Avadh Behari, J.
(1) This is a wife's appeal against the order of the Additional District Judge, Delhi, dated 18th of September, 1972.
(2) On 2nd April, 1971, the wife made a petition for a decree of nullity under Section 12 of the Hindu Marriage Act, hereinafter refferred to as the Act. The parties were married on 16th April, 1970. They lived together for four months but the marriage could not be consummated as the husband was impotent. The wife in her petition stated that the husband was impotent at the time of marriage and continued to be so until the institution of the proceedings. She further stated that the husband in the presence of her mother and brother-in-law admitted that he was impotent and was unable to cohabit with the petitioner as he was 'sexually very weak.'
(3) In answer to the petition the husband filed his written statement. His defense was that he was not 'universally impotent.' But he is impotent quad hanc. It was admitted that the marriage was unconsummated. The learned Additional District Judge framed the following issues:
1. Whether the respondent was impotent at the time of the marriage and continued to be so till the institution of this petition?
2.Whether there is no collusion between the parties?
(4) Additional issue: Whether the respondent is and had been impotent qua the petitioner as alleged in the written statement? If so, its effect?
(5) On behalf of the wife two witnesses were examined viz., the wife herself and her brother-in-law. The brother-in-law (Public Witness 1) stated that in his presence and his mother-in-law's presence the husband admitted that he was impotent. In cross-examination he, however, stated:
'IT is incorrect to suggest that the respondent had said only this much that he was impotent qua the petitioner.'
(6) The wife in a brief statement stated that the husband never got erection whenever he wanted to have sexual intercourse with her and that she told her mother about the impotency of the husband. The wife was not cross-examined.
(7) In defense the husband examined himself and no other witness. He stated:
'Iam psychologically impotent qua the petitioner............... There has been no cohabitation between myself and the petitioner ever since our marriage.'
(8) The wife did not cross-examine the husband. The court, however, put a number of questions to the husband. In answer to one of the questions the husband stated:
'THEsexual behavior of the petitioner and the lack of modesty in her have created a psychological feeling in me against her because of which I am impotent qua the petitioner.'
(9) It may be stated here that the husband was examined by a board of doctors on two occasions. Their reports are on the record. In one of the reports the doctors found that the husband was unable to produce erection when asked to masturbate. On the second occasion they found that there was nothing which could prove that he was impotent. These reports were not tendered in evidence on behalf of either side and, thereforee, they do not constitute proof in the case.
(10) The learned Additional District Judge examined the evidence. He entertained great doubt regarding the impotency of the husband. He doubted the statement of the brother-in-law because he found a contradiction in his statement. As the witness specifically denied the suggestion that the husband had said in the meeting that he was impotent qua the petitioner the Additional District Judge thought that the statement of the brother-in-law (Public Witness 1) was not worthy of reliance. The learned Judge also doubted the statement of the wife. In her petition she had said that the husband was impotent but in her statement before court she stated that he was impotent qua her only. This statement the learned Additional District Judge found in conflict with the allegations made in the petition and contradictory to the statement of Public Witness 1, the wife's brother-in-law. As regards the medical evidence the Additional District Judge said that as the medical certificates were not proved he was entitled to draw an adverse inference against the wife that the reports would have gone against her if the same had been proved.
(11) The Additional District Judge summed up his conclusion in these words :
'ALLthis shows that it was a made up affairs and the respondent does not suffer from impotency organic or psychological qua the petitioner......................
Iam of the considered view that the petition has been filed by the petitioner in collusion with the respondent.'
(12) In the result the petition was dismissed leaving the parties to bear their own costs.
(13) Aggrieved by the decision of trial Court the wife appeals to this Court.
(14) Mr. S. L. Bhatia appearing for the wife has strenuously contended that the learned Additional District Judge was in error in recording a finding against the wife on the issue of impotency. He submits that the only question which arose before the trial Court was whether the husband was impotent qua the wife. On this issue there was clear evidence of the wife as well as of the husband. Both of them plainly admitted this to be a fact. It is said that in view of the admission in the written statement and the admission of the claim in evidence it was not necessary to examine any further evidence nor was it necessary to examine the doctors.
(15) In my opinion, the contention of the wife's counsel is not without force. It seems that the learned Additional District Judge approached the case with great suspicion in his mind. He doubted every one who came into the witness box. It is true that under Section 23(c) the Court has to be satisfied that the petition is not presented or prosecuted, in collusion with the respondent whether it is a defended or undefended petition.
(16) In Halsbury's Laws of England it is said :
'BUTthe fact that both spouses desire a divorce does not make them guilty of collusion, provided they have not entered into any agreement obnoxious to the Court.'
(3rd Edition, Vol. 12, page 301).
