N.G. Shelat, J.
1. The petition, from which this appeal arises, was instituted by the appellant Prajapti Ganesh Idaji against his wife Hastuben Hemraj-the respondent in the City Civil Court at Ahmedabad, for obtaining a decree for the annulment of his marriage with Hastuben which had taken place on 28th February 1960, under Section 12(1)(a) of the Hindu Marriage Act, 1955, hereinafter to be referred to as 'the Act', inter alia alleging that she was impotent at the time of the marriage and has continued to be so until the institution of the petition. The opponent respondent resisted the petition inter alia contending that the allegations of impotency made against her were false, and that since the petitioner thought that she will not be able to bear any children, he has filed this petition by making false allegations with a view to obtain divorce from her.
2. The learned Judge of the City Civil Court raised the issue as to whether the respondent was impotent at the time of marriage and continued to be so until the institution of this petition so as to enable the petitioner to obtain decree for annulment of his marriage with her under Section 12(1)(a) of the Act. In his opinion while at the time of the marriage or rather in the initial days of their married life, the petitioner-husband found it impossible to have consummation of the marriage with her, but that did not so continue after she had undergone the operations in September 1960, and that she was, therefore, not impotent at the time of the filing of the petition. He was, therefore, not entitled to a decree for the annulment of his marriage with her under Section 12(1)(a) of the Act. In the result, the petition came to be dismissed with costs. Feeling dissatisfied with that decision passed by Mr. T. U. Mehta, Judge, City Civil Court, VIII Court, Ahmedabad, the petitioner has come in appeal.
3. The parties are Hindus. The marriage between the parties took place on 28th February 1960, according to Hindu rites and the custom pre-valing in their caste. This was his second marriage with her-the first wife having been given divorce according to custom in their community. He has one daughter by his first wife. The petitioner's case was that on the very first night after his marriage he found it impossible to have sexual intercourse with his wife the respondent on account of some structural defect in her vagina. According to him, the vagina of the respondent was found to be too short to allow full penetration, and he was then not able to consummate the marriage on the first night. Some time after while he had tried to have sexual intercourse with her, he found some white substance having nasty odour coming out of her vagina and which made further acts of copulation impossible for him. When the matter was brought to the notice of the respondent's elders he was told that she was suffering from fistula. He had then sent her to her parent's place, where she took some treatment. But even after the treatment was taken by her, as his evidence discloses when she returned to his house, he found the same difficulty and that way it was not possible for him to have any sexual intercourse with her.
4. Thereafter, during the period from 18th September 1960 to 30th October 1960 the respondent was admitted as an indoor patient at the Vadilal Sarabbai Hospital, Ahmedabad, where she had undergone some surgical operations. From the evidence of Dr. Miss Saudaminiben Pandya, Ex. 40, it appears that on her examination during that period at the Hospital, she was found to have a short vagina and that it was communicating with the rectum. By short vagina she meant to convey that her vagina was not of normal length. She had then performed three operations on her namely (1) colostomy, (2) vagina plasty and (3) repair of recto vagina fistual as well as closure of colostomy. From her evidence it further appears that in her opinion after those operations were performed on her, her partner viz., her husband would be able to have normal coitus with her and both the parties to the marriage, can have normal sexual satisfaction.
5. The case of the petitioner, however, is that even after surgical operations performed on her the respondent's condition had not improved and it remained impossible as before to have sexual relations with her. On 14-1-1963, the petitioner had therefore taken his wife for showing to Dr. Zala, the Civil Surgeon at Ahmedabad. She was examined by Dr. Zala, and since in his opinion, she was impotent, after giving a notice dated 3-3-1963, the petitioner filed the petition for having the marriage annuled under Section 12(1)(a) of the Act. In this connection it may be observed that Dr. Zala had issued a certificate Ex. 25 dated 14-1-63, and all that it shows is that on examination she was found to have no uterus or cervix. It did not say that she was impotent, in the sense that he could not be able to have sexual relations with her. This in a way gives the clue behind this petition viz., about his being convinced that she would not bear any child as the uterus was not there, and that in his view amounted to impotency on her part, which led him to file such an application. Dr. Zala's evidence, clearly shows that she was found fully capable of having sexual intercourse when he examined her, and the only thing she did not have was the utrus or cervix as a result of which she would not be able to bear children.
