1. This second appeal arises out of a suit filed by the appellant claiming to be the reversioner to the estate of one Deiva Pandian who died issueless on 6-7-1957 for setting aside a sale deed executed by Deiva Pandian in favour of the first defendant in the suit and for recovery of the suit properties. On an objection taken by the first defendant, the third defendant was added as a party to the suit on the ground that she was widow of Deiva Pandians' father and as such entitled to his estate. The plaintiff contended that the third defendant was not a woman at all, that therefore there could be no valid marriage between her and Deiva Pandian's father and that consequently she was not Deiva Pandian's father's widow. The trial Court held that the marriage between the third defendant and Deiva Pandian's father was valid. it also held that the plaintiff was not the reversioner to Deiva Pandian's estate, that the sale deed executed by Deiva Pandian in favour of the first defendant was executed for consideration, and that it was not executed because of fraud and undue influence, and dismissed the suit. The Lower Appellate Court came to the conclusion that the sale deed executed by Deiva Pandian in favour of the first defendant was not supported by consideration, and that therefore it would not be valid. On the question of the validity of the marriage between the third defendant and Deiva Pandian's father, it held that the third defendant was a sexless person and though it was disposed to hold that the marriage between her and Deiva Pandian's father could not be valid it felt bound by the authority to hold that there was a valid marriage, and that in any case the question of the validity of the marriage between the third defendant and Deiva Pandian's father was one which could have been raised only by Devia Pandian's father and not by third parties like the plaintiff. in the result it dismissed the plaintiff's appeal.
2. I think the finding of the lower appellate Court that the third defendant was a sexless person is correct. In effect it means that the third defendant was not a woman. The third defendant refused to submit herself to a medical examination and it is in evidence that Deiva Pandian's father married Deiva Pandian's mother after he had married the third defendant, apparently because the third defendant was unfit for sexual Intercourse. The third defendant had described herself as Ali and it was also in evidence that she had no breasts. She did not menstruate either, the admission by P.W. 1 that the third defendant had a hole cannot be held to mean that she had a vagina. What could be seen is a cleft rather than a hole. On the whole I am satisfied that the conclusion of the Lower Appellate Court that the third defendant was not a woman is correct.
3. The next question that arises is whether the marriage between her and Deiva Pandian's father was valid. The argument on behalf of the plaintiff is that a marriage can be only between persons of opposite sex, that one of them must be a male and another a female, and that unless the third defendant were female there could be no valid marriage between her and Deiva Pandian's father and the marriage would be a total nullity. For this proposition the plaintiff (appellant herein) relied upon the decision in A v. B, AIR 1952 Bom 486 where, Tendolkar, J., after an elaborate discussion of all the Sanskrit texts bearing on the subject held that such a marriage would be absolutely null and void under the Hindu Law. The learned Judge criticised the opinion of Mayne in Mayne's Hindu Law, 10th Edn. on the ground that Mayne did not have all the Sanskrit texts presented to him. He also criticised the decision in Bhagwati Saran Singh v. Parameswari Nandan, ILR (1942) All 518=(AIR 1942 All 267) and that of a Full Bench of this Court in Amrithammal v. Vallimayil Ammal, ILR (1942) Mad 807=(AIR 1942 Mad 693) (FB). Both the decisions were criticised on the ground that they placed great reliance upon the opinion of Mayne. The decision of the Calcutta High Court in Ratan Moni Debi v. Nagendranarain Singh, ILR (1945) 1 Cal 407=(AIR 1949 Cal 44) was accepted as correct by the learned Judge and he stated that the decision would be reinforced by the various texts that he himself had cited in his judgment. In the Calcutta case it was held that a wife whose husband was impotent at the time of marriage and had never been able to consummate the marriage was entitled to a decree for nullity of marriage. As against this, reliance was placed by the respondents on the decisions in Smt. Ramdevi v. Rajaram, , Kantilal v. Viinala, AIR 1952 Sau 44 and Mallareddy v. Subbamma, AIR 1956 Andh 237. In Kantilal v. Vimala, AIR 1952 Sau 44, where the Court held valid a marriage with a person whom it described as an Impotent and sexless woman and whose genital organs were said to be not at all developed and who was said to have no ability to perform the sexual act and be an active party to coitus. In that case the woman had very rudimentary development of the internal organs and the secondary sex characteristics were not all developed. She had not been menstruating at all. This decision followed the Full Bench decision of this Court fn ILR (1942) Mad 807=(AIR 1942 Mad 693) (FB). The decision in AIR 1956 Andh 237 holds that though the marriage of an impotent person is condemned as reprehensible and improper, still if the marriage had been performed and solemnised with the customary rites and ceremonies, it will be deemed to be valid, that the marriage is not void ab initio, but only voidable, and that so long as the wife does not choose to get the marriage annulled under Section 12 of the Hindu Marriage Act, she is entitled to be maintained by her impotent husband.
