J.P. Jain, J.
1. This appeal arises out of an action by appellant, husband, against the respondent, wife for a decree of nullity on the ground of impotency of the latter. The respondent did not appear in the trial Court and the District Judge, who tried the case, did not accept the plea of the appellant, Brij Vallabh. He having failed in the Court of District Judge, has come in appeal.
2. Parties are Hindus and they were married on 3-7-72 at Jodhpur according to Hindu rites. Sumitra's father Shri Moti Lal Gupta was residing at Bhopal. He had come to Jodhpur with family to perform the marriage of Sumitra. They stayed at Jodhpur for about two weeks. According to Brij Vallabh Sumitra stayed at his house on 8th and 9th July, 72 after the marriage. On 8th July, Brij Vallabh and Sumitra slept in one room. It has been alleged that when Brij Vallabh wanted to have a physical union with Sumitra she resisted and refused to submit herself to a sexual intercourse. She left the room and slept outside. She was made to understand by the relations of Brij Vallabh but she did not accept to go to bed with Brij Vallabh. Sumitra is said to have told the people that she has been forced to marry Brij Vallabh and she is not prepared to accept him as her husband. Next day she slept in a different room and on the following morning she left the place andwent to her parental home. She with her father went to Bhopal and she did not return to her husband's house. It is also alleged that the marriage was not consummated and in spite of efforts Smt. Sumitra did not agree to come back to her husband's house. She has become a lecturer in Sophia College, Bhopal. It has been pleaded in the petition that the physical or the mental condition of the respondent from the time of marriage till the date of filing the petition was such as to make the consummation of the marriage a practically impossibility. On this basis it was alleged that the respondent was impotent at the time of marriage and has continued to be so till the day the petition was filed for decree of nullity. The respondent did not appear in the trial Court in spite of service.
3. On behalf of the appellant three witnesses were examined including himself. Shri Vallabh (P.W. 1) stated that he knew Brij Vallabh because he was a class fellow of the son of the witness. The witness deposed that in October, 1972, he went to Bhopal and talked aver the matter with Sumitra, as she did not come to the house of her husband. According to the witness, Sumatra told him that she was an M. Sc. and a gold meda-list whereas Brij Vallabh was only a graduate. She earned more than Brij Vallabh did, Brij Vallabh is also short in size and has a dark shade, He also visited Bhopal in February, 1973 and tried to persuade Sumitra to go to the house of her husband but she was determined not to join her husband. Brij Vallabh is P.W. 2. According to him Sumitra slept in the room of her husband only on 8th July, 1972 after the marriage and when he proposed to have a physical relationship with her, she refused and resisted his attempt. She even told him that she did not want to marry but the marriage has been imposed upon her. Sumitra left the room of her husband in the night and slept outside. According to him Sumitra never joined him nor did she sleep with him any day after the 8th July, 1972. He further informed the court that he went to Bhopal in August, 1972. He talked over the matter with Sumitra and her parents but Sumitra was not prepared to come with him. He also went to Bhopal in October, 1972 and it proved to be of no avail. The third, witness is the mother of Brij Vallabh. She only confirmed that the marriage was performed on 3rd July 1972 and Sumitra slept with Brij Vallabh in his room one night after the marriage. But after sometime she came out of the room and slept outside. And when she was made to understand that she should go to her husband's room she did not go and said that she has been forced to the marriage with Brit Vallabh.and she was not prepared to accept BrijVallabh as her husband. She further stated that Brij Vallabh was sent to Bhopal to fetch her but she did not come.
4. On this evidence the learned trial Judge held that the marriage between Brij Vallabh and Sumitra was solemnised on 3-7-72 at Jodhpur. He also felt convinced that the petition was not collusive and the marriage was in fact not consummated. However, on the question as to whether Sumitra was impotent at the time of marriage and continued to be so until the institution of the proceedings, he held that from the evidence it cannot be inferred that Sumitra was suffering from incapacity for the performance of sexual intercourse from invincible repugnance to the physical act of consummation resulting in the paralysis of the will. According to the learned Judge the non-consummation of the marriage appeared to be her wilful refusal to submit to sexual intercourse. The learned Judge in his elaborate judgment dealt with the various decisions cited before him. He has also discussed the law on the point as laid down in Rayden's Practice and Law of Divorce, Ninth Edition- Editors Joseph Jackson and C. F. Turner.
