The marriage between an impotent person and a woman is absolutely null and void under the Hindu Law. The question of the validity of the marriage can be raised only by the parties to the marriage and not by third parties.

JUDGMENT :- This second appeal arises out of a suit filed by the appellant claiming to be the reversioner to the estate of one Deiva Pandian who died issueless on 6-7-1957 for setting aside a sale deed executed by Deiva Pandian in favour of the first defendant in the suit and for recovery of the suit properties. On an objection taken by the first defendant, the third defendant was added as a party to the suit on the ground that she was widow of Deiva Pandians' father and as such entitled to his estate. The plaintiff contended that the third defendant was not a woman at all, that therefore there could be no valid marriage between her and Deiva Pandian's father and that consequently she was not Deiva Pandian's father's widow. The trial Court held that the marriage between the third defendant and Deiva Pandian's father was valid. It also held that the plaintiff was not the reversioner to Deiva Pandian's estate, that the sale deed executed by Deiva Pandian in favour of the first defendant was executed for consideration, and that it was not executed because of fraud and undue influence, and dismissed the suit. The Lower Appellate Court came to the conclusion that the sale deed executed by Deiva Pandian in favour of the first defendant was not supported by consideration, and that therefore it would not be valid. On the question of the validity of the marriage between the third defendant and Deiva Pandian's father, it held that the third defendant was a sexless person and though it was disposed to hold that the marriage between her and Deiva Pandian's father could not be valid it felt bound by the authority to hold that there was a valid marriage, and that in any case the question of the validity of the marriage between the third defendant and Deiva Pandian's father was one which could have been raised only by Devia Pandian's father and not by third parties like the plaintiff. In the result it dismissed the plaintiff's appeal.

2. I think the finding of the lower appellate Court that the third defendant was a sexless person is correct. In effect it means that the third defendant was not a woman. The third defendant refused to submit herself to a medical examination and it is in evidence that Deiva Pandian's father married Deiva Pandian's mother after he had married the third defendant, apparently because the third defendant was unfit for sexual intercourse. The third defendant had described herself as Ali and it was also in evidence that she had no breasts. She did not menstruate either, the admission by P. W. 1 that the third defendant had a hole cannot be held to mean that she had a vagina. What could be seen is a cleft rather than a hole. On the whole I am satisfied that the conclusion of the Lower Appellate Court that the third defendant was not a woman is correct.

3. The next question that arises is whether the marriage between her and Deiva Pandian's father was valid. The argument on behalf of the plaintiff is that a marriage can be only between persons of opposite sex, that one of them must be a male and another a female, and that unless the third defendant were female there could be no valid marriage between her and Deiva Pandian's father and the marriage would be a total nullity. For this proposition the plaintiff (appellant herein) relied upon the decision in A v. B, AIR 1952 Bom 486 where, Tendolkar, J., after an elaborate discussion of all the Sanskrit texts bearing on the subject held that such a marriage would be absolutely null and void under the Hindu Law. The learned Judge criticised the opinion of Mayne in Mayne's Hindu Law, 10th Edn. on the ground that Mayne did not have all the Sanskrit texts presented to him. He also criticised the decision in Bhagwati Saran Singh v. Parameswari Nandan, ILR (1942) All 518 : (AIR 1942 All 267) and that of a Full Bench of this Court in Amrithammal v. Vallimayil Ammal, ILR (1942) Mad 807 : (AIR 1942 Mad 693) (FB). Both the decisions were criticised on the ground that they plac