The court emphasized that the right of the husband to prove cessation of impotence is limited to the opportunity provided by the Dissolution of Muslim Marriages Act and does not include a right to demand the wife's company.

( 1 ) THIS appeal arises out of a suit brought by a Muslim wife under the Dissolution of Muslim marriages Act, 1939, for the dissolution of her marriage, on the ground that her husband who was impotent at the time of the marriage continued to be so. The spouses were married on June 12, 1960 and the suit for dissolution was brought on October 3, 1960. The husband was at the time of the marriage 20 years and the wife 18.

( 2 ) THE District Judge of Gulbarga recorded a finding on July 31, 1962 that the impotence of the husband was clearly established. But, since the husband had made an application on July 25, 1962 for an opportunity to satisfy the court within a period of one year that he had ceased to be impotent, the District Judge made an order adjourning the proceedings by one year to enable the husband to prove that he had ceased to be impotent.

( 3 ) ON the expiry of the period of one year for which period the suit was adjourned, the wife made an application on August 19, 1963 for a decree of dissolution. The District Judge made the decree on July 31, 1965 and the husband appeals.

( 4 ) THE two submissions made on behalf of the husband by his learned Advocate Mr. Kagalkar in support of his case, are, firstly that the finding of the District Judge that the husband was impotent at the time of the marriage and continued to be so is unsustainable, and secondly that the opportunity for the establishment of the cessation of impotence was inadequate.

( 5 ) THE finding of the District Judge on impotence rested upon the evidence given by three witnesses examined for the wife, one of whom was herself, the other her father and the third a medical practitioner. The evidence given by the father of the wife that the consummation of the marriage was arranged on the very night of the wedding, and that the two spouses were allowed to sleep together on the night of June 12, 1960 and the next day. He stated that for that purpose the two spouses were taken to his house on the next night. He added that after the marriage the wife lived with the husband for about a fortnight and thereafter she returned to her parental home weeping with the complaint that the husband was impotent.

( 6 ) IN another part of his evidence the witness stated that about a month later the witness and the father of the husband took the husband to a medical practitioner who is examined as P. W. 3, and that after the husband was examined for about 3/4 hours and he was pronounced impotent. P. W. 3, according to the witness, gave the certificate which is marked Exhibit P-2.

( 7 ) A very strange question was put to this witness in his cross-examination which elicited the following answer: "it is not true to say that we knew even before the marriage that the defendant was impotent". The question to which this answer was given can perhaps be understood as suggesting that even according to the cross-examining counsel, the husband was impotent, and that the father of the wife had knowledge about it. But we do not wish to proceed upon that assumption.

( 8 ) IN his cross-examination that witness proceeded to state that there were two panchayats in the context of the complaint made by the wife about the husband's impotence, once in the witness's house and for the second time in the house of the husband. The witness proceeded to state that at those panchayats it was asserted for the husband that he was not impotent and that the wife should be sent to him. It was also elicited that the husband was not permitted to spend some particular night with his wife in the witness's house after the wife returned thereto.

( 9 ) P. W. 2 is the wife. Her evidence was that, on the date of her marriage the two spouses were sent during the night into a room for consummation, but that the defendant did not have any sexual intercourse, and not even once during a period of fifteen days when they slept together. Her evidence was that the husband did not have sexual intercourse wi