Somnath Iyer, J.
1. This appeal is by a husband whose application for a decree for restitution of conjugal rights was dismissed by the Civil Judge.
2. The marriage between the two spouses was admittedly solemnized in March 1955. While according to the husband they lived together as man and wife for a period of two years thereafter, the wife staled in her statement of objections that they lived together for a short time under the same roof During the course of her evidence she stated that they so lived for about a year
3. On the allegation that sometime during the year 1958, the wife went to her parents but never returned despite many efforts made by the husband to get her back, he sought a decree for restriction of conjugal rights.
4. The defence to that application was manifold. The husband was charged with incapacity for consummation of the marriage. It was nest said that he attempted to commit sodomy on the wife and that he imputed unchastity to her. That he commenced manhandling her and denied her even food and other comforts of life were the other allegations
5. The only two witnesses who gave evidence were the two spouses, the husband supporting his case and the wife supporting hers. But even in the course of her own evidence the wife said nothing about the charge made against her husband that he used to either beat her or starve her. She however, gave evidence about the incapacity for consummation, the unsuccessful attempts to commit sodomy and the imputation of unchastity
6. The Civil Judge who did not record any very clear findings upon the various accusations made against the husband, reached the conclusion that this was not a case in which the husband could claim a decree for restitution of conjugal rights. The husband appeals
7. Sub-section (2) of Section 9 of the Hindu Marriage Act makes it clear that the grounds which could be urged by way of an answer to an application for restitution of conjugal lights could be no other than those on which a spouse could secure a decree for judicial separation or for nullity of marriage or divorce. If the wife's allegation that there was incapacity on the pan of the husband for consummation is true and. if it could be said that such incapacity can be equip rated with impotence, it is clear, that since impotence at the relevant points of time is a ground for a decree of nullity under Section 12(1)(a) of the Act. It would be an equally effective ground on which an application for resolution of conjugal rights could be resisted It is equally plain that if the husband committed sodomy which is a ground for divorce under Section 13(ii) of the Act or if it could be said that his attempt to commit sodomy about which the wife gave evidence is cruelty falling within Section 10(1)(b) of the Act which would be a ground for judicial separation, the wife would have an equally good defence to the application For a decree for restitution of conjugal rights.
8. What remains about the matters to which the wife referred in the course of her evidence is the imputation of unchastity. To be able to defeat the application made by the husband what the wife had to prove was that what the husband did amounted to cruelty Falling within Section 10(1)(b) of the Act.
9. Although the Civil Judge did not say so in so many words, it is manifest that what he did find was that there was good and trustworthy evidence about the incapacity for consummation and the attempted acts of sodomy as also the charge of infidelity on the part of the wife. It is obvious that since the wife herself gave no evidence about the beating and the starvation to which she referred in her statement, the Civil Judge could not have intended to find that even those allegations had been established.
10. Since there is no evidence that the husband beat the wife or that there was any cruelty in the form of starvation and the like, what should be considered is whether it is established that the husband was impotent within the meaning of Section 12(1)(a) of the Act and whether there was any attempt on his part to commit acts of sodomy on the wife and whether such attempts amount to cruelty such as is relevant. What should also be considered is whether there was similar cruelty resulting from the imputation of unchastity.
11. In regard to the allegation that there were imputations of unchastity by the husband against the wife, it should be pointed out that there is really no evidence which we can regard as trust-worthy. The only evidence given is that given by the wife and it does not appear to me to be safe to act upon that evidence. Further it does not stand corroborated to any extent.
12. Although it may be true that in a proper case such corroboration could be dispensed with and the wife's evidence by itself would be enough to establish the truth of the accusation, this case, to my mind, is one in which we should look for corroboration having regard to the fact that after the year 1958 when the two spouses began to live apart, until the year 1963 when the husband made his application for restitution of conjugal rights, the wife made no complaint against the husband that he had subjected her to any such humiliation That being so, it is not unreasonable to think that if it was really true that the husband had made accusations against the chastity of his wife, it was possible for the wife to produce some evidence in general corroboration of her own evidence which she however did not do
13. It should, in addition be remembered that the imputation of unchastity by itself would not be a ground on which a decree of nullity or divorce could be secured under Sections 12 and 13 respectively. It would be a ground for a decree for judicial separation if in making the imputation the husband could be said to have treated the wife with such. cruelly as to cause a reasonable apprehension in the mind of his wife that it would be harmful or injurious for her to live with her husband. Of that, there is no evidence whatsoever. Not even in her evidence did the wife state that the imputations made against her honour and chastity created any apprehension in her mind that it would be harmful or injurious for her to live with her husband any longer. In my opinion, we should exclude the allegation that the husband had made aspersions about his wife's character from consideration.
