1. This appeal arises out of an application made under Section 12 of the Hindu Marriage Act, 1955 at the instance of the husband against the wife for annulment of the marriage celebrated on 13th May, 1973. The application was filed on 13th December, 1973. The husband in his petition stated that they were married according to the Hindu rites on 13th May, 1973. On 14th May, 1973 the couple returned to the residence of the petitioner at 7, Haridas Daw Road, p. S. Behala. On the night of 15th May. 1973 which was the Fulsajja night, the petitioner, it is alleged, desired and demanded to consummate the marriage but the respondent refused to agree and in fact she made terrible opposition amounting to invincible repugnance to the act of consummation and the petitioner found her to be mentally depressed which deterred the petitioner from making further progress for consummation of marriage. On May 20, 1973 the couple went back to the quarters of Ashis Bhowmick, brother of the wife, where the marriage was celebrated and stayed there for the night. It is alleged that the petitioner husband made an attempt tor consummation of marriage at Garia house but the consummation could not be made due to the opposition of the wife respondent. On or about 4th June, 1973 the respondent went to live at Poddar Park residence from her brother's quarter and on 27th June, 1973 the wife returned to the residence of the petitioner at Behala. Because of the repeated refusals by the respondent to consummate the marriage, the petitioner persuaded the respondent to be examined by a doctor and accordingly with her consent the respondent in or about the first week of August, 1973 was examined by a Gynaecologist. The doctor after due examination found the respondent to be suffering from malformation of her organ and that in her present condition she was unable to allow the consummation of the marriage and penetration is impossible. It is alleged by the husband that during short stay of the respondent at the petitioner's residence or the short stay of the couple at the quarter of Ashis Bhowmick the petitioner made repeated attempts for consummation of the marriage but there could not be any conjunction of the body. It is alleged that the respondent suffers from low physical infirmity and/or abnormality. It is stated that the petitioner possesses sound normal health of young person with the ability to consummate marriage. It is further stated that the respondent is impotent and her mental and physical condition makes consummation of the marriage a practical impossibility and such condition existed at the time of marriage and continued to be so until the institution of the proceeding. Due to the physical malformation of her female organ the wife is physically unable to have sexual intercourse. She is also mentally so high-strung that it is impossible far the petitioner to have normal sexual intercourse with the respondent. It is further stated that the respondent is physically, mentally and psychologically impotent of the type known as quoad hune or quoad hanc or in other words the respondent is at least impotent to the petitioner and the marriage cannot be consummated. On these allegations, the petitioner-husband prayed for annulment of the marriage. On 9th February, 1'974 the wife respondent filed written statement to the allegation made in the petition. It is alleged that it was the petitioner who on Fulsajja night suggested that he would proceed cautiously to consummate the marriage and asked the respondent to be ready for the coitus gradually. The respondent did not at all oppose the desire of the petitioner for consummation or demonstrate any repugnance in the said act. It is alleged that there wag a consummation of the marriage on 20th May, 1973 at the quarter of the respondent's brother but the penetration was slightly painful. It is stated that both the petitioner and the respondent felt and understood that it was the usual experience of a virgin girl who is married more than a decade after attaining puberty. Both of them agreed at that time that the trouble would be over in course of time and naturally. The respondent further stated that she never demonstrated any reluctance for cohabitation. On the contrary, it is alleged, on a few occasions the petitioner enjoyed the respondent but the respondent felt considerable pain during coitus. It is alleged that the respondent believed that the petitioner did not allow time for preparation in respondent's body and the pain she had experienced was mainly due to rashness and want of reciprocal sympathy from the husband. It is further stated that having regard to the wishes of the petitioner the respondent agreed to consult a Gynaecologist and she was taken to Dr. D. L. Poddar who suggested a minor operation. It is stated by the Doctor that the difficulty could be over without the minor operation but that would require some time and