D.P. Wadhwa, J.
(1) The wife hashed this appeal. Her E prayer to declare her marriage with the respondent a millity on the ground of impotency of the respondent was declined by the learned single judge. She was, however, granted a decree of judicial separation on the ground of cruelty.
(2) The marriage between the parties was solemnized 'at Delhi on 14th October 1975 under the Indian Christian Marriage Act, 1872 (tor short hereinafter referred to as 'the Act'). The wife. professes the Christian religion and comes from Meghalaya. The Railway Traffic Service through a competitive examination. She Came to Delhi to join her duties in May 1975 and was residing at the Railway Rest House, New Delhi. Per chance that parties that at the Y. W. C A., New Delhi. They developed Friendship and got married. It is alleged that the parties could not many in the Church as the husband was not a Christian and they), thereforee, decided to have a civil marriage. Though the parties got married under the Act. the wife claims that she was always under the mistaken belief that the marriage was performed under the Special Marriage Act, 1954. However, nothing turns oh this except that the wife alleges that certain mandatory requirements for the solemnization of the marriage under the. Act were not complied with which make the marriage, under the Act, as null and void. In short, she says, there was. no marriage under 'the Act, and the parties are not husband and wife.
(3) The prevent petition has been filed under Ss. 18, 19 and 22 of the Indian Divorce Act, 1869. Under S. 18, any husband or wife may present a petition praying that his or her marriage may be declared null and void. S. 19 gives the grounds on which such a decree can be passed. S. 22 deals with a decree of judicial separation on grounds like adultery, cruelty or desertion. No decree of nullity can, thereforee, be granted unless there exists any one of the grounds stated in S. 19. At the time of framing of the issues in the present case, an issue was sought to be raised that the marriage officer had no jurisdiction to perform the marriage under the Act for the reason that notice of the intended marriage postulated by S. 38 of the Act did not comply with the requirements of that section, and further that the provisions of Ss. 41, 42 and 51 of the Act had been violated which were mandatory and the marriage officer was thus not competent to perform the marriage between the parties under the Act. F R. . Aggarwal, J., did not frame any such issue, and observed that such a ground would not be available under S. 18 of the Indian Divorce Act and further that Ss. 18 and 19 contemplated a marriage between the parties under the Act and that if the allegation was that there had been no valid marriage' between the parries then the relief sought would be outside the purview of S. 18 of the Indian Divorce Act. It appears, this argument was again raised at the time of the final hearing of the petition, but the learned single judge (N. N. Goswamy, J.) also declined to frame any additional issue. He relied upon s Division Bench decision of the Allahabad High Court in Mst. Titly v. Alfred Robert John : AIR1934All273 . A Full Bench of this court in J. F. S Eric D'Souza v. Florence Martha : AIR1980Delhi275 has clearly stated that S. 19 of the Indian Divorce Act sets 'out the only grounds on which a marriage covered by the Act can be declared null and void. Reference may also be made. to a Full Bench decision of the Gujarat High Court in Kanku v. Shanabhai : (1968)9GLR511 (3). It Was held (by majority) that a petition under the Indian Divorce Act for nullity of a marriage was not maintainable on the ground that the marriage was not solemnized in accordance with S. 4 of the Act. A contention was raised that the proper forum for decision on this subject was the court of ordinary civil jurisdiction and not the special court established under the Indian Divorce Act. Bakshi, J., speaking for the majority, observed :-
'It has also to be borne in mind that when we read sees. 18 and 19 together, the latter section provides a cause cf action to the petitioner on which a petition for nullity of marriage can be founded. If we read both these sections together, it appears clear that section 19 is exhaustive of all the grounds on which a petition for nullity of marriage can be based. While section 7 entitles the Court to act or give relief to the petitioner on principles and rules on which the Courts for Divorce and Matrimonial Causes in England act and give relief, that section cannot supply an additional cause of action for instituting a petition for nullity of marriage under the Indian Divorce Act.'
(4) In Mrs. Kamala Nair v. N. P. Kumaran Nair, : AIR1958Bom12 , the parties were Hindus. A petition for divorce was filed invoking matrimonial jurisdiction of the High Court, and it Was contended that divorce was recognised under the personal law of the parties. The single Judge of the Bombay High Court, who tried the case, took the view that in view of S. 19 of the Hindu Marriage Act, 1955, the court had no jurisdiction to try the suit and he ordered that the suit should be transferred to the city civil court. This was on the basis that the Hindu Marriage Act applied to the parties. On an-appeal filed by the wife, it was observed that when a Hindu is exercing the right for divorce he could apply only under S. 13, and when he does apply then the forum for hearing his petition is fixed by S. 19 of the said Act which is the city civil court. But, if a 'Hindu who had already a right of divorce before the Act was passed that right is saved by S. 29(2) of the Hindu Marriage Act and thereforee when the wife approached the court she was Hot asserting a right conferred upon her by the said ACt and was not presenting a petition under that Act, and the was not relying on the grounds mentioned in S.I 3, but she .