4. There is no doubt that under English law a marriage such as the one under consideration would be held to be null and void. It does not seem to be correct to distinguish between void and voidable marriage in this connection. Under the ordinary law of contract if the contract is void, it could be so treated and any other remedy sought without having to set aside that contract. But in respect of marriages even when the marriage is null and void, it cannot be so held at the instance of third parties; a declaration of nullity can be asked for only by either party to the marriage and in any case after the death of one of the parties nobody can question the validity of the marriage. Nor can any relief be asked for on the basis that the marriage does not subsist. So resort to a Court is necessary to declare a marriage null and void and no relief can be claimed without asking for such a declaration. For the purpose of this case what I have already said about the third defendant not being fit for normal sexual intercourse would make her an impotent person and therefore such marriage would be null and void in English law.
5. Under ancient Hindu Law an examination of the various Sanskrit texts relating to this question shows that though marriages of impotent persons as well as lunatics and idiots were deprecated, they were not held to be invalid. One of the reasons usually given in those texts is that it was possible for an impotent person to raise a child through his wife by the practice of Niyoga, that is, through an appointed kinsman. But this practice of Niyoga has long since become obsolete. While a lunatic or an idiot may be quite capable of sexual intercourse and therefore of producing children, an impotent person is not so capable. That is the reason why the earlier texts Geem to have particularly referred to the case of an impotent person and the practice of Niyoga. Since the practice of Niyoga has now become obsolete, to say that the marriage of an impotent person would be valid is not ,in consonance with the modern idea. The Hindu Law has vastly changed and the ideas of Hindus have also changed with the times. Whatever might have been the position at a time when the marriage was said to be a Samskara and it was therefore considered that marriage was not merely for the purpose of sexual intercourse, in the context of the enactment of the Hindu Marriage Act, which provides for declaration of nullity of marriage as well as for divorce it is no longer possible to say that marriage with an impotent person is valid. With great respect to the learned Judges who have taken the other view, I prefer to follow the opinion of Tendolkar, J., in AIR 1952 Bom 486 and that of the Calcutta High Court in ILR (1945) 1 Cal 407 = (AIR 1949 Cal 44). I hold therefore, that the third defendant's marriage is not a valid one as she was an impotent person.
6. The question still remains whether even though the marriage of the third defendant with Deiva Pandian's father might not be valid that question can be raised in this suit. The importance of this question is because if the third defendant were held to be the widow of Deiva Pandian's father, the plaintiff's suit has to fail on that account alone. On this question Mulla has taken the view in his Principles of Hindu Law, 12th Edn. at page 843 thus--
"The question, as to impotency, cannot be raised by a third person, because, it is solely a personal matter for the spouses, nor can it be raised after the death of one of them." in AIR 1956 Andh 237, already referred to, Viswanatha Sastry, J., has also taken the view that the marriage with an impotent person is not void ab initio and that so long as the wife does not choose to get the marriage annulled under Section 12 of the Hindu Marriage Act, she is entitled to be maintained by her impotent husband, I have already said that a distinction between a void contract and voidable contract would not be applicable to a case of marriage and even in a case where the marriage is a nullity it would be necessary for the party complaining nullity of the marriage to get a declaration of nullity from Court. The above opinion of the learned Judge supports the view taken by Mulla, With respect, I agree with that view. Originally under the Hindu Law if a man found that he had married a person who was not a woman and therefore unfit for sexual intercourse, it could be open to him to take another wife. But as there was no provision in that law for any declaration of nullity of marriage, the wife continued to be a wife and there was no possibility for the husband to take steps to see that she could no longer have the status of the wife. But under the Hindu Law which is applicable at present, a husband who finds himself in such circumstances can ask for a declaration of invalidity of the marriage and after getting such a declaration he can marry another wife. Therefore, the law obtaining in England as to the necessity for a husband to obtain a decree of nullity and preventing any other person from raising the question of nullity of a marriage except the parties to the marriage should be held applicable to the Hindus in this country also under the law at present. I am, therefore, of opinion that the conclusion arrived at by the Lower Appellate Court that the question whether the third defendant was the widow of Deiva Pandian's father cannot be raised by the plaintiff in this case. It therefore follows that the plaintiff's suit has to fail on that account. The Lower Appellate Court's finding that the plaintiff was reversioner to Deiva Pandia's estate and that the alienation in favour of the first defendant was not supported by consideration would not affect this result.
7. In the result the second appeal is dismissed. The parties will bear their respective costs throughout.
8. An memorandum of cross-objections is filed by the respondent in respect of the costs disallowed to him by the Lower Appellate Court. The question that arises in this case is one of considerable difficulty, as it has not been decided by this Court so far. In the circumstances, I consider that the decree of the Lower Appellate Court ordering both parties to bear their own costs is correct. The memorandum of cross-objections is therefore, dismissed. No costs. Leave granted.