this is a slow process. So this could not have happened suddenly on 27th August, 1976, when the respondent was examined but could only have happened sometime between 27th June, 1976 and 27th August, 1976, and if the relations between the husband and wife were good as claimed, the husband would obviously have expressed surprise and anxiety about the condition and pointed out to the wife what had happened. It is the respondent's case in her reply to the notice given to petitioner's advocate that the discovery of the prolapsedd by the petitioner was as a result of minute examination of the respondents' anatomy and the medical check up was decided upon to confirm his own observations. She confirms in her cross-examination that this statement in the letter is correct. However, later on she alleges that she was told by the petitioner that he was taking her for general health check up. The respondent is obviously provocating. In this view of the matter it is obvious that the respondent cannot be believed when she feigns complete ignorance of her condition not only after marriage and before examination by Dr. Bhatia, but also after the examination by Dr. Bhatia. The respondent obviously cannot be believed on this important aspect of the matter and her evidence will have to be read in that light.
6. The respondent then proceeds to say that her father and brother-in-law had taken her to one Dr. Pancholi, he had not given any treatment at that time. This was followed by an operation and she was examined by Dr. Pancholi again after the operation on 27th April, 1977. At both the times Dr. Pancholi issued a certificate. She says that it is only from her father that she learnt that her uterus had come down and that is why the operation was performed. She asserts that Dr. Pancholi did not tell her at any time what was the defect in her; it is her father who told her that he had learnt from the doctor that her uterus had fallen down and that she will have to undergo an operation. This story also is impossible of belief. She has tried to convey that even after examination by Dr. Bhatia she did not know if anything was wrong and if so, what. She also pleads ignorance about her condition after examination by Dr. Pancholi. She is a sufficiently mature person, of 27 years of age, knows English and is educated upto about SSC. It is not possible that she would not have noticed, even when Dr. Pancholi had examined her, that something was protruding out. She exhibits such utter lack of curiosity about these examinations and her own condition as appears impalpable. It is obvious that she is feigning ignorance about her condition at least sometime before her examination by Dr. Bhatia and even after her examination by both the doctors. It is impossible to accept the evidence when she says that she did not ask either of the doctors what her ailment was and neither of the doctors told her about it. Actually Dr. Pancholi who was called on behalf of the respondent says that the respondent had told him that Dr. Bhatia had told the respondent that her uterus was lying outside her vagina. She had gone to the extent of telling such lies with a view to convey that she had no knowledge of her condition even before marriage, that it becomes difficult to accept her evidence in preference to that of the appellant on any other aspect of the matter. She says that Dr. Bhatia after examining her did not ask her how long she was suffering from prolapsedd of uterus. This again is impossible. Because, a doctor in normal course would surely ask since how long any ailment has been there; another reason why she utter ignorance of her condition seems to be pretended is the statement of her Advocate's letter dated 2nd November, 1976, already referred to and wherein it is stated :---
'I am instructed to state that your client's discovery of the prolapsed of uterus of my client is resultant upon your client's minute introspective examination of my client's anatomy and the medical check-up was decided upon by your client not because of any alleged aversion to sexual act on the part of my client, but because of this own desire to get confirmation of his observation of the prolapsedd'.
It is therefore, clear that even according to the respondent she was aware of her condition before Dr. Bhatia was consulted. If, as alleged by the respondent, the petitioner and the respondent were on cordial and good terms will all prevail normally between a husband and a wife, the alleged minute examination of the husband will naturally lead the respondent to enquire about the reasons for such minute examination and she would definitely know what the petitioner found or suspected and she would, therefore, have known about something protruding. She further says that the relations between the petitioner and her were cordial even upto the date she was sent to her parents house. If meant by cordial that there was no quarrel, it is understandable; but that cannot mean that the petitioner was not angry or did not protest or express unhappiness about what had happened. It is impossible to believe that if the relations were cordial as alleged, the petitioner would send her to her parents house in such manner. She then says that when she was taken to Dr. Bhatia, the petitioner had told her that he was taking her there for her general health check up. This again is not believable in view of what is stated in the advocate's reply referred to above. At the time when she was taken to Dr. Bhatia she was staying at her husband's place according to her and from there she was taken to her father's place and was asked to stay for few days. Not only the petitioner took her there and left her at her parents house, but he went there accompanied by his brother and sister-in-law. Inspite of this she does not raise a quarry as to why this was being done to her. Such improbabilities in her evidence show that there is hardly a sentence of truth in the entire evidence of the respondent. If her evidence is discarded, the petitioner's evidence stands unchallenged and unless there is any inherent improbability, I will have to accept the said evidence as true.
