Shamsher Bahadur, J.
1. This is a husband's appeal from a decree annulling his marriage with his wife under Section 12 of the Hindu Marriage Act which makes a marriage voidable and subject to annulment if the other party was 'impotent at the time of the marriage and continued to be so until the institution of the proceeding'.
2. Jagdish Kumar appellant and Sita Devi were married at Shakurbasti in Delhi on 11th of December, 1958. The wife stayed with her husband, according her allegation, up-till 23rd of December, 1958 when she was escorted to and left at her parental home by the husband. Sita Devi complained that her marriage had not been consummated because of her husband's impotance and the present petition for annulment of marriage under Section 12 of the Hindu Marriage Act was brought at her instance on 1st of June, 1959.
3. The husband in the written statement asserted thatthe marriage had been consummated and that he was fullypotent and virile. It was pleaded that the petition hadbeen filed to cause him harassment and as a shield toher own act in carrying away the ornaments and dowry of the value of Rs. 11,000/- to her parents.
4. The pleadings gave rise to the following two issues;
1. Whether the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings?
The learned Additional District Judge having found in favour of the wife on the first issue, a decree for annulment of marriage has been granted and Jagdish Kumar, feeling aggrieved, has come to this Court in appeal.
5. It is of some importance that though the appellant in his written statement flatly denied the allegation-in the petition that the marriage had not been consummat-ed, he was compelled under the pressure of events in his statement as R. W. 1 on 28th of November, 1960 to admit that he never had any sexual intercourse with his wife. On his own showing the husband and wife lived in the same room on 11th, 12th and 13th of December 1958. He was 22 at the time of marriage and the wife 17. The reason for this volte-face is not far to seek. After the petition had been filed, an order was made by the learned Judge on 26th of November, 1959 directing the husband to have himself examined by the Civil Surgeon, Dr. Diesh. The appellant went for medical examination on 24th of December, 1959, and according to the evidence of Dr. Diesh given as P.W. 3, he was not able to pass any semen by masturbation. The appellant unsuccessfully tried to produce semen again on 26th and 28th of December, 1959. At his own request the appellant was allowed to visit the hospital again on 1st of January, 1960, though on this occasion no one else on behalf of the wife was present. The appellant was able to produce this time a small quantity of gelatinous fluid liquidation.' Dr. Diesh has stated that he enquired from the appellant whether he had any sexual intercourse with his wife and the answer was given in the negative. The appellant stated that as he was not feeling well he did not perform the sexual act. Having made this admission, the appellant had to admit in his statement before the Court in flat contradiction to what he had stated earlier in his written statement that the marriage had not been consummated.
6. The evidence adduced on behalf of the wife is this. After she came to her parent's house barely a ton-night after the marriage, she was looking sad and the father, Shri Mool Raj, P.W. 8, felt worried on this score. Mool Raj asked his son, Jai Lal, to find out what the matter was and all she said was that her husband should be got medically examined. Accompanied by his friends, Kant Kumar Bhashar P.W. 4, Om Parkash P.W. 5 and Banarsi Dass P.W. 7, Jia Lal P.W. 6 took the appellant to Dr. Ram Pal who advised them to go to an expert on sexual matters as the appellant was unable to produce any semen. They all then went to Dr. Parshotam Lal Khanna P.W. 9 who is the Medical Officer in charge of Lajpat Nagar Corporation Hospital, New Delhi. Dr. Khanna found that the appellant was unable to get any erection of his genital organ and could not produce any semen. The appellant remained With Dr. Khanna for about 45 minutes. The appellant is then stated to have told Jia Lal and his companies that he was married to Sita Devi against his own wishes because his parents wanted him to get some dowry.
7. Armed with this medical opinion Jia Lal and MoolRaj told the father of the appellant that a fraud had beenplayed on them. The latter gave an assurance that hewould get his son medically treated. Later, the appellant was examined again by Dr. N. K. Aggarwal on 5th of May, 1959. Despite his efforts the appellant was unable this time also to produce any semen and Dr. Aggarwal then gave a certificate that he was impotent. Or. Aggarwal found one of the testicles smaller than the other and this infirmity also came to light in the conversation between the fathers of the wife and the husband.
8. Dr. Diesh was unable to pronounce any opinion about the potency of the appellant whom he examined on four separate occasions on 24th, 261h and 28th of December, 1959 and 1st January, 1960.
9. The appellant on his side produced two medical witnesses, Dr. Inder Singh Marwaha R.W. 2 and Dr. Kailasn Chand Jain R.W. 3, both of whom deposed that he was normal and potent. The sincerity of the appellant is open to grave doubt because he actually denied having been examined by Dr. Khanna and Dr. Aggarwal. He attributed his inability to consummate the marriage to some gastric trouble and likewise his failure to produce semen was stated to have been due to his having taken an orange beforehand.
