S.K. Kapur, J.
(1) Shrimati Brij Mohini (hereinafter referred to as the wife) filed a petition under section 12 of the Hindu A Marriage Act, 1955, against her husband Surinder Chadha on 8th February, 1966. The prayer made in the petition was for annulment of the marriage by a decree of nullity on the ground that the husband was impotent at the time of the marriage and continued to be so untill the institution of the proceedings. In the petition it has infer aha been alleged that-
(A)the husband being impotent could and did nto cohabit with the wife;
(B)the consent of the wife and her father to the marriage had been obtained by fraud, the fraud stated being that the husband and his parents very well knew that the husband was impotent and the treatment had yielded no results yet out of greed for a fabulous dowry from the wife's parents, who happened to be rich, the husband and his parents brought about this matrimony concealing the fact of impotency;
(C)the husband did nto have any sexual intercourse with the petitioner and at one stage she wept before her mother- in-law. The latter consoled the wife that the husband was taking a very expensive treatment and would get normal in a short time. The mother-in-law 'extorted an oath of secrecy from the petitioner (wife) about this matter and induced her to bring fat sums of money from her parents on the one pretex or the other for the treatment of the respondent'; and
(D)as a result thereof the wife was always sad and disclosed the impotency of her husband to her parents. The wife's parents complained to the husband and his parents and 'after that all the three of them started maltreating the petitioner and finally turned her out of their house after beating her and after forcibly removing her ornaments on the night between the 14th and 15th November, 1965 and after giving her a warning that she could return to their house only if she brings Rs. 5,000.00 with her for the treatment of the respondent.'
(2) In paragraph 9 of the petition the wife sought to explain her letter. Exhibit R.I., in which she wrote to the husband that she had become pregnent. In the said paragraph she said-
'ABOUTa couple of months after marriage the respondent went to Bombay in connection with his duties. The petitioner was writing a letter to the respondent. Her mother- in-law asked the petitioner to write to the respondent that he was going to be the father of a child. The petitioner refused to write this falsehood. At this the mother-in-law cajoled the petitioner saying that the petitioner should nto refuse this small request of her mother-in-law. In the meantime the petitioner's father-in-law also joined her mother-in-law and made the petitioner write out the above wrong fact on the letter through persuation inducement and mild threats'.
(3) It may be pointed out at this stage that in her evidence she did nto bring in the father as alleged in the petition. I will have occasion to deal with the letter. Exhibit R.I. in greater detail a little later. On the pleadings of the parties three issues had been framed-
(1)Whether the respondent was impotent at the time of marriage and continued to be so till the filling of the petition ?
(2)Whether the petitioner's marriage with the respondent was brought about by fraud
The wife then filed an application praying that another issue be framed to the effect whether the husband had committed acts of cruelty on the wife and if so what was their effect on the case. This application was moved with a view to enabling the wife to claim judicial separation under section 10 of the Hindu Marriage Act. In the course of the arguments on that application, the attention of the learned Additional District Judge was invited to paragraph 13 of the written-statement and it was pointed out that the husband had made imputations of unchastity which also constituted cruelty entitling the wife to a relief by way of judicial separation. The learned Additional District Judge, however, decided that the alleged imputations were of explanatory nature in answer to the allegations of cruelty made in paragraph 13 of the petition with a view to showing that the wife left the house because of her contacts with some other youngman and this application had been made because the report of the Board of Doctors had been received declaring the husband as potent before the application. The learned Additional District Judge, thereforee, declined to frame an additional issue on the ground of cruelty. The wife then filed an application for amendment of her petition praying for permission to include an allegation that the husband treated the petitioner with such cruelty as to raise reasonable apprehension in her mind that it would be harmful and injurious for her to live with the husband and to claim in the alternative, judicial separation under section 10 of the Hindu Marriage Act. This application was by order dated 13th December, 1966, allowed and the following two issues were added:
'(3)Whether the respondent treated the petitioner with such cruelty as to cause a reasonable apprehension in her mind that it would nto be safe for her to live with the respondent
(4)Whether it is necessary for the petitioner to state the particulars of cruelty other than what are alleged in the plaint ?'