co-operation amongst the spouses. The respondent denied any malformation of female organ or that penetration was impossible. It is stated that as Dr. Poddar suggested the minor operation, the respondent was willing to have the same but the petitioner and his relatives did not agree to bear the expenses whereupon the elder brother of the respondent undertook to pay the costs but the petitioner refused to cooperate. The respondent registered herself as a patient of E. E. D. F. Health Centre in or about June 1973 in order to seek assistance or advice in the matter. The attending Gynaecologist however was of the firm view that no operation was necessary and/or advisable and that the little difficulty that might have been experienced would be over by sympathetic co-operation of the husband. It is alleged that on 17-8-1973 the doctor of E. E. D. F. Health Centre wanted to talk with the petitioner but he avoided meeting the doctor. It is alleged that the respondent possesses normal health and the marriage between the parties was consummated. The allegations of mental incapability or repugnance to sexual intercourse when approached by the husband were denied by the respondent. It is alleged that the husband never enjoyed love plays. To the husband sex acts meant absolutely casual satisfaction, that is, mere physical action and nothing more. It is alleged that the elder sister-in-law of the petitioner was the first lady of the family and the wife found out that she has no claim on her husband's income. It is alleged that all the marriage gifts were made over to the elder sister-in-law. It is stated that it is really shocking to find that such thing could happen. The respondent suggested that she should be given some money to defray her personal expenses, the petitioner directed her to seek for the money from her sister-in-law. It is further stated that the petitioner husband was habituated in drinking and suffered from guilty conscience.
2. The petitioner was himself examined and the sister-in-law was also examined and two friendly to whom the petitioner talked about the non-consummation of the marriage just after the marriage were also examined. On behalf of the respondent, two doctors, whom the respondent consulted, were examined and the respondent herself deposed. It appears from the evidence of the doctors that the respondent is suffering from painful 'vaginismus' or 'narrow vaginal introitus'. It also appears from the evidence of the doctor that the respondent is not suffering or was not suffering from any physical defect or malformation which is of permanent nature. The court below held that the respondent was not physically impotent as the impotency is not of permanent nature and is curable. Regarding the consummation of marriage the learned Judge held that there was consummation of marriage but the consummation was painful for her as the husband was hasty in his act. From the evidence it appears that though the respondent wanted to have the operation as suggested by the doctor, the petitioner and the members of his family were not agreeable. It appears that even after the case was filed, the respondent got herself operated as suggested by the doctor. It is held by the learned Judge that she was eager to make the marriage a success. The Court believed the respondent that she was not repugnant to the consummation with the petitioner and therefore did not accept the evidence of the husband that the wife was repugnant to the consummation of the marriage.
3. At the time of hearing of the case, we asked the husband and the wife whether they can reconcile between themselves even now. It must be stated that the husband was not agreeable and the wife wanted to live with the husband.
4. The short point for consideration, therefore, before ms in this case, is whether there was consummation of marriage and if it is not consummated whether it is due to impotency of the wife.
5. While the matter was pending in this Court, the Marriage Law of 1976 was enacted. The Marriage Laws (Amendment) Act of 1976 amended Section 12(1)(a) of the Hindu Marriage Act by Section 6 of Act 68 of 1976. Section 12(1)(a) was amended by Section 6 (1) (a) of the new Act and for Clause (a) the following clause was substituted.
'(a) that the marriage has not been consummated owing to the impotency of the respondent.'
Before the amendment the words were as follows:--
'12 (1) (a) that the Respondent was impotent at the time of marriage and continued to be so until the institution of proceeding.'
6. Mr. M.N. Ghose followed by Mr. Sakti Nath Mukherjee on behalf of the appellant and Mr. Sadhan Gupta followed by Mrs. Gupta on behalf of the respondent conceded that the change of law has not in any way changed the scope of the appeal and both of them agreed that no further opportunity need be given for the disposal of the case as envisaged in Section 39 of the Marriage Laws (Amendment) Act, 1976.