6. Now in order to succeed for obtaining a decree for annulment of marriage duly solemnised, it is essential for the petitioner to establish that the respondent was impotent not only at the time of marriage but that she continued to be so until the institution of the petition as required under Section 12(1)(a) of the Act. In other words, when an attack about impotency is made against the spouse so as to justify one to claim annulment of marriage, the onus of proving the existence of the condition of her being impotent not only at the time of the marriage, but also about her continuing to be in the same condition even at the time of the institution of the petition would lie heavily on the petitioner-husband. It cannot be said that if he is able to establish impotency of his wife at the time of the marriage, the presumption should be raised against her by saying that she continued to be so, until she was shown otherwise by satisfactory evidence that the defect that she had, no longer exists and that she was quite potent enough to consumate her marriage with her husband. Both the conditions are pre-requisite before a decree under Section 12(1)(a) is to be passed, though it is possible to say that it would shift on the other side, on proof of her impotency is established at the time of the marriage and that it is shown to have continued till the filing of the petition. The other point which is required to be noted is that in cases of this character, impotency of the respondent being a peculiar matter within the exclusive knowledge of the spouses, proof aliunde of the infirmity is not only difficult-but even impossible, except in cases of impotency due to malformation or structural defect in the organs, in which event medical evidence can best serve the purpose of corroborating the evidence of the spouse, as the case may be. But in some cases a person may be capable of having sexual intercourse but incapable of performing it with a particular individual, in which case, he may be called impotent in relation to that individual, regardless of his potency in general. The defect is of some incurable mental or moral disability resulting in inablity to consumate marriage with the particular man or woman as the case may be. In such cases of impotency, even uncorroborated testimony of the spouses may well do, if that can be believed by the Court. But in other type of cases medical examination of the parties is essential and if available, it can be of considerable help in deciding the same. It may be said that this is not a case based on any such moral or mental repugnance or disability of the petitioner towards his wife or vice versa for consummation of marriage. No such plea exists. It is a case of her having a short vagina or rather of a structural defect in her vagina not admitting any satisfaction by sexual intercourse with her. In that event, the medical evidence does play considerable role, and in the present case almost of a conclusive character, inasmuch as after the operations were performed on the respondent in September 1960, her vagina had become quite normal, and she would be able to give sexual satisfaction to her partner. To say, therefore, that the personal experience of the petitioner disclosed in his evidence regarding her impotency should prevail, cannot hold good in the circumstances of this case, apart from his being vitally interested in seeking the relief in this petition particularly, as undisputedly she would not be able to bear any children-she having no utrus or cervix. His evidence has to stand scrutiny with the medical evidence on record of the case.
7. Now the finding of the learned Judge in respect of his being not able to consummate the marriage at the time when the marriage took place, can hardly be challenged, but as I said above, before the petitioner can succeed he has to further show that she continued to be so at the date of the institution of the petition. He had come to know about the operations performed by Dr. Miss Pandya at Vadilal Sarabhai Hospital on his wife in September 1960 and thereafter she had lived with him. He had sexual intercourse with her, though according to him, he had no satisfaction whatever and she had remained the same as she was at the time of her marriage. Now that part of the evidence can hardly be believed, as even according to Dr. Zala's evidence, normal sexual intercourse with the woman was possible in the sense that full penetration was possible for carnal satisfaction. All that he said was that since she had no utrus or cervix, she could not therefore bear children. Apart from that evidence of Dr. Zala, the evidence of Dr. Miss Pandya, Ex. 40, refers to the nature of operations she had performed on her, and in her opinion, thereafter it was always possible to give sexual satisfaction to her partner during the course of intercourse with her. She has also stated that the defect in her vagina which existed before had already gone away and that her husband could have completed sexual satisfaction with her. Again the respondent had got herself examine by one Dr. Jyotiben Parikh on 9th October 1963, Dr. Parikh holds decree of M. D. Gynecologist and she has been practising since last 11 years in Ahmedabad. She had also spent about 3 1/2 years at the Hospital in London. On her examination she had found that her vagina was normal and that complete and normal intercourse can he had with her. According to her there was no uterus or cervix.
