M.R. Sharma, J.
1. The facts giving rise to this appeal under Clause X of the Letters Patent can be stated in a short compass. The appellant Smt. Ushman was married to Inderjit, respondent, on February 28, 1970, at Amritsar. On March 1, 1970, she went to the house of her husband to live with him. For the period of 5 or 6 days for which they lived together and lodged together in one room at night time, it was found that the respondent was incapable of having a sexual intercourse with her. She alleged that she was left at her parents' house by the respondent on March 7, 1970. She informed them of this matter and they put the respondent under the treatment of Dr. Kuldip Chand (P. W. 2) and then under the treatment of Dr. Bodh Raj (P. W. 6). However, the respondent could not be cured. She further alleged that the respondent was impotent at the time of marriage and this fact was known to him and to his parents. In a petition under Section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), she prayed that her marriage with the respondent should be annulled by a decree of nullity.
2. The petition was contested by the respondent who inter alia stated that the parties lived together till April 9, 1970, and that the marriage was consummated on more than one occasion. He further asserted that the appellant was taken to the house of her parents on the representation that she had to attend the betrothal ceremony of one of her relations. She went to her parental house along with all the jewellery given to her at the time of the marriage along with the jewellery of his mother and sister. When he visited the house of his in-laws, he was administered poison in milk because of which he developed some internal trouble and severe stomach-ache. According to him, the appellant and her parents wanted to appropriate to themselves jewellery worth Rs. 50,000/- belonging to him. He denied to have been treated either by Dr. Kuldip Chand (P. W. 2) or by Dr. Bodh Raj (P. W. 6). On the question of his alleged impotency, he claimed that he was potent at the time of the marriage and even remained so ever thereafter.
3. On the pleas raised in the pleadings, the learned trial Court framed the following two issues:--
1. Whether the respondent Inderjit was impotent at the time of the marriage and continued to be so till the institution of this petition O. P.
4. After recording the statements of 8 witnesses produced on behalf of the appellant and an equal number of witnesses produced by the respondent, the learned trial Court decided issue No. 1 in favour of the appellant by holding that the appellant was a virgin and the respondent was unable to have a sexual intercourse with her after his marriage with the appellant. The appellant was consequently granted a decree of nullity of marriage on April 3, 1972.
5. The respondent filed an appeal before this Court, which was heard by a learned single Judge who allowed the same after affirming the findings recorded by the learned trial Court to the effect that the appellant was a virgin and that the respondent had no sexual intercourse during the period she stayed with him. Inability of the respondent to have sexual intercourse with the appellant was held to be on account of some cause other than impotency.
6. In this appeal, we have gone through the evidence with the help of the learned counsel for the parties and have given our anxious consideration to the arguments raised at the bar.
7. It becomes necessary to observe at the very outset that a Court of law faces extreme difficulty in arriving at a decision about the impotency of male species because the only available witnesses who can give direct evidence of this fact are the parties to the marriage themselves. When a dispute arises, passions usually run high and the parties and their witnesses do sometimes tend to ex-aggerate matters. Sometimes the statements made by them contain discrepancies which tend to cloud the real issue. In such a situation a Court is rightly inclin-ed to look for some circumstantial evidence. For, it is said that whereas men may lie but the circumstances do not do so. Just as a familiar landmark comes to the aid of a traveller wandering in wilderness, circumstantial evidence leads a Court, faced with the task of weighing conflicting testimony of witnesses, to the right conclusion. Again, the proof of fact does not necessarily depend upon the statements made by the witnesses but depends upon the probability of its having existed. Absolute certainty in the world of today is an idle dream and a Court of law seldom looks for it. It only looks for material on which it can safely act on the supposition that a fact exists. In a matrimonial dispute conduct of the parties and their close relations at the various stages of the dispute furnishes a much better guide for testing their veracity. If unimpeachable evidence of conduct and other relevant circumstances is available, it affords a good background in which parol evidence may be considered. The evidence led by the parties will have to be judged in the light of these principles.