7. Mr. Mukherjee on behalf of the appellant contended that there was no consummation of marriage and that on the date of filing the application for divorce the respondent was impotent and therefore the petitioner is entitled to a decree for nullity of the marriage being voidable. It is nobody's case that there was consummation after the filing of the suit. But it is argued by Mr. Mukherjee that the Court below was wholly wrong in disbelieving the evidence of the petitioner husband for the alleged fact that even after the filing of the suit the respondent underwent the operation and corrected her defect in the female organism and after correction she can no longer be impotent or on the other hand the impotency must be of a permanent nature so that the husband can get a decree. It is argued by Mr. Mukherjee that under the section it is not stated that only in case of permanent impotency or incurable impotency, the husband can get a decree. It is argued by Mr. Mukheriee that the question of impoteney is relevant only during the period of marriage and fiting of the suit for dissolution.
8. Mr. Sadhan Gupta on the other hand contended that there was no doubt that the respondent was suffering from the disease and there was a defect. In the words of Mr. Gupta 'undoubtedly there was a defect in the respondent but the defect was curable and in fact was cured though after the suit was filed'. Therefore it is argued by Mr. Gupta that the learned Judge is right in his finding and he held that there was no repugnancy to the act of consummation on the part of the respondent.
9. In so far as the consummation is concerned only two direct evidences are available, as usual, these are of the husband and of the wife. Hie husband styled that he tried to consummate on the dale of Fulsajjya but it could not be consummated due to the violent resistance by the wife. It is further stated that the respondent did not agree to consummate the marriage. Between 15th May, 1973 and 20th May, 1973 the husband made several attempts to consummate the marriage but failed as the respondent did not co-operate. Even on 20th May, 1973 when the husband and the wife stayed at Garia house of the brother of the wife, the attempted consummation failed. He stated that there was no penetration at all in view of the respondent's malformation of the female organ though the husband tried for consummation. As against this, the wife stated in her evidence that there was consummation for 2 or 3 days out of 8 days of attempted coitus. It is admitted by the respondent wife that the intercourse for those 2 or 3 days was painful. It is stated that the respondent wife consulted a doctor in E. E. D. F. Health Centre at the insistence of the husband. It is further stated that the husband and the sister-in-law of the husband took her to Dr. D. L. Poddar on 8th August, 1973 and it is stated that none of the doctors detected any organic defect in the respondent. Dr D. L. Poddar sug gested to use a jelly; but the husband did not use it. She denied that the respondent was impotent. It is stated that the husband did not make any approach to consummate the marriage. She stated that there was consummation of marriage on 20th May, 1973 in normal course but the respondent felt some pain and there was a full penetration by the husband. It is, however, admitted by the respondent that the coitus was painful and that the wife had to see the doctor on 9th June for the purpose as there was pain. The wife contradicted herself in cross-examination when she said that she had sex acts for 7 or 8 days between 8th July, 1973 and 15th August, 1973. It appears from the examination-in-chief that out of 15 days there were attempts to have coitus for 8/9 days and the marriage was consummated for 2/3 days only but the intercourse was painful.
10. We are, therefore, to see whether the wife is impotent and whether coitus is possible or not. According to the Rayden on Divorce, Eleventh Edition,, page 156, 'sexual intercourse or consummation is sometimes referred to as vera coupla'. Vera coupla consists of erection and intromissio, that is, of erection and penetration by the male of the woman. Full and complete penetration is an essential ingredient of ordinary and complete intercourse. The degree of sexual satisfaction obtained by the parties is irrelevant. In the case reported in : 1SCR559 , (Digvijay Singh v. Pratap Kumari) it has been stated by the Supreme Court as follows:--
'A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.'
