Sambasiva Rao, J.
1. The unsuccessful petitioner in O. P. No,149/73 on the die of the Second Additional Judge, City Civil Court, Hyderabad, has filed this appeal, She failed in her attempt to secure a declaration that her marriage with the respondent was a nullity on the ground covered by S. 12(1) of the Hindu Marriage Act.
2. We may mention that this appeal has been heard once by our leaned brothers Sheth and Jeevan Reddy, JJ, and was allowed, But this Judgment was set aside and the appeal was restored on the application of the respondent's Counsel on the ground that he had not noticed the posting of the appeal in the cause list and that was why he was absent when it was heard and disposed of. We would like to point out that we have heard the appeal afresh and are deciding the case without any reference to the judgment rendered by our learned brothers,
3. We will refer to the parties as they are arrayed in the original petition The date of the marriage between the parties is not in dispute. It is 2nd June, 1972. The petitioner, however would say that the nuptial ceremony was fixed and ostensibly performed on 29th of June, 1972 The Respondent, however, would say that it took place in Oct. 1972, The actual date of the ceremony, however, is immaterial for the decision in the case. It is the positive case of the petitioner that her marriage has never been consummated by the respondent on account of his impotency, He clearly confessed to his inability to perform the sexual act. still she lived with him for some time but without any sexual contact between them Thereafter she filed the petition as a declaration that their marriage was null and void by virtue of S 12 (1) of Hindu Marriage Act. The respondent takes of the definite stand that he has been potent and has consummated the marriage and has had sexual intercourse with the petitions several times before she left him for her parents' house. He attributes lack of bone fides to the petitioner in filing this petition because he had refused to leave his parents' house and to live with her parents.
4. The Lower Court found, as a fact, that the petitions remained a virgin till after the filing of the petition and until she was examined by the doctor, Still it came to the conclusion that the petition should be dismissed because the petitions had failed to prove that the respondent was impotent by the date of the filing of the petition, In fact the lower Court also expressed the view that it was not proved that the respondent was impotent,
5. In this appeal Sri M. Ramamohana Rao learned counsel for the appellant wife raises two contentions via, firstly that the lows Court went wrong m thinking that the petitions was required to establish that the respondent was impotent on the date of the petition also and Secondly that the petitioner had failed to prove that the respondent was impotent.
6. As far as the first contention is concerned it need not detain us for long, There is an amendment effected to Section 12(1)(a) by Amending Act 68 of 76 by virtue of which cl (a) of S. 12(1) has been recast to the following effect:
'Any marriage solemnized, 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',
By virtue of S. 39 of the Amending Act 68 of 1976, it is the amended law that should apply to and govern all Pending matters Therefore, it is conceded by, the learned counsel for the respondent and rightly so because of S. 39 of the Amending Act, that what should be examined by the Court is whether the petitioner has succeeded in showing that the marriage has not been consummated owing to the impotence of the respondent It is therefore, not necessary as the lower Court thought on the basis of the old law, for the petitioner to show that the respondent continued to be impotent even on the date of this petition.
7. Now the petition for nullity of the marriage, as we have already pointed out, is based on the ground that the marriage of the petitions has not been consummated owing to the impotence of the respondent It is immediately seen that two ingredients must be established in order to get a decree under Cl (a), They are, (1) the marriage has not been consummated, and (2) the absence of consummation is because of the impotence of the respondent, The question now is whether these two aspects have been established by the petitioner,
8. In regard to the first aspect, the lower Court itself had found, as we have shady said that the marriage of the petitioner with the respondent has not been consummated and that the petitioner has remained a virgin. This finding is also disputed by Sri Triambaka Rao Deshmukh learned counsel for the respondent. We are, however. unable to uphold the objection of Sri Deshmukh. The evidence on record, particularly the medical evidence, Is adequate to show that the petitioner remained a virgin till the time she was examined by the doctor That examination took place long after the petition was filed and at the instance of the petitioner herself. The Court referred the petitioner medical examination to an experienced gynecologist who has been examined as PW 3. She is well qualified because she has obtained not only the diploma DGO but also the post-graduate degree M. D. In her evidence she found the following salient features in the petition. (1) External genitals well developed, healthy, not sagging. (2) Hymeneal orifice is very small about 1 c.m. diameter. Hymen edge is smooth No saggedness and is firm. (3) Orifice admits tip of little finger with great difficulty. She stated that she had issued the certificate Ex A-3. wherein she had stated these features and expressed the opinion that the petitioner was a virgin. The same opinion she repeated in her evidence as well. In the cross-examination it was brought out that hymen was not situated very deep. The hymen orifice has got one opening. An elastic and fleshy hymen may not be ruptured at the first act of coitus. But a firm hymen ruptures at the first act of coitus.
In the case of the petitioner there was no rupture. She examined the breasts and found them to be well developed. All the points she had noted together point out that the petitioner was a virgin.
9. Modi in his Medical Jurisprudence and Toxicology 19th edition at page 310 says this:
'Normally the hymen is ruptured by the first act Of coitus. though it may persist even after frequent acts of coitus if it happens to be loose, folded and elastic or thick, tough and fleshy'
But the Doctor here has pointed out that the hymen edge was smooth and there was no saggedness but was firm and a firm hymen ruptures at the first set of coitus. She was positive in saying that them was no rupture on the hymen. At page 312 Modi further points out that the intactness of the hymen was always held to signify the physical virginity of a woman.