14. The only two matters which remain are those appertaining to the charge of impotence and that of attempts to commit sodomy I shall first advert to the charge of impotence.
15. Section 12(1)(a) of the Act makes it clear that a decree of nullity is possible only on proof that the other spouse was impotent at the time of the marriage and continued to be so until the institution of the proceeding. If such impotence could be a ground for a decree of nullity. it would be an equally efficacious defence to an application for a decree for restitution of conjugal rights. That is the clear meaning of Section 9(2) of the Act What is equally plain from that sub-section is that an application for a decree for restitution of conjugal rights cannot he resisted unless impotence such as what could support an application for a decree of nullity is established by the wife.
16. What therefore the wife should have pleaded and proved in the case before us was that the husband was impotent at the time of the marriage and continued to be so until the institution of the proceeding. The words, 'until the institution of the proceeding', in the context of the matter before us have reference to the date on which the husband in the present case made his application for a decree for restitution of conjugal rights. It therefore became necessary for the wife not only to plead but to produce trustworthy evidence that the husband was impotent at the time of her marriage and was still impotent when he made his application for a decree for restitution of conjugal rights
17. But there was no such plea by the wife. What she stated reads:
'At the time of the marriage, the respondent had not attained puberty. After she attained puberty, she found after the consummation ceremony that her husband was not in a position to discharge his conjugal obligations. He repeatedly attempted to cohabit with her. His attempts were not met with success''. In her evidence she stated thus:
'In about a month after I attained puberty, consummation ceremony was arranged He was not in a position to have cohabitation on that important day. I was with him for about 1 year. We used to be in one bed I had the desire to have sexual intercourse with him. I was not raising any objection for intercourse. On the other hand. I used to co-operate ' .....
18. So, it will be seen that there was no plea that there was un intermittent impotency between the date of the marriage and the dateon which the proceedings were instituted. There was no allegation that on the date of the marriage the husband was impotent. What was pleaded was that when the wife attained puberty and the husband attempted to sleep with her, he could not perform the sexual act. Even in her evidence, although she added that the husband could not have any erection, what she stated was similar to what she stated in her pleading which was to the effect that all the attempts made by the husband for consummation of the marriage ended in failure.
19. So, both on the question whether the husband was impotent at the time of the marriage which preceded the unsuccessful attempts on his part to co-habit his wife and also on the question whether the impotence remained even after the husband and wife began to live separately from the year 1958 until the year 1963 when the application was made for restitution of conjugal rights, there is no pleading and no evidence.
20. The clear meaning of Section 9(2) read with Section 12(1)(a) of the Act is that for the success of the defence to an application for a decree for restitution of conjugal rights based on impotence there should be proof of continuous impotency between the date of the marriage and the date of the institution of proceedings, proof that there was impotence only during some part of that period being inadequate and insufficient to sustain the defence.
21. At one stage Mr. Mariappa appearing for the wife maintained the argument that Section 12(1)(a) of the Act which refers to the time of the marriage does not speak of the date on which the marriage was solemnized but only of the date on which the marriage was consummated. This submission, according to Mr. Mariappa receives justification from the impossibility on the part of the other spouse acquiring knowledge of the impotence of the petitioning spouse before the actual consummation of the marriage is attempted.
I do not find it possible to read Section 12(1)(a) in the way in which Mr. Mariappa asked us to read it. I have no doubt in my mind that the time of the marriage to which that clause refers, has reference to the time when the marriage is solemnised and not the date fixed for its consummation which may vary from case to case Section ft of the Act which refers to the solemnisation of the marriage and Section 7 which authorises the solemnisation of the marriage in accordance with the customary rights and ceremonies of either party thereto afford the clearest indication that what has to be established under Section 12(1)(a) is impotence on the date of the solemnisation of the marriage whatever may be the date of its consummation.