The amended petition, was filed on 1st January, 1967. It may be recalled that the written-statement to the original petition had been filed 'on 7th May, 1966' in which the allegations termed by the wife as allegations of unchastity had been made. In the amended petition the allegations as to unchastiliy were again nto made a ground for judicial separation and the wife contended herself with alleging that she was maltreated and turned out of the house after being beaten and deprived of her ornaments on the night between 14th and 15th November, 1965. As a matter of fact, no change was made in paragraph 13 in the amended petition. Paragraph 13 (a), (b) and (c) were, however, added. Paragraph 13 (a) contains a general allegation that the husband had treated the wife with such cruelty as to cause a reasonable apprehension in her mind that it will be harmfull or injurious for the wife to live with the husband. Paragraph 13 (b) only talks of no condensation of the cruelty having been made and paragraph 13(c) of there being no previous proceedings with regard to the marriage by or on behalf of any party. The learned Additional District Judge by his order dated January 15, 1968, dismissed the petition. The decision in the case turns on two points-
(1)Is the husband impotent; and
(2)has he been guilty of such cruelty as would entitle the wife to judicial separation ?
Acouple unable to live together .and yet being tied to each other for the rest of their lives may be unfortunate yet the decision must turn on proper appreciation of law and evidence since the matrimonial alliance can be broken only within the limits permitted by law.
(4) I will first take up the question of impotency of the husband. It is nto necessary to separately consider the issue regarding fraud for it was the common case of the parties that fraud relied upon by the wife is the concealment of the fact of the husband's impotency. If the issue whether or nto husband is impotent is decided against the wife, the question of fraud ceases to have any significance. The onus of the issue was placed on the wife and it was, thereforee, for her to discharge the burden undertaken.In all such cases the Courts are necessarily faced with a difficulty for the chief actors are the only available witnesses on the controversy. Medical evidence does render assistance to the Court in arriving at a conclusion one way or the other and I will discuss that also a little later. One cannto lose sight of the fact that a charge of impotency is a serious and grave one and calls for a careful assessment of the evidence. The arguments proceeded on two-fold grounds-
(I)the husband completely lacks the capacity of reproduction; and
(II)the husband was in. any case, suffering from psy chological impotency qua the wife and was incapable of consummating this particular marriage.
(5) It was nto disputed at the bar that psychological impotency may constitute a valid ground for annulling the marriage. The medical experts who examined the wife have given conflicting versions about her virginity. A medical board consisting of three Doctors was costituted at the instance of the wife to examine the husband. Their report is Exhibit P. 4. In the application for the constitution of the medical board the wife had prayed that the board may report on the following three questions after examination of the husband-
(1)Is the husband potent or imponent ?
(2)If he is found imponent then since how long he is impotent ?
(3)If he is found potent then can he be potent for one woman and impotent for another woman ?
THEanswers recorded by the Board are :
(1)The husband is potent.
(2)The question does nto arise.
(6) I have mentioned these facts because Mr. Manchanda, the learned counsel for the wife, laid some emphasis on the general nature of the answer recorded by the medical board on the third question. I may straightaway point out that having regard to the questions referred to the medical board no other asnswer could have been expected of them. Dr. S. B. Mathur, the psychiatrist member of the board, appeared as a witness (P. W. 2) and proved the report. Exhibit D. 1. He stated that the finding of the Board as to the potency of the husband was unanimous. With respect to the third question he stated that the said question was a general one and we answered this question with reference to medical knowledge without reference to the respondent. We found the respondent potent for a normal woman. There were two medical reports on the examination of the wife. The first one is the report of Dr. K. Pasricha Honorary Gynaecologist of Irwin Hospital and Honorary Professor, Maulana Azad Medical College. In her report she has stated-
'Ifound the hymen and fourchette both intact Her internal parts are also very small. I declare her virgin..........' Dr. Pasricha examined the wife on 12th August, 1966. She appeared as Public Witness 1. and stated that she had nto examined the wife before that date; that she examined her in gynecological position, that is, in the lateral and side position; that she tried t
(1)'Linea Gravida present'.
(2)'Margin of the hymen can be seen which is irregular and torn on the right side. Vaginal orifice admits two fingers easily without resistence.
(3)'The above named cannto be declared as a virgin.'
(7) Dr. Paranjpe also appeared as R.W. 13 and affirmed the statements made in the report. Mr. Manchanda leveled serious criticism against the statement of Dr. Paranjpe that the report of the Board was based 'only on our examination of the petitioner as recorded in Exhibit R. W. 13/1 and on nothing else.' The learned counsel said that the fourchette had nto been examined which was more important. Mr. Sethi, on the other hand, pointed out that labia minora had been examined which was evident from Dr. Paranjpe's statement when she says-
'SINCEwe mentioned about the hymen in the report, it was nto necessary to mention that we had also examined the labia minora.'
