Impotence and desertion are not grounds for divorce under the Hindu Marriage Act unless they existed at the time of the marriage and continued until the presentation of the petition.

JUDGMENT :- This is an appeal directed against the order and decree of the learned Subordinate Judge of Tiruchirapalli in O. P. No. 186 of 1952.

1a. This O. P. was filed under Section 5 of the Madras Hindu (Bigamy Prevention and Divorce) Act VI of 1949 clause (h) which provides that either party to a marriage solemnised before or after the commencement of this Act..............may pray that the marriage be dissolved on the ground that the other party was impotent at the time of marriage and continued to be so until the presentation of the petition. This Act has been repealed and replaced by the Hindu Marriage Act 1955, Section 12 (a). The Clause (h) of S. 5 of Act VI of 1949 is identical in language with clause (a) if S. 12 of the Hindu Marriage Act 1955. Therefore no vested right has been taken away and no new right has accrued.

2. The petitioner T. Rangaswami is seeking divorce on the ground of alleged impotence and alleged desertion. He married the respondent Aravindammal, who is his own niece on 13-9-1945. After living for sometime together, the respondent has been living before the presentation of the petition with her parents for a considerable time. The case for the respondent is that she is not impotent as alleged either on the date of the marriage or on the date of the petition and that she is not the deserting party and that on the other hand she has been driven out of the house and that her husband wants to get rid of her in order to re-marry.

In the course of the enquiry this respondent produced a certificate issued by Srimati G. Ponniah, Lady Doctor, regarding her potence and this Lady Doctor has been examined also as R. W. 3. The medical evidence puts it beyond doubt that this respondent is suffering neither from organic nor atonic impotence permanent or temporary. This evidence is corroborated by the respondent examined as R. W. 1 and her father examined as R. W. 2.

This was not in any way displaced by the evidence of the petitioner examined as P. W. 1 and his mother as P. W. 3. Before the learned Subordinate Judge the issue of desertion was not pressed with any seriousness as noted by him in paragraph 6 of his order and in fact there were no materials to make out the ground of desertion put forward as a second string to the bow by the petitioner. This petition was therefore dismissed with costs. Hence this appeal.

3. In appeal I am of the same opinion as the learned Subordinate Judge on both these issues and here are my reasons.

4. Point 1. Impotence as a ground for dissolution of marriage is a medico-legal problem and I shall consider it now under both these heads.

5. Impotence is defined as lack of ability to perform sexual act and sterility is defined as lack of ability to procreate children. Questions of impotence and sterility arise when divorce is sought (a) because, marriage cannot be consummated (i.e., one of the parties is incapable of complete sexual intercourse), (b) if incapacity for consummation cannot be surgically remedied, or, the defective party is unwilling to submit to a surgical operation; or (c) if the incapacity existed before marriage. (Sterility, by itself, offers no ground for divorce). Impotence is attributed to injury to head, neck, or loins.

6. Potence in case of males means power of erection of the male organ plus discharge of healthy semen containing living spermatozoa and in the case of females means (1) development of external and internal genitals and (2) ovulation and menstruation.

7. Causes of impotence : (*Apply to males only. - *Apply to females only; those unmarked, apply to both sexes) :-

1. Organic: 1. Nervous Lesions*: Diseases of, or injury to, brain or cord. 2. Malformation or absence of parts* male organ may be absent, non-developed, ill-developed, or two or more in number; adherent to scrotum or abdomen; fibrous or cartilaginous; hypospadias; congenital phimosis, anorchidism, cryptorchidism; diseases of or accidents to or operations on the male organ, testicles or duc