Impotency under Section 12(1)(a) of the Hindu Marriage Act, 1955, refers to the inability of a spouse to participate in normal coitus, and infertility alone, without any incapacity to engage in sexual intercourse, does not constitute impotency.

BHASKAR BHATTACHARYA, J.

(1) This first appeal is at the instance of a husband in a proceeding under Section 12(1)

(a) of the Hindu Marriage Act, 1955 and is directed against the judgment and decree dated 18th March, 2006, passed by the Additional District Judge, Fast Track Court, First Court at Burdwan, in Matrimonial Suit No. 2 of 2002 thereby dismissing the said proceeding.

(2) Being dissatisfied, the husband has come up with the present appeal.

(3) The appellant before us filed a suit being Matrimonial Suit No.91 of 2001 before the learned District Judge for annulling his marriage with the respondent under Section 12 (1)(a) of the Hindu Marriage Act on the ground that the marriage had not been consummated due to impotency of the respondent. The said case was subsequently transferred to the Court of the Additional District Judge, Fast Track Court, First Court, Burdwan, and was re-numbered as Matrimonial Suit No.2 of 2002.

(4) The case made out by the appellant may be summed up thus:

(a) The parties were married under Hindu rites and Customs on 27th June, 1986 at F-8, Tallygunj Wireless Quarters, Kundghat, Calcutta-17. At the time of marriage, the husband was living alone in the premises at Mohamadbazar. However, since the death of his father, he was the only member in the family who shouldered the responsibility of looking after the total requirements of his aged mother. The respondent, being a trained nurse, was, at the time of marriage, employed at Government Hospital at Mohamadbazar.

(b) The respondent was found to be by nature obstinate and adamant and she insisted that her opinion should be considered to be final in all matters.

(c) Within a fortnight after the parties returned to their place of service after marriage, the respondent had to be treated for various ailments and difficulties associated with consummation of the marriage. Under the impression that the problem was a minor one, the respondent was initially treated by Dr. A.K. Bhattacharjee, a close relative of the husband. However, when the medicines prescribed by the doctor did not result in any improvement, the respondent was examined by Dr. J. Sen, Head of the Department, Burdwan Medical College and Hospital in the first week of July, 1987. After carrying out series of confirmatory investigations, the respondent was diagnosed to be suffering from cystic mass in the right ovary. Expensive medicines were prescribed initially in the hope of overcoming the obstruction but as the condition of the respondent deteriorated instead of improving, the respondent was next examined by Dr. B.S. Pal at the primary health centre at Mahammadbazar and on medical advice, a surgical intervention was carried out upon the respondent at Suri Sadar Hospital on 2nd November, 1987.

(d) In spite of such surgery and the continuation of the prescribed medicines to induce fertility in the respondent, she was referred to further treatment at Calcutta Medical College and Hospital, where after series of other expensive investigations, the respondent was found to be suffering from hydrosulphinx of both fallopian tubes a sure indication of primary infertility. On medical advice, the respondent underwent second surgical operation in the month of December, 1998 for hydro-tubation of her fallopian tubes.

(e) Further medical complications having arisen the respondent went through exhaustive investigation and treatment for about five months from February, 1989 at Calcutta Medical College and Hospital, S.S.K.M. Hospital, Bellview Clinic and Hospital and at N.R.S. Hospital at Calcutta at huge cost of the husband. The respondent was ultimately diagnosed to be suffering from a large intra-cardiac tumour by Dr. J. C. Ghosh and Dr. Subhas Nandi. The said tumour was ultimately removed by open-heart surgery at Apollo Hospital at Madras towards the end of July, 1989, for which the husband had to obtain loan from his employer.

(f) In spite of the successive impediments to the cherished desire of