8. Now the case set up by the appellant is that she lived with her husband at his house for about six days and she came to know that the respondent was impotent. On her return to her parental house, she informed her parents about this fact who put the respondent under the treatment of two doctors and when this treatment was of no avail, they convened a meeting of the brotherhood. Therefore, the first and the foremost thing to be considered is whether the issue regarding the alleged impotency of the respondent was in fact raised or not. Ram Chand, the father of the respondent, appeared as R. W, 2 and gave his own version about the dispute between the parties. According to him, the dispute arose because the appellant had lost an ornament and a sum of Rs. 200/- given to her by the respondent, had in turn been given to her mother. The appellant claimed this amount back which her mother was reluctant to return. She was, however, persuaded to return Rs. 185/- upon which the appellant along with the respondent came to live with her in-laws. He admitted that the father of the appellant made a complaint against him before the brotherhood and the members of the brotherhood used to call him under police pressure. He did attend the meetings of the brotherhood on 5 or 6 occasions but asserted that the complaint before the brotherhood was not about the alleged impotency of his son. He admitted his signatures on Exhibit P. W. 7/1 but stated that the same had been obtained under the pressure of gundas as well as the police. He also admitted that in the month of April or May, 1970, he got the respondent, his son, examined by various doctors, including Dr. Bal Sarup and Dr. Uppal. They, however, declined to issue any certificates showing the result of their respective examinations.
9. It would thus be seen that Ram Chand (R. W. 2), father of the respondent, nowhere stated that the appellant and her parents had levelled these false allegations against the respondent with a view to illegally depriving him of the jewellery worth Rs. 50,000/-. Indeed if the things had gone to that pass, Ram Chand (R. W. 2) would normally have taken some steps to retrieve the jewellery. It is really unthinkable that a newly married girl would have gone to the extent of alleging that her husband was an impotent person even if a sum of Rs. 185/- only out of a sum of Rs. 200/- advanced to her by her husband and deposited by her with her mother-in-law had been returned by her on demand. According to Ram Chand (R. W. 2), the complaint before the brotherhood was that he had dishonoured the father of the appellant. It is equally unthinkable that the father of a girl should rush to the brotherhood to complain that the father of his son-in-law had uttered some remarks which are unworthy of his honour. The complaint lodged before the brotherhood was of a more serious nature. A helpless father of an unfortunate girl had approached the brotherhood to solve the crisis which he had unwittingly and in ignorance created for himself. It is the case of the respondent that from April 9, 1970, the appellant declined to live with him. Ram Chand (R. W. 2) has also admitted that during the month of April or May, 1970, he got his son examined by various doctors who declined to give certificates showing the results of their respective examinations. He has not indicated the ailment for which medical examina-tion of the respondent was considered necessary. It appears to us that Ram Chand (R. W. 2) was probably making frenzied efforts to have his son cured of impotency.
10. From the statement of Ram Chand (R. W. 2) alone, who being the father of the respondent was deeply interested in him, it is manifest that the appellant had raised the issue regarding the impotency of the respondent and the matter was taken to the Khatri brotherhood. Ram Chand (R. W. 2) did attend 5 or 6 meetings of the brotherhood and then declined to co-operate. We do not accept his explanation that he was coerced by the police and the gundas to attend these meetings and to sign Exhibit p. W. 7/1. In this situation, the evidence given by Mehar Chand (P. D. 3), Radha Kishan (P. W. 4) and the father of the appellant, Om Par-kash (P. W. 7) assumes added significance. All of them have stated that the brotherhood had convened its meetings to consider the complaint lodged by the appellant's father about the impotency of the respondent.
11. We now propose to consider evidence of the parties to this dispute.
12. Ushman appellant appeared as P. W. 8 and stated that during the period of 5 or 6 days for which she lived with the respondent immediately after their marriage, no one from her parents' side visited the house of the respondent. She and the respondent used to be alone in one room at night. The respondent on the first night of the marriage did make an effort to have sexual intercourse with her but he was unsuccessful and simply shed tears. He continued to make efforts to have sexual intercourse with her during the subsequent nights but he was not in a position to do so. He wept bitterly, touched her feet and told her that she had been deceived. She was subjected to a lengthy cross-examination and it appears that some questions, which are hardly commensurate with the modesty of a young girl, were put to her. She answered them with tears only when she was consoled by the Court to do so. Not the slightest suggestion was given to her that she and her father had conspired to grab jewellery worth Rs. 50,000/- or that the dispute arose because a sum of Rupees 200/- paid to her by her husband had been passed on by her to her mother who was disinclined to return it. The statement made by her reads as a tale of suffering of a young girl who married with high hopes which were subsequently belied. She is corroborated to a great extent by the statement made by Dr. C. Philips, Professor of Obstetrics and Gynaecology, Medical College, Amritsar, who appeared as P. W. 5, She stated that she examined the appellant and found her to be a virgin. In her cross-examination, she admitted that where a girl had a thick elastic hymen, there is a possibility that she may not be virgin and even after cohabitation the hymen remains intact. The appellant did not have that type of hymen. If a newly married young couple are allowed to spend 6 nights together in a separate room and the girl having normal hymen is found to be a virgin, the only conclusion, which can be reached, is that the marriage has not been consummated. We are further fortified in coming to this conclusion by the evidence given by the respondent himself which is being discussed hereafter.
