Shiv Dayal, J.
1. This is an appeal from the judgment and decree declaring the marriage between Tarachand and Smt. Shantibai a nullity on the ground of her impotency under Section 12(1)(a) of the Hindu Marriage Act, 1955.
2. The parties were married at Indore on 28th November 1960. The husband belongs to Khandwa. where she lived with him till June 1962. During that period, she sometimes visited her parents at Indore. The husband alleged in the petition that he made several attempts to consummate the marriage but she did not allow him to do so and at every such attempt she abused him and showed repugnance to the act by withdrawing herself from his bed and even from the room. The wife resisted the petition and, denying her own incapacity for copulation, contended that in fact it was he who showed strong abhorrence, so that a sexual union could not be possible in spite of her repealed attempts.
3. Admittedly, there has been no consummation of the marriage. The parties had no sexual connection on a single occasion, although they lived in the same house for several months. The peculiarity of this case is that each spouse charges the other with impotency. In the trial Court both the parties were medically examined. According to Dr. Narbadabai Joshi (P. W. 4) and Dr. (Miss) Pushpa Gupta (P. W. 5), the private parts of the appellant are normal and the opening of the uterus is also healthy, although the uterus is somewhat of a smaller size than the normal one. Her secondary sex characters are normally developed. She is fit for copulation. Dr. Godbole (P. W. 7), who examined the husband, has found that his sexual organs and the secondary sexual characters are well developed and he is capable of performing sexual intercourse
4. This being the medical evidence with regard to the physical fitness of both the parties, and the couple being full of youth, if in spite of living under the same roof for months together there was not a single act of coition, the irresistible and the only conclusion is that one of them is impotent and was so at the lime of the marriage. However, this by itself is not sufficient to declare the marriage a nullity. In England a decree of nullity can be sustained if either party--even the petitioner---is impotent. (See for instance Harthan v. Harthan, 1948-2 All ER 639). But our law is different; under Section 12 of the Hindu Marriage Act, the petitioner's own infirmity does not afford a ground for a decree of nullity. The petitioner must establish impotency of the 'other party' to the marriage
5. In a case such as this, it is a difficult task to find which of the parties is responsible for the frustration of consummation, because it is the parties themselves who possibly can give direct evidence on the issue. Such difficulty also arises when copulation between the husband and the wife has to be proved, but, there, such evidence as convinces a reasonable man of its having taken place is sometimes available. Even so, it is the duty of the Court to scan the evidence of the parties and make every endeavour to reach the truth. Tarachand says that on the first night when he attempted coition, she pushed him back, jumped from the bed and ran away from the room. This conduct she repeated on the following night. He could not consummate on either of those two nights. She, in fact remained in the verandah outside. On the third day, her lather came and took her to Indore. Thereafter, on the occasion of Holi, the petitioner brought her back from Indore. She lived with him at Khandwa upto Rakhi (Shrawan Purnima). During those four months also, he made repeated attempts to have sexual union with her, but every time she exhibited repugnance to the act. On the Rakhi day her father took her to Indore. The petitioner brought her back in Bhadon (the next month) from when she stayed continuously with him upto the next Holi, but the same story repeated itself every time he attempted to co-habit with her; so on and so forth. In cross-examination, he states that he tried to bring her round. When he asked her the reason of her behaviour, she went on telling him that she was repugnant to it, 'Nafrat Hai', but she could not explain the cause of repugnance. He says that there was no opportunity to attempt intercourse at Indore, as he never stayed there at night. There was no cross-examination as to all this positive conduct of the wife, which he stated in detail. His statement is circumstantially corroborated by his mother, Smt. Uamdularibai. On the first night, she escorted the bride to the bridegroom's bed room, but later it was discovered that she came out of that room. It was at first thought that she was too young, but on the following night also she behaved in the same manner. She saw that Shantibai used to come out of her husband's room. She was asked in cross-examination whether the husband had become angry because she did not produce any child, although two years elapsed after the marriage. The purpose of this question put to the witness in cross-examination is not quite intelligible.
6. Smt. Shantibai, on the other hand, says that immediately after the marriage she was with her husband for two nights, but he did not enter the bed room. Thereafter, her father brought her to Indore. After one month, she went back to her matrimonial home and stayed there for 6 or 7 days, but her husband did not enter her bed room on any of those days. He did not even talk to her; he fought shy of the sexual act, although she did not. Every time that she asked to get into the room, he refused. He also beat her Her mother-in-law, and Nanad (husband's sister) accused her of impotency and said that Tarachand should marry some other woman. In cross-examination she says that she complained to her mother-in-law and Jethani (sister-in-law) of her husband's conduct, and when she came to her paternal home on the very first occasion, i.e., on the third day of her marriage, she complained to her father of her husband's conduct, and this complaint was repeated to her parents when she went to the paternal home on the second occasion.
7. Having carefully perused the statements of both the parties, we find ourselves in agreement with the learned trial Judge in his conclusion that the evidence of the husband should be believed in preference to the statement of the wife. It seems to us that in her deposition she did her task too thoroughly to be believed. It is not easy to believe that a newly married girl when she returns to her parental home after two days of the marriage, would complain to her father that her husband did not have sexual intercourse with her. It may be mentioned here that the husband gave a notice to her on 15 September 1962 (Ex. P-2). She did not reply
8. There is no minimum standard of proof required to make out a case of impotency. Tarachand's statement itself is sufficient to prove the behaviour and reaction of his wife everytime he attempted sexual union with her. In the peculiar facts and circumstances of the case it must be held that although the wife does not suffer from any structural defect or malformation of her sex organs so as to render her generally incapable of coition, it is her unconquerable repugnance to the sexual act with her husband which has rendered the consummation impossible.