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 prolapsedd 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 prolapsedd 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., prolapsedd. I do not think that either the petition or the petition read with notice are open to the attack made by Mr. Dalvi.
8. The evidence of the petitioner practically follows the petition. However, it gives more details than the petition and the notice. Mr. Dalvi attacks the evidence of the petitioner by contending that certain details given in the evidence do not find place in either the notice or the petition, and, therefore, should not be believed. I must here point out what is normally required of a notice and a petition. Notice is supposed to give only the bare outlines of the grievances of the party sending the notice. How much to reveal, how much not to reveal, will depend on the opinion of the advocate who is sending the notice. Not mentioning of a particular fact in the notice, unless it is so material as ought to have found place in the notice, cannot be a subject of any serious comment nor can such an omission by itself affect veracity of the evidence. In fact, often a notice is sent even though not necessary as notice is rarely a part of the cause of action. The function of the petition is to give material facts which give rise to the cause of action; it should not contain evidence or other unnecessary details. In my view the petition in the present case contains sufficient particulars in respect of the facts which constitute the cause of action and no fact which forms material part of the cause of action has come out for the first time in the evidence. The cause of action of the petitioner is that the respondent was suffering from second degree prolapsed of uterus and this fact was concealed from him at the time of the marriage. That the respondent showed disinclination to any sexual intercourse and repelled the attempts of the petitioner to consummate marriage and which he subsequently came to know could be because of the prolapsed. He claims that he is entitled to annulment on the ground of concealment of material fact concerning the respondent and non-consummation due to impotency. This case is brought out in the petition. It is averred that sexual lapse and the defect of the nature described were known to her but they were not disclosed before the marriage, and therefore, he is entitled to annulment on the ground of fraud (what is meant thereby is obviously concealment) of material facts relating to the respondent. Having asserted non-consummation of the marriage, it was not necessary to mention in the petition each and every approach the petitioner made to the respondent and which was repulsed. It was sufficient to say generally that from the very first night till the relevant date, there was no consummation of marriage. Therefore, I do not see any substance in the attack of Mr. Dalvi that facts brought out in the evidence of the petitioner do not find place either in the notice or in the petition and so the petitioner is improving upon the story from time to time and his evidence should not be accepted. I do not see any substance in Mr. Dalvi's attack as the notice or the petition are not proper place for minute details and entire evidence is not required to be stated in them.
9. The evidence of the petitioner is further attacked by Mr. Dalvi by dividing the period between 20th June, 1976 to 7th July, 1976 i.e., the period after the marriage and before the parties left for pilgrimage. The period between 8th July, 1976 and 27th July, 1976 being the period when they were out of Bombay and the period between 27th July, 1976 and 27th August, 1976 being the period after they returned till the medical examination by Dr. Bhatia. As regards the first period Mr. Dalvi contends that it is strange that inspite of his dis-satisfaction with the behaviour of the respondent, the petitioner did not inform or consult his father or brother or some other relative or friends. He says that atleast he has not so stated in his evidence, and therefore, I must presume that he has not done so. He further says that the petitioner had never brought this to the notice of the respondent's father. He then challenges the reasons given by the petitioner for pilgrimage by saying that the pilgrimage was decided upon because it was family practise and not for the reasons given by the petitioner. He says that the story of the respondent pushing the petitioner away from the first night does not finds place anywhere except in the evidence. I do not find any substance in any of the grounds of attack on the evidence of the petitioner.