(8) According to Mr. Sethi, the above passage showed that labia minora had been examined, which necessarily involved the examination of fourchette. The other criticism leveled against Dr. Paranjpe's evidence by Mr. Manchanda was that the husband was around when the wife was examined and the Doctors had a discussion with the husband. Reliance in this behalf was placed by Mr. Manchanda on the statement of Dr. Paranjpe when she said-
'IT is also correct that the petitioner was first examined and then sent out and again called in for certain examination. We had to recall her because there was some doubt caused by the remarks of one member of the board that linea gravida were nto present. We re-examined her and were satisfied that they were present.'
(9) Mr. Manchanda wanted me to deduce there from that the wife was first examined, then the Doctors talked to the husband and thereafter the wife was examined again, the suggestion being that the husband must have either influenced the minds of the Doctors or told them something without disclosing it to the wife. That, however, does nto appear to be correct as Dr. Paranjpe in the earlier part of her statement had said that they talked to the husband after the petitioner had left. To the same effect is the statement of the husband and he says that 'I deny the suggestion that she was called in second time after I had seen the Doctors. I deny the suggestion that when I was called in, the petitioner was nto present in the Doctor's room'. The husband explained his presence by saying that he went to the hosptial 'because a copy of the letter had also been endorsed to me. I went there thinking that my presence might be needed for identification purposes. That is what happened when the Doctors asked to identify the petitioner'. On behalf of the husband some Text Books on Gynecology and Obstetrics and Anatomy were referred to with a view to proving that Dr. Pasricha did nto examine the wife in position in which she should have been examined. For instance, in Gynecology and Obstetrics by Carl Henry Davis, Volume I, 1934 Edition page 15, it is stated-
'Avaginal examination is best carried out with the patient in the dorsal position, the thighs being well flexed and abducted.'
(10) More or less to the same effect is the statement in Forensic Medicine by Mant, 1960 Edition. The learned Author says- 'Should the examination be carried out in the left lateral position it may be impossible to make an adequate examination, especially if the girl is young or nervous.'
That is about the position in which a person should be examined. Mr. Sethi relied on a statement in the said book at page 237 reading -
'ITmust be remembered that, although it is very rare, it is nto unknown for a woman to become pregnant with an intact hymen.'
(11) It is nto necessary to multiply citations in this behalf. Both the learned counsels also relied on certain passages in Modi's Medical Jurisprudence and Toxicology, 15th Edition, pages 310 and 311, and those also point towards the conclusion that presence of an intact hymen is nto an absolute sign of virginity. Mr. Manchanda pressed on me to discard the evidence of Dr. Paranjpe because,
(1)she had nto directed her attention towards the necessary signs of virginity required to be reviewed and weighed; and
(2)her statement that hymen cannto be reptured by introduction of an instrument by a medical paractitioner is contradictory to the opinion expressed by Modi in his Medical Jurisprudence.
MR.Sethi's emphasis, on the other hand, for the rejection of Dr. Pasricha's evidence was that
(1)the other evidence on the record militated against the opinion of Dr. Pasricha ; and
(2)she had examined the wife in a lateral and side position which was the last appropriate position for determining virginity.
(12) As to the second point made by Mr. Sethi, I would say that I am nto prepared to reject Dr. Pasricha's evidence on that ground alone. The other method of examination, as suggested in some of the books mentioned by me already, may be more satisfactory but it certainly cannto lead to the conclusion that position of the hymen cannto be detected at all if a person is examined in the lateral and side position. About the impact of other evidence on the statement of Dr. Pasricha I will discuss a little later. There is one more factor which was pressed in aid by Mr. Manchanda. He said that the Board examined the wife one year after she had been examined by Dr. Pasricha and the rupture in the hymen may have been caused in the interval that intervened between her two examinations, which could happen due to various circumstances even unknown to the person concerned. The onus lay on the wife and in view of the nature of the charge she was required to remove all reasonable doubt. In the sense burden on the wife may be heavier than in other civil cases but I will proceed on the assumption that burden in both types of cases is the same. My conclusion even on that basis remains the same. In view of the conflict of medical evidence I am nto prepared to found my decision on that alone that the wife was a virgin. I have, thereforee, to depend on other evidence.
(13) Mr. Manchanda referred to C. v. C. (1921) PD 399, and said that even if the medical evidence be inconsistent, the wife's evidence should be accepted. I am nto willing to contribute to the general proposition as laid at the bar that in such matter the wife's evidence should be believed. There is no rule of law or of practice enjoining me to do so. The evidence of the wife will have to bejudged like any other evidence. In C. v. C. the wife's version was accepted because the medical evidence was treated as possibly consistent with the wife's evidence and wholly inconsistent with that of the husband and it was that factor which provided the necessary guidance to the Court in coming to the conclusion to which it did.