9. Whether for pleasure or for progeny, intercourse, is an essential motive that actuates marriage. It is, therefore, implied in every marriage that both the parties must be capable of coition. The essential object of marriage would be frustrated by reason of impotency of either spouse. Impotency is incapacity to consummate the marriage by actual conjugal intercourse. That incapacity may exist either because of some structural defect in the sex organs of either spouse, or it may be due to mental causes. In 12 Halsbury (Simonds) 228, impotence is described as a state of mental or physical condition which makes consummation of the marriage practical impossibility. So also in 42 Corpus Juris Secundum 410, that term has been held synonymous with 'incapacity for copulation or sexual intercourse' Where after a reasonable time, it is shown that there has been no sexual intercourse and that the wife has resisted all attempts, the Court, if satisfied of the bona fides of the suit, will usually infer (unless it is merely a case of a wilful and knowing refusal without just cause) that the refusal arises from incapacity, caused by nervousness or hysteria, or from an invincible repugnance to the act of consummation resulting in a paralysis of the will and pronounce a decree. (See Latey on Divorce, 14th Edition, page 195). The latter is mainly influenced by psychic background. Neuraesthenia or sexual perversion gives rise to diffidence or disinclination respectively for the normal and natural coitus. The tempo or urge is either lacking or misdirected due to perversion. Further, there may also be cases where a person may have uncontrollable repugnance to the act with a particular individual though generally capable of having sexual union with others This variety of impotence, though rare, is recognised in text books on medical jurisprudence (Modi XIV Edn., page 307; Taylor XI Edn., Vol II page 53). Reported decisions are also available. See for instance, C. (otherwise H.) v. C., 1921 P 399; Kishor Sahu v. Mrs. Snehprabha Sahu, AIR 1943 Nag 185 (SB). Where, owing to temperamental reasons, the respondent, otherwise capable of allowing copulation, is utterly unable to do so to her own spouse, it is a ground for avoiding the marriage under Section 12(1)(a) of the Act. It is not necessary to show universal impotency.
10. The true legal position on impotency is this: (1) As the potentia copuleadi, capacity to consummate, whether for pleasure or for progeny, is a resolutive condition of a marriage, it is not binding without it Under Section 12(1)(a) of the Hindu Marriage Act, 1955, a marriage is voidable on proof of impotence of the other party. The petitioner's own infirmity does not afford a ground for annulment (2) The true test of impotence is the practical impossibility of consummation of marriage, that is. inability to perform or permit the performance of the complete act of sexual intercourse. (3) The incapacity leading to impotence can be of absolute or relative type. The formation of the sex organs of the respondent may be such that there is no possibility of intromission, or it may be due to psychological inability to perform or allow sexual intercourse, caused by hatred, fear or passion on attempt to consummate There may be invincible sex aversion, without any physical and anatomical impediment to the act. (4) A rare variety of relative impotence is constitutional frigidity. In this type, although the potency for coitus is otherwise normal for others, it lacks for a particular individual, quoad hane. (5) The basis on which the Court interferes is not the structural defect hut the impracticability of consummation. A marriage will be annulled not only in case of absolute incapacity but also where the impotency is of a relative type, irrespective of whether it is generally so or in regard to the spouse in particular quoad hune or quoad hane. (6) Whether it is found that after a reasonable time of marriage, there could be no copulation in spite of opportunities, because the other party refused intercourse and resisted all attempts by the husband without just cause, the Court would be right to conclude that the refusal arose from the incapacity to consummate the marriage. (7) Impotence of the respondent must be proved not only at the time of the institution of the proceedings but also right from the time of the marriage, and if it is shown that there has been a break in the continuation of the impotency between the date of the marriage and the date of the petition, it is liable to be dismissed (8) If the wife is capable of vera copula and natural coitus, absence of procreating or conceptive power is no ground for a decree of nullity. Sterility is not synonymous with impotency. (9) There can be No. annulment of marriage merely on humanitarian ground (10) The Court is bound to vigilantly assure itself of the absence of collusion between the parties to the marriage to bring about its end. It must always be remembered that the provisions relating to dissolution of marriage and declaration of nullity have been introduced in the law of Hindus to give redress in genuinely hard cases The provisions of the Hindu Marriage Act must never be allowed to be turned into an exit door easily accessible for satisfying a romantic nature of the parties or free lancing. If there is reasonable suspicion that the petition for annulment is collusive, it will be dismissed
11. Applying these tests to the present case and having given our anxious consideration to all the facts and circumstances, we have come to the conclusion that although the appellant is not structurally or psychologically incapable of allowing sexual intercourse generally, vet she has an uncontrollable aversion to allowing coitus to the petitioner-husband. This case belongs to the rare variety of frigidity quoad hanc. And. we further find that such unconquerable aversion to the consummation of marriage existed at the time of the marriage and has been in existence continuously. We are satisfied that these proceedings have been free from collusion. The parties appeared before us. Endeavour was made for a reconciliation but it was not possible
12. The appeal is dismissed. Parties shallbear their own costs in this Court and in theCourt below.