10. The petitioner has stated in the notice of 13-10-1976 that it is by reason of the respondent's behaviour that it was decided to take her on pilgrimage. It is stated in the petition that it was decided upon by the petitioner and his elders to take the respondent on pilgrimage so that there might be a change in her mentality and outlook. It is not denied in the written statement that the pilgrimage was decided upon by the petitioner in consultation with the elders. It is however, denied that the visit to holy places had anything to do with the conduct attributed to her. The petitioner has then stated in his evidence that on advise of his elders he had decided to take the respondent on a pilgrimage. This clearly shows that according to the petitioner, he had discussed her behaviour with the elders. Mr. Dalvi's attack on this ground is, therefore, not justified. Again the petitioner's evidence on what happened during this period is believable because if there was a consummation of marriage during this period, and the petitioner noticed the defect in the respondent, the obvious thing would have been to consult a doctor rather than go on a pilgrimage. As the relations were cordial according to the respondent and she was cooperative, the rational thing would have been to consult a doctor. The very fact of not having consulted a doctor at this time shows, that the petitioner could not have any inkling of what was wrong with the respondent. The case of the respondent that this pilgrimage was decided upon because of the practise and not because of the reasons alleged by the petitioner has not only been not brought out in the written statement but has not even been put to the petitioner. Only question asked is, whether, there was a practise in the community that the newly married couple should visit some temples, generally Tirupathi temple and the temple of the family deity and the temple of Guru-Wayur and which practise was admitted by the petitioner. However, he was not asked that this pilgrimage was as result of this practise nor has the respondent in her evidence stated that such was the case. Therefore, I must discard the suggestion that the pilgrimage was as a result of such practise.
11. Coming to the third period, it is stated by the petitioner that the petitioner brought to the notice of the respondent's father on 29th July, 1976, that he had come to visit them on their return to Bombay, the odd behaviour of the respondent, but he did not take the matter seriously and left. The respondent obviously does not have any personal knowledge about the truth or otherwise of this ascertain of the petitioner as in her written statement she has not denied it but only traversed it by saying that she does not admit it. The father of the respondent has not come to deny this, and, therefore, the petitioner's evidence which is uncontradicted must be accepted. The petitioner says that he wanted to take the respondent for medical check up but the respondent did not agree in the beginning and agreed only on the threat of her being left at the father's place permanently. Once it is believed that the petitioner did not have any access to the respondent during this period, which I believe is true, then the course of events as deposed to by the petitioner will naturally follow.
12. Mr. Dalvi contends that the 2nd period, the period of pilgrimage, was a happy period which both the parties enjoyed thoroughly and the story of the petitioner is improbable. For this he strongly relies on the three letters written by the respondent herself; one to her father, one to her father and mother and one to her sister. He says that the letters show that the couple was very happy and behaved in the normal as a couple would behave on a honey-moon. He relies strongly on the absence of any expression of unhappiness in those letters. The first letter dated 13th July, 1976, is addressed to her father. The letter mentioned the places they visited, the relatives and acquaintance they visited, and about some purchases to be made for the respondent's sister Shymale. The second letter is dated 15th July, 1976 addressed to Shayamala, on the same lines as the earlier letter. Third letter is dated 23rd July, 1976 and is addressed to her father and mother and tells about a purchase of two handloom sarees and a green stone embedded in stud, some purchases of pictures of God and about spending quite a lot and a visit to cinema in Madurai. In my view the letters do not support the respondent at all. On the contrary, if at all, they support the petitioner's evidence. It is curious that if this pilgrimage was equivalent to honey-moon, the newly married wife was not full of her husband's praises or as to how happy her new married life was. The normal thing which she will write is that they were getting on very well and how nice the petitioner was and they were very happy and enjoying each other's company. It is not as if this was a love marriage or marriage between children of family who knew each other for a long time. In such circumstances, the first reaction of the new bride would be to inform her parents about her husband and his nature and as is how she was finding him. Not a single word is found in any of these letters about the petitioner nor is the name of the petitioner mentioned even once. Specially, when she has written to the sister she would definitely say something about the petitioner. Again the purchases, visiting cinema etc. can be indicative of the petitioner trying to make her happy with a view to see that she consents to consummation of marriage and becomes approachable and not necessarily of a happy marriage as contended by Mr. Dalvi. These letters do not help Mr. Dalvi's client. The fact of going to the pilgrimage and the behaviour of the couple as indicated in the letters do not and cannot lead to the conclusion that the marriage was consummated and the petitioner was having access to the respondent.