5. The respondent did not appear in this court as well. Learned counsel appearing on behalf of the appellant was therefore heard ex parte. The decisions which have been referred to by the learned Judge were read out before me. In addition to these decisions he also referred to Jagdish Kumar v. Smt. Sita Devi, AIR 1963 Punj 114. After a careful consideration of these authorities I am clearly of the opinion that the appellant has failed to establish that Smt. Sumitra was impotent on the day of marriage and continued to be so until the institution of the proceedings. The cases that have been cited before me are distinguishable and I will deal with them one by one.
6. Referring to the Supreme Court case, Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137 appellant claimed the annulment of marriage by a decree of nullity against his wife Pratap Kumari. It was alleged that the marriage had not been consummated and that Pratap Kumari was impotent on the date of marriage and continued to be so until the filing of the petition. Pratap Kumari contested the petition and alleged that she had lived with the appellant for about three years and had also accompanied him to England and Continent and during that period she was always ready and prepared to give full access to the petitioner for consummating the marriage but Digvijay Singh was suffering from some physical disability or impotency and as such he never made any attempt for consummation. Pratap Kumari in that case submitted herself to a medical examination and it was found that she was quite normal and had no structural defect. The learned trial Judge in that case held that Digvijay Singh has failed to prove that Pratap Kumari was impotent. It was rather held that it was Digvijay Singh, who on account of physical and psychological cause was unable to consummate the marriage with the respondent. Though the latter finding was reversed by the High Court but the view of the learned trial Judge that Pratap Kumari was not proved to be impotent was upheld. Digvijay Singh was unsuccessful in Supreme Court as well.
7. Learned counsel for the appellant has placed reliance on two cases; one is G. v. G. 1924 AC 349 and G. v. G., 1912 PD 173. In the case G. v. G. 1912 PD 173 the husband filed a petition for nullity on the ground of his wife's impotency. She denied the fact that she was frigid. She rather alleged that the husband was incapable and has never consummated the marriage. She also asked for a decree of nullity. It was admitted in this case that the marriage had not been consummated. The Court held, without going to the question as to who was the guilty party that it was evident that the marriage has not been consummated and could not have been consummated in future also, The Court annulled the marriage for the reason that it was satisfied that 'quoad hanc et quoad hunc'. The Court further observed that the two people should not be tied up together for the rest of their lives in a state of misery. The position in the case before me is entirely different. Sumitra has not appeared nor is there any allegation on her part that her husband was impotent and the marriage was not consummated on account of her husband's fault. Whereas in the case referred to above it was both the parties alleging impotency of each other and claimed a decree of nullity.
8. In G. v. G., 1924 AC 349 the parties were married on November 5, 1913 and they lived with each other for a number of years. It was stipulated between them, though at the instance of the wife, that there shall be no physical relationship between them for at least one year. After the lapse of one year the husband tried and attempted to consummate the marriage but the wife always felt paralysed and resisted the consummation of the marriage. There were thus frequent attempts on the part of the husband to consummate the marriage but the wife always resisted his attempts. The wife was got medically examined and the report was submitted by the husband and the doctor was cited in evidence. It was stated by the doctor that there was nostructural incapacity in the wife which would prevent the consummation of the marriage. The wife though contested the case did not challenge the potency of her husband. There was further evidence to show that the wife had repulsion for a physical relationship. The House of Lords in these circumstances by majority inferred that the wife was the victim of such an invincible repugnance to the physical act as to paralyse her will power to carry out what she had promised. In the present case as is borne out from the evidence discussed above that it was only one night, that is, 8th July, 1972, the first and the last time, that Brij Vallabh attempted to consumate the marriage and for that day too the reply of Sumitra was this that she had been forced to marry Brij Vallabh. This reply of Sumitra appears to be clearly deliberate refusal on her part to submit to sexual intercourse with Brij Vallabh. That apart, she met Brij Vallabh for the first time, and in the circumstances of marrying him against her wish. There is no evidence to show that a second attempt was ever made by Brij Vallabh to consummate the marriage. The circumstances of this case go to show that soon after the marriage Sumitra left Jodhpur for Bhopal with her parents and she never returned, From the evidence on record it cannot be assumed that Sumitra was incapable for sexual intercourse or a victim of such an invincible repugnance to the physical act between the husband and the wife.