8. With all this evidence on record the learned Judge, as observed by him in para 7 of his judgment, it would be better if the respondent's medical examination is carried out by two renowned and impartial Gynecologists in the City of Ahmedabad. During the course of the respondent's evidence she was asked as to whether she would be ready and willing to subject herself to any such medical examination. She readily agreed to it. The parties then agreed to the names of the two Gynecologists and she was then seat for examination to them. Certain questions were set out for them to reply so that they may give specific attention to the points involved in this case. Those doctors were Dr. R.M. Nadkarni and Dr. Saudaminiben Pandya. It was also explained to those two doctors that their examination may not be confined only to those three points referred to them as the ultimate question which was required to be determined was whether she was potent or not. The points referred to them were as to whether Bai Hastuben was capable of having and enjoying the natural coitus, and the second was whether it was possible for the partner to have and enjoy the natural coitus with her. The third point was that in case she was not potent either partially or wholly, whether the infirmity in question was permanent or curable. Both of them had examined her independently and they sent their reports Exs. 51 and 52 respectively to the Court. They have given their evidence in Court and substantiated the reports made by them. Turning to their evidence which has been almost on the basis of their reports, it appears abundantly clear that in the opinion of both of them she was quite potent and her husband would be able to consummate marriage with her. They have explained their reports giving reasons for coming to those conclusions. Dr. Nadkarni has stated that apart from her secondary sex-characters were quite developed, she was capable of sexual intercourse with vigour and power and there was no infirmity whatever. She and her partner were capable having and enjoying natural coitus with her. It is no doubt true that the question of vigour and power of women during copulation as stated by him, depends much upon her mental frigidity. But this is not a case in which the husband or the wife had developed any aversion or repugnance towards one another as already stated above, to an extent as not to be able to have sexual relations with each other. The question of impotency on that ground has not been at issue at all in the present case. Going further, the same conclusions are arrived at by Dr. Miss Pandya, Ex. 56, and she has also explained her report made on the examination of the respondent. Both of them have stated clearly that uterus and cervix were found absent. Dr. Miss Pandya has also clearly stated that her vagina was normal in size and shape. In her opinion, she was found to be completely normal and that her partner would not have difficulty to have sexual intercourse with her. She was thus physically capable of giving sexual response. Thus the medical evidence consists of experienced Gynecologists and the last two of them happened to be the persons who were requested to examine her by the Court at the instance of both the sides. Their evidence was, therefore, unassailable and the conclusion reached by the learned Judge on that basis, that her vagina was quite normal and that she was in a position to consummate marriage is perfectly correct.
9. What was urged by Mr. Vakil, the learned advocate for the appellant, was, that the evidence of the petitioner, who stands corroborated by his friend Shivaji, to whom he had spoken about his getting no satisfaction whatever with his wife in respect of sexual relations, should be believed, far in preference to the medical evidence in such a case. The reason for saying so was that he was a married man having one child by his first wife and that he would be a proper person to know and feel about it, and there is no reason to doubt him when he has been saying so, that she continued to be impotent in the sense that she has never been able to consummate marriage. As already stated hereabove, the evidence of the parties in such a proceeding, much though at first sight may appear to be the only proper evidence, is always difficult to act upon by reason of their being interested in the result of the proceeding, and more so when no other testing evidence or circumstances are possible to be had for verifying the truthfulness of such persons in the case. Therefore, something more such as the expert medical evidence, on examination of the spouse whose potency is challenged, would be essential and the Court, in normal circumstances should attempt to obtain the same in deciding such cases. The Court can direct the spouse whose potency is at question, to submit to such examination by some Doctor who has been an expert in that sphere, and have his report and even evidence before the Court. In case the person concerned does not so submit to any such examination, with out any reasonable justification, an adverse inference can legitimately be raised against that person, and the case can then be decided on appreciation of the evidence on record. But in the present case, she had, at the asking of the Court, submitted to such examination by two eminent and ' experienced Gynecologists, and whose evidence as I said above, is unassailable in the case. That conclusively establishes, about any such defect of her vagina which existed at the time of marriage, was no longer existing and it had become quite normal. She was in a position to give sexual satisfaction to her husband. The evidence of the petitioner cannot, therefore, be believed when he says that she continued to be so as she was before at the date of the institution of the proceeding.