That such is the correct way of understanding that clause is also inferable from the fact that many other parts of Section 12 have reference to grounds such as the existence of defects or infirmities at the time of the solemnisation of the marriage Section 12(1)(d) creates the right to seek a decree of nullity if the wife was at the time of marriage pregnant by some person other than the husband. It is abundantly clear that the pregnancy to be established under that clause is pregnancy on the date of the solemnisation of the marriage and not pregnancy on the dale of the consummation of the marriage. Any other view would deprive the husband of his right to obtain a decree of nullity if the wife was pregnant at the time when the marriage was solemnized and would make it necessary for him to prove that she continued to he pregnant on the dale of consummation. An interpretation leading lo such incongruous results has only to be stated to be discarded.
22. I perceive no reason for thinking that we should, fur the purpose of Clause (a), as suggested by Mr. Mariappa. give to the words, 'at the time of the marriage', a meaning different from that which should be given to the same phrase occurring in Clause (d). The only reason suggested to us for placing a different construction upon those words was that Clause (a) has reference to impotence about which, the other spouse cannot possibly have any knowledge or information until there was an attempt on the part of the impotent spouse to perform the sexual act. It may be. that generally speaking impotence is discovered only at the time of the performance of the sexual act, foul that can hardly be a sufficient reason for refusing to place upon the language of Clause (a) the meaning which plainly flows from the words in whirl' it is couched.
23. In my opinion the period during which continuous impotence has to be established is the period commencing from the date of the solemnisation of the marriage and ending on the date of the institution of the proceeding. Such impotence is not established in the case before us
24. I am also disposed to lake the view that the evidence on record is insufficient to support the conclusion that even during the brief period to which the wife referred in her pleading and in her evidence the husband was impotent. Mr. Marriappa is, to my mind, right in suggesting to us that on a matter like impotence the wife would be the person who could give the best and the most trustworthy evidence. He asked us to say that impotence to which Section 12(1)(a) refers is incapacity to perform the sexual act with the other spouse whatever may be the causes producing such incapacity and that such incapacity is impotence within the meaning of that clause although there may be capacity for the performance of the sexual act with another women. In support of this submission. our attention was asked to C. v. C. (1921) P 399.
25. In the view that in my opinion we should take, it is not necessary for us to express any opinion on the correctness of this postulate I am disposed to take the view that in the circumstances of this case, the impotence with which the husband was charged, even if impotence could be understood in the way suggested by Mr. Mariappa, is not established. The wife admittedly lived with thehusband for not less than a year before site left him. The evidence given by the husband was that the wife who left him in the year 1958 never returned to him in consequence of certain differences between him and his father-in-law and the maternal uncle of the wife concerning some monetary and other transactions The wife did not explain under what circumstances she left her husband although she stated that she had no ill-will against him notwithstanding the many things with which she charged him.
26. If indeed it was true that she left her husband by reason of his incapacity for consummation of the marriage it should cause surprise lo anyone that for a period of five years after she left her husband, she made no endeavour to seek a decree of nullity. She brought her own application for a decree for judicial separation under Section 10 of the Act nearly three months after the husband made his application for restitution of conjugal rights.
27. In those circumstances, although there is no rule of law which insists upon corroboration of the evidence given by one of the two spouses against the other on question such as impotence, cruelty and the like, the rule of prudence is what requires us to look for corroborative evidence at least of a general character The conduct of the wife to which I have referred is what makes it unsafe for us to act upon her testimony which does not have the support of such corroborative evidence.
28. If the evidence given by the wife is true, one should have expected, after she left her husband's house, to confine her troubles and sorrows at least to her mother who, it is not disputed, was alive. We should similarly expect the father to have acquainted himself with the real cause for the estrangement between the two spouses. But, neither the father nor the mother gave any evidence that there was any communication by their child to them of the real reason for the marriage going on the rocks
29. In her cross-examination the wife was asked whether it was no| true that the husband had made two to three attempts to take her back from her parent's house. The wife- evaded answering that question and stated that she did not know if he had made those visits. She was again asked whether it was not true if her father told the husband that the wife would be sent after a panchayat was held in the presence of the wife's maternal uncle Gangadhariah. To this question, there was an equally evasive answer. It was to the effect that she did not know whether it was so.
