Per Jaswant Singh J.

(1) This is a wifes appeal against the judgment dated 27th February, 1969 of the learned Distt. Judge, Kathua, dismissing her application for annulment of her marriage on the ground that the husband (respondent) was impotent at the time of marriage and continued to be so till the filing of the application.

(2) Mr. Sethi appearing on behalf of the appellant has vehemently urged that the words" at the time of marriage" as used in section 12 (1) (a) of the Hindu Marriage Act 1955 (Central Act No. 25 of 1955) as applied to the State by the Jammu and Kashmir Hindu Marriage Act 1955 (Act No. VIII of 1955) (hereinafter referred to as the Act) mean the date of the first consummation after marriage and although a man may be generally potent, he may be impotent with respect to his own spouse in which case he has to be treated as impotent. He has further contended that it was proved from the material on the record that the respondent was impotent at the time of the con-summation of the marriage and continued to be so till the date of the institution of the proceeding. He has further submitted that the respondent has been treating the appellant with such cruely as to raise a reasonable apprehension in her mind,that it would be harmful and injurious for her to live with him.

(3) Mr. Sharma appearing on behalf of the respondent has, on the other hand, contended that it was proved from the evidence adduced in the case including the medical evidence that the respondent has been potent throughout and the learned District Judge was perfectly justified in dismissing the appellants aforesaid application.

(4) We have given our careful consideration to the submissions made by the learned counsel for the parties and are of opinion that the judgment passed by the learned District Judge is correct and does not call for any interference. It is no doubt true that clause (a) of sub-section (1) of Section 12 of the Act is not very happily worded but keeping in view the well recognized cannon of construction that a statute should not be so construed as to make the meaning absurd or unworkable the clause has to be interpreted in a rational manner and the words at the time of marriage "occurring therein have to be understood in the sense in which they best harmonize with the subject-matter of the enactment and the object which the legislature had in view. Accordingly in our opinion the aforesaid words namely "the time of marriage" in the context in which they are used imply and mean the time of first consummation after marriage. Any other interpretation of the words would make the provision absurd and unworkable and lead to hardship and injustice presumable not intended.

(5) We also agree with the learned counsel for the appellant that for a finding of potency what matters is ability to consummate the marriage with the other spouse and not ability to have intercourse in general. The following statement in Loistory on Divorce, fourth edition (1953), is helpful in this connection.

"It sometimes happens that a person is capable of performing it with the particular individual............ This is sufficient to found a decree of nullity, as what matter is ability to consummate the marriage with the other spouse and not ability to intercourse in general."

(6) It would also be beneficial to refer to the following observations made by Gangeshwar Prasad J. in Jagdish Lal Vs. Smt. Shyama and others AIR 1965 Allahabad 150: -

In some cases a person may be capable of having sexual intercourse but incapable of performing it was a particular individual and in such a case he must be regarded as impotent in relation to that particular individual regardless of his potency in general.

(7) Thus we have no hesitation in holding that even when an individual is generally potent but is impotent with respect to his own spouse he has to be regarded as impotent, for purposes of the Act.

This, does not, however, conclude the matter. In order to be successful in this

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