Avadh Behari Rohatgi, J.
(1) This is a matrimomd reference. The wife sued the husband for nullity of marriage on the ground of his impotency. She presented a petition on 28th May, 1977 to the District Court under s. 18 read with s. 19(1) of the Indian Divorce Act, 1869 (the Act), praying that her marriage may be declared null and void on the ground that her husband was impotent at the time of marriage and at the time of the institution of the suit. The husband appeared. He filed a written statement on 30th August, 197/ contesting the petition. On 14th November, 1977 counsel for the husband made a statement before the court that he had been instructed by his client to withdraw from the case. As the husband withdrew from the: arena of contest, the wife's petition was tried as an undefended cause.
(2) Appearing as her own witness, the wife made a statement in support of the petition. The Additional District Judge was satisfied on evidence that the husband was impotent. He declared the marriage null and void and granted the wife a decree subject to the confirmation by this court under s. 20 of the Act. We are now asked to confirm the decree dated 19th November, 1977 made by the Additional District Judge.
(3) The parties were married on 19th October, 1972 according to Christian rites at the Cathedral Church of Redemption, New Delhi, according to Protestant faith. They lived at various places including Delhi. The wife alleged that at no time the husband was able to consuiiunate the marriage. She recounted the husband's attempts to effect normal intercourse but without success. She said that the husband was incapable of ordinary complete intercourse. Her evidence was that she remained wrapped in his embraces but when it came to having sexual intercourse each time he attempted and each time he had to make an ignominious retreat. The wife then said that as the husband was unable to penetrate her vagina he started masturbating. She narrated the crucial event of 6th November, 1972 in these words :
'ON6th November, 1972 respondent again attempted intercourse but could not achieve any penetration for lack of erection. He started masturbating. He then discharged for the first time holding his penis in his hands. He rubbed it smeared with semen against my vagina for sometime, but there was no penetration. He also bite me on my breasts. I became pregnant by this act of rubbing of the wet penis against my organ and I did not get any menses after this act.'
A child was born to the wife on 24th July, 1973 at the Military Hospital Delhi.
(4) The question for decision is :Despite the birth of the child can it be said that the marriage has not been consummated Counsel for the wife referred us to Clarke (otherwise Talbott) v. 1943 (2) All E.R. 540 and certain passages in Taylor's princess and Practice of Medical Jurisprudence (1965) 12th edition.
(5) In Clarke v. Clarke (supra) the parties were mained in 1926 and cohabited until 1940. In 1930, the wife gave birih to a son. of whom, it was admitted, the husband was the father in 1942 , the wife petitioned for a decree of judicial separation on the greund of husband's adultery. The husband, in his answer, alleged that, for physical reasons, the ma.rriage had never been consummated and petitioned for a decree of nullity. Pilcher J. on medical evidence held that the birth of the child was due to fecundation ah extra and the marriage had never been consummated owing to the wife's incapacity. He granted a decree of nullity to the husband.
(6) Rarely have such cases come to court. Fecundation ab extra is a rare occurrence. Clarke v. Clarke (supra) shows that a decree of nullity may in some. circumstances be obtained despite the birth of a child of which the husband is admittedly the father. Medical evidence proves that fecundation ab extra is not an impossibility in human affairs.
(7) Modi in his Medical Jurisprudence and Taxicology, 11977) 20th ed. at page 306 says :
'IT is also an established fact that conception is possible without penetration of the vagina fecundafion ab extra, and hence it does not establish consummation of marriage.'
(8) In support of this proposition the author has quoted the British Medical Journal 'Lancet'.
(9) In Tolstoy's Law and Practice of Divorce (1967) 6th ed. p. 114 it is said :
'THEbirth of a child is not conclusive evidence that the marriage has been consummated as it is well established that fecundation ab extra can take place.'
(10) We may helpfully refer to three cases on the subject Clarke v. Clarke (supra), Snowman v. Snowman 1934 P. page 186(2) and R.E.L. v. E.L. 1949 P. p. 211(3).
(11) As we have seen, Clarke v. Clarke was a case where though a child was born to the parties the court held that the marriage was not consummated. The wife resisted all attempts for over 14 years, though she delivered a child during this period through fecundation ab extra by the husband.
(12) Snowman v. Snowman was a case of miscarriage. On a petition, by a woman for nullity of marriage on the ground of the in capacity of the man to consummate it, the court was satisfied on the evidence that the man was incapable of ordinary complete intercourse by penetration and that ihc woman was a virgin in spits of two miscarriages occurring during cohabitation.