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 prolapsed 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 extroverted 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 prolapsed 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 prolapsed 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 prolapsed is of rare occurrence. Normally prolapsed 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 prolapsed, 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 prolapsed of uterus to her knowledge since prior to her marriage.
14. Mr. Dalvi then attacks the evidence on the ground that except the details as to what happened on the first night, there are no details given regarding the attempts made to approach the respondent by the petitioner and as to what was the response either in the advocate's notice or the petition or the evidence. This attack of Mr. Dalvi has no substance. It is not necessary for the petitioner to prove each and every approach made with dates and other details. It is sufficient if he says that he made attempts which were repulsed by the respondent. It is obvious that the attempt of first night only is described as that would be the most important and it is stated and maintained by the petitioner in his evidence that there was no change in the situation after the first night. It is the respondent who will have to say but it is not true, give some details as to when the relations took place and then the question will be as to whom to believe; but the minute details as contended by Mr. Dalvi are not required to be given in the notice, petition or examination-in-chief when the case is of complete non-consummation and impotency. If it is the allegation of cruelty by reason or some positive acts, the details are obviously necessary with dates and particulars, but in respect of negative case, such as non-consummation, a statement that throughout the period there has not been consummation will normally suffice with details of one or two attempts. Moreover, if it is believed that the respondent was sure of her condition since prior to marriage as appears to be the case, it is possible that she will try to repulse the petitioner's advances and the petitioner reversion becomes probable.
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 prolapsed and such prolapsed 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 prolapsed 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 prolapsed 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 prolapsed will not prevent intercourse if proper manipulation is done. Then in cross-examination he says that it is not true to suggest that prolapsed 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 prolapsed of uterus, the uterus has to be pushed up before performing the act or a rubber passerby 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 prolapsed 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.
17. The evidence, therefore, establishes that the respondent must be deemed to be aware of her condition of prolapsed since prior to marriage and that either she wanted to hide her condition from the petitioner or had developed abhorrence or repugnance towards intercourse. Not only did she not inform the petitioner about the same at or before the time of marriage but also did not submit to the petitioner with the result that the marriage remained unconsummated.
18. That brings me to the question as to whether it can be said that the respondent was impotent at the relevant time or that the non-disclosure of a known prolapsed amounts to obtaining consent of the petitioner by force or by fraud as to the nature of the ceremony or as to the material fact or circumstance concerning the respondent.
19. Dealing first with the second aspect of the matter, it is to be considered as to what amounts to fraud as to any material fact or circumstance concerning the respondent. Prior to the amendment of the Hindu Marriage Act by Act 68 of 1976, section 12(1)(c) read as follows :---
'that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian was obtained by force or fraud'.
These words were interpreted by this Court in Raghunath Gopal Daftardar v. Vijaya Raghunath Gopal Daftardar 73 Bom.L.R. 840. In that case the consent to the marriage was procured by concealing from the husband the fact that the wife was suffering from curable epilepsy and false representation that she was healthy and it was held that this concealment and representation though otherwise fraudulent did not amount to fraud within the meaning of section 12(1)(c) as then existing. The reason for coming to this conclusion is that the Hindu Marriage though may be in the nature of a contract for some purpose was still a sacrament and, therefore, 'fraud' cannot be interpreted in light of its definition in the Contract Act. After relying on certain well known treatise on the law of divorce prevailing in England, and the commentary in Mulla Hindu Law (13th Edition) page 862, and on Berrett's introduction to Modern Hindu Law (1963 Edition) page 193: it was held by Melvankar, J. :---
'It would thus be seen that the word 'fraud', used in section 12(1)(c) of the Hindu Marriage Act does not speak of fraud in any general way, nor does it mean every misrepresentation or concealment which may be fraudulent. If the consent given by the parties is a real consent to the solemnization of the marriage, the same cannot be avoided on the ground of fraud. The marriage, therefore, solemnized under the Hindu Marriage Act cannot be avoided by showing that the petitioner was induced to marry the respondent by fraudulent statement relating to her health'.