13. Inderjit respondent while appearing as R. W. 1, has stated that after about a month of his engagement he took the appellant to the house of one Smt. Urmala who was related to the appellant. On finding an opportunity, he had a sexual intercourse with her. He spent about half an hour in the sexual act. Afterwards the appellant felt some pain and some blood came out and that blood was wiped out with an underwear. He has also stated that the appellant lived with him for about two months during which period he frequently had sexual intercourse with her. Obviously, he gives himself out as being sexually very potent. If the appellant had a normal hymen, as stated by Dr. C. Philips (P. W. 5), her hymen must have been ruptured after the intercourse and indeed, it is so suggested by the respondent when he stated that the appellant wiped out some blood with an underwear. We however, find that the appellant was virgo intacta when she was examined by Dr. C. Phillips (P. W. 5) and also when examined by Dr. A. N. Gupta under orders of the learned single Judge. In these circumstances, we have no hesitation in holding that the respondent was a wholly unsatisfactory witness. Whether he was otherwise potent or not, the fact remains that he did not succeed in having a sexual intercourse with the appellant.
14. In fairness to the learned single Judge, it must be observed that he also concluded that the respondent did not have successful sexual intercourse during the period the appellant stayed with him. The appellant was, however, non-suited on the ground that according to the report, dated January 15, 1975, submitted by Dr. G. K. Rastogi under orders of the learned single Judge, there appeared no reason to believe that the respondent was impotent. May be it is so, but the main question which remains to be answered is whether the appellant should be granted relief claimed under these circumstances or not.
15. In matrimonial cases, impotency of the husband has been understood as meaning his incapacity to consummate the marriage or to have conjugal intercourse which is one of the objects of the marriage. A sterile person need not necessarily be impotent. In some cases, however, a person may be sterile as well as impotent. Further, impotency may be due to a temporary absence of desire for sexual intercourse, timidity, sexual over-indulgence or other psychological reasons. Cases are known where a male behaves like a normal potent person qua one woman and yet he may not be able to have sexual intercourse with another woman.
16. In Rayden on Divorce Eighth Edition, it has been stated at page 110 that averment proof of impotency quoad hunc or quoad hanc is sufficient to support a decree for nullity of marriage. In Jagdish Kumar v. Smt. Sita devi, AIR 1963 Punj 114, a learned Judge of this Court held that even after a fair trial has been given by the wife, if the husband utterly fails in his primary marital duty, he should be regarded as impotent under Section 12(1)(a) of the Act right from the time of his marriage till the institution of the proceedings for its annulment. The learned Judge observed in that case that the appellant had demonstrated his impotency qua the respondent.
17. In Abdul Azeem v. Fahimunnisa Begum, AIR 1969 Mys 226, it was held that incapacity or inability of the husband to consummate the marriage is one pattern of impotence. The fact that medical examination showed no constitutional defect in the organ of the husband will not eclipse the proved and established fact that the husband was unable to perform the sexual act at the relevant time.
18. The learned counsel for the respondent has vehemently argued that since there was uncontroverted medical opinion that the respondent was potent at the time when he was subjected to medical examination under orders of the learned single Judge a decree for nullity of marriage should not be passed against him. He has submitted that the burden of proving the impotence of the respondent lay upon the appellant, which she had not been able to discharge. In support of his argument, he has placed reliance upon Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137. In that case the husband claimed a decree of nullity against his wife on the ground that her mental and physical condition made consummation of the marriage a practical impossibility. The High Court had held that there were factors and circumstances throwing a serious doubt on the allegation made by the husband. The learned counsel for the husband could not seriously challenge these findings before their Lordships of the Supreme Court and indeed those findings were upheld and the husband was non-suited on that basis. On the point whether the spouse claiming a decree of nullity should not be granted relief if at the time of the passing of the decree the other spouse was proved to be potent, the observations of their Lordships really go against the respondent. These observations read as under:--
'A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.'