(14) That takes me to the other evidence, and, if I may say so, the letter Exhibit R.1. is more or less conclusive against the wife so far as the question of her virginity goes. In that letter by the wife to the husband, couched in most affectionate language, she wrote that the husband was going to become a father but she was nto sure about it. The Explanationn rendered by the wife about the insertion of these lines is most unsatisfactory. In the petition the wife sought to explain these words and alleged that both her mo ther-in-law'and father-in-law persuaded her to write the same. As I have already mentioned, in her evidence she did nto attribute any part to the father-in-law at all. According to her the husband's mother asked her to write these words because that would make the husband very happy and help him in recovering with the expensive treatment he was undergoing at Bombay. The wife disclosed about the husband's impotency to her mother-in-law for the first time on that day. This Explanationn of the wife is, to say the least, most illogical. Admittedly, at that time husband's mother knew that the husband was impotent. She should have been conscious in that situation that the words would be completely destructive of the husband's faith in the wife and make him unhappy rather than happy. The wife also stated that she had written a major portion of the letter when her mother-in-law approached her with a request to write the said words and she wrote the same in her mother-in-law's presence. She also admitted that her mother-in-law left while she was still writing the letter. If that was nto the correct statement she could have certainly struck these words off after the mother-in-law had left. Moreover, the wife's version that she had written the major portion of the letter when her mother-in-law came is also nto borne out from the letter because the said words are practically towards the beginning of the letter. The wife had also confided about the husband's impotency to one of her friends but she did nto even remember the name of that friend or the place where she lived. Again, the evidence of some of the respondent's witnesses is destructive of the wife's version. I will particularly refer to Shri Ram (R.W.I.), P.N. Mehta, (R.W. 4) and Kundan Lal, (R.W.10). Siri Ram (R.W. 1.) is a relation of the husband's father and knew the wife's father for about 25 years. He asked the wife about the reason for her leaving her husband's house and the wife said that she gto fed up with her parents-in-law. P. N. Mehta (R.W.4) is a Chartered Accountant and an independent witness. The wife and her father visited the witness and the wife told the witness that she had to leave the husband's house because she was maltreated inasmuch as she was nto allowed to go out to cinema houses and clubs and that her telephone calls were being interfered with. She further complained to the witness that she would nto go back to the husband's house unless and until he separated from his parents and took a separate residence. There is no reason to disbelieve this witness. Kundan Lal (R.W. 10) knows the fathers of the parties. The husband's father approached the witness and requested him to accompany him to the wife's father and try to- bring the wife back. The witness saw the wife's father who complained that-
'the petitioner's movements were being kept unnecesarily restricted and that she was nto permitted to go out to cinema theatre etc. He suggested that the respondent (husband) take up separate residence and that he could then send the petitioner (wife) to the respondent's house.'
(15) To none of these witnesses did the wife's father ever complain about the impotency of the husband. There are then some inherent infirmities in the wife's statement which have been brought out in the judgment under appeal and I express my full agreement with the learned Additional District Judge in this behalf. The learned Additional District Judge has pointed out that the wife 'stated off by saying that the respondent and she did nto share the same bed at all throughout the period they lived together. She had ultimately to admit under the stress of crossexamination that whenever she slept in their bed room in the nuptial-bed given to her in dowry by her father, both she and the respondent occupied the same bed together'. She further stated in a later part of his statement that 'we did nto kiss each other at all.' She, however, clarified this statement by adding the rider that 'may be on a few occasions, there was some sort of kissing'. She further stated that even if the respondent was potent, she was no longer prepared to live with him. The learned Additional District Judge has also taken note of various other improbabilities and or inconsistencies in the wife's statement, such as-
(1)the conduct of the wife in the post-nuptial period;
(2)the parties lived together after their marriage from February to November 1965 without the wife even remotely suggesting to anyone that her husband was impotent;
(3)the wife claimed in her statement that before leaving for Bombay with the husband in July 1965 she had confided about the husband's impotency to one of her girl friends which did nto appear to be correct.
(4)during the husband's visit to Bombay alone the wife was constantly writing to him to call her there. She must have known earlier that the husband was impotent. In that situation her conduct would have been different. She did nto even complain about the husband's alleged impotency to her parents till long after their return from Bombay in September 1965;
(5)the parties obviously lived happily together even after their return from Bombay when she went and stayed in the husband's house;
(6)the wife's Explanationn that she did nto mention this fact to her parents earlier in the hope induced by the respondent's assurance that he was taking medicines and that he would be alright by treatment is nto convincing at all. It is in conflict with what her father had to say about it. Public Witness Ram Singh, the petitioner's father, deposed that the petitioner had told him that she had nto disclosed this fact to him earlier because, the respondent had taken a vow from her in a temple that she would nto disclose this fact to anyone. A reference to the petitioner's averment in the replication would show as if the petitioner had already complained to her parents before she went with the respondent to Bombay trip in July, 1965, that the respondnet had nto had sexual intercourse with her at all by that time.'
