A wife is entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973, if her husband is impotent and unable to perform his marital duties.

( 1 ) BY means of this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order of the II Munsif Magistrate, Varanasi, dated 8th of March, 1989 and the order of the IV Addl. Sessions Judge, Varanasi, dated 19/01/1990, dismissing the petitioners revision filed against the order of the 11 Munsif Magistrate, Varanasi allowing the application of Smt. Geeta Singh, under S. 125 of the Code of Criminal Procedure, 1973.

( 2 ) IT is not disputed in the present case that Smt. Geeta Singh was a legally wedded wife of the petitioner and the petitioner married Smt. Geeta Singh on 22-11-1981. Thereafter Smt. Geeta Singh stayed with the petitioner at Sultanpur and lived there for sometime and then returned to her parents house at Varanasi. She again went to petitioners house at Mhow (Madhya Pradesh), where the petitioner was posted as a Captain and lived with him for few months.

( 3 ) THE case of Smt. Geeta Singh, the wife of the petitioner, who has been arrayed as respondent No. 3 in the petition, is that the petitioner in the month of November. 1982 took her to her parents house and left there and thereafter she is not being maintained by her husband. The petitioners contention is that he is ready and willing to maintain respondent No. 3 and keep her, but respondent No. 3 refused to live with him and as such the application under Section 125 of the Code of Criminal Procedure is not maintainable. The petitioners contention is that he has already filed a suit for restitution of conjugal rights against respondent No. 3 which is pending.

( 4 ) BOTH the courts below have recorded a concurrent finding that the petitioner was impotent and was unable to perform sexual intercourse with his wife, namely, Smt. Geeta Singh. The courts below also held that respondent No. 3 was justified in living separately from her husband on the ground that the husband of respondent No. 3 is impotent and is unable to discharge his marital obligations and was also unable to have any sexual intercourse with her.

( 5 ) THE case of the petitioner before the trial Court as well as before this Court is that the petitioner is potent but respondent No. 3 is abnormally oversexed and as such she is not sexually satisfied with the petitioner. This case of the petitioner has, however, been disbelieved by the courts below and concurrent findings of fact have been recorded by both the courts below that the petitioner was impotent qua her present wife, namely, Smt. Geeta Singh In this regard the proposition of law is well settled that a person can be potent against a particular person but still be impotent against some other individual. In Jagdish Lal v. Smt. Shyama Madan, reported in AIR 1966 All 150 : ( 1965 ALJ 453), Honble Mr. Justice Gangeshwar Prasad held as under :"impotency means incapacity for accomplishing the act of sexual intercourse and by sexual intercourse, in this context is meant not an incipient, partial or imperfect but a normal and complete coitus. Impotency is to be distinguished from sterility which may in some cases accompany impotency but is not necessarily associated with it, the two expressions denoting lack of two different powers. A person may be incapable of accomplishing the sexual act and yet be capable of procreating and, conversely too, a person may be incapable or procreating and yet be capable of accomplishing the sexual act. The cause of impotency may be in the malformation or structural defect in the parts; in the functions, resulting in imperfect erection or premature ejaculation; in diseases whether local or general or in the mind, manifesting itself a repugnance for the sexual act, fear, lack of confidence etc. It may also happen that a person is capable of having sexual intercourse but incapable of performing it with a particular individual, and in such a case the person must be regarded as impotent in relation to that particular individual regardless of his potency in general. T