JUDGMENT : This appeal arises out of a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act.

2. Jagdish Lal petitioner was married to Smt. Shyam Madan respondent No. 1 (hereinafter referred to as the respondent) at Varanasi on 13th February 1961 according to Hindu rites. After the marriage, the couple lived together at Meerut at the house of the petitioner for about a mouth and thereafter the respondent went to her father's place at Varanasi. The petitioner went to Varanasi in June, 1961 and wanted to take the respondent back to his house at Meerut, but the respondent refused to go and she has been living at her Father's place at Varanasi. The petitioner is about 25 years of age and the respondent too is an adult. These facts are admitted.

3. It was alleged in the petition that the respondent but withdrawn from the society of the petitioner without any reasonable excuse and that the other respondents who are her parents and brothers were supporting her in the withdrawal. It was also alleged that the marriage between the petitioner and the respondent had been properly consummated. The petition was opposed by the respondent principally on the ground that the petitioner was impotent. The respondent stated in her reply to the petition that the marriage was never consummated and the petitioner was incapable of consummating it on account of his complete and total impotency. She denied that her withdrawal from the society of the petitioner was without any reasonable excuse and attributed it to the total impotency of the petitioner. She also mentioned in her reply that as the petitioner was impotent at the time of the marriage and had continued to be so she had already moved for the annulment of the marriage under Section 12(1)(a) of the Hindu Marriage Act. The other pleas taken by the respondent are not relevant for the purpose of the appeal.

4. The evidence in regard to the question of impotency, which is the only question involved in the case, consists of the statements of the respondent herself, and Dr. Sushila Sharma on the one side and those of the petitioner and Dr. Kakkar Civil Surgeon of Meerut on the other. On a consideration of this evidence the learned Civil Judge who tried the petition found that the petitioner was impotent when the respondent lived with him at Meerut after the marriage and there was nothing to show that the impotency had been subsequently cured. He accordingly held that the petitioner was not entitled to restitution of conjugal rights and dismissed the petition. On appeal by the petitioner the learned Additional District Judge agreed with the finding of the trial court and upheld its decision. The petitioner has now preferred an appeal to this Court.

5. The contentions raised before me by the learned counsel for the petitioner are two, firstly, that in view of the statement of Dr. Kakkar there was no justification for the finding that the petitioner was impotent; and secondly, that there was no proof of the fact that the petitioner had continued to be impotent till the institution of the proceeding, and as such a decree for restitution of conjugal rights could not have been refused to him under the law.

6. In connection with the first contention, it has been urged that although the finding as to the impotency of the petitioner is a finding of fact it is based entirely on an assessment of the value and effect of the opinion of medical experts examined in the case, and since the expert evidence has not been properly appreciated and correct conclusions have not been drawn from it the finding does not deserve acceptance. While I do not agree that the finding recorded by the courts below rests entirely on the opinions of experts, I propose to test the validity of the criticism to which the finding has been subjected. Before, however, I do so some preliminary matters have to be stated and the ground for the examination of the evidence produced in the case cleared.

7. Impotency means

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