(5) In this view of the matter, in the present petition for grant of a decree of nullity the only ground referred to is that 'the respondent was importent at the time of the marriage and continues to be so at the time of institution of the suit'. In the alternative, the wife also prayed for a decree of Judicial separation on the ground of cruelty.
(6) Having dealt with the preliminary point, it Will be now appropriate to examine the facts of the case on both these grounds.
(7) The appellant-wife has averred that on the wedding night she discovered that the respondent-husband was suffering from premature ejaculation and that he was unable in give Tier any in mind and body and that, thereforee, the respondent was impotent qua her and that this impotency of the husband prevented her from having any orgesm during coitus. She further stated that she expected that in due course of time the respondent's ability and technique would improve and she would get satisfactory orgesm but that the respondent continued to ejaculate prematurely leaving her in a state of vascular congestion leaving. her physically tense, dissatisfied, mentally disturbed and physically unwell'. All this led to deterioration in her physical health and well-being. She consulted a doctor who, on examination, did not find any ailment with her, and prescribed some tonics as she was losing weight. The parties lived together as husband and wife for about four years and it has come in the evidence of the appellant-wife that during her stay with her husband she never consulted any doctor regarding her sex-life and that she consulted the doctor only after she had left her husband.
(8) It may also be noticed at this stage that during her stay with her husband the appellant-wife took the Indian Administrative Service Etc. Examination in 1978 and having qualified was selected to the Indian Foreign Service, and thereafter at the ns.tance of her husband she applied for and was allotted a room in the External Affairs Hostel on 1st August 1979.
(9) On the question of impotency the material evidence is that of the parties themselves. The appellant-wife however, also examined her sister Mrs. S. S. Diengdoh (Public Witness 2) and two doctors, Dr. N. Sen (Public Witness 4) and Dr. J.J Sood (Public Witness 7)
(10) The parties after about a week of then- marriage had gone to Shillong where Public Witness 2 for the first time met the respondent-hnsband. At that time' she found both the parties very happy. Public Witness 2 along with her husband also visited the parties in January 1977 at New Delhi. Though she stated that during that period the appellant-wife told her that the respondent husband was indifferent to her in bed and right from- the start of the marriage he could not satisfy her, her evidence if read as a whole shows that the parties were leading normal married We. We do no think the appellant-wife would have confided in Pw 2 her sexual life when Public Witness 2 is not even aware that the appellant-wife became pregnant on two occasions which is the admitted case. Both the doctors have deposed, in general, about sexual act between a man and a woman. According to them, there are four phases of a complete sexual intercourse which! are similar in both the sexes. These four phases are described as : (1) excitement phase, (2) plateau (3) orgasm phase, and (4) resolution phase. According to these witnesses all the four phases had to be gone through to have a complete sexual union. As far as man is concerned, Dr- Sood stated that 'if the first two phases culminate in a satisfactory ejaculatory response followed by both bodily and mental relaxation, his (male) response would be considered complete. As far as the female is concerned when she is fully turned on by commonly known process called fore-play leading to satisfactory excitement and plateau phase followed by a satisfactory orgasm phase and subsequent relaxation both mental and physical, the act would be considered complete for the female participant'. According to the doctors these are all, however, variable factors and vary from person to person, from environment to environment. Dr. N. Sen stated that it was possible that a woman might achieve orgasm within 8 seconds but it all depended on fore-play etc. Dr. Sood described two stages of impotency in a male, namely, primary and secondary. Primary importance in a man is largely concerned with erectal incompetence. In secondary impotence, the male may be competent enough to achieve penetration but may fail to take the act io third stage of final culmination in a satisfactory orgasm. There are degrees of premature ejaculation. Dr. Sood further went on to say that 'men may be categorised as premature ejaculators if they ejaculate outside the female parts without achieving a penetration, or they may achieve, partial penetration and then have an incident ejaculation, or after entry may be able to give a few short strokes and then ejaculate or ejaculate, long before the female reaches the stage of orgasm'. Dr. Sood admits that in ease the signs of potency are only erection, penetration and discharge inside the vagina, the concept of secondary impotence would disappear. He also says that a woman may not achive orgasm during sexual intercourse if she is in some mental tension like when she does not want to bear a child. Further, he says, premature ejaculation is not a permanent disability and is curable.
(11) Relying on the testimony of the two doctors and the statement of the appellant-wife that the appellant-wife was not having orgasm and full satisfaction during the sex act and that the respondent-husband would ejaculate at the beginning of the plateau phase, Shri Mahinder Narain, on behalf of the appellant wife, contended that it must be held that there was no natural and complete sexual intercorurse and, thereforee, the respondent- husband was impotent qua the appellant-wife.