Malvankar, J., then proceeded to consider Indian Cases in which the physical deficiency or illness or suppression of the fact that the wife was a niacin by profession or of her having been kept by more than one person prior to the marriage were not considered as amounting to fraud. After considering all these authorities, it was stated :
'These, decisions, therefore, before and after the Hindu Marriage Act, 1955, came into force definitely show that the Indian Contract Act, 1972, does not apply to the marriage under the Hindu Marriage Act, 1955, and that the word 'fraud' used in section 12(1)(c) of the Hindu Marriage Act does not mean any fraudulent representation or concealment. The test to be applied is whether there is any real consent to the solemnization of the marriage'.
It was then held :
'A person who freely consents to a solemnization of the marriage under the Hindu Marriage Act with the order party in accordance with customary ceremonies, that is, with knowledge of the nature of the ceremonies and intention to marry, cannot object to the validity of the marriage on the ground of fraudulent representation or concealment. Moreover, in the present case, the fraud alleged is non-disclosure or concealment of epilepsy from which the respondent was suffering since before her marriage, and false representation that she was healthy. I have found that the type of epilepsy she was suffering from is curable. I am also, therefore, of the opinion that non-disclosure or concealment of such curable epilepsy and false representation that the respondent was healthy does not amount to fraud within the meaning of that word used in section 12(1)(c) of the Hindu Marriage Act 1955. The petitioner, therefore, has failed to prove that his consent was obtained by the respondent or her relations by fraud'.
It is, therefore, clear that according to learned Judge the fraud contemplated was such as must be regarding the ceremony or the identity of the respondent and not as regards the condition of the respondent or her life at the time of or before the marriage. This judgment was followed in David alias, Balasaheb S. Takalkar v. Kalpna alias Mai alias Vijayamala P. Londhe 78 Bom.L.R. 85, which was a case under the Indian Divorce Act.
20. If the matter rested there the things would have been simple and I would have had no alternative but to hold that no fraud could be said to have been committed in the present case. However, the wordings have now been changed by the amendment of section 12(1)(c) which now reads as follows :---
'12(1)(c)---that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent'.
This amendment clearly contemplates change in law and things into the ambit of fraud, misrepresentation or concealment of any material fact or circumstance concerning the respondent. Fraud must mean representing as existing what is not and concealing what is material. The misrepresentation or concealment necessarily presuppose that the respondent was aware of the facts and circumstances which were misrepresented or concealed. In the present case as I have already held that the fact of the prolapsed of uterus was known to the respondent and the only question is whether the nondisclosure thereof can be fraud as to any material fact or circumstance concerning the respondent. Every fact and circumstance cannot be material. Therefore, concealment or misrepresentation of every fact and circumstances cannot be said to be fraud sufficient for annulment. It is difficult to define with any certainty what can be said to be material fact or circumstance but it may be safely said that the fact or circumstance which is of such a nature as would materially interfere with the material life and pleasure, including sexual pleasure will be a material fact or circumstance. The only limitation is that the material fact or circumstance must be concerning the respondent, meaning thereby that it must be in respect of the person or character of the respondent. It is immaterial whether such fact of circumstance is curable or remediable. If a party to a marriage is suffering from some abhorrent disease such as leprosy or general disease and this is not disclosed it will be definitely concealment and consequently fraud as to material fact and circumstance. Similar would be the case with suppression of the fact of immoral life prior to the marriage. Without going into the detail or definition as to what may or may not constitute material fact or circumstance, it can be said that existence of a condition in the respondent which materially interfere with the sexual intercourse or its pleasure or which makes its indulgence in a normal way difficult or is such as is likely to cause dislike or abhorrence in the mind of the other spouse to have sexual intercourse it will be material fact or circumstance even though it may or may not amount to impotency. In the present case as I have already held the sexual intercourse was not possible without manipulation of the protruding uterus by hand, which obviously is likely to cause dislike, abhorrence or disgust to a newly wed husband; concealment of such a fact will be fraud as to material fact or circumstance concerning the respondent as now contemplated by section 12(1)(c). In the circumstances, the marriage solemnized between the petitioner and the respondent is avoidable and is liable to be annulled.