For the purpose of consideration whether the consummation of marriage was a practical impossibility due to the incapacity of the wife being impotent, we are to consider the medical evidence adduced in this case. On behalf of the respondent two doctors were examined, D. Ws. 1 and 2 and P. W. 1 the other doctor who deposed, was appointed by the Court on an application being made by the petitioner husband for the medical examination of the wife. The Court directed the parties to suggest the name of the doctors. The petitioner gave 3 particular names of Gynaecologists and further prayed that any Presidency Surgeon to be appointed by the Court might examine the respondent. The respondent also suggested three names who had examined the respondent before. The learned Judge by his order appointed P. W. 1 as a doctor to examine the respondent. The respondent was examined by P. W 1 on 23rd September, 1974. The doctor of E. E. D. F. Hospital examined the respondent on 9th June, 1975. The suit was instituted on 13th December, 1973. The doctors D. Ws. 1 and 2 examined the respondent wife on 6th March, 1974 and 7th June, 1974. One of these doctors examined the respondent on 9th June, 1973.
11. D. W. 1, stated that he examined the respondent at the Health Centre on 6th and 7th March, 1974 and stated that an operation named dilatation of introitua under general anesthesia was performed by him on 7th March, 1974. The operation was advised by a senior doctor being D. W. 2. It is further stated that after operation there should not he any mechanical defect in the marital life. He however, did not know whether the patient is psychologically impotent even after the operation.
12. From the evidence of D. W. 1 it is clear that when he first examined the respondent wife she was suffering from some ailment and was advised an operation named 'dilatation of introitus'. D. W. 2, however, did not name any disease. He stated that after the operation the vaginal passage becomes normal in size and shape and that post operation examination revealed that the passage was clear and normal and there should not be any relapse to narrow introitus. It appears further that the respondent wife was the patient for the ailment in the private parts on 28-2-1974. D. W. 2, another doctor of repute did not say that the respondent has any malformation of female organ on clinical examination. It is stated that the patient respondent wife complained of 'dysparunea' which means painful intercourse. He further stated that there was some functional spasm during the intercourse and the term 'vaginismus means spasm of the vagina'. He stated that the respondent is capable of normal intercourse. P. W. 1, another doctor, who examined the respondent wife after he was appointed by the Court, was directed to give report. He examined the respondent on 23rd September, 1974. He stated in his report as follows:--
'On touching the vaginal introitus there was vaginismus and she adducted her thighs, the palpitation was painful. It did not permit admittance of two fingers. The right index finger can be introduced through the tough hymenal ring and there was painful vaginismus'.
It appears that all the doctors were one in respect of the diagnosis of the illness of the respondent wife to be vaginismus. The doctor who examined the respondent wife and performed some operation of dilatation of vagina felt that she is physically capable of having normal marital life hut they could not say whether they are psychologically so. The doctor (P. W. 1) who was appointed by the Court however examined the respondent wife long after the operation was performed on 6th March, 1974 was of the opinion that the respondent is still suffering from vaginismus and it is not possible according to him to have a normal marital life with the functional spasm of the vagina. The ratio of the evidence is according to us that the respondent was suffering from vaginismus and the intercourse was painful and even after the operation when the doctor appointed by the Court examined the respondent she was suffering from vaginismus and he reported that on touching the vaginal introitus there was vaginismus and the respondent wife adducted her thighs and the palpitation was painful. It must be stated that on 23rd September, 1974 the respondent wife was examined. The doctor appointed by the Court was asked to send the report in a closed cover which he did. The parties to the proceeding applied for inspection of the report of the doctor appointed by the Court and in presence of both the sides, the sealed cover was opened and both the sides had the opportunity to see the report. The doctor himself was examined as P. W. 1 on 11th March, 1975. On this very relevant portion of the report, namely, that
'on touching the vaginal introitus there was vaginismus and she adducted her thighs, the palpitation was painful. It did not permit admittance of two fingers. The right index finger can be introduced through the tough hymenal ring and there was painful vaginismus'.
there was no cross-examination on behalf of the respondent. It appears, therefore, that the report, in so far as the Court appointed doctor is concerned was not challenged when the doctor was in the box and deposed long after the report was made. The parties had opportunity of looking at the report. It must be stated that the Court appointed doctor examined the respondent about 9 months after the suit was filed and about 6 months after the alleged operation for dilatation of vagina was performed by D. W. 1.