'If in a woman with an intact hymen, the edges of the membrane are distinct and regular, with an orifice of mall dimension, which allows the terminal phalanx of a finger to penetrated the hymen is well stretched, all the presumptions are in favour of true virginity or in other words, all the Presumptions; are in favour of non-penetration of the penis into the vagina. On the other hand, if in a woman who has an intact hymen, the hymeneal orifice lets one, two or more fingers pass through easily, one can conclude that the woman can most certainly be virgin, but also that a body of the size of the penis in erection could perfectly well pass through the hymeneal orifice without rupturing it once or several times.' Going by these bests which PW 3, the doctor, has carefully followed it is found that the hymen was intact. Its orifice is very small and that it admits of even the tip of a little finger with greet difficulty. The orifice has no saggedness but is firm There was no rupture on the orifice. When a firm hymen ruptures at the first act of coitus and when the petitioner's orifice was firm and there was no rupture on it, the opinion expressed by the doctor appears to be unexceptionable We, therefore, agree with the trial Court in coming to the conclusion that the petitioner remained virgin till after the filing of the petition, This would necessarily mean that her marriage was not consummated.
10. This will lead us to the second aspect viz., as to whether the consummation was not effected due to the impotency of the respondent. It is quite possible that consummation between the spouses might not have been effected owing to several reasons and not necessarily due to impotency of one spouse on the other. But here it is very essential and indeed of great import, that the parties came to court with specific cases. The petitioner stated that her marriage was not con summated by the respondent on account of his impotency which he actually confessed to her. On the other hand, it is the categorical case of the respondent that he not only consummated the mar triage with the petitioner but had sexual -intercourse with her very many times when she lived with him The case of the petitioner that the respondent did not consummate her marriage is fully established end that of the respondent that he had consummated the marriage and had sexual intercourse with the petitioner several times is falsified by the physical features of the petitioner as found by the doctor. As we have pointed out, when she remained a virgin, it must necessarily mean that the marriage had not been consummated. It is thus quite manifest that the respondent's case that he had consummated the marriage and that he had intercourse with the petitioner several times is false When the respondent has come forward with a positive case of having had intercourse with the petitioner several times and that is found to be false and when the petitioner alleged that the absence of consummation was due to the impotency of the respondent it is not unreasonable to infer that the consummation did not take place because of the sexual incompetence of the respondent. It is admitted by the respondent that he and the petitioner had ample opportunities to have sexual intercourse. In fact in his evidence he described in vivid detail how he had the sexual enjoyment with the petitioner. Therefore, lack of opportunity or willingness of the petitioner cannot be the reason for non consummation Going by circumstances of the case, the inference is that despite all the opportunities which the parties had, the consummation did not take place because of the incapacity of the respondent for sexual act. To put it in other words he was impotent and that was why the consummation of the marriage did not take place.
11. We are supported in drawing this inference by thae reasoning of the ALLAHABAD High Court in Jagdish Lal v. Smt. Shyama : AIR1966All150 .
12. It may be noted here that for the purpose of 5. 12 (1) (a) it is not necessary for the petitioner to prove that the respondent was wholly and totally impotent. What all the petitioner is required to prove for obtaining a decree of nullity is that his or her marriage has been consummated owing to the impotency of the respondent. It is stated by Modi and it is also stated by RW-4, the doctor who examined the respondent. that it is not impossible that a man is impotent in respect of one woman though he can perform the sexual act with other women. In view of this physical phenomenon, it is unnecessary for the petitioner to show that the respondent is wholly impotent. It is sufficient if the petitioner has succeeded in showing that her marriage has not been consummated by the respondent on account of his impotency and it is not necessary for her show that he is impotent with other women as well.
13. Apart from this inference, the medical evidence, in so far as the physical condition of the respondent is concerned, to say the least is equivocal. The doctor examined as RW-4 stated that he had conducted a general examination of the respondent including the development of the generative organs. The doctor stated that the respondent had a masculine voice, was normal in appearance and the distribution of hair was also masculine. Though he has stated that the generative organs viz., penis and scrotum are normal in appearance, he noted in the certificate which he gave Ex. B-l that his penis was l 1/2'' in length when flaccid. He admitted in the cross-examination that he had not tested the penis of the respondent when erect and did not ask him to erect the penis. He made only enquiries from the respondent whether he got erection and from the information furnished by the respondent, the doctor said that on his enquiry he found that the respondent gets erection wet dreams end that he had sexual intercourse.
14. What appears to be a significant omission on the part of RW 4 was in not asking the respondent to have ejaculation. Why we sag this is significant as Modi at page 300 points out that the changes which occur in a boy at puberty are the development of genital organs. the ability to secrete semen etc. When RW 4 did not adopt the simple test of taking the semen of the respondent by asking him to have ejaculation. his evidence becomes very, inconclusive and ineffective Even his conclusions are very noncommittal. He said:
'I am of the opinion that physical examination does not reveal any evidence to say that the individual is not capable of performing the sexual intercourse'.
To say the least, this is very equivocal The doctor also agreed in cross-examination that it is true that the respondent may be potent with one woman and not potent with another woman and that the above opinion is not infallible. This evidence of RW-4 taken in conjunction with the fact that the petitioner remained virgin despite the assertive claim made by the respondent that he had consummated the marriage and had intercourse with the petitioner several times would reasonably lead to the conclusion that the marriage of the petitioner has not been consummated an account of the impotency of the respondent.
15. Thus, the case of the petitioner based on S. 12(1)(a) as amended by the 1976 Act has been clearly established. She is, therefore, entitled to a decree of nullity of her marriage with the respondent. We accordingly allow the appeal, set aside the decision of the lower Court, grant the petitioner's petition for nullity and award a decree of nullity of her marriage with the respondent. She is entitled to recover costs from the respondent here as well as in the lower court.
16. Appeal allowed.