21. This brings me to the question of impotency. This question was considered by the Full Bench of Madras High Court in K. Balavendram v. S. Marry A.I.R. 1945 Mad 316. In the case, the petitioner had alleged that the respondent's male organ was so abnormally big as to render sexual intercourse with her impracticable. It had proved to be positively dangerous to the life of the petitioner. She stated that on several occasions when the respondent attempted to have intercourse with her the petitioner evinced great aversion to the act and also suffered great pain on each occasions, with the result she had to push the respondent away or jump out of the bed and in the circumstances, the marriage had not been consummated and that the consummation of marriage was impossible. The respondent in the reply asserted that intercourse was possible and that it had taken place on several occasions. The facts alleged by the petitioner were held to be proved as the respondent did not give evidence or appear. On the basis of these facts the question arose whether these facts amounted to importance. The said judgment has considered various authorities to come to the conception as to what amounts to impotency. The relevant portion of the judgment is as follows :---
'(4) Impotency has been understood by Judges in England is matrimonial cases as meaning incapacity to consummate the marriage, that is to say, incapacity to have sexual intercourse which undeniably 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 decisions 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 the 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 every one was agreed that in order to constitute the marriage bond between two persons, there must 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 to 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 coupla' 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'.
In (G. v. G.), (1871) 2 L.R. & D 287, the rule laid down by Dr. Lushington was followed. The ground on which the husband in that case sought a declaration of nullity of marriage was the wife's peculiar condition which made it impossible for him to consummate the marriage. The wife was suffering from excessive sensibility. Lord Penzance in dealing with the case, after laying down the law that of interference of the courts in cases of impotence is the practical impossibility of consummation said :
'The invalidity of the marriage, if it cannot be consummate, on account of some structural difficulty, is undoubted; but the basis of the interference of the Court is not the structural difficulty but the impracticability of consummation'.
The learned Judge was prepared to hold that even in the absence of a physical structural defect, there may be other circumstances which render sexual intercourse practically impossible.
'The question is a practical one' he said 'and I cannot help asking myself what is the husband to do in the event of being obliged to return to cohabitation in order to effect consummation of the marriage Is he by mere brute force to oblige his wife to submit to connection Every one must reject such an idea'.
Taking what he described as a practical and reasonable view of the evidence, he thought that the consummation of the marriage in that case was practically impossible, owing to the peculiar mental reaction of the wife. The rule in (1845) 163 L.R. 1039, was again followed in Dickinson v. Dickinson, L.R. 1913 p. 198(C), though that was a case of impossibility to perform the intercourse on account of the wilful and persistent refusal of the wife.
'(5) In the present case, the evidence leaves us in no doubt that the marriage cannot be consummated in the ordinary and normal way on account of the abnormal size of the respondent's organ. According to the petitioner's evidence which must be accepted, ordinary and complete intercourse is physically impossible. It must be held, therefore, that the respondent was impotent so far as the petitioner was concerned both at the time of the marriage and at the time of the institution of the suit'.
22. The next decision relied on by Mr. Nesari is Digvijay Singh v. Pratap Kumari : 1SCR559 , where it is held :
'A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings'.
23. Mr. Nesari relied on the case of (M v. M.) 1956 (3) All.E.R. 769. In that case the respondent was suffering from vagarious which was curable by operation. Till the petition was filed the respondent had not undergone any operation but offered to do so after the petition was filed. It is observed in that judgment, while considering this as follows :---
'It is suggested that there is still time, and that as there is a possibility of a cure I ought not in the present case to pronounce a decree on the ground that she was incapable if there is a reasonable prospect of her incapability being cured. I have to apply my mind to the history of the case. I think that the respondent know very well before the separation that the petitioner was at any rate not satisfied with the sexual intercourse between them and I have not the slightest doubt, having heard the medical evidence that the husband had grave cause for his anxieties, if that word is suitable, and for his complaints in that regard'.
