Impotency under Section 12 of the Hindu Marriage Act includes not only physical incapacity but also mental and moral disabilities that make consummation of marriage practically impossible.

Shamsher Bahadur, J.

1. This is a husbands appeal from a decree annulling his marriage with his wife under Section 12 of the Hindu Marriage Act which makes a marriage voidable and subject to annulment if the other party was "impotent at the time of the marriage and continued to be so until the institution of the proceeding".

2. Jagdish Kumar appellant and Sita Devi were married at Shakurbasti in Delhi on 11th of December, 1958. The wife stayed with her husband, according her allegation, up-till 23rd of December, 1958 when she was escorted to and left at her parental home by the husband. Sita Devi complained that her marriage had not been consummated because of her husbands impotance and the present petition for annulment of marriage under Section 12 of the Hindu Marriage Act was brought at her instance on 1st of June, 1959.

3. The husband in the written statement asserted that the marriage had been consummated and that he was fully potent and virile. It was pleaded that the petition had been filed to cause him harassment and as a shield to her own act in carrying away the ornaments and dowry of the value of Rs. 11,000/- to her parents.

4. The pleadings gave rise to the following two issues;

1. Whether the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings?

2. Relief.

The learned Additional District Judge having found in favour of the wife on the first issue, a decree for annulment of marriage has been granted and Jagdish Kumar, feeling aggrieved, has come to this Court in appeal.

5. It is of some importance that though the appellant in his written statement flatly denied the allegation-in the petition that the marriage had not been consummat-ed, he was compelled under the pressure of events in his statement as R. W. 1 on 28th of November, 1960 to admit that he never had any sexual intercourse with his wife. On his own showing the husband and wife lived in the same room on 11th, 12th and 13th of December 1958. He was 22 at the time of marriage and the wife 17. The reason for this volte-face is not far to seek. After the petition had been filed, an order was made by the learned Judge on 26th of November, 1959 directing the husband to have himself examined by the Civil Surgeon, Dr. Diesh. The appellant went for medical examination on 24th of December, 1959, and according to the evidence of Dr. Diesh given as P.W. 3, he was not able to pass any semen by masturbation. The appellant unsuccessfully tried to produce semen again on 26th and 28th of December, 1959. At his own request the appellant was allowed to visit the hospital again on 1st of January, 1960, though on this occasion no one else on behalf of the wife was present. The appellant was able to produce this time a small quantity of gelatinous fluid liquidation." Dr. Diesh has stated that he enquired from the appellant whether he had any sexual intercourse with his wife and the answer was given in the negative. The appellant stated that as he was not feeling well he did not perform the sexual act. Having made this admission, the appellant had to admit in his statement before the Court in flat contradiction to what he had stated earlier in his written statement that the marriage had not been consummated.

6. The evidence adduced on behalf of the wife is this. After she came to her parents house barely a ton-night after the marriage, she was looking sad and the father, Shri Mool Raj, P.W. 8, felt worried on this score. Mool Raj asked his son, Jai Lal, to find out what the matter was and all she said was that her husband should be got medically examined. Accompanied by his friends, Kant Kumar Bhashar P.W. 4, Om Parkash P.W. 5 and Banarsi Dass P.W. 7, Jia Lal P.W. 6 took the appellant to Dr. Ram Pal who advised them to go to an expert on sexual matters as the appellant was unable to produce any semen. They all then went to Dr. Parshotam Lal Khanna P.W. 9 who is the Medical Officer in charge of Lajpat Nagar Co