30. It is true that the wife is the maternal uncle's daughter of the husband and it may be that in the interest of harmony and peace no proceedings were commenced under the Act for a decree of nullity or for any other relief on behalf of the wife But it is ton much to believe that during a long period of five yearsthe wife bottled up her woes and troubles without sharing them with those who were near and dear to her. If she had done so, the evidence of those persons that she did so, would have constituted same kind of a corroborating evidence. That was all that would have been necessary to induce the conviction in our mind that the evidence given by the wife was true.
31. In the absence of any such corroborating evidence it would not, in the circumstances of this case, be safe to act upon the sole testimony of the wife that her husband was at any time discovered by her to be impotent. In my opinion, the charge of impotence, therefore, falls to the ground.
32. What remains is the charge of sodomy. The plea was not that any act of sodomy was committed but that there was an attempt to commit it. The evidence given by the wife was similar. What she stated was that the husband was 'trying to commit sodomy' and that she would not agree. The clear meaning of this evidence is that the husband was expressing the desire to commit the revolting act and that the wife would not consent to it. So the matter remained at the stage of intention without anything further having been done by the husband to inflict the abnormal sexual act upon the unwilling wife.
33. Now, the husband's application could have been effectively defeated by the wife if we find it possible to say that in attempting the disgusting act, the husband could be said to have treated the wife with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with him. What excludes that conclusion is that the evidence given by the wife establishes no more than that the husband's endeavours to persuade the wife to submit to an act of sodomy did not succeed by reason of the refusal on the part of the wife to participate in that unnatural act.
If that was all that happened between the two spouses, it would be altogether unreasonable for us to say that there was either any cruelty on the part of the husband or that there was such cruelty as to cause any reasonable apprehension of any danger to herself in the mind of the wife such as the one to which Section 10(1)(b) refers That the request in the husband for co-operation on the part of the wife to the loathsome act proposed by him was itself sufficient to create any apprehension in her mind that there was some danger to herself was not the evidence given by her. She said nothing about any such apprehension in her own mind.
34. Section 13(2)(ii) of the Act to some extent would be a source of guidance to us in the consideration of this question. That sub-clause provides, that a decree of divorce may be sought by wife amongst others on the ground that the husband was guilty of sodomy since the solemnisation of the marriage The act of sodomy to which that sub-clause refers includes an act of sodomy on the wife. But what is necessary to support an application for divorce is an act of sodomy which has beenperformed and not a mere request for participation in that act which is all that was alleged by the wife in the case before us.
35. In the view of the matter, the evidence given by the wife with reference to the attempted acts of sodomy can have no relevance. I am also of the view that even that part of the evidence given by the wife, does not measure up to the required standard.
36. It is, in my opinion, necessary for a spouse who charges her husband with sodomy, to support that charge with such evidence as would establish the truth of that charge if that charge was made in a criminal proceeding. That was the view taken by the Court of Appeal in Statham, J.T. v. Statham, J.C., (1929) P. 131 in which it was explained that in the case of divorce proceedings based on sodomy the same cogent evidence is required to overcome the presumption of guilt as in a criminal case. The evidence given by the wife which does not receive any corroboration such as what could have been easily available and for which in my opinion, we should look in a case like the one before us, is surety not sufficient to support the charge.
37. 1 am not therefore prepared to act upon the evidence given by the wife that there was any attempt on the part of her husband to subject her to an act of sodomy. Her evidence on this mailer does not fit into the other evidence given by her that the husband was not even able to have an erection. If for the sexual act in the normal way the husband was not able to have an erection, it is not easy to believe that there was a desire on his part to perform an abnormal act where he would normally encounter a similar impediment. In my opinion, we should negative the charge of sodomy.
38. We should, in my opinion therefore say that this is a case in which the Civil Judge could not have refused the decree for restitution of conjugal rights since about the truth of the statement made in the husband's application there can be no doubt and there is no legal ground why the application should not be granted. We should therefore, allow this appeal and make a decree for restitution of conjugal rights as prayed for by the husband. A decree will be made accordingly. In the circumstances, no costs
39. I agree.
40. Appeal allowed.