13. We must therefore hold that the respondent wife was suffering from vaginismus even on 23-9-1974 after the operation for vaginal dilatation was performed in March, 1974. It appears further that when the respondent was first examined by Dr. Poddar on 8th August, 1873 he advised fenton operation as remedy of the disease from which the respondent was suffering but which was not performed at all.
14. Mr. Mukherjee contended that she was ill on the date of the marriage and at the time of filing of the present suit and there cannot be any consummation of marriage due to the impotency of the wife. It is no concern of the petitioner to see whether the impotency is curable or not in future.
15. Mr. Gupta however contended that unless the impotency is incurable the petitioner is not entitled to a decree. It is conceded by Mr. Mukherjee and Mr. Gupta that the change in law during the pendency of this case does not affect this application at all. Mr. Gupta however contended that if the impoteney is curable the petitioner is not entitled to a decree for nullity.
16. From the evidence as hereinbefore made the respondent must be held to be suffering from vaginismus. In Novak's Text Book of Gynaecology, at p. 663, it has been found that
'dyspareunia, or painful coitus, may be due to the presence of an actual lesion or it may be of psychic origin. The latter variety is not infrequently a defence mechanism built up by the woman who for one reason or another finds coitus distasteful.'
It has also been stated by the Author that
'the sexual response is a complex phenomenon theoretically divisible into at least three components; psychogenic, anatomical, and hormonal. The importance of the first factor in the female is undisputed. The importance of the last two factors has been difficult to evaluate'.
... ... ...
'Conditions in the pelvis which make coitus difficult or painful obviously call for correction. Certainly there is cot justification for the superficial habit of those physicians who, without making a thorough survey of the individual woman's problem, merely give her a pat on the back or recommend dilatation of the vagina. Such treatment is quite sure to be unsuccessful'.
In the present case, in view of the doctor's evidence it is quite clear that the dilatation of vagina performed in March 1974 did not correct the condition of the wife for successful 'vera copula' even 6 months after the operation of dilatation of vagina, the disease of vaginismus was still there, and if a wife is suffering from vaginismus, the coitus or complete penetration is not possible. It has been stated by the respondent that the coitus when attempted by the husband was painful and the husband categorically stated that there was no sexual intercourse between the parties due to the impotency of the wife.
17. Mr. Gupta however strenuously argued that there was no doubt that there was some defect in the respondent wife but the defect is curable and not incurable and the petitioner is not entitled to a decree. It will appear that the question of curability was considered by English Cases and it has been found that if the respondent is agreeable to cure the defect by operation that will not be a cause for granting the nullity of the marriage.
18. Mr Gupta referred to (1947) 2 All ER 886 at p. 890 and (1954) 3 All EE 736 in support of his contention. It is true that all the cases referred to by Mr. Gupta make it clear that the impotency if curable even after the action has been taken and even after the action is pending if the wife agrees to go in for operation for curing the defect the decree may be refused; but in so far as the Hindu Marriage Act is concerned, in our opinion, the curability of the disease of impotency is of no consequence if there was no consummation of marriage owing to the impotency of the respondent. It appears that before the amendment by 1976 Act, the period of continuance of impotency was that the respondent must be impotent at the date of marriage and must continue to be so till the date of the institution of the proceeding. It has now been amended and the husband is entitled or a decree if the marriage has not been consummated due to the impotency of the respondent. In this case we are of the opinion that the marriage could not be consummated and the consummation was practically impossible due to the respondent's suffering unfortunately from vaginismus and vera copula is not possible. In the facts of the present case the full and complete penetration by the male of the female is an impossibility due to the respondent being suffering from vaginismus. During the time and long thereafter the respondent was suffering from the said discase find even by operation admittedly performed by D. W. 1 on 7th March, 1974 the disease could not be cured and it was so found to exist on 23rd September, 1974 when the Court appointed Doctor examined the respondent wife.