10. Mr. Vakil's argument then was that the term 'impotency' used in Section 12(1) of the Act has not been defined in the Act, and since this Act is intended to codify the existing law relating to marriage amongst Hindus, it is necessary to find out its meaning as understood by Hindus, under their personal law that prevailed prior to this Act came in force in 1955. According to him, in the Hindu Scriptures the marriage was said to be not only for the highest conjugal happiness but also for procreation of children. It was pointed out that one can go into those scriptures-on the basis of which law regarding marriage amongst the Hindus was evolved, and in fact the Legislature has attempted to bring in various matters in different provisions of this Act. Section 5 Clause (4) of the Act prohibits marriage between parties who are within degrees of prohibited relationship, unless custom or usage permits. Clause 5 thereof, prohibits marriage between parties who are Sapindas of each other unless custom permits the same. It is also true that under Section 7(1) a Hindu marriage is to be solemnised in accordance with customary rites and ceremonies of either party. Those rites and ceremonies include the Saptapadi (that is taking of seven steps by the bridegroom and the bride jointly before the sacred fire) and it is then that the marriage becomes complete and binding when the seventh step is taken as contemplated in Clause 2 of Section 7. It was thus urged that when the term impotency is not defined or explained anywhere in the Act, one need not go to what is meant thereby in western countries or in other communities, but adopt a meaning as understood in Hindu Law as governing the Hindus. A reference to Verse 19 from Narad Smriti (Sacred Books of the East, Vol. 33, Chapter 12, P. 169) was made to show that women are created for the sake of propagation. The verse runs this:
The translation thereof would be as under:
Women have been created for the sake of propagation, the wife being the field and the husband the giver of the seed. The field must be given to him who has seed. He who has no seed is unworthy to possess the field.
It was further pointed out that in the Ashvalayana Grihyasutra in the Mantras immediately preceding 'Laja Horn' the bridegroom says to the bride amongst other things 'Let us beget children' and in the Saptapadi the fifth step is for offspring, viz. Then as described in Verse 9(28) of Manu Smriti the purpose of marriage as' ' which as translated would mean:
Offspring (the due performance of) religious rites, faithful service, and highest conjugal happiness.
From all this it was said that marriage had a purpose behind it to procreate in addition to obtain highest conjugal happiness. Even in Sapatpadi ceremony, fifth step is taken in respect of 'Offspring' or begetting children. That being so, even if she was able to afford sexual happiness, since she had no uterus or cervix, and as it cannot be introduced, she will never be able to conceive and beget any child at any time and that way she was impotent as ordinarily understood amongst Hindus. In such circumstances, the marriage can well be annulled under the Act.
11. Now it is true that law relating to marriage amongst Hindus is codified under this Act, and while doing so, the Legislature has incorporated all that was proper and necessary from the old law governing marriage amongst Hindus. Besides, one of the purposes behind marriage may have been to procreate children in old times, but absence of achieving the same-with marriage solemnised amongst Hindus, at no time entitled the husband to have his marriage dissolved much less annulled. The marriage then was a sacrament-SansKara-and it remained, and it was only invalid, if any of them lacked physical capacity to cohabit with the other. In A. v. B. 54 B.L.R. p. 725, it has been observed that any marriage, under any system of law, postulates that the parties who go through the ceremony of marriage have the physical capacity to get married, the initial purpose being cohabitation. Apart from this, we have Section 4 of the Act, which has the overriding effect over the texts, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act. In other words, all that ceases to have any application with respect of any matter relating to marriage for which provision is made in this Act. If what Mr. Vakil urges, were intended to convey by the term 'impotent' occurring in Section 12(a) of the Act, it would have been so defined and made clear. As I said above, not only no such law prevailed before-as to enable a husband to get divorce in case she were not able to beget children by reason of such absence of uterus, but no annulment of marriage on that account was ever suggested. No such ground for divorce is also made available to the husband under the present Act. When that is so, impotency meant not incapacity to beget children by reason of absence of uterus, but meant capacity to give physical sexual satisfaction to her husband. The term has to be given its meaning as we find in English Dictionaries-or in the decisions of different Courts-interpreting or explaining the use of this term under any such Act.
