( 1. ) THIS is an appeal under Section 28 of the Hindu Marriage Act against a decree of nullity by the District Judge, Chhindwara.

( 2. ) THE appellant Smt. Shewanti and the respondent Bhaurao were married sometime in 1963. They lived together till 1967. On February 1, 1968, the husband made an application under Section 12 (1) (a) of the Hindu Marriage Act that the wife was impotent at the time of the marriage and continued to be so until the institution of the proceeding. The wife denied the alleged impotency. The only witness examined in the case was Dr. (Miss) Philip, who had examined the wife. According to her statement, Shewanti was suffering from sterility and amenorrhoea. i. e. no menstruation. She said that although she had given the necessary operative and medical treatment to Shewanti, there was no sign of menstruation. For further investigation, laparotomy was performed, which showed that the uterus was normal, but the right tube and ovary were small and flat and the left tube and ovary were rudimentary, i. e. very small just like a streak. No ovarium tissue was present on the left side. On this data, the opinion of the lady doctor was that Shewanti was sterile, but it could not be said that she was impotent. The learned District Judge was of the opinion that in case of females potency means: (i) development of internal and external genitals; and (ii)ovulation and menstruation, and as in Shewantis case the second element was absent, she was impotent. In support of his opinion the learned District Judge relied upon T. Rangaswami v. T. Arvindammal, AIR 1957 Mad 243 and venkateshwararao v. Nagamani, AIR 1962 Andh Pra 151.

( 3. ) UNDER Section 12 of the Hindu Marriage Act a marriage with a person who is impotent at the time of the marriage and continues to be so is voidable and can be annulled by a decree of nullity. In our opinion, by the use of the word "impotent" the legislature did not intend to bring in the idea of sterility or incapability of conception; impotency here signifies incapacity to consummate the marriage in other words incapacity to have normal sexual intercourse. It is possible that a person may be sterile, still he or she may be capable of conjugal intercourse. Sterility alone, however, is no ground for holding the mar-riage voidable or declaring it a nullity. In D. v. A. , (1845) 1 Rob Ecc 279 = 163 ER 1039 the wife had no uterus at all and thus no power of conception. The vagina was also malformed as to be a cul-de-sac measuring at the extreme two inches in depth as against the natural depth of four to four and a half inches. In this state of things. Dr. Lushington observed:

"mere incapability, however, of conception is not a sufficient ground whereon to found a decree of nullity, and alone so clearly insufficient, that it would be a waste of time to discuss an admitted point. The only question is whether the lady is or is not capable of sexual intercourse, or, if at present incapable, whether that incapacity can be removed. "

* * * * in one sense of the term, there can be no doubt, namely, that as relates to conception, the malformation is incurable; but it is to me doubtful, whether they mean that it is incurable as to the mere coitus. In this difference, I think, lies the true distinction. If there be a reasonable probability that the lady can be made capable of a vera copula of the natural sort of coitus, though without power of conception--I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipient, imperfect and unnatural coitus, I would pronounce the marriage void. " the case of (1845) 1 Rob Ecc 279 = 1g3 ER 1039 (supra) was relied upon in L. v. L. , (1922) 38 TLR 697. In this case, before marriage the wife had undergone an operation and the right ovary and the right fallopian tube and almost the entire left ovary and the left fallopian tube had been removed, which had rendered her incapable of conception;" complete penetr