19. In our opinion the curability of impotency is not a consideration for the purpose of deciding the case whether the marriage is voidable under Section 12(1)(a) of the Act under the amended or un-amend-ed section. It will appear from Section 13 of the Act that when Legislature thought that the question of curability is to be one of consideration for the purpose oi the decision whether the divorce should be granted they made provision to that effect in the Act. It has been specifically provided in Section 13(iii) and (iv) that to gel a divorce the respondent must be 'of unsound mind for a continuous period of nut less than 3 years immediately preceding the presentation of the petition or suffering from a virulent and incurable form of leprosy'. In the present Section 12(1)(a) curability is not mentioned at all. It is therefore clear that the question of Curability of impotency is not a relevant consideration for the purpose of the decision under Section 12(1)(a) of the Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976. It appears to us that if it is found that there was no consummation of marriage due to the impotency of the respondent the petitioner is entitled to a decree.
20. The case reported in AIR 1921 Cal 459, (Birendra Kumar v. Hemlata Biswas) is a case under Section 19 of the Indian Divorce Act, 1869. The said case, in our opinion, is clearly distinguishable. At p. 462 it has been made clear that due to the syphilis for which one of the parties was suffering, the capacity for sexual intercourse is not necessarily affected. It will be further found that in the said case the Division Bench of this Court considered the effect of Section 56 of the Contract Act in the matter of marriage contract. In the said case it has been stated in respect of the impotency vis-a-vis disease as follows :--
'The fact that one spouse is afflicted with syphilis does not necessarily make him or her impotent. Impotency Is ordinarily understood to mean incapacity which admits of neither copulation nor procreation, capacity for sexual intercourse seeming to the matter chiefly regarded in the adjudged cases on the subject. Hence impotency has been taken to mean physical and incurable incapacity from entering into the marriage, that is incapacity to consummate the marriage''.
We have already held that in view of the different wording of the section and in view of the fact that the Legislature has used the word 'incurable' repeatedly in Section 13 and did not use the word 'incurable' in Section 12(1)(a), in our opinion, curability of the disease making the respondent impotent does not fall for consideration of the Court if it is found that the marriage has not been consummated due to the respondent's impotency.
21. In the case reported in AIR 1943 Nag 185 (SB) on which Mr. Gupta relied, it has been held that if the marriage is consummated the decree for nullity cannot be granted and held that the impotency must be present at the time of the marriage and when the suit was filed. Admittedly in the present case, in our opinion, the respondent was suffering from vaginismus at the date of marriage and it continued at least till 23rd September, 1974 when the Court appointed doctor P. W. 1 examined her.
22. It appears to us from Section 12(1)(a) of the Act even before the amendment was concerned, that the impotency of the respondent must be between the date of marriage and the institution of the proceeding. It appears before the amendment that the condition for getting a decree was that the respondent must be impotent at the time of the marriage and continued to be so until the institution of the proceeding. If one of these conditions is absent, the decree cannot be passed. The English case, in so far as the curability of the impotency is concerned, cannot be applied in the present case as in our opinion the wording of Section 8(1)(a) of the Matrimonial Causes Act, 1950 or for that matter the Matrimonial Causes Act, 1857 are quite different to Section 12(1)(a) of the Hindu Marriage Act.