The learned Judge then proceeded to observe that he had to deal with the matter by locking 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 know about her condition but took no steps to rectify it earlier and then granted decree of nullity.
24. The next case is Samar Som v. Sadhana Som. : AIR1975Cal413 . That was the case of a wife who had prior to the marriage undergone operation for removal of uterus and as such was alleged to be impotent at the time of marriage and unfit for consummation or bearing child. It is held in that case :
'9 The principal case of the appellant was that the respondent was impotent inasmuch as her uterus was removed by an operation before the marriage. It cannot be disputed that a women without a uterus is quite fit for sexual intercourse. Impotency is incapacity for sexual intercourse or when coition is difficult or painful. As has been stated already, the presence or absence of uterus is quite immaterial to the question whether a woman is impotent or not. The learned Judge has rightly held that because the uterus of the respondent was removed, she could not be held to be impotent and that accordingly, the marriage could not be declared to be void'.
Therefore, even when coition is difficult or painful it will amount to impotency but just because a women cannot bear a child will not be impotency as contemplated by the laws governing divorce. I would like to add to this definition the words 'that the condition of the partner is such as to cause aversion or abhorence in other partner to having intercourse'.
25. Then comes the case of Samar v. Snigdha : AIR1977Cal213 . Prior to the amendment of 1976, the ground for nullity under the Hindu Marriage Act was 'that the respondent was impotent at the time of the marriage and continued to be so until institution of the proceedings'. There is a change in law, with the amendment of the relevant provisions which now read 'that the marriage has not been consummated owing to the impotency of the respondent'. While interpreting the amended provisions, the Calcutta High Court had held : (Head note)
'Sexual intercourse or consummation is sometimes referred to as vera copula. Vera Copula consists of erection and intermission, that is, of erection and penetration by the male of the women. Full and complete penetration is an essential ingredient of ordinary and complete intercourse. The degree of sexual satisfaction obtained by the parties is irrelevant. Thus where the respondent wife was suffering from the disease of vagarious and the coitus or complete penetration was not possible, held, the petitioner was entitled to decree'.
26. The next case relied on by Mr. Nesari is Suvarna v. C.M. Achary : AIR1979AP169 . This case in my view is not relevant and I need not discuss it.
27. Mr. Dalvi on the other hand places strong reliance on Rajendra Parshad v. Shanti Devi A.I.R. 1978 Pun 181. This case also erase after the amendment of the 1976. In this case the wife had a vagina which was only 1 1/2' long. There was an all round septum at the junction of upper 1/3 with the 2/3rd lower of the vagina and the septum loosely admitted of two fingers. She was fit for cohabitation and could give birth to children. In cross-examination she (the doctor) stated that the organ could go into the vagina easily and that the length of the vagina was normal and was about 11/2'. She denied that the septum would obstruct the sexual enjoyment of the male partner. She also stated that the wife had told her that she was operated upon in connection with the septum. There was no further cross-examination about the capacity of the respondent for sexual intercourse and to give normal satisfaction to the male partner. The material available as to the condition of wife and on other aspect of the matter was scanty. It is in view of this position that the husband's petition for nullity on the ground of impotency was dismissed and in the last paragraph it was observed :
'In the absence of any other material, it is impossible to hold that the wife is impotent. Whatever might have been the position at the time of the marriage, it is clear, be it due to the operation or otherwise, that the marriage is now capable of consummation. No decree for annulment of marriage can, therefore, be granted'.
This is not an authority for the proposition that if the impotency is cured that the petition, there cannot be a decree for nullity. In the case cited it is not even clear that the impotency existed or was cured after the filling of the petition.
28. However, following observation in the case are material :---
'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 until the institution of the proceedings. As a result of the Marriage Laws (Amendment) Act, 1976, 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 provisions of Amended Act are attracted in view of the express provision made by section 39 of the Marriage Laws (Amendment) Act, 1976'.
