M.M. Dutt, J.
1. This appeal is at the instance of the husband against his wife and it arises out of a proceeding under Section 12(1)(a) of the Hindu Marriage Act.
2. The appellant, who is the husband, made an application under Section 12(1)(a) of the Act. The marriage between the parties was solemnised on May 7, 1965, according to the Hindu rites. It was alleged that prior to the marriage the respondent had undergone an operation on June 28, 1955, by which her uterus was removed and as such, she was impotent at the time of the marriage and was unfit for consummation or bearingchild to the appellant and was continuing to be so till the date of the presentation of the said application. Further, it was alleged that the respondent was always averse to marital relations with the appellant who had recently been able to find out the cause of such aversion.
3. On the aforesaid allegations the appellant prayed that the marriage between the parties might be annulled by the court by a decree of nullity.
4. The application was opposed by the wife and she filed a written-statement. In paragraph 7 of her written-statement she admitted that she had undergone an operation before her marriage. The allegation that she was always averse to marital relations with the appellant, was denied. It was averred by her that the appellant entered into the ceremony of marriage out of his own free will after fully knowing that she had undergone an operation before the marriage. Accordingly, she prayed for the dismissal of the application.
5. The learned Additional District Judge, 9th Court, Alipore, before whom the application was filed framed the following issues:--
(1) Was the respondent impotent at the time of her marriage and is she continuing to be so?
(2) Was the petitioner aware of an operation upon the respondent before marriage?
(3) What relief, if any, is the petitioner entitled to?
6. At the hearing of the proceeding the respondent did not appear and adduce evidence. The appellant appeared and he examined himself. In bis evidence he says that the marriage could not be consummated; that the respondent is impotent and was so at the time of marriage; that she was averse to consummation; that she never agreed to share the same bed; that he found marks on her abdomen, which appeared to be marks of surgical operation and that the respondent told him 6/7 months before the institution of the proceeding that she had an operation at Chittaranjan Seva Sadan and her uterus had been removed before the marriage. Further, he said that before marriage he did not know that the respondent was without ulterus.
7. The appellant also examined a gynaecologist. He is P. W. 2. His evidence is that the removal of uterus does not incapacitate a woman for sexual intercourse but removes her child bearing capacity.
8. The learned Judge took the view that the absence of capacity of sexual intercourse is not impotency and that impotency is the absence of capacity for complete and natural sexual intercourse. It has been observed by him that a woman without uterus may be capable of complete and natural sexual intercourse and that accordingly, it cannot be said that the respondent is impotent. Further, it has been held by him thatthe absence of consummation does not necessarily mean impotency of a spouse, for there might be reasons other than impotency. In the aforesaid view of the matter, the learned Judge dismissed the application praying for a decree of nullity of the marriage under Section 12(1)(a) of the Act. Hence, this appeal.
9. The principal case of the appellant was that the respondent was impotent inasmuch as her uterus was removed by an operation before the marriage. It cannot be disputed that a woman without a uterus is quite fit for sexual intercourse. Impotency is incapacity for sexusal intercourse or when coition is difficult or painful. As has been stated already, the presence or absence of uterus is quite immaterial to the question whether a woman is impotent or not. The learned Judge has rightly held that because the uterus of the respondent was removed, she could not be held to be impotent and that accordingly, the marriage could not be declared to be void.
10. Mr. Mitter, learned Advocate appearing on behalf of the appellant, does not dispute the above position. But he submits that, in view of the fact that the respondent was averse to sexual intercourse for a period of ten years since the date of the marriage, it should be reasonably presumed that she is impotent. In support of his contention he has placed reliance on a decision of the House of Lords in G v. G. 1924 AC 349. That was also a case by a husband against his wife for a decree of nullity of marriage on the ground of impotency. It was proved that the husband, whose potency was admitted, made frequent attempts extending over a protracted period to consummate the marriage, but failed owing to the unreasoning resistance of the wife, and that this resistance continued after she had formally consented to perform her conjugal duty. The medical examination of the wife showed that there was no structural incapacity. The parties were also on affectionate terms. It was held that the conclusion to be drawn from the evidence was that the wife's refusal was due, not to obstinacy or caprice, but to an invincible repugnance to the act of consummation, resulting in a paralysis of the will which was consistent only with incapacity, and that the husband was, therefore, entitled to a decree of nullity. In G v. G, 1912 PD 173, it was held that if the court was satisfied that a marriage had not been, and that, as regards both the wife and the husband, it could not be consummated by the parties thereto, though no reason for non-consummation was manifest or apparent, it was warranted in annulling the marriage.
11. The principles of law, which have been laid down in the aforesaid two English decisions, are quite sound. But the question is whether, in the facts and circumstances of the present case, an inference should be drawn that the respondent is impotent. In the court below the entire case of the appellant wasfounded principally on the ground of removal of the uterus of the respondent by an operation before the marriage. In his evidence, however, it was alleged by the appellant that the respondent was averse to consummation and that she never agreed to share the same bed. It is true that the respondent did not appear and examine herself and that the appellant was not cross-examined. The evidence of the appellant, therefore, goes unchallenged. But, in our view, that is not conclusive. Before a decree of nullity is granted by the court, the court must be satisfied about the truth of the allegations made by one party against the other even though those allegations are ex parte and not controverted at the trial. The marriage was solemnised on May 7, 1956, and the application for a decree of nullity was filed on August 23, 1964, that is, more than 10 years after the marriage. If the case of the appellant has to be accepted, then it comes to this that the respondent never shared the same bed with the appellant for these long ten years. It is very difficult for us to accept this part of the case of the appellant. No explanation has been given why the appellant did not file an application for nullity of the marriage earlier. In paragraph 8 of the application it has been stated that the cause of aversion of the respondent was detected only 6/7 months before the institution of the proceeding, namely, that the respondent had an operation of the abdomen resulting in removal of the uterus. In his evidence the appellant says that he found marks on her abdomen which appeared to be marks of surgical operation and that the respondent told him 6/7 months before the institution of the proceeding that she had an operation at Chittaranjan Seva Sadan and that her uterus had been removed before the marriage. It is also difficult for us to accept that the appellant could detect the marks only 6/7 months before the institution of the proceeding. We do not also find any evidence that the appellant made any attempt for sexual intercourse and failed owing to the unreasonable resistance of the respondent. It has been only alleged that there was aversion on the part of the respondent. After considering the facts and circumstances of the case and the evidence adduced on behalf of the appellant, we are of the view that the appellant has failed to prove that the respondent is impotent or that she was averse to sexual intercourse for these long 10 years as alleged. We are also unable to draw any inference from the evidence of the appellant that the respondent is impotent as contended by Mr. Mitter. The facts of the two English decisions referred to above are different from those of the present case.
12. For the reasons aforesaid, we affirm the judgment and decree of the learned Additional District Judge and dismiss the appeal, but there will be no order as to costs.
N.C. Mukherji, J.
13. I agree.