AVADH BEHARI ROHATGI, J.

( 1 ) THIS is a matrimomd reference. The wife sued the husband for nullity of marriage on the ground of his impotency. She presented a petition on 28th May, 1977 to the District Court under s. 18 read with s. 19 (1) of the Indian Divorce Act, 1869 (the Act), praying that her marriage may be declared null and void on the ground that her husband was impotent at the time of marriage and at the time of the institution of the suit. The husband appeared. He filed a written statement on 30th August, 197/ contesting the petition. On 14th November, 1977 counsel for the husband made a statement before the court that he had been instructed by his client to withdraw from the case. As the husband withdrew from the: arena of contest, the wife s petition was tried as an undefended cause.

( 2 ) APPEARING as her own witness, the wife made a statement in support of the petition. The Additional District Judge was satisfied on evidence that the husband was impotent. He declared the marriage null and void and granted the wife a decree subject to the confirmation by this court under s. 20 of the Act. We are now asked to confirm the decree dated 19th November, 1977 made by the Additional District Judge.

( 3 ) THE parties were married on 19th October, 1972 according to Christian rites at the Cathedral Church of Redemption, New Delhi, according to Protestant faith. They lived at various places including Delhi. The wife alleged that at no time the husband was able to consuiiunate the marriage. She recounted the husband s attempts to effect normal intercourse but without success. She said that the husband was incapable of ordinary complete intercourse. Her evidence was that she remained wrapped in his embraces but when it came to having sexual intercourse each time he attempted and each time he had to make an ignominious retreat. The wife then said that as the husband was unable to penetrate her vagina he started masturbating. She narrated the crucial event of 6th November, 1972 in these words :

"on 6th November, 1972 respondent again attempted intercourse but could not achieve any penetration for lack of erection. He started masturbating. He then discharged for the first time holding his penis in his hands. He rubbed it smeared with semen against my vagina for sometime, but there was no penetration. He also bite me on my breasts. I became pregnant by this act of rubbing of the wet penis against my organ and I did not get any menses after this act. "a child was born to the wife on 24th July, 1973 at the Military Hospital Delhi.

( 4 ) THE question for decision is :despite the birth of the child can it be said that the marriage has not been consummated ? Counsel for the wife REFERRED TO us to Clarke (otherwise Talbott) v. 1943 (2) All E. R. 540 (1) and certain passages in Taylor s princess and Practice of Medical Jurisprudence (1965) 12th edition.

( 5 ) IN Clarke v. Clarke (supra) the parties were mained in 1926 and cohabited until 1940. In 1930, the wife gave birih to a son. of whom, it was admitted, the husband was the father in 1942 , the wife petitioned for a decree of judicial separation on the greund of husband s adultery. The husband, in his answer, alleged that, for physical reasons, the ma. rriage had never been consummated and petitioned for a decree of nullity. Pilcher J. on medical evidence held that the birth of the child was due to fecundation ah extra and the marriage had never been consummated owing to the wife s incapacity. He granted a decree of nullity to the husband.

( 6 ) RARELY have such cases come to court. Fecundation ab extra is a rare occurrence. Clarke v. Clarke (supra) shows that a decree of nullity may in some. circumstances be obtained despite the birth of a child of which the husband is admittedly the father. Medical evidence proves that fecundation ab extra is not an impossibility in human affairs.

( 7 ) MODI in his Medical Jurisprudence and Taxicology, 11977) 20th ed. at page 306 says :

"it is also a

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