B.C. Misra, J.
(1) This first appeal u/s 28 of Hindu Marriage Act, 1955 as amended in 1976 (here-in-after referred to as the Act) has been filed by husband against the decree of Shri K.B. Andley, Additional District Judge, Delhi dated 14th March, 1977 by which he has annulled the marriage on the ground of impotency mentioned in S. 12(l)(a).
(2) Appellant, and the respondent were married on 27th February, 1975 and they spent about 22 nights toghether spread over a period up to May, 1975 including two nights soon after the marriage at Akbar Hotel, The case of the respondent/wife is that the husband was impotent at the time of his marriage and has continued to be so and he has never consummated the marriage with her The petition was filed by the wife for annulment of the marriage and in the alternative for judicial separation under Sections 12 and 10 of the Act respectively. With the amendment of the Act in the year 1976 the wife amended her petition and claimed annulment of marriage and in the alternative a decree of divorce u/s 13(2)(la).
(3) The petition had been contested by the appellant that he was not impotent, but it was the respondent who did not allow him to perform the sexual intercourse and he has given Explanationn for each of nights On the pleadings following issues have been framed :
(1)Whether husband was impotent at the time of the marriage and continued to be so till date of filing of petition
(2)Whether wife has been treated by husband with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious for her to live with her husband ?
(4) The learned additional District Judge in a very well written judgment carefully analysed the evidence and properly understood and applied the principles of law. He has returned a finding on issue no. 1 in favor of the wife and has held that the husband was impotent. So far as issue No. 2 is concerned, the learned Judge held that the same had not been pressed nor did the evidence produced prove any cruelty apart from non-consummation of marriage. As a result he passed an order annuling the marriage of the respondent on the ground of impotency.
(5) Feeling aggrieved husband has challenged the findings of the court below and has contended that the order of the court is not justified by the evidence on record. Counsel for the appellant has taken me through practically the whole record and has argued at considerable length. I have pursued the record and heard the counsel for the parties for long. I find myself in entire agreement with the reasoning and conclusion of the court below and do not find any sufficient ground to differ from its conclusion. I, thereforee, briefly give my reasons for my opinion.
(6) It is an admitted and established fact that the marriage of the parties has not been consummated and the husband has never been able to perform the sexual intercourse with the wife. The parties are young, educated & healthy. They have also had opportunity and necessary privacy to perform the act. In Halsbury's laws of England, 3rd Ed. in para 426 at page 228 it is observed :
'Aparty is impotent if his or her mental or physical condition makes consummation of the marriage (b) a practical impossibility (c) the condition must be one which existed at the time of marriage. In Latey on Divorce; 14th Ed. page 196, para 353, it is observed :
'Aperson may be generally capable of performing it with a particular individual, quoad hunc yal hence, owing to certain causes, c. g., hysteria (c). This state of affairs entitles the other spouse to a decree of nullity', In Rayden on Divorce, 9th Ed. para 62, page 101 it is observed :
'IF at the time of the marriage (a) one of the parties (b) is, and continues to be (c) incapable of effecting or permitting its consummation by reason either of some structural defect in the organs of generation, especially if this is incurable (d) which renders complete sexual intercouse (e) impracticable (f) or of some incureable (g) mental or moral disability (h) resulting in the main inability to consummate the marriage with the particular woman (1) or, in the woman to an invincible repugnance to the, act of consummation with the particular man (j) the marriage may, on the petition of either party (k) be declared null and void. 'Where the marriage remains unconsummated, and both man and woman appear to be capable, these is a presumption that the incapacity must be imputed to the man.'
In the circumstance the court is entitled to draw a presumption that the appellant husband was psychologically impotent qua the respondent.
(7) The appellant has sought to rebut this presumption by description of incidents of each night in which he was in company of the respondent. The incidents have been discussed by the court below in great detail and it has been found that the story of the appellant that the wife did not submit to intercourse is unbelievable. I agree with the reasoning as well as the conclusion of the court in respect of each of the incidents. To briefly refer to few of them the appellant stated that the respondent did not allow him intercourse because he used to drink. Smoke and take non- vegetarian food. All these things he was doing already before the marriage and this was known to the respondent. This could, thereforee, be scarcely a reason for not consummation of the marriage and it has rightly been rejected by the court below.
(8) There are other circumstances to show the impotency of the husband. Soon after the marriage a holy festival arrived during which the respondent was in a position to take leave and she wrote to the appellant about her intending visit to the appellant's place at Amritsar. To this the appellant sent a reply asking her not to come as he would be very busy with his boss. The letter is marked as Ext. P. 1. In evidence the appellant has not given the story mentioned in the letter that during the visit of his boss he would be at a touring duty but he has stated that the auditor has come and so he thought he would not have time. This is a lame excuse for a husband to enjoy the company and desire intercourse with his newly wedded wife must be great and intense and office work of a permanent employee would scarcely ever stand in his way so as to bar the wife from paying a visit for about 9 days. Secondly there were meetings between the members of the family of the two spouses at which the question was openly admitted and discussed that the parties did not have consummation of marriage. The mother of the respondent stated in evidence that on hearing this the mother of the appellant remarked that his son was fool. It was also stated by the father of the appellant that he would keep the respondent wife as a queen. Amongst educated Hindus, I would naturally not expect free expressions and use of the legal term, known as impotency. So when epithets like 'fool' are used they should equate in the context with 'worthless or unable to perform obvious marriage duties by reason of physical ailment and mental incompatibility. One important fact, however, is that in a discussion between the father of the boy and maternal uncle of the respondent it was agreed that the parties should be medically examined. This fact is admitted by the appellant himself. The father of the appellant giving testimony stated that this was a case of maladjustment and the spouses were children and that he had told the respondent wife that according to the Hindu culture, the wife had to accept her husband in whatever condition he may be. He also told the respondent that the marriage was a lottery and whatever was in the lot of a girl she got it. Eventually the appellant was in fact examined by a doctor at Amritsar who has given a certificate about the physical impotency of the appellant. This circumstance would alone warrant an inference that there was a serious talk and doubt about the potency of the appellant.