(12) 'IT was not an arranged marriage but a love marriage', as the appellant has put it. The parties know each other before the marriage, and, if we may say so, intimately. Though the appellant-wife has tried to show that relations between the parties before the marriage were just friendly and that she was almost duped by the respondent into marrying him, after examining her statement one gets the feeling that she is not quite telling the truth. During this period, the parties were visiting various restaurants and places of entertainment quite frequently. The appellant-wife was staying at the Railway Rest House. She stated that when the respondent would come to drop her at the Rest House she would not permit him to enter her room. It has, however, come on record that on one night, during this period, the parties got late in a restaurant in the Ashoka Hotel, when the respondent hired a room in that hotel and both parties spent the night there together. The respondent contends that they indulged in sexual acts there but the appellan-wife denies that they had any sex at that time. We need not elaborate this incident any further. We would only say that the statements of the parties show that both of them had ample opportunity to know each other before the marriage and it was not that the marriage was thrust upon the appellant-wife.
(13) This is how the appellant-wife describes her experience of the first night after the marriage :-
'after the dinner the respondent took me to his room. He bolted the door of the room. He approached me and took off my clothes. He also took off his clothes. He laid me down on the bed. Since I was feeling shy, I closed my eyes. I was lying on my back on the bed. I could feel the respondent's weight on me. He penetrated me and caused me pain. What I can remember is that he made few rapid thrusts then I could feel his weight lifted and that was about all that happened. Besides this he never kissed me or caressed me or touched any part of my body. The whole act was painful. The total time lapsed between the respondent's weight on me and its having been lifted was abut 8 seconds or so.
The appellant-wife has further stated that on the second night again she had sexual intercourse with the respondent but the duration was slightly longer. She stated that the respondent ejaculated before she could get satisfaction. Because of this, she stated, she started dreading sex with the. respondent. She read some books on the functioning of the female body and then she knew that it was necessary to have foreplay before sexual' act was commenced. She stated that she realised that there were four phases in the human sexual response. We have already noticed these phases while referring to the statements of the doctors above The wife also stated that she only experienced the excitement phase and the beginning of the plateau phase with the respondent. She then described the responses which she had at the time of sexual act with the respondent. We agree with the teamed single judge when he observed in the judgment under appeal to the effect that this part of the statement had been deposed to by the appellant-wife after reading some book on sex and to bring her case within the four-corners of Clause (1) of S. 19 of the Indian Divorce Act. The fact that the respondent gels erection of his male organ, achieves complete penetration and ejaculates has not been disputed by the appellant-wife. Her only complaint is that the respondent ejaculates before she gets her orgasm and satisfaction. In the course of her testimony, towards the close of her examination-in-chief, she stated that 'the experience that I had with the respondent was that he only used to give short and rapid thrust and there was no complete entry and he used to ejaculate prematurely in my vagina'. We are of the opinion that the appellant-wife is quite inconsistent and is not correct when she complained that there was 'no complete entry'.
(14) The respondent-husband has denied that he was impotent. According to him, both parties lived together as husband and wife till August 1979 for a period of over four years. At no point of time, the appellant-wife complained of the impotency of the husband. After leaving the husband, the appellantwife filed a petition for divorce against the husband on the ground of cruelty under S. 27 of the Special Marriage Act which was, however, dismissed by the Addl. District Judge, Delhi, on 18th February 1980, inasmuch as no such petition could be filed under that Act when the marriage between the parties was solemnized under the Indian Christian Marriage Act. In this petition, the appellant-wife did not take up the ground of impotency of the husband although such a plea was available to her under the Special Marriage Act. According to the husband, parties were leading a happy married life and were indulging in sex acts to the full satisfaction of both the parties. The appellant-wife became pregnant on two occasions. According to him, a false charge of impotency has been leveled to meet the requirements of S. 19. of the Indian Divorce Act.
(15) As has been noticed above the appellant-wife, before her selection to the Indian Forest Service in 1979, was working in the Indian Railways and during the course of her service with the Railways, had to visit various places all over the country like Dhanbad, Asansol, Chakardbarpur, Meerut, Moradabad, Bilaspur, Gauhati, Chirapunji. Shillong and Baroda. etc. In all these places the respondent accompanied her. and according to the appellant-wife, she was having sexual intercourse with the respondent at all these places. As a probationer while at Mussoorie she had also gone to Srinagar with her batch-mates, but there she stayed with the respondent in a hotel, and was having sexual intercourse with him. The parties also visited Bombay and stayed in a hotel and had sexual relations. The appellant-wife also visited the respondent in Canada where she stayed with him for about 2-112 months and the parties were having sexual intercourse. She admitted that sometimes she was taking contraceptive pills in order to prevent pregnancy. The respondent-husband has brought on record certain photographs of the appellant-wife taken at various places and on various occasions which show that the appellant-wife was quite happy. While explaining as to why the ground of impotency was not taken in the earlier petition Sled by the appellant-wife under S. 27 of the Special Marriage Act for divorce, she had to say as under:-
'I did not make the allegations of impotency in that petition because the other grounds mentiond by me in that petition were believed to be sufficient by me for getting divorce. As a woman I say that it was rather embarrassing and painful to recapitulate and state in court regarding the impotency and that is why I did not make these allegations in that petition'. We must say it is a poor Explanationn at that. It is the admitted case that the appellant-wife became pregnant on two occasions. Once she miscarried and the second time, there was an abortion though why the parties went in for an abortion there are different versions about it. That is not, however relevant to decide the issue of impotency. It is not necessary to refer further to the statements of the parties in detail as a bare receding of the statements leads to the belief that the c of the husband that the panes were having normal sexual relations as husband and wife is correct.