(17) The same principle should apply to a decree for nullity. In this case there was no evidence before the court of any agreement between the parties. It is one thing to say that the petitioner has failed to establish her case, that she has failed to prove impotence and, thereforee, refuse her a decree. It is quite another thing to accuse a a party of collusion.
(18) It is well to remember that ordinarily no man admits his mental or physical incapacity unless it is a fact. Impotence is generally regarded as a stigma. It is a slur on manhood masculinity and virility.
(19) Collusion is not to be inferred merely from the fact that the case is unusual. it was said:
'THEsuspicion if it was to be acted upon, must in our opinion, be founded on something more tangible than a vague uneasiness that an unusual case may not be true.'
(20) The wife stated in her petition that the petition had not been made in collusion. She also affirmed this in her statement on oath. Her own case as disclosed in the evidence was that the husband was impotent qua her. He was unable to have erection and, thereforee, could not cohabit with her. The fact remained that the marriage was not consummated. The husband himself admitted that because of an aversion in his mind he became funky whenever he thought of having sexual intercourse with the wife. He clearly stated that he consulted the doctors and they found that he was otherwise potent.
(21) I find no reason to disbelieve the statements of the parties. It is true that the wife did not state in her petition that the husband was impotent qua her. She simply said that the husband was impotent. She made the allegation in accordance with Section 12(a) of the Act. I think that was enough. An averment of impotency quoad hunc or quoad hanc is sufficient to support a decree of nullity. In any case the wife could not be non-suited on this ground when both parties admitted that the husband was impotent qua the wife.
(22) The mere fact that the wife's brother-in-law denied the suggestion made to him about the impotency of the husband qua the wife was not a ground for casting suspicion and doubt over his entire statement. It is not necessary that every witness should understand this distinction which is made by medical jurists and psychologists that a certain person can be impotent qua his own wife but may otherwise be sexually powerful. For a finding of potency what matters is ability to consummate the marriage with the other spouse and not ability to have intercourse in general The following statement in Tolstoy on Divorce, Sixth edition (1967) at page 114 is helpful in this connection:
'ITsometimes happen that & person is capable of having intercourse, but incapable of performing it with the particular individual i.e. impotent quoad hunc or quoad hanc. This is sufficient to found a decree of nullity, as what matters is ability to consummate the marriage with the other spouse and not ability to have intercourse in general.'
(23) Provided there are circumstances which constitute a bar to relief e.g. knowledge of the defect at the date of marriage, the impotent party can himself petition for nullity and his right to do so is not conditional on repudiation of the marriage by the other party.'
(24) It was said,
'INsome cases a person may be capable of having sexual intercourse but incapable of performing it with a particular individual and in such a case he must be regarded as impotent in relation to the particular individual regardless of his potency in general.'
(25) It was held that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto, though no reason for non-consummation was manifest or apparent. In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non-consummation of the marriage. The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that-'quoad hunc et quoad hunc, these people cannot consummate the marriage.' The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery. I, thereforee, come to the conclusion that even when an individual is generally potent but is impotent with respect to his own spouse and is unable to consummate marriage he has to be regarded as impotent for the purposes of Section 12(a) of the Act. In impotence cases the emphasis is on consummation. A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility (rialsbury-P. 228).
(26) The trial judge, I think, overlooked three basic assumptions. Firstly it has to be remembered that :
'THEREis no minimum standard of proof necessary. Even uncorroborated testimony of the petitioner is sufficient if it can be believed. In cases of this nature, corroboration can only be obtained from the evidence of the other party to the marriage. Under S. 180, Evidence Act the other party to the marriage is a competent witness.'
(27) Secondly evidence in these matrimonial cases is of interested persons. The party of necessity is interested in the result of litigation.
(28) Thirdly there may be cases where a person may have invincible repugnance to the act with a particular individual, though generally capable of having sexual union with others. Where owing to psychological or mental reasons a person is impotent quoad hanc it is not necessary to show universal impotency. In these types of cases the impotency arising from that fact would be within the exclusive knowledge of these spouses and it would be difficult to test it by medical evidence.
(29) I do not think that the learned Additional District Judge was right m drawing an adverse inference because of the non-examination of the doctors by the wife. In view of the admission of the husband himself I think no further evidence was called for. It is not possible for the doctors, I think, in all cases to find out whether a certain person has a sexual aversion to a particular woman or the wife. The doctors can find out whether there is malformation or structural defect in the genitals of a man.
(30) On the facts of this case I cannot find collusion. In my view, the learned District Judge was not right in dismissing the petition on the ground of collusion.
(31) I would allow the appeal and grant the wife a decree for nullity under Section 12(a) of the Act. In the circumstances of the case I leave the parties to bear their own costs.