( 51 ) THE petition under section 12 (1) (a) of the Act was filed on 15th February, 1973. The provision of the Act at that time read as follows :"12 (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable, and may be annulled by a decree of nullity on any of the following grounds, namely : (a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding ; It was subsequently amended in 1976 with effect from 27th May. 1976. The amended provision provides : "12. (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . (a) that the marriage has not been consummated owing to the impotence of the respondent. " Section 39 of the Marriage Laws (Amendment) Act, 1976 which is a special provision dealing with pending cases provides : "39. (1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commencement of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such court (i) If it is a petition proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marria'ge Act as amended by this Act. (ii) If it is a petition or proceeding under the Special Marriage Act, then so far as may be, as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act. " (2 ). In every petition or proceeding to which sub-section (1) applies, the court in which the petition or proceeding is pending shall give an opportunity to the parties to amend the proceedings, in so far as such amendment is necessary to give effect to the provisions of sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be, for divorce. "

( 52 ) IT is, therefore, apparent that at the time when the matter was heard in court, a decree of nullity could be passed if it were established that the marriage had not been consummated owing to the impotency of the other party.

( 53 ) HOWEVER, in the present case it would appear to me, that Om Prakash has neither properly pleaded nor proved non-consummation on account of impotency. There is no averment renon-consummation. in fact, in his pleadings he has asserted that between 16th November, 1969 and 20th June. 1971. he had sexual intercourse about 4 or 5 times. Sometimes, this was in an incomplete manner. The averment is not that sexual intercourse was incomplete on all occasions. No attempt was made to amend the pleadings. As such, it is clear that no case has been made out with regard to section 12 (l) (a) of the Act.

( 54 ) IMPOTENCY is the lack of ability to perform sexual intercourse in a complete and full manner. Partial and imperfect intercourse is not consummation. However, the burden of proof is on the petitioner, the respondent herein. This has not been discharged. Though Om Prakash has deposed that intercourse was not complete as there was only rubbing of the genital organs, this does not appear to be reliable in view of his own pleadings and the medical evidence. The medical evidence, as noticed above, indicates that Shakuntala was capable of sexual intercourse and the vagina admitted of a two finger examination.

( 55 ) IN the circumstances, the cross-objection is dismissed.

( 56 ) IN the result, both, the appeal and the cross-objection are rejected. The dissolution of the marriage on the ground of cruelty is upheld, but not on the ground of desertion. There will, however, be no order as to costs.

LEILA SETH, J.

( 1 ) THIS appeal by the wife is directed against the judgement and decree of the Additional District Judge, Delhi dated 21st March, 1979 granting a decree for divorce to the husband under section 13 (1) (ia) and (ib) of the Hindu Marriage Act, 1955 (to be REFERRED TO to in bri

Click Here to Read the rest of this document