(16) The concept of impotency is not the same as understood by a common man and woman and by medical men A man is potent if he can achieve erection and penetration in a natural way. This view has been taken by the courts and no contrary view has been brought to our notice. Now, a marriage is said to be consummated when there is first act of sexual intercourse after marriage. In other words, consummation is to engage in the first act of sexual intercourse after marriage, A large number of authorities were cited on the subject of impotency, but it is unnecessary to burden the judgment with all of them because on facts we find that the version of the appellant-wife that the respondent was impotent is not correct and further the marriage between the parties was admittedly consummated. However, we would refer to some of these authorities.
(17) In Nijhawan v. Nijhawan : AIR1973Delhi200 , the wife had stated in her petition that her husband was not getting proper erection and got discharged before he could perform the act and that after getting some treatment he got somewhat better and the wife got pregnant 'although there was no normal and complete sexual intercourse between the parties as there was some penetration'. A son was born to the parties. It was thus alleged that the hub and was sexually weak and debilitated so much so that he was unable to perform normal sexual intercourse with the wife. In her statement, the wife had stated that the husband was not performing the act of coitus and that he used to get discharged before he could get his organ in contact with her organ and that after some time she noticed some improvement in the husband inasmuch as instead of getting discharged at the very beginning of his sexual advances he could retain it for a minute or two but he would get discharged before coming to her and all that the husband was able to do was to rub his organ on her organ and get discharged in the mouth of the vagina without any penetration and that this was how she got conceived. Thus, it was alleged that though the husband was getting erection of his organ the diffcutly was that he used to get discharged before being abe to penetrate the organ. The court accepted the evidence of the wife that the husband was sexually weak. The court thereafter considered the question as to whether the sexual weakness of the husband could result in a finding of impotency. However, faced with the fact of birth of a child, the court did not subscribe to the theory of 'fecundation ab extra' in this case. The court referred to the fact in the petition the wife had stated that there was some penetration though in her statement she stated that there was no penetration at all. This is how the court deal with this matter:-
'HE,therefore, feel that in this state of evidence it would be somewhat hazardous to conic to a conclusion that the respondent is impotent. This is not to say that we are disbelieving the overall evidence of the appellant (wife) regarding the sexual weakness of the respondent (husband) or the sexual relations and performance as deposed to by her. All that we are indicating is that though we are inclined to believe overall evidence of the appellant in this regard it still leaves a doubt wherein we cannot with absolute certainty say that there was not even one occasion when proper penetration took place during all this period from 1954 to 1967, more especially, when the appellant became pregnant in 1958'.
The court, thereforee, returned no finding of impotency of the husband. This was a case under S. 12(1)(a) of the Hindu Marriage Art 'or annulling the marriage on the ground of impotency, and the language of this section before its amendment in 1976 was the same as that of S. 19(1) of the Indian Divorce Act. This is what the court observed :-
'In order to attract Section 12(4)(a) it has to be positively proved that the respondent was impotent at all material times i.e. right from the time of the marriage till the institution of the petition. This requirement is so strict that even if it could be shown that the marriage was consummated just once during this period, a decree of nullity cannot be .granted. The burden of proving that the respondent was impotent at all material times is on the petitioner'.
THEcourt also referred to the decision in Snowman (otherwise Besinger) v. Snowman 1934 All Er 615 (6). wherein it was held that impotency was the lack of ability to perform full and complete sexual intercourse and that it had been accepted that partial and imperfect intercourse was not consummation and if a party (husband) was incapable of performing the sexual intercourse fully he would be in law deemed to he impotent. The court also referred to another decision W. (otherwise K) v. W. (1967) 3 All Er 178 (7), wherein it was held that, 'any penetration however transient cannot amount to consummation of marriage'. It will thus be seen that the proposition of law laid in Nijhawan v. Nijhawan (supra) does not help the appellant-wife in the instant case.
(18) In Diovijay Singh v. Pratap Kumari : [1970]1SCR559 the Supreme Court held that a party was impotent if his or her mental or physical condition made consummation of the marriage a practical impossibility. This was again a case under S. 12(1)(a) of the Hindu Marriage Act.
(19) In Sirajmchmedkhan v. Hafizunnisa Yasinkhan AIR 1981 Sc 1972 (9), which was a case under S. 125(3) of the Code of Criminal Procedure, 1973 the court approved the following dicta of Sachar, 3., in Nijhawan v. Nijhawan (supra).