The words 'until the institution of the proceedings' are quite significant and connote that a wife need only prove the impotence of the husband up to the stage of the institution of the proceedings by her. Even otherwise, Section 12(1)(a) of the Hindu Marriage Act lays down that a party desirous of avoiding a marriage need only prove that the other party to the marriage was impotent till the institution of the proceedings.
19. In this case it has been found as a question of fact that the parties spent six nights in a room immediately after their marriage and even then the respondent was not able to have sexual intercourse with the appellant. It is not the case of the respondent that he could not consummate the marriage during this period because of some temporary incapacity or fear or some other phychologioal reasons. Nor is it his case that since then he had been able to get himself cured of his mental or physical ailment which prevented him from having sexual intercourse with the appellant. When a state of affairs is proved to exist at a particular point of time it shall be presumed to continue unless the party alleging to the contrary leads cogent evidence in that behalf. In Chaman Lal Bhat v. Smt. Rupa Devi, AIR 1966 J & K 68, it was held that where a husband was unable to consummate the marriage and the wife continued to be virgin at the date of the petition filed by her, the burden shifts on to the husband to prove that he regained potence before the filing of the petition. Since the respondent was impotent qua the appellant during the period immediately following their marriage and since he has failed to lead any evidence to show that he has cured himself of his incapacity to consummate the marriage with the appellant it would have to be assumed that he continues to be impotent qua her.
20. Mr. Narula also relied upon Shakuntala Kumari v. Gian Chand, F. A. O. No. 80-M of 1970 decided by D. K. Mahajan and H. R. Sodhi, JJ., on May 17, 1972 (Punj). This case also does not help the respondent because the Bench found as a matter of fact that the respondent was not impotent qua the appellant.
21. Mr. Narula then argued that if the appellant was made to live with the respondent the latter might be able to consummate the marriage. He submitted that we should be slow in granting a decree of nullity and that even if we were inclined t'o do so, before doing so we should give at least another opportunity to the respondent. This argument, if accepted, would advance the primitive notion of the superiority of the male over the female. To call upon a wife to once again share her bed with her husband who is proved to be impotent, would be nothing short of heaping insults upon her.
22. Before parting with this case, we might also notice another argument raised by Mr. R. L. Aggarwal, the learned counsel for the appellant. He had drawn our attention to Sections 6 and 39 of the Marriage Laws (Amendment) Act, 1976, which read as under:--
'6. Amendment of Section 12. -- In Section 12 of the Hindu Marriage Act,--
(a) in Sub-section (1),--
(i) for Clause (a) the following clause shall be substituted, namely:--
'(a) that the marriage has not been consummated owing to the impotence of the respondent; or';
* * * *39. Special provision as to pending cases. -- (1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such court--
(i) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act;
(ii) if it is a petition or proceeding under the Special Marriage Act, then so far as may be, as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act,
(2) In every petition or proceeding to which Sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the pasties to amend the pleadings, in so far as such, amendment is necessary to give effect to the provisions of Sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding as the case may be for divorce.'
The precise argument is that it would now be open to us to grant a decree of nullity of marriage in favour of the appellant on the ground that the marriage had not been consummated owing to the impotence of the respondent, because these provisions apply even to pending proceedings. It is no doubt true that we have given a finding that the marriage between the parties , had not been consummated, and the respondent nowhere asserted that after the separation of the parties they united again and the marriage was in fact consummated. Even if the respondent is al-lowed to amend his written statement at this stage, it would perhaps not advance his case any further. Since we have found against the respondent on the basis of the unamended law, we do not think it necessary to give any considered finding on the argument raised by Mr. Aggarwal.
23. For the reasons mentioned above, we allow this appeal, set aside the judgment rendered by the learned single Judge and affirm the decree of nullity of marriage granted by the learned trial Court in favour of the appellant against the respondent with costs.
S.S. Sandhawalia, J.