V.D. Misra, J.
(1) This is an appeal by a husband under Section 28 of the Hindu Marriage Act against the order of an Additional District Judge annulling the marriage under section 12 of the Act. The parties were married on 26th March, 1969 at Delhi according to Hindu rites and ceremonies. The wife lived with the husband till 13th May, 1969, and since the husband could not consummate the marriage she left him never to return to the matrimonial home. On 18th December, 1969, the wife filed a petition under section 12 of the Act for annulment of marriage on the ground that the husband was impotent at the time of marriage and continued to be so till the institution of the proceedings.
(2) The husband resisted the petition and claimed that he had, in fact, consummated the marriage on various occasions when the wife lived with him.
(3) annulment. for petition the granted so and so, be to continued maiage of time at impotent was husband that conclusion came wife by produced evidence believing court trial
(4) The evidence in this case consists of the statements made by the wife and the husband in support of their contentions. The wife also relies on letters. Exhibits P-A, P-B, and P-C, admittedly written by the husband. According to the wife, inspire of the fact that the husband was sleeping with her during the period she stayed with him, he could not produce erection and thereforee could not consummate the marriage inspire of various attempts made by him. They had gone out to Kashmir after one week of their marriage for honey-moon, but still the husband failed to consummate. After leaving matrimonial home the husband had been meeting her at various places including her hostel as well as restaurants.
(5) The husband deposed that he had been able to consurnmate the marriage on the very first night and thereafter, practically every day he slept with her. He admitted writings Exhibits P-1, P-B and P-C. He, however, explained that Exhibits P-A and P-B were written by him on the persuation and suggestion of the wife's father so that he could show them to the 'Biradari'. As regards Exhibit P-C, he stated that it was obtained from him under duress and he immediately sent telegrams to the police station as well as to the trial court.
(6) In Exhibit P-A, the husband has written that he had got into the had habit of mastarbation which had a psychological effect on him. It was further stated that this had been later on cured in lrwin and Willingdon hospitals after marriage in the months of May to July. Letter, Exhibit P-B, which is addressed to the wife's father states that the sexual weakness which he had had been cured, and that this fact has been certified by the All India Institute of Medical Sciences. These two letters were admittedly written before the wife filed petition for annulment. The husband's evidence shows that the complaint of the wife regarding his mpotency had become known not only to the parents of the parties but also to the brother-hood. It was for that reason that the husband had got himself medically examined in order to satisfy his own father since his father was of the opinion that the wife could not accuse the husband of impotency unless there was a sexual weakness. The matter had. also been brought to the notice of brotherhood for reconciliation and at the instance of the brotherhood the husband got himself medically examined at the All India Institute of Medical Sciences on 30th July, 1969. The husband also admitted that he had been meeting the wife till July 11, 1970 at various restaurants. These facts clearly show that Exhibits P-A and P-B C were written by the husband not on the persuation or suggestion of the wife's father but voluntarily in order to convince the life's father that he was no longer impotent. In fact, had he been able to consummate the marriage, I see no reason why the wife should have complained against him on that score. In case she was leaving her husband because of the persuation of her father, as alleged by the husband, she would have never agreed to see him at various restaurants. No action was taken by the wife since the elders had become seized of the matter and in consultation with the 'Biradari' they were trying to settle the matter, if possible. In my opinion, the learned trial court had come to the correct B conclusion that the husband was impotent at the time of the marriage. He was also correct in not relying on Exhibit P.C.
(7) The mere fact that the wife did not subject herself to medical examination during the proceedings does not mean that the husband was able to consummate the marriage. The only inference which can be drawn is that the medical evidence would have shown that she is not virgin. This by itself would not prove the potency of the husband to consummate the marriage.
(8) During the proceedings the husband had got himself examined by a Board and had produced certificate. Exhibit R-2. It shows that his genital organs were well developed and there was no evidence of any local disease or malformation, and normal erection was also obtained.
(9) The incapacity to accomplish the act of sexual inter- course is called impotency. By sexual intercourse is meant not an incipient, partial or imperfect, but a normal and complete coitus. Impotency differs from sterility which relates to the capacity of procreatton. A person may be potent and yet not be capable of procreating and vice versa. Impotency may be due to various causes. It may be due to malformation of the' genital Organs or due to any local disease or injury, it may also be due to psychical influence. There may he sexual potency in general bat impotency qua a particular spouse is also possible which is called impotency quoad hanc or quoad hunc.
(10) Rayden on Divorce, 8th Edition (1960) in the notes at page 109 states thus:
'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.'
(11) The circumstances of the present case show that though it cannot be said that the husband is impotent generally, his ' inability to have sexual intercourse with the respondent- wife may be due to temperamental reason and he may thus be said to be impotent quoad hunc.
(12) As regards the contention of Mr. Mulla that the wife has failed to prove that the husband continued to be impotent till the time of filing the petition, in my opinion, once the wife has proved that inspire of a long opportunity having been given to the husband to consummate the marriage and his failure to do so, and the husband being impotent quoad hunc, the onus is on the husband to show that his disability has ceased to exist. In such circumstances it would be safe lo assume that the husband's impotency qua the wife continued till the filing of the petition. A Bench decision of Jammu and Kashmir High Court in Chaman Lal Bhat V Smt. Rupa Devh (A.I.R. 1966 J & K 68 took a similar view and observed thus:-
'IN our opinion, once it is proved that the husband was unable to consummate the marriage on the ground of impotency at the time when the marriage took place and that the wife continued to be complete virgin at the date when the petition was filed, the onus shifts on the husband to show that he regained his potency before the filing of the petition. In case he is unable to prove this fact. the natural inference would be that the husband continued to be impotent up to the date of the filing of the petition.'
(13) The result is that the appeal fails and is dismissed. The parlies are, however, left to bear their own costs.