(9) The presumption of impotency raised by non-consummation of the marriage is also sought to be rebutted by the medical evidence. The certificate of the doctor is Ext. Lcrw 2/1 which is counter-signed by the Civil surgeon. Dr. Sarin who examined the appellant has stated that the external genetalia are well developed and show no abnormality. Secondary sex characters are normal. General physical examination, examination of nervous system and necessary investigation done upon him revealed no abnormality. The doctor was examined as a witness. He stated that during the course of examination he had asked the husband to cause erection of penis by masturvation and he could do it. He said that there was no physical defect in him which should stand in his way to perform sexual intercourse. He admitted that he had not given the necessary details in this connection in his report. The opinion of the doctor is that mere erection is sufficient to prove the potency of the man. In the examination he did not have the masturbation continued till the discharge. This is, however, not so material. But an expert opinion was given, which requires consideration : Question. If a person is able to erect his penis but eectulate before penetrating or reaching the female organ would you call him impotent or not Ans. No. A person who can make his penis to erect, nothing can bar him from performing a sexual act.
(10) In the Law and Practice of Divorce by D. Tolstoy at page 113 it is stated : To consummate a marriage, ordinary and complete sexual intercourse must take place, partial intercourse or intercourse which is so imperfect as scarcely to be natural is insufficient. In determining whether intercourse is ordinary and complete the word consummate must be construed as it is understood in common parlance and in the light of social conditions known to exist. It is also stated that 'generally partial impotency or too quick an emission results from the failure to perform adequately at a critical moment. In experience, nervousness, fear of consequences, hasty and insecure situation moral and religious inhibitions all can bring about a poor erection or too quick an emission.
(11) The same view has been taken by H. L. Anand, J. in Amaendra Chaudhary vs. Smt. Nalini 1975 Plr 100==RLR. 63 where his lordship has observed in paragraph 20 .
'IT is well settled that in legal parlance consummation must mean full and complete penetration and a partial penetration an abortive attempt at intercourse or an incomplete act of coitus would not constitute consummation.'
Reference may be made to Sucharita Kalsie vs. Kishore 1975 Plr 79=RLR. 52 where in Avadh Behari J. observed that it is not possible for the doctors in all cases to find out whether a certain person had a sexual aversion to a particular woman or the wife, the doctors can only find out whether there is malformation or structural defect in the genitals of a man.
(12) The evidence of the doctor is not of much help and he has confined himself to the physical formation of the male organ. The doctor in his cross examination admitted that a man having a normal male organ and able to erect it can still be impotent because of psychological or emotional reasons. The doctor stated that it is correct that a person may be capable of having sexual intercourse but incapable of performing it with a particular individual. He also admitted that in such cases he must be regarded as impotent in relation to that particular individual but he did not remember whether this type of impotency is called quad hunc as it involves psychiatry department which opinion had not been obtained in the instant case.
(13) The appellant in his statement admitted that the measurement of the penis was taken by the doctor in erected and flacid positions. This is patently incorrect as it is not mentioned in the report and the doctor examined as witness stated that the same were irrelevant. The appellant further admitted that he had never had any sexual intercourse with any lady so far including the petitioner. Even prior to his marriage and after marriage also there has been night falls, sometimes during sleep. He stated that he had never seen any lady absolute nude in his life though he saw them in the movies. He stated that he had been doing masturbation before marriage as also after his marriage. He first did so when he was aged about 13/14 years. He further stated that he never undressed the wife on any one of those nights as she never allowed him to do so. It is correct that on none of those nights he undressed himself. As she is his wife he never tried to use force against her having sexual relations. For the same reason he never tried to over power the respondent.
(14) Mr. Mahajan has strongly argued that since the appellant was indulging in masturbation the appellant is not impotent. This is not correct. Masturbation as such does not cause any physical harmful effects on the organ but if there be any feeling of guilt or shame attached to it which if not removed it would cause psychological disturbances which may lead to impotency. Masturbation alone which the appellant did not perform before the doctor to the extent of discharge does not establish that the appellant is not impotent qua the respondent. Kinsey in sexual behavior in the Human Male at page 515 (11th edition) is of the same view. He said that masturbation may do no physical harm, and although it may do no mental harm unless psychic conflicts are involved, it still remains to be determined what relations there may be between masturbation and socio sexual adjustments, it is now clear that masturbation is relied upon by the upper level primarily because it has an insufficient outlet through heterosexual coitus. This is, to a decree an exception from reality and the effect upon the ultimate personality of the individual is something that needs consideration.
(15) It cannot be denied that masturbation is a second hand method when there is a lack of opportunity of intercourse. The appellant had an opportunity but he failed to avail of. The Explanationn given by the appellant for failure to perform the intercourse has been found to be unsatisfactory and unreliable by the court below and I do not find it convicting As a result I find that the appellant has failed to show that the order of the court below is incorrect and not justified by the evidence on record and the principles of law applicable to the case.