12. Now the term 'impotent' has been described in Halsbury's Laws of England, Volume 12, at page 228, to be such a state of mental or physical condition which makes consummation of the marriage a practical impossibility. In Corpus Juris Secundum, Volume 42, at page 410, it is stated that the term 'impotent' has been held synonymous with 'incapacity for copulation, or sexual intercourse. ' In other words, the incapacity for sexual intercourse is an essential ingredient of impotency. Such an inability may arise from a variety of causes including the mental and physical disability. In Words and Phrases, Permanent Edition, Volume 20, at page 284, it has been stated that want of power for copulation is impotence, but mere sterility is not. 'Impotency' thus means incapacity to perform the act of sexual intercourse that is to say, inability to copulate. In the case of Jagdish Kumar v. Sita Devi A.I.R. 1963 Punjab 114, it was held that incapacity of sexual intercourse is an essential ingredient of impotency under Section 12(1)(a) of the Act. In another case of Jadishlal v. Smt. Syama Madan and Ors. : AIR1966All150 , the term 'impotent' used in Section 12(1)(a) of the Act, was held to be meaning incapacity for accomplishing act of sexual intercourse, and in this context it means not partial or imperfect, but a normal and complete coitus. It was then observed that impotency has to be distinguished from sterility which may in cases accompany impotency, but is not necessarily associated with it. A person may be incapable of accomplishing sexual act, yet be capable of procreating; conversely also a person may be incapable of procreating, and yet be capable of accomplishing sexual act. The case before us, is of this latter type-as of one who cannot procreate, but can give sexual satisfaction to her husband. Thus sterility is not impotency in a woman, and that is no ground for annulment of marriage under Section 12(1)(a) of the Act.
13. One other case may well be referred to in this respect. In the case of T. Rangaswami v. T. Aravindammal : AIR1957Mad243 , there is good lot of discussion with regard to the term 'impotency' on the basis of meaning given to it in English Dictionaries and also in some other decisions. It has taken into account different laws prevailing in different countries as also in respect of different laws existing in relation to marriage in different communities such as Hindus, Muslims, Parsis. From the discussion it appears that the marriage is liable to be annulled on ground of impotency on a petition of either party, if it is proved that at the time of marriage one of the parties is and continues to be incapable of effecting or permitting its consummation, either on account of some structural defect in the organs of generation which is incurable and renders complete sexual intercourse impracticable, or of some incurable mental or moral disability resulting in the man's inability to consummate the marriage with the particular woman or in the woman to an invincible repugnance to the act of consummate with the particular man. The latter part is out of question in the present case. Another point that emerges from that discussion is that sterility is different from impotency and no law relating to marriage any where has justified the annulment of marriage on the ground of the wife not being able to procreate
14. In England, and even in America, impotency renders the marriage liable to be annulled. That impotency is incurable incapacity that admits neither copulation nor procreation, the copulation contemplated being copulla vera and not imperfect or partial or unnatural. It must be incurable and render complete sexual intercourse practically impossible. Thus absence of conceptive power or barrenness does not constitute impotency, if there is complete power of copulation. Section 19 Corpus Juris P. 40, quoted in para 17 of the Madras Case referred to above. Incapacity to procreate or sterility is thus not 'impotency' as contemplated in Section 12(1)(a) of the Act.
15. In the case before us, as already stated above, it is clearly established that she did not lack that capacity to consummate marriage with her husband after she under-went operations in September 1960. Much though, therefore, she was not capable of 'procreating' she having no uterus or cervix, that does not render her 'impotent' under Section 12(1)(a)of the Act. She was thus not impotent at the time of instituting the proceedings under Section 12(1)(a) of the Act. Therefore, the learned Judge was perfectly right in disallowing the relief sought for annulment of the marriage under Section 12(1)(a) of the Act.
16. In the result, the appeal fails and it is dismissed with costs.