'Thus the law is well settled that if either of the parties to a marriage being (of) a healthy physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make any difference in law whether denial of sexual intercourse is the result of sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any willful refusal by the respondent.
Marriage without sex is an anathma. Sex is the foundation of marriage and without a vigorous and harnionious sexual activity it would be impossible for any marriage to continue turn long. It cannot be denied that the sexual activity in marriage has an extremely favorable influence on a woman's mind and body. The result being that if she does not get proper sexual satisfaction, it will lead to depression and frustration'.
In para 34 (p. 1980) of the report, the court observed .--
'THUS,from a conspectus of the various authorities discussed above and the setting, object and interpretation of the second proviso to sub-section (3) of S. 125 of the Code of 1973, we find ourselves in complete agreement with the view taken by the learned Judge of the High Court. We hold that where it is proved to the satisfaction of the court that a husband is impotent and is unable to discharge his marital obligations, this would amount to both legal and mental cruelty which would undoubtedly be a just ground as contemplated by the aforesaid proviso for the wife's refusal to live with her husband and the wife would be entitled to maintenance from her husband according to his means'.
This authority is again not helpful to the appellant-wife on the question of impotency of the husband. The authority reported as Srikant v. Anuradha : AIR1980Kant8 also does not take the case of the appellant-wife any further. The upshot of this authority is that failure to or inability to or refusal to effectuate the sexual intercourse by the husband without any reason on the part of the wife would amount to subjecting the wife to cruelty. In Manjula Deshmukh v. Suresh Deshmukh : AIR1979Delhi93 , a Full Bench of this court held that impotency means incapacity to consummate the marriage and not mere incapacity for procreation. The test is consummation and capacity to consummate. In this case, which was under S. 19(1) of the Indian Divorce Act, the wife had alleged that the husband was unable to penetrate her vagina for lack of erection. She said that he started masturbating, and got discharged for the first time, holding his penis in his hands, rubbed it smeared with seman against her Vagina for some time but without effecting any penetration and by this act of rubbing of the wet penis against her organ she got pregnant. A child was born to her. The court, after examining certain decisions and books on medical jurisprudence, observed as under :-
'The proposition of law that emerges is this : Even when there is conceptios there is not necessarily intercourse in law'.
THEcourt also quoted with approval the following paragraph from Rayden on Divorce (1974) 12th ed. Vol. I, at p. 160,-
'capacity to have sexual intercourse does not depend or capacity to conceive, whether of husband or wife, and incapacity to conceive is not a ground of annulment. Sexual intercourse or consummation is sometimes referred to as vera copula, as the natural sort of coitus without power of conception. Vera copula consists of erectio and intromissio. that is, of erection and penetration by the male of the woman. Full and complete penetration is an essential ingredient of ordinary and complete intercourse. The degree of sexual satisfaction obtained by the parties is irrelevant'.
(20) In S. v. S. (otherwise W.) (1962) 3 All Er 55 (12), the wife when she was a girl of 17 was found to have no, or virtually no, vagina and no uterus although her external sex characteristics were perfectly normal. She had also never menstruated. After the marriage attempts at sexual intercourse were regular and frequent but because of the wife's physical defect the husband never succeeded in obtaining anything approaching penetration. On the facts of the case, it was found that the marriage was never consummated and that the non- consummation was due to the fact that it was not possible for the husband, owing to the abnormality of the wife's sexual organs, to achieve full penetration or anything like full pentration. Medical evidence was led to show that it was possible to carry out an operation on the wife which could enlarge the passage to a sufficient degree so as to admit of full penetration by the male organ. The husband was declined a decree of nullity as the wife's incapacity was thus held to be curable.
(21) In Ved Parkash Sachdeva v. Smt. Mohani Sachdeva (1971) Ii Del 447 (13), the husband was unable to produce erection and thereforee, could not consummate the marriage in spite of various attempts made by him V. D. Misra J., held that the incapacity to accomplish the act of sexual intercourse was called impotency. 'By sexual intercourse is meant not an incipient, partial or imperfect, but a normal and complete coitus', it was observed.
(22) In Grimas v. Grimas (1948) 2 All Er 147 (14), it was held that coitus interruptus was not a full and natural intercourse. but, by its very nature, was partial and incomplete, and the marriage was, thereforee, held to have been not consummated. This authority was not followed in White v. Whits (1948) 2 All Er 151 (15), where in the case of cuitus interruptus, marriage was held to have been consummated, but on facts it was held that husband's conduct in practicing coitus interruptus constituted cruelty in law. We do not think that Grimas v. Grimes lays down the correct law.
(23) In Snowman v. Snowman (supra), there was an imperfect intercourse and the woman was impregnated ab extra with the result that on two occasions she miscarried though she still remained virgin. The wife was granted a decree turn nullity of marriage.