9. The statement of law in this regard as laid down by Sir Francis Jeune in the case of F. v. P., ((1896) 75 LT 192) was quoted with approval by the House of Lords in this case. The observations, with which I respectfully agree, are:
'that if it be satisfactorily proved that repeated endeavours of a potent husband, who has tried all means short of force, had been uniformly unsuccessful, it was for the Court, in the absence of any alleged or probable motive for wilful refusal, to draw the inference that the non-consummation was due to some form of incapacity on the part of the wife.'
In the present case there is no evidence to show that any attempt more than once was made by Brij Vallabh. It has also not been brought on record that Brij Vallabh was a potent man himself. No attempt was made to get Sumitra medically examined.
10. In Rathi Varghese v. T. J. Ponnen, AIR 1968 Ker 129, the parties stayed together for a period of 34 days. The parties agreed that there was no consummation of marriage during that period. The wife brought the action for the annulment of the marriage with therespondent husband on the ground that the husband was impotent. On the other hand, the husband alleged that the non-consummation of marriage was not on account of impotency but on account of long and continuous intellectual strain on his mind. He also relied upon the pact with his wife that they will avoid the physical side between them till the wife completed her graduate course. The facts are obviously distinguishable and it does not assist the appellant in this case.
11. In Smt. Shantibai v. Tarachand, AIR 1966 Madh Pra 8, the parties lived in the same house for several months. But they did not have any sexual intercourse at all. It was admitted that the marriage was not consummated. The wife was medically examined. She was found to be normal ,and fit for copulation. The medical examination of the husband as well showed that he was well developed and was capable of performing sexual intercourse. It was in these circumstances that it was inferred that the wife was frigid and impotent vis-avis her husband.
12. In Kishore Sahu v. Mrs. Snehprabha Sahu, AIR 1943 Nag 185 (SB) the husband sought a decree for the annulment of the marriage on the ground of the impotency of the wife. On the other hand, the wife accused the husband that it was he, who was impotent. The wife claimed herself to be a virgin. She refused to submit herself for medical examination. Her statement was disbelieved in the circumstances of the case. The majority of the Court inferred the impotency of the wife. This case also lends no assistance to the case on hand.
13. In Jayraj Anthony v. Mary Seeni Ammal, AIR 1970 Mad 103 (SB), annulment of the marriage was sought on the ground of wife's impotency. She refused to submit herself for medical examination. From the evidence it was found that the wife constantly refused the consummation of the marriage. Her refusal to consummate the marriage and her refusal to submit herself for medical examination were the strong circumstances, from which an inference of impotency was drawn. There are no such circumstances in this case.
14. In other Madras case Muthuraj Koilpillai v. Esther Victoria Kannammal, AIR 1970 Mad 237 (FB), their Lordships have observed that 'impotency is not necessarily to be confined to the physical inability of one or the other of the spouses to have sexual intercourse. It may cover also such a condition, either of the mind or of the physical condition of the person which renders normal sexual intercourse impracticable so as to reach its completion. The basis of the Court'sinterference is not the structural defect, but the impracticability of consummation. Disability arising from mental or moral causes is sufficient such as hysteria.'
15. The facts of the Punjab case AIR 1963 Punj 114 are very much distinguishable. The wife prayed for the annulment of marriage on the ground of impotency of her husband. The wife stayed with her husband for only 12 days. The husband was got medically examined and according to the medical evidence he was found to be unfit for sexual intercourse. He was held to be incapable of discharging his marital duties. The decree for nullity was granted on the ground that the non-consummation of marriage was due to the husband's incapacity, nervousness or hysteria.
16. As discussed above there is hardly any evidence on record to accept the contention of Mr. Mathur that Sumitra was impotent on the date of marriage and she continued to be so until the institution of the proceedings. The view taken by the learned trial Judge is right and it is confirmed. In my opinion the case is appears to be of desertion rather than of impotency.
17. In the result the appeal fails and it is hereby dismissed. As the other party did not appear there will be no order as to costs.