1. This is an appeal under Section 28 of the Hindu Marriage Act against a decree of nullity by the District Judge, Chhindwara.
2. The appellant Smt. Shewanti and the respondent Bhaurao were married sometime in 1963. They lived together till 1967. On February 1, 1968, the husband made an application under Section 12(1)(a) of the Hindu Marriage Act that the wife was impotent at the time of the marriage and continued to be so until the institution of the proceeding. The wife denied the alleged impotency. The only witness examined in the case was Dr. (Miss) Philip, who had examined the wife. According to her statement, Shewanti was suffering from sterility and amenorrhoea. i.e. no menstruation. She said that although she had given the necessary operative and medical treatment to Shewanti, there was no sign of menstruation. For further investigation, laparotomy was performed, which showed that the uterus was normal, but the right tube and ovary were small and flat and the left tube and ovary were rudimentary, i. e. very small just like a streak. No ovarium tissue was present on the left side. On this data, the opinion of the lady doctor was that Shewanti was sterile, but it could not be said that she was impotent. The learned District Judge was of the opinion that in case of females potency means: (i) development of internal and external genitals; and (ii) ovulation and menstruation, and as in Shewanti's case the second element was absent, she was impotent. In support of his opinion the learned District Judge relied upon T. Rangaswami v. T. Arvindammal, AIR 1957 Mad 243 and Venkateshwararao v. Nagamani, AIR 1962 Andh Pra 151.
3. Under Section 12 of the Hindu Marriage Act a marriage with a person who is impotent at the time of the marriage and continues to be so is voidable and can be annulled by a decree of nullity. In our opinion, by the use of the word 'impotent' the legislature did not intend to bring in the idea of sterility or incapability of conception; impotency here signifies incapacity to consummate the marriage in other words incapacity to have normal sexual intercourse. It is possible that a person may be sterile, still he or she may be capable of conjugal intercourse. Sterility alone, however, is no ground for holding the mar-riage voidable or declaring it a nullity.
In D. v. A., (1845) 1 Rob Ecc 279 = 163 ER 1039 the wife had no uterus at all and thus no power of conception. The vagina was also malformed as to be a cul-de-sac measuring at the extreme two inches in depth as against the natural depth of four to four and a half inches. In this state of things. Dr. Lushington observed:
'Mere incapability, however, of conception is not a sufficient ground whereon to found a decree of nullity, and alone so clearly insufficient, that it would be a waste of time to discuss an admitted point. The only question is whether the lady is or is not capable of sexual intercourse, or, if at present incapable, whether that incapacity can beremoved.'
* * * * In one sense of the term, there can be no doubt, namely, that as relates to conception, the malformation is incurable; but it is to me doubtful, whether they mean that it is incurable as to the mere coitus. In this difference, I think, lies the true distinction. If there be a reasonable probability that the lady can be made capable of a vera copula of thenatural 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.'
The case of (1845) 1 Rob Ecc 279 = 1G3 ER 1039 (supra) was relied upon in L. v. L., (1922) 38 TLR 697. In this case, before marriage the wife had undergone an operation and the right ovary and the right fallopian tube and almost the entire left ovary and the left fallopian tube had been removed, which had rendered her incapable of conception;' complete penetration was, however not impossible and the husband's prayer, for nullity was, therefore, refused.
Both these cases, that is to say, (1845) 1 Rob Ecc 279 = 163 ER 1039 (supra) and (1922) 38 TLR 697 (supra) were expressly approved by the House of Lords in Baxter v. Baxter, 1948 AC 274, where it was held that the use of artificial methods of contraception did not prevent consummation of marriage.
In R. v. R., 1952-1 All ER 1194, which was a case of alleged incapacity of husband, the facts were that the husband was able to effect an erection and a full penetration of the wife but he was never able to produce the emission of semen into the wife's body. It was held that the marriage was consummated and no decree for nullity could be granted.
In Halsbury's Laws of England 3rd Edition Vol. 12, p. 228, impotence is defined as follows.
'A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility.'
It is interesting to see that in Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137 their Lordships of the Supreme Court in the context of Section 12(1)(a) of the Hindu Marriage Act defined impotency in identical words as defined in Halsbury's Laws of England which we have already quoted.
In view of these authorities, a wife cannot be held to be impotent within the meaning of Section 12(1)(a) of the Act unless and until it is established that consummation of the marriage with her was a practical impossibility, that is to say, she was not capable of sexual intercourse.
4. In the instant case although it was alleged by the husband that there was absence of power in the wife to consummate the marriage, but the husband did not enter the witness-box to prove that the marriage was, in fact, not consummated. It must be remembered that the parties lived together for four years.The medical evidence to which reference has already been made does not show any incapacity of sexual intercourse. Simply because the ovaries of the wife were not developed, or that she was having no menses, it could not be held that she was incapable of sexual intercourse, or there was any incapacity to consummate the marriage. In Mody's Medical Jurisprudence and Toxicology, p. 308, 16th Edition, it is observed that 'the conical cervix and the absence of the uterus, ovaries or fallopian tubes produce sterility, though allowing the gratification of sexual intercourse. Thus, on the material on record it is not possible to hold that the wife was impotent,
5. In T. Rangaswami v. T. Arvindammal, AIR 1957 Mad 243 on which reliance was placed by the learned District Judge, it is no doubt stated:
'Potence in case of males means power of erection of the male organ plus discharge of healthy semen containing living spermatozoa and in the case of females means (1) development of external and internal genitals and (2) ovula-tion and menstruation.' (p. 245)
But here the learned Judge who decided the Madras case was not dealing with impotence in the legal sense but possibly in the medical sense, for he summed up his conclusions on the legal aspect ot the question as follows:
'To sum up, a marriage will be avoided or dissolved on the ground of impotence on the petition of either party if it is proved that at the time of the marriage one of the parties is and continues to be incapable of effecting or permitting its consummation either of some structural defect in the organs of generation which is incurable and renders complete sexual intercourse impracticable or of some incurable mental or moral disability resulting in the man inability to consummate the marriage with the particular woman or in the woman to an invincible repugnance to the act of consummation with the particular man.'
The above summary of the legal aspect does not support the view that in the absence of ovulation and menstruation a woman would be necessarily impotent in the sense of inability to consummate the marriage.
In Venkateshwarrao v. Nagamani, AIR 1962 Andh Pra 151, which was also relied upon by the learned District Judge, the observations regarding meaning of 'potence' were cited from the Madras case without noticing that the said observations were not on the legal aspect of the question. In both these cases evidence examined negatived any form of impotence and there was no occasion to hold nor was it held that inthe absence of ovulation or menstruation a woman would be legally impotent. Thus, none of these cases support the conclusion reached by the learned District Judge.
6. In the result, the appeal is allowed. The judgment and decree passed by the Court below are set aside and the application of the respondent Bhaurao is dismissed. The appellant shall have her costs of both the Courts from the respondent.