(24) In De v. A-g (1945) 163 Er 1039 (16). which appears to be the basic authority on the question of impotency, the question for consideration was whether the wife was or was not capable of sexual intercourse. Testimony of the doctors was that because of the peculiar and unnatural formation of the vagina the connection between husband and wife might by of a very imperfect character. Dr. Lushington, in his judgment at p. 1045, observed,-
'SEXUALintercourse, in the proper meaning of the term. is ordinary and complete intercourse; it does not mean partial and imperfect intercourse; yet. I cannot go the length of saying that every degree of imperfection would deprive it of its essential character. There must be degree difficult to deal with: but if so imperfect as scarcely to be natural I should not hesitate to say that, legally speaking, it is no intercourse at all',
he further said,-
'IF,on the contrary, she is not and cannot be made can- able of more than an incipient, imperfect, and unnatural coitus, I would pronounce the marriage void'.
(25) In W. (otherwise K) v. W. (supra) the wife had filed a petition for a decree of nullity on the ground of the husband's incapacity, or, in the alternative, his willful refusal to consummate the marriage. Following the dicta of Dr. Lushington in D-e v. A-g (supra), the court held that the marriage was not consummated and the cause of non-consummation was held to be the impotence of the husband. It was found on evidence that on occasions the husband was able to penetrate the wife for a short time, but that, soon after he got inside her, his erection collapsed and he came out. Brandon,. J.. held as follows :-
'In my view, penetration maintained for so short a time. resulting in no omission either inside the wife or outside her, cannot without violation of language be described as ordinary and complete intercourse. I do not think that there is any authority which binds me to hold that any penetration, however transient, amounts to consummation of a marriage, and, in the absence of any authority binding me to hold that, I do not see why I should not make a finding of fact in accordance with what seem to me to be the realities of the case'.
c be noted that in this case, there was no contest on the part of the husband, and the case was decided ex-parte, and if it lays down the proposition that erection has to be sustained for any particular duration, after penetration, we cannot subscribe to the same. The authority is to be confined to the facts of the case it decides.
(26) In K. Balavendram v. S. Harry : AIR1954Mad316 , the wife had contended that the husband's male organ was so abnormally big as to render sexual intercourse with her impracticable and it proved to be positively dangerous to the life of the wife, and that on several occasions when the husband attempted to have intercourse with her, the wife evinced great aversion to the act and also suffered great pain on each occasion with the result that she had to push the husband away or jump out of bed. She stated that in the circumstances, the marriage was never consummated and that consummation of the marriage was impossible. It was contended that it was a case of incurable impotence of the husband towards the wife and that the marriage should be declared null and void on the ground of impotency under S.I 9(1) of the Divorce Act 1869. The husband though denied the allegations but failed to subject himself to any medical examination. The husband also refused to be examined as a witness; nor did he tender any other evidence on his behalf. Relying on the dicta of Dr. Lushington in D-e v. A-g (supra), the court observed as follows:-
'In the present case, the evidence leaves us in no doubt that the marriage cannot be consummated in the ordinary and normal way on account of the abnormal size of the respondent's (husband's) organ. Ac- cording to the petitioner's (wife's) evidence which must be accepted, ordinary and complete intercourse is physically impossible. It must be held thereforee that the respondent was impotent so far as the petitioner was concerned both at the time of the marriage and at the time of the institution of the suit'.
(27) Thus, it will be seen that 'ordinary and complete', 'complete and natural' or 'full and complete' intercourse cannot be extended to mean more than erection and penetration which should be complete and natural. To pronounce the impotency of the husband the court is not concerned with the techniques employed by the husband for sexual intercourse. Shri Mahinder Narain wanted us to refer to certain books on sex dealing with human sexual behavior, stages of sexual intercourse and the necessity of foreplay and the technique of sexual intercourse. The view that we have taken of impotence, as is ordinarily and generally, understood, makes it unnecessary to refer to these books. It cannot, thereforee, be said that the respondent-husband in this case was impotent within the meaning of S. 19(1) of the Indian Divorce Act.
(28) There are, however, cross-objections filed by the respondent. The husband has contended that the learned single judge was wrong in holding that he was guilty of cruelty against his wife. The issue on cruelty which was framed and which went against the husband was as follows :-
'Whether the petitioner is entitled for a decree of judicial separation against the respondent for the reasons of cruelty as alleged in the petition?'
ITmay be stated that there were two more issues apart from the issues of impotency and cruelty which were framed, and these were :-
'WHETHERthe petition is belated. If so, to what effect?'
'What is the effect of the decree for restitution of conjugal rights dated 19-11-1979 granted by the Addl.
District Judge in favor of the respondent and against the petitioner on the present proceedings?'
Both these issues were decided in favor of the appellant- wife. Cross-objections do not cover these issues. The decree for restitution of conjugal rights which was the subject-matter of the issue was obtained by the respondent-husband ex-parte and during the pendency of the present proceedings before the learned single judge, the ex-parte decree was set aside.
