Charanjit Talwar, J.
(1) This is an appeal under Section 28 of the Hindu Marriage Act (herein called 'the Act') filed by Smt. Sushila Devi Aggarwal, challenging the decree of annulment granted by Miss Usha Mehra, Additional District Judge, Delhi, by her judgment passed on 11th November, 1980, on a petition filed by the respondent herein, Shri Vijay Kumar Aggarwal.
(2) The case of the husband was that the parties to the petition were married on 20th February, 1977, at Faridabad (Haryana). After the marriage they came to Delhi and lived for about 2 to 3 days. During that period the marriage was not consummated as the parties could not have any sexual intercourse. Thereafter, the wife left for her parents' house. When she came back after about ten days or so she stayed at Delhi with her husband for another ten days and again left for her parents' house. The case of the husband was that during the period of stay of his wife at Delhi she never mensturated. During the days when the wife was staying with him after her first visit to Faridabad the husband tried to have sexual intercourse with his wife. According to him he could not penetrate for more than an inch or so , all his efforts to commit sexual intercourse were frustrated. In 1977 at the time of Diwali, the wife (appellant herein) had again left for her parents' house at Panipat, where her father had since been transferred from Faridabad. In January, 1978, she came back to Delhi. As the husband had not been able to consummate the marriage till that time he took her for medical examination. It was at that time found that the wife had a plastic surgery by which an artificial vagina had been put in. She had no uterus and she had never mensturated.
(3) Alleging that his wife was impotent he sought a decree of nullity under Section 12 of
(4) On these pleadings the following two issues were framed :
'(1)Whether the marriage has not been consummated owing to the impotency of the respondent (2) Relief.'
(5) The learned Additional District Judge after going through the evidence of the husband and the medical report. Exhibit R/l, has found that the wife is impotent and accordingly granted a decree of nullity. It may be noticed that after the evidence of the respondent herein, Vijay Kumar Aggarwal, had been recorded and the evidence closed by his counsel on 21st May, 1980, learned counsel for the respondent stated, 'I do not want to lead any evidence'. Thus, no evidence has been led on behalf of the appellant herein.
(6) In his statement the husband had supported the averments made in the petition as noticed by me above. It is his case that he did not know that by plastic surgery on artificial vagina had been created in his wife; that the marriage had not been consummated because he could not penetrate for more than an inch or so and that his wife was impotent. These facts brought out in examination-in-chief have not been challenged. Whatever the case averred in the examination-in-chief it is now to be taken for granted, because no questions have been put to the husband in cross-examination. That in this case the vagina had been artificially created; that the marriage had not been consummated and that whenever the husband attempted to consummate the marriage, penetration was not for more than an inch or so stand proved. Great reliance was placed by the learned counsel for the wife on the report of the Medical Board who had examined the wife on 19th December, 1979. That report is Exhibit R/l. The opinion of the doctors of that Board was that Sushila Aggarwal 'is capable of sexual life'. Before analysing the contention it is worthwhile to re-produce the report :
'IDENTIFICATION marks (1) Cut on the upper side of the neck (left side) 1/2 ' x 1/4'. (2) Small mole on the modal side of wrist on left hand. H/O of angioplasty done at the 16-17 yrs. at Holy Family Hospital. O/E Woman is average built and height. Secondary Sex Character. ............Breast ............Female distribution Normal ............Hair P/v............Valva normal ............Vagina 3' in depth. ............allow 2 fingers easily. P/s............Pale look skin like mucous ............Uterus and cervix not felt to free.
(7) The above report clearly shows that when Sushila Aggarwal was 16 or 17 years old, plastic surgery was performed upon her by which an artificial vagina had been constructed by skin grafting. This operation was performed in Holy Family Hospital; that there were secondary sex characters apparent but the vagina was of 3' in depth and uterus and cervix were absent. However, two fingers could be inserted in the vagina, according to the above said report.
(8) From this report learned counsel for the appellant urges that Court ought to disagree with the finding of the learned Additional District Judge that the wife was not capable of having sexual intercourse. As noticed above, there is no cross-exami nation regarding the fact that the marriage had been consummated at all. It has been established that the husband could not consummate the marriage because it was not possible for him to penetrate for more than an inch or so. The Medical Report, R/l, to my mind, supports the contention of the husband notwithstanding the opinion given by the doctors. In the present case in view of the fact that the vagina was artificially created and that it was only of 3' depth, it cannot be held that the wife was capable of performing sexual intercourse. The present is not case where the wife was psychologically averse to perform sexual intercourse.
(9) Reliance of Mr. Markandeya, learned counsel for the appellant, on a judgment of this Court in Smt. Shokuntla Kumari v. Om Parkash Ghai, A.I.R. 1981 Del 53, seems to be misplaced. In ihe said case it was found on facts that sexual intercourse had taken place between the parties: that the woman concerned was fit to have sexual intercourse but resisted the same and used to raise hue and cry on account of psychological a version.
(10) In the present case it cannot be said on facts that the marriage had been consummated. The further point that the marriage could be consummated is merely academic.
(11) Mr. Markandeya then referred to another decision of Punjab & Haryana High Court in Rajender Pershad Bhardwajv.Smt.ShantiDevi, A.I.R. 1978 P & H 181 in support of his contention that even where the vagina was found to be 1-1/2 in depth the court bad come to the view that the woman concerned was not only capable of sexual intercourse but of sexual enjoyment as well. In the said case as it appears from a reading of the judgment the wife had not been cross-examined regarding the consummation of the marriage, Om medical evidence it was held that she was capable of bearing children and that she was, in fact, not impotent.
(12) In my view the above-cited decision does not lay down a general proposition that where a woman has a vagina of only 1/2'' it has to be held that she is potent. In the facts and circumstances of the case keeping in view that she was capable of procreation and that the marriage had in fact been consummated, it was held that she was not impotent.
(13) Learned counsel for the respondent herein has referred to a judgment of the Rajasthan High Court iii Smt. Laxmi Devi v. Babu Lal, , where in it has been doubted whether a woman who had an artificial vagina constructed could be considered to be fit for sexual intercourse at all. The view of Ormed J. in Cerbett v. Cerbett (1970) 2 All E.R. 33, has been noticed with approval therein. The learned Judge in Corbett v. Corbett has observed as follows :-
'I am aware that this view is not in accordance with same of the observations of the Court of Appeal in S. v. S. (otherwise w.) but in my respectful opinion, these parts of the judgment which refer to a wholly artificial vagina, go beyond what was necessary for the decision in that case and should be regarded as Obiter'.
(14) In the present case the finding of the learned Additional District Judge that the wife was incapable of performing complete sexual intercourse has to be upheld. It is well settled that imperfect and partial intercourse would not amount to consummation of marriage.
(15) This appeal has no merit and the same is dismissed with costs.