23. Mr. Mukherjee relied upon a case reported in (1832) 7 PD 16 (L. v. L.) in support of his contention. In the said case the ceremony of the marriage was performed between the parties on 29th August, 1876, the man being then 27 and the woman 23 years of age. They slept together at her father's house for 3/4 nights but the marriage was not consummated as the woman told the husband that she was not fitted for it. In February, 1879 the woman was examined by a medical man who gave evidence that she was suffering from vaginismus, that there was a spasmodic affection of the parts which were extremely painful to touch and the connexion was then impossible, but that a cure might be effected with no great risk to life. The woman was informed of this, and was requested to submit to the operation, but refused. The woman having refused, the Court granted a decree nisi for nullity of the marriage on the ground of the ends of marriage have not been attained, and it is therefore desirable that the tie between the parties should be put an end to. In our opinion, in the present case, on the evidence, as it is. the wife was suffering from vaginismus and there was no consummation during the period because of the disease of the wife.
24. Mr. Mukherjee relied upon the case reported in (1956) 3 All ER 769 (M. v. M.) in support of his contention. In the said case the lady was also suffering from vaginismus and the decree was granted as the lady took no step for correction and as such the respondent was incapable of sexual intercourse.
25. Mr. Gupta however contended that the case supports the same, inasmuch as, though the respondent might be suffering from the disease she was always agreeable to have the disease corrected by operation. In fact she was operated and the respondent is not cured of the disease. In our opinion, the consideration of this Court is not that the disease is curable at a future date but whether for the impotency of the respondent, the marriage has not been consummated. If that is brought home, the Court is not to enquire whether the disease can be cured in future. It is for the Court to see whether the ends of the marriage have been attained or not when the action was initiated.
26. Mr. Gupta referred to the case reported in : AIR1968Delhi79 (S. v. R.) in support of his contention. In our opinion, this case has no application. In the case the Court below came to a finding that the petitioner husband was impotent at the time of the marriage and continued to be so until the institution of the proceeding and therefore they came within the mischief of the un-amended Section 12(1)(a) of the Act.
27. The case reported in : AIR1957Mad243 , (T. Rangaswami v. T. Arvindammal), in our opinion, does not carry Mr. Gupta's argument any further because in the said case it was found on fact that the impotency either organic or atonic impotency had been made out. In the said case the Bench relied upon the observation of Matrimonial Causes Act, 1950. In our opinion, this observation supports the case of the petitioner and not the respondent. In so far afi the curability is concerned in the Hindu Marriage Act as amended, that is beyond the scope of scrutiny of the Court. The provision as amended is more simple than what was there before the amendment. Before the amendment, if a party to the marriage was not impotent at the time of the marriage but became impotent before the institution of the suit, tine petitioner was not entitled to a decree. Alternatively if the respondent was impotent at the time of marriage but was not impotent at the institution of the suit, the decree must be refused. Now however the statute has placed emphasis equally on the consummation of the marriage and the impotency of the respondent. If there is no consummation due to the impotency of the respondent as in this case, the petitioner is entitled to a decree.
28. In an unreported case being F. A. No. 313 of 1972, Reba Banerjee v. S. Banerjee decided by Mr. Justice Dutt and Mr. Justice Sharma on 14th July, 1976 (Cal) it has been held while deciding the case under the un-amended Section 12(1)(a); of the Hindu Marriage Act that the
'respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding ... ..... even subsequent potency of the appellant long after the institution of the proceeding will not stand In the way of granting a decree in favour of the appellant wife'.
We respectfully agree with the said decision. The position in law has changed to an extent hereinbefore stated, the emphasis has been laid now on the question of non-consummation of marriage due to the respondent's impotency.
29. In our opinion, therefore, the learned Judge was wrong in rejecting the application of the husband. In the facts and circumstances of the case, the petitioner is entitled to a decree prayed for. The appeal is, therefore, allowed. The judgment and decree of the Court below are set aside.
30. There will be no order as to costs.
31. Let the operation of the order be stayed till one month after the long vacation.
32. I agree.
BY THE COURT 3-12-1976.
Let the operation of the Judgment and decree be stayed for a fortnight. Office is directed to supply certified copy of the Judgment and decree immediately to Mr, Gupta.