(29) On the plea of cruelty, the appellant-wife stated that the husband had made misrepresentations to her before the marriage and these pertained to his employment and immigrant status in Canada. Her other complaints were that the husband ejaculated prematuarely, was given to drinking and gambling, was using foul and filthy and threatening language and was physically beating her and drove her out of the residential house a number of times. She further complained that the respondent-husband filed a false criminal complaint of theft against her with the police and also sent letters to the Ministry of External Affairs where she was working as an Indian Forest Service probationer containing false allegations which was done with intent to damage her professional career. On these grounds the appellant-wife had prayed for a decree of judicial separation in the alternative to her prayer for declaring the marriage a nullity on the ground as contained in S, of the Indian Divorce Act.
(30) The respondent-husband denied these allegations of cruelty leveled against him. He even denied having lodged any 'false complaint with the police' or to have written any 'false letter to the Ministry of External Affairs'. These denials were. however, evasive.
(31) The appellant-wife raised a preliminary objection that the cross-objections were filed beyond the period prescribed. We have examined the record, and it appears that the respondent was served in the appeal on 8th July 1982, and the cross-objections Were filed on 6th August 1982, and are. thereforee, within time.
(32) The law relating to cruelty on the basis of sexual weakness has been discussed above. In this case, the appellant-wife has admitted that during the year 1978-79 she used to go to various places on duty and generally the respondent would accompany her. As already noticed above, she was having sexual intercourse with the respondent at all these places. As we have taken the view that the respondent was not impotent and the parties were leading normal sexual life as husband and wife, the contention of the wife that she suffered on account of premature ejaculation of the husband has thereforee to be repelled. There is no supporting evidence at all of any physical violence on the part of the husband towards the wife. The wife examined her sister as Public Witness 2 who deposed to one incident which according to her, occurred some time in January 1977 when she alleged that she found the husband pulling the wife by arm and also by leg till she fall down and she also saw the husband taking off socks and putting them on the nose of the appellant-wife which, according to her, was probably done to get sadistic pleasure. Pw 2 also deposed that during her stay with the parties at Delhi in that period she found that the respondent would drink during the day and also at night. But, the statement as a whole of this witness would show that the parties were quite happy. The respondent took Public Witness 2 and her husband and the appellantwife to visit various places in Delhi and entertained them. The learned single judge has rightly not relied upon the statement of this witness. There is no evidence that the husband used to indulge in gambling. That the parties were quite happy is also deposed to by the two sisters (RW 3 and Rw 4) and brother-in-law (RW 5) (Sister's husband) and the mother (R 7) of the respondent. The allegations of physical violence, gambling, drinking etc. by the husband are not borne by the record. The version of the appellant-wife that the husband misrepresented to her before the marriage is also not believable as they knew each other quite well before the marriage.
(33) It appears that the trouble started between the parties some time in July 1979 when the wife joined the Indian Forest Service as a probationer on 5th July 1979, and in that month she was allotted a flat in the External Affairs Hostel at New Delhi. It is the admitted case that the parties resided together till the night of 28th-29th August 1979. According to the appellant, she left the respondent on 29th August 1979 because of the cruel behavior of the respondent on that night. According to her, on 28th August 1979, the respondent came back to the house at night in a drunkard condition and he pulled her by her arm when she was asleep. He tore off her clothes and started giving filthy abuses and also manhandled her and spit at her and then went to sleep. She, thereforee, decided to put an end to her agony. Next morning she left the house and went to the police station and sought police protection. She sought shelter in Meghalaya House as she came from that State. She was too afraid to go to the External Affairs Hostel because she was afraid that the respondent would cause nuisance. The respondent on the other hand, denied any such incident on the night of 28th-29th August 1979, but stated that the appellant did not return to the house on 29th August 1979 after she had left for her office in the morning. He said. he searched various places to find out the whereabouts of the appellant. He found that the wife had removed certain jewellery from the house on 2nd September 1979. He lodged a report of theft against the wife and others with the police giving details of the stolen articles. It appears that the police did invesitgate the matter and interrogated the wife.
(34) The respondent-husband thereafter also wrote letters to the Prime Minister of India (Exs. Pc and PD) as well as to the Minister of External Affairs (Ex PB) complaining against the appellant and imputing motives to her and her superior officers. The learned single judge also found that the appellant also received various anonymous letters which, according to the appellant, were sent by the husband. One such letter is Ex. Public Witness 3/4 which is in the handwriting of the respondent and so also. the envelope (Ex. Public Witness 315) in which this letter was received by the wife. The letter is, however, not signed by the husband. The wife deposed that the filing of a false criminal complaint Report) against her and the latter written to her superiors containing false and baseless allegations caused a great deal of embarrassment and agony to her. She was called to the police station in connection with the investigation of the report of theft against her by the husband and this humiliated her. On the other hand, it appears that on a report by the wife some time in October 1979, the respondent was arrested by the police under the provisions of Ss. 107 and 151 of the Code of Criminal Procedure. According to the wife, she had to file a complaint against the husband for her protection because of the threats from the husband. It is on the basis of these developments after 29th August 1979 that the learned single judge found that the husband was cruel to the wife. Shri S. S. Bindra has argued, on behalf of the husband, that these incidents which took place after the wife left the husband should not be taken into consideration to determine the question of cruelty, and according to him. the husband can be guilty of cruelty only when both parties were residing together. We do not accept this proposition. The relationship of husband and wife did exist and merely because the wife is staying away from the husband it cannot be said that the husband cannot be guilty of cruelty against the wife.