10. The decision of this appeal must turn on the question whether the appellant was at the time of his marriage impotent and continued to be so till the institution of these proceedings. 'Impotence' has been described in Halsbury's Laws of England, Volume 12, at page 228, to be such a state of mental or physical condition which makes consummation of the marriage a practical impossibility. In Corpus Juris Secundum, Volume 42, at page 410, it is stated that the term has been held synonymous win 'incapacity for copulation, or sexual intercourse'. Incapacity for sexual intercourse is an essential ingredient 01 impotency. Such an inability may arise from a variety of causes including the mental and moral disability. In words and Phrases, Permanent Edition, volume 20, at page 284, it is stated that want of power for copulation is impotence, but mere sterility is not. 'Impotency' in the law of divorce means incapacity to perform the act of sexual intercourse, that is to say, inability to copulate. In history on Divorce, fourth edition (1958), at page 108, there is this statement :
'It sometimes happens that a person is capable of having intercourse, but incapable of performing it with the particular individual ..... This is sufficient tofound a decree of nullity, as what matters is ability to consummate the marriage with the other spouse and no ability to have intercourse in general.'
Viewed in this perspective, it cannot be denied that the appellant who is young like his wife was wholly unable to perform the act of sexual Intercourse for which he had full opportunity, having lived in the same room for two or three days and nights immediately after the marriage. In Later on Divorce, fourteenth edition, it is stated at page 196, that
'when a husband abstains from or fails to attempt intercourse with his wife, the inference of incapacity is even stronger, and the onus is on him to rebut that presumption.'
In the notes at page 109 of Raydon on Divorce, eighth edition (1960), there is the following remark :
'It is said that where the marriage remains unconsummated, and both man and woman appear to be capable, there is a presumption that the Incapacity must be imputed to the man.'
Lord Duriedin observed in the Housa of Lords' case in G. v. G., 1924 A.C. 349, where the parties were otherwise capable of performing the act, but one of them just return as a result of 'invincible repugnance to the act of consummation', that the petitioner was entitled to a decree of nullity. In the last analysis, the inability may be due to temperamental reasons; a person otherwise capable of performing the sexual act may be utterly unable to do so with his own spouse.
11. The respondent-wife in her statement before issues on 22nd of September, 1959, asserted that she could not live with her husband who was impotent and had told her that 'he was a Brahmchari and unfit for marital intercourse'. Mr. Hardy, for the appellant, has invited my attention to her evidence in Court on 2lst of November, 1960, where she stated towards the end of her cross-examination that she was not prepared to live with her husdand 'even if he is found to be potent' to show her intractable and unreasonable attitude towards her husband. The image which she had in her mind of her husband immediately after the marriage was of a man who had utterly failed in his primary marital duty and relying on what he had told her himself she was entitled to treat the marriage was a nullity and she regarded her husband as impotent right till the time when she instituted the present petition. The feeling of shocked disappointment of the wife must be judged in the light of the appellant's own poor performance which receives confirmation from the doctors who examined him a few days after the marriage on 23rd of December, 1958. In the context and setting of events in the space of a few days, it must be conceded that a fair trial had been given by the wife and the husband should be regarded as impotent under Section 12 of the Hindu Marriage Act right from the time of his marriage tin the institution of these proceedings.
12. From the conduct of the husband and his own admissions made before Dr. Diesh and to his wife which I unreservedly accept, it is a fair inference that the non-consummation of the marriage was due to the husband's knowing refusal arising from incapacity, nervousness or hysteria. If he had made an attempt and failed, something may have been said for the appellant, but not having attempted sexual intercourse at all with his wife, I feel bound to say that he demonstrated his impotency qua the respondent. Mr. Hardy for the appellant brought to my notice the decision of Commissioner Bush James in R. v. R., (1952) 1 All ER 1194, where it was held that when a husband was able to effect erection and a full penetration, the consummation was complete, although he was never able to produce the emission into the wife's body. This case is plainly distinguishable because the husband there had failed in his attempt. In the present instance, the husband, for reasons best known to himself, never dared to make an attempt to perform his normal marital duty towards his wife. It may be that there is conflict in medical testimony but the wide meaning given to the concept of impotency in the various authorities, to which reference has been made, leads to the irresistible conclusion that sexual intercourse was a practical impossibility for the husband so far as his wife was concerned. A decree for nullity has been rightly granted and I would accordingly dismiss, this appeal with costs.