1. Letters Patent Appeals No. 149 and No. 150 are connected and arose out of two suits, one brought by Mahomedan Ibrahim, the husband, for restitution of conjugal rights and the other brought by his wife, Mt. Altafan, for the annulment of their marriage on the ground that the husband was impotent.
2. The parties were married in 1914 when the girl was about 13 years old and the husband some 3 or 4 years older. It is not disputed that for some six years after the marriage the husband and wife lived together and had access to each other. Owing to some subsequent differences the wife came away from the house and has since been living separately with her own parents.
3. The Court of first instance dismissed the suit for the restitution of conjugal rights and decreed the claim for the annulment of the marriage in toto.
4. On appeal the learned District) Judge camo to a different conclusion. His finding amounted to holding that the husband was not proved to be impotent and ho accordingly decreed the suit for the restitution of conjugal rights and dismissed the suit with regard to the annulment of the marriage. On a second appeal to tin's Court a learned Judge of this Court has taken a different view. He came to the conclusion that the finding of the learned District Judge was not a finding of fact so as to be binding on him and he held that under the strict Mahomedan Law a decree nisi should be passed in favour of the wife for the annulment of her marriage with the defendant, but it would not be made absolute till a year from the date of the decree, during which period the defendant husband should have access to his wife so as to be able to exercise his marital rights. He accordingly passed a decree in the suit for annulment of the marriage and remanded the suit for the restitution of conjugal rights. The wife has submitted to the decree, but the husband has appealed in both the eases.
5. The suit for the restitution of conjugal rights has been remanded to the Court of first instance with a direction to reinstate it and to dispose of it in accordance with the final result of the cross suit for the annulment of the marriage.
6. So far as this order is concerned it cannot be questioned if the order in the other case is to be upheld.
7. The first point which we have to consider is whether the finding of the learned District Judge was a finding of fact binding on this Court in a second appeal. The learned Judge did not believe the oral evidence adduced by the parties but rested his decision entirely on the medical evidence. The position as regards the expert evidence was this. Two lady doctors were examined on behalf of the wife whose statement 'was that she was still a virgin and that her hymen was intact and that therefore so far as they could judge she had had no intercourse with a man. On the other hand, the husband produced three doctors whose view was to the effect that there was apparently no physical defect in the husband and that he was not impotent.
8. The doctors however had to admit that it was possible that the plaintiff might be impotent towards one woman for whom he has no liking even though he may be potent with regard to other women. The learned District Judge thought that the evidence of these, two sets of medical experts was divergent and came to the conclusion that the-evidence produced by the husband was more weighty.
9. We are of opinion that the evidence the two sots of medical experts was not necessarily contradictory the lady doctors had tried to prove that the woman was still iii virgin and that her woman was still intact. The male doctors, who had had no opportunity of examining the wife could not of course express any opinion on this point. Their evidence was confined to what they gathered after examining the husband. There was therefore a possibility that both these sets of medical evidence were true, namely, that although outwardly the husband was potent, nevertheless, for some reason or other ha had not had an intercourse with his wife or was impotent towards her.
10. In this view of the matter we are of opinion that it was open to the learned Judge of this Court to consider this finding afresh and arrive at his own conclusions.
11. We think that it was open to the learned Judge of this Court to reconsider the matter and hold that it has not been adequately established that the wife was not a virgin or that the husband actually had an intercourse with her or that he was potent towards her.
12. The learned Judge of this Court has referred to the authorities of the Muhammadan Law and laid down that according to that law where a woman brings her husband before a judge, and demands a separation on the ground of impotence and alleges that she is still a virgin the case is to be adjourned for a year, and if after the expiry of that year the woman should still allege that she is a virgin an inspection by women is to be ordered, and if they declare that she is not a virgin then her claim should be dismissed but if they declare that she is a virgin then that fact coupled with a statement on oath, should be accepted. There can be no doubt that this is a correct statement of the strict Muhammedan Law.
13. All the leading authorities namely Hidaya, Fatwa Kazi-Khan, Durrul Mukhtar, Badul Mukhtar, Fatwa-Alamgiri as well as the English commentators accept it to be a correct statement of the Hanafi Law.
14. The only point worth consideration is whether the rule thus laid down is a rule of more procedure which would be taken to have been superseded by the British Law of procedure or whether it contains any part of a substantive law which in matters of divorce is enforceable.
15. The method prescribed for bringing the husband before the Kazi und the way in which the evidence is to be recorded and the rule of law regarding what weight is to be attached to evidence are of course rules of procedure. But it seems to me that the right of the husband to have an opportunity of demonstrating that he is not impotent is not a rule of procedure but a substantial right recognised by the Mohammedan law.
16. Under the Mohammedan law a wife has no absolute right to obtain a divorce. She has that right under certain specific contingencies and conditions. The mere fact that since the marriage the husband has had no intercourse with her and that therefore she is still a virgin would not ipso facto entitle her to a divorce, unless it is proved that the husband is incapable of cohabitation with her.
17. The Mohammedan law, as pointed out by the learned Judge of this Court, contemplates that there may be impotence with regard to one woman though not with regard to others. It therefore recognizes that the husband should have full opportunity, after he has once been challenged, to prove that he is not impotent.
18. This in my opinion is his substantive right and not a mere rule of procedure. The fixing of the period of one year comprising all the four seasons was according to the Hidaya based on certain specific grounds. That period has been unanimously accepted as a correct criterion for the test.
19. I therefore agree with the view taken by the learned Judge of this Court that the rule of the Mohammedan law requiring the wife to agree to the exercise of the conjugal rights by the defendant husband for a period of one year so as to give him full opportunity to prove that he is not impotent is enforceable.
20. The last point urged in the grounds of appeal is that the conditions imposed by the learned Judge are not fair. We cannot accept this contention. The learned Judge has ordered that the wife should live in the house of her parents or elsewhere but not outside Aligarh and that wherever she lives she must allow full access to the defendant at all reasonable times to exercise his marital rights as her husband. This we think is a fair and just order.
21. I would therefore dismiss this appeal with costs.
22. I agree.
23. This appeal is dismissed with costs including in this Court fees on the higher scale.