The absence of a uterus does not constitute impotency, and aversion to sexual intercourse, without evidence of unreasonable resistance or incapacity, is not conclusive evidence of impotency.

( 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 bearing child 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 that the 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 t