As regards the meaning of impotency it is observed :
'13. Impotency simply means inability to perform the sexual act. It may be pathological or psychological, permanent or temporary complete or partial. The judgment of Ramaswamy, J., Rangaswamy v. Arvindammal : AIR1957Mad243 , contains a full and comprehensive discussion of what impotence means. It is unnecessary to refer to the wealth of literature on the subject. I will confine myself to the consideration of a few cases where problems similar to the one before me had arisen'.
Then reference is made to the observation of Dr. Lushington. These observation of Dr. Lushington show that the sexual intercourse in the proper meaning of the term is 'ordinary and complete intercourse'. It does not means 'partial and imperfect intercourse'. He then observes that he cannot go to the length of saying that every degree of imperfection would deprive the intercourse of its essential character. There must be degree difficult to deal with; but the imperfect as scarcely to be natural, he would not hesitate to say that legally speaking, it is no intercourse at all. Then the observation proceeds to say that if it is curable the marriage cannot be declared void. But that observation appear to be made in the light of the law applicable then. Here as already held by Calcutta High Court, with which I respectfully agree, the question of curability is immaterial and that appears to be the present law in England also as is apparent from the case of M. v. M. referred to earlier.
29. In my view, therefore, if the condition of a spouse is such as to make intercourse imperfect or painful it would amount to impotency. Even the aversion or abhorence shown by spouse to having intercourse caused by prolapsed can amount to impotency. In the present case in my view the respondent was impotent for two reasons. Firstly, it is proved that the respondent resisted all the approaches of the petitioner to consummate the marriage, possibly with a view to conceal the condition or prevent the pain which may possibly result because of the intercourse and secondly, because with such a prolapsed the intercourse is possible only after manipulation with hands. The sight of the protruding uterus is more likely than not to cool down the ardour and desire of the husband to perform the sexual act resulting in frustration for the husband. Even if the ardour and desire survive the sight of the protruding organ, the manipulation itself will cool it down. In any case an intercourse which demands previous manipulation of the uterus before penetration cannot be said to be an intercourse in the normal way. Therefore, both reasons independently of each other are indicative of impotency and this coupled with non-consummation which I have already held, to have been established, entitle the petitioner to annulment of the marriage.
30. The learned trial Judge in my view has not appreciated the evidence properly and has come to erroneous conclusions. He has wrongly not believed the evidence of Dr. Bhatia, particularly when the evidence of the respondent is absolutely unreliable and has failed to appreciate the affect of the evidence of Dr. Bhatia which clearly leads to the conclusion that the respondent was aware of her condition since prior to marriage. He has no doubt strongly relied on the fact that certificate at Ex. D-1 did not mention that the respondent was having masturbation for last 3 years though Dr. Bhatia said so in her evidence. He has erroneously come to the conclusion that Dr. Bhatia's enquiry about masturbation was unnecessary; as I have already pointed out she has been cross-examined on this point and that the question could have arisen naturally in the course of discussion with the respondent. He has failed to take notice of the fact that Dr. Bhatia had maintained notes on the basis of which she was giving evidence and though a question was asked about maintaining of notes to which she replied in the affirmative, she was not called upon to produce the notes. He has disbelieved Ex. D-1, which ought not to have been discarded. He has failed to notice material discrepancies in the evidence of Dr. Pancholi. He has failed to appreciate the fact that the father of the respondent has not stepped into the box to contradict the evidence of the petitioner that he had informed the father about the respondent's behaviour on 25th July, 1976 and has also not appreciated that the evidence of the respondent is thoroughly unbelievable and useless. In the circumstances, the judgment of the learned Judge cannot stand. He has also failed to notice that there is now change in section 12(1)(c) and the position is now different from what it was prior to 1976, when the decision of Malvankar, J., was given.
31. In the circumstances, I set aside the judgment and decree of the trial Court dismissing the petition and make the petition absolute in terms of prayer (a).
32. As regards the quantum of maintenance and alimony it is agreed between Mr. Nesari for the petitioner and Mr. Dalvi for the respondent that the respondent should be paid a lumpsum of Rs. 13,500/- as and by way of permanent alimony. I pass the order for alimony accordingly. This amount will be paid within 2 months from today. There will be no order as to the costs of appeal.
Petition made absolute in terms of prayer (a).