(16) The learned Additional District Judge has also commented on the evidence of the petitioner's witnesses Dina Nath and Surinder Nath as destructive of the wife's story and I endorse that opinion. In these circumstances, it is difficult to place faith on the wife's statement.
(17) That takes me to the charge of cruelty. I have already discussed that the wife made no attempt to give the particulars in the petition. Mr. Manchanda relied on Iqbal Kaur v. Pritam Singh, (1) and Putul Devi v. Gopi Mandal, (2) and argued that the allegations of unchastity made by the husband in the writtenstatement entitled the wife to rely on those and claim judicial separation on the ground of cruelty. I am nto willing to subscribe to that general proposition. As I understand, the legal position is this: Under section 10 of the Hindu Marriage Act either party to a marriage may present a petition for judicial separation on the ground that the other party 'has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party'. To sustain a charge of cruelty the petitioning spouse must give the necessary particulars to enable the defending spouse to meet the case. If some particulars are given and the petitioning spouse is able to establish those, the facts that the husband has leveled a charge of unchastity may be taken into consideration as supporting the petitioning spouse's version and also in coming to the conclusious that the second ingredient of section 10(1)(b) as to, the apprehension in the mind of the petitioning spouse that it will be harmful or injurious for her or him to live with the other party stands satisfied, for, in that event it would be a fair deduction to make that the parties cannto live together without reasonable apprehension in the mind of the petitioning spouse that it will be harmful or injurious for him or her to live with the defending spouse. That, in my opinion, does nto absolve the petitioning spouse from clearly alleging and proving cruelty. If in a given case the defending spouse makes an allegation of unchastity in the written statement, it may be open to the petitioning spouse to seek relief on that ground by taking appropriate steps to amend the pleadings treating that allegation as providing the necessary cause of action but it is difficult to accept that on the basis of an allegation in the written statement alone a decree for judicial separation can be founded, for, in that case, the defending spouse will never have a chance to properly defend him or herself. In such circumstances, for instance, the defending spouse will nto be able to show that the petitioning spouse's unchastity was responsible for her leaving the house and that he had done nothing on which a finding of cruelty could be founded against him. Cruelty at the hands of the respondent has to be proved. Given an opportunity he may say and prove 'I have nto committed any act of cruelty but only made a true statement of fact'. In crossexamination the husband explained that the wife had told him that she had a love affair before marriage and he had made these allegations on the suspicion because he saw her with a stranger thrice. The facts of this case strongly millitate. against the wife. She had a clear opportunity to incorporate that plea in the amendment but she did not. It is essential to impute to the wrong-doer a willful intention to injure the aggrieved spouse for the impact of the wrong-doer's act on the mind of the aggrieved spouse has lo be seen and it has then to be judged whether that act could cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to him/her to live with the other party; but cruelty against petitioning spouse has to be established and I am doubtful whether an Explanationn by the defending spouse that the other party left the house because of unchastity would per se justify judicial separation. I need nto go into the question canvassed at the bar by Mr. Manchanda that even a single hostile act like turning out the wife forcibly would constitute creulty sufficient to entitle the wife to obtain a decree for judicial separation for in the facts of the present case I am nto inclined to believe the version of the wife. I may, however, indicate that in certain circumstances even a single act of violence may constitute cruelty and cruelty even consistent with affection may constitute good ground for parting. The Courts should not, however, countenance severance on grounds of mere austerity of temper, petullance of manners, want of civil attention or occasional sallies of passion, which necessarily arise when two persons agree to live together. In the married life of people there may be occasional outbursts of temper and occasional offended silences but these may nto be sufficient to constitute cruelty in ordinary circurnstances. Yet their extent taken in the light of the surrounding circumstances may be such as to enable the aggrieved spouse to obtain judicial separation. All that I need say is that every case must bejudged on its own facts having due regard to the surrounding circumstances and the word 'cruelty' cannto be put in straight jacket of judicial definition. Having regard to the circumstances of this case I am nto inclined to believe the version of the wife that she was turned out of the house forcibly or that the husband was responsible for any such act of cruelty which entitled the wife to judicial separation.
(18) This appeal, thereforee, fails and is dismissed but with no order as to costs.