(13) In R.E.L. v. E.L. there was artificial insemination. The wife whose husband had been unable to consummate the marriage was artificially inseminated with her husband's seed spread over some twelve months. The wife became pregnant and a child was born in due course. The court granted a decree of nullity to the wife.
(14) In all the three cases the ground was impotence. In all the three cases the court granted decrees for nullity. The proposition of law that emerges is this : Even when there is conception there is not necessarily intercourse in law.
(15) Taylor in his Medical Jurisprudence refers to another case. At page 39 of Vol. Ii he says :
'Acurious, though no doubt legally correct, decision was reached in a case in 1960 in which a wife asked the court to accept her plea that though she had had a child by her husband, it was a consequence of fecundation ab extra. He had attempted sexual intercourse without success owing to ejeculatio praecox. The court held that the marriage had never been consummated owing to the incapacity of the husband.'
(16) Medical evidence was given in Russell v. Russell (1924) A.C. 687 (as stated by Lord Dunedin in his judgment in the House of Lords in that case) to the effect that, 'Fecundation ab extra is admittedly by the medical testimony, as vouched by the learned judge (Hill, J) in his summing up, a fare, but not impossible, occurrence.'
(17) The ground of impotence under the Hindu Marriage Act was considered by a division bench of this court in Rita Nijhawan v. Bal Kishan Nijhawan 1973 D.L.T. 222.
(18) In Rayden on Divorce (1974) 12th ed. Vol. I at p. 160 it is said :
'CAPACITYto have sexual intercourse does not depend on capacity to conceive, whether of husband or wife, and incapacity to conceive is not a ground of annulment. Sexual inter course or consummation is sometimes referred to as vera couple, as the natural sort of coitus without power of conception. Vera Coupla consists of erectio and intromissio, that is, of erection and penetration by the male of the woman. Full and complete penetration is an essential ingredient of ordinary, and complete, intercourse. The degree of sexual satisfaction obtained by the parties is irrelevant.'
(19) Impotence is inability to consummate the marriage and to be a ground for nullity, such inability must exist at the time of marriage and continue to exist at the time of the institution of the suit. For this purpose sexual intercourse has been defined as ordinary and complete intercourse, not partial and imperfect intercourse. If so imperfect as scarcely to be natural, it is no intercourse at all, but recent cases suggest that modern surgery has introduced the need of further scrutiny. Though it has been held that full penetration without ejaculation on at least one occasion amounts to consummation, but more recently another judge decided that penetration for a short time. without any ejaculation, did not amount to consummation. See R.v.R. (otherwise F) (1952) 1 All. E.R. 1194 and W(orsc K) v. W; (1967) 1 W.L.R. 1554 See Latey on Divorce (1973) 15th ed. p. 225.
(20) Impotency means incapacity to consummate she marriage. and not merely incapacity for procreation. The test is consummation and capacity to consummate.
(21) The wife in her evidence deposed to all that had happened during the brief space from 19th Oetober, 1972 when the parties were married and 15th June. 1973 when the wife came back to Delhi never to return to the husband.
(22) In her testimony, the wife produced a letter of the husband (Ex. PI) dated 28th September, 1973. In this letter the husband made a confession of his incapacity. The exact words he used are 'I am incapable'. The letter read as a whole leaves the impression on the mind that the husband was under great emotional distress because of his inability to consummate the marriage. He wrote to the wife that he loved her 'as Christ loved the Church', and that it would be a great wrench if she were to leave him. He knew that because of his incapacity she had suffered so much at his hands. The letter is at once an expression of a desire to possess the wife as also a frank avowal of incapacity to consummate the marriage. The husband tried to persuade the wife through the written word that they could remain united in life for ever now that they have a child 'to love and shower our affection', as he put it. But the wife saw no hope of repairing this marriage. She thought that if the husband lacked the ability to consummate and was in.compctent to perform the duties of marriage there was no fun in keeping up appearances and inwardly living a iife of self-denial and repining.
(23) The trial judge accepted 'the evidence of The wife. We see no reason to differ from him. The evidence shows that the semen might have encountered the vagina of She woman and caused a pregnancy without penetration or ordinary intercourse as it is properly understood. The birth of the child was due to an accident freak of fecundation ab extra during an abortive attempt to consummate. Moreover, it is an undefended cause because of the non-appearance of the husband. His non-appearance inclines us to daw the inference that the wire's allgations are true. Only the wife's evidence is available to us. We do not see why we should disbelieve her.
(24) For these reasons we confirm the decree of nullity of marriage made by the Additional District Judge, Delhi.