(35) The report lodged by the respondent with the police has been market as 'Y' and the list giving details of the stolen articles from the house has been marked 'Z'. Though the respondent has denied his signatures in these documents but circumstances show that these have been written by the respondent. This has been so testified by the wife that such a complaint was lodged. and in fact the file containing the complaint and he invesigation made thereon was produced by Public Witness 5 Shri Jai Singh, Station House Officer of Police Station Original Road, New Delhi. There has been no cross examination of this witness. Similarly. the record of the Ministry of External Affairs containing the letters of the respondent against the appellant was produced by Pw 8 Shri H.S. Puri, and he too was not cross-examined .E: Pf is the certified copy of the petition under S. 32 of the Indian Divorce Act for restitution o' conjugal rights filed by the husband against the wife. Para 6 of this petition shows that the respondent did file a complaint of theft against in's wife on 2nd September 1979 with the Original Road Police Station.
(36) In Dastana v. Dastane : [1975]3SCR967 , B Chandrachud, J. (as his Lordship then was), while interpreting S. 10(1)(b) of the Hindu Marriage Act 1955, as it stood prior to its amendment providing for relief of judicial separation on the ground of cruelty which caused a reasonable apprehension in the mud of the petitioner that it will be harmful or injurious for the petitioner to live with the other party, observed as under:
'The inquiry thereforee has to be whether the conduct charged as cruelty is of such character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It is not necessary, as under the English law, that the cruelty must be of such a character as to cause ''danger' to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other'.
The learned judge cautioned against the risk of relying on English decisions in this field, and observed as under :-
'but under Section 10(l)(b), harm or injury to health. reputation, the working-career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what We must determine is not whet her the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will cross objectionsor injurious for him to live with the respondent'.
AFTERthe amendment of the Hindu Marriage Act in 1976, S. 10(1)(b) has been repealed, and now under S. 13 of this Act, it is a ground for divorce which relief can be granted if it is proved that 'the other party has, after solemnization of the marriage, treated the petitioner with cruelty'. The words in S, 22 of the Indian, Divorce Act 1869 are that 'the husband or wife may obtain a decree of judicial separation on the ground of adultery or cruelty'.
(37) The wife was an Indian Forest Service probationer as from July 1979. On the threshold of her career she was faced with the reports to her superiors by her husband. These reports contained wild allegations against her as well as her superiors. The husband even accused the wife of getting into the Indian Forest Service by misrepresentations and suppression of facts by her to the U.P.S.C. The wife also received various annonymous letters. One such letter is Ex. Public Witness 3/4 which is in the handwriting of the respondent-husband though not signed by him. It is certainly a sort of threatening letter. Then, there is a report of the husband to the police accusing his wife of theft of ornaments and other articles and this report has been held to be false by the learned single judge who analysed the evidence including the statement of Rw 7, the mother of the respondent-husband. Such type of acts are likely to cause mental torture to a wife and we accept the testimony of the appellant-wife on this point that she had to undergo a great deal of mental suffering. On this basis, the learned single judge found that the wife proved her case of cruelty by the husband and accepted the alternative prayer to the wife and granted a decree of judicial separation. We agree with the finding of the learned single judge.
(38) Before concluding, we may note that there is an apparent conflict between the provisions of S.4 of the Indian Christian Marriage Act 1872 and S. 4 of the Special Marriage Act 1954, which came to our notice during the course of hearing of the appeal. S. 4 of the Indian Christian Marriage Act 1872 applies to a marriage between persons one or both of whom is or are Christians and any such marriage solemnized otherwise than in accordance with the provisions of this Act is void. Under S. 4 of the Special Marriage Act 1954, a marriage between 'any two persons' may be colsmenized under this Act 'notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages'. This conflict has arisen because the Special Marriage Act 1872, which stood repealed by the Special Marriage Act 1954, did not apply to marriages to which the Indian Christian Marriage Act 1872 applied. Thus, though a marriage solemnized under the provisions of the Special Marriage Act 1954 even between two Christians will be valid it will, however, be void under the Indian Christian Marriage Act 1872. We could have referred to the principles of interpretation of statutes for the purpose but no such question was raised before us. It is, however, proper if this conflict is resolved by the Legislature. It may also be seen that if a marriage is solemnized between the parties under the Indian Christian Marriage Act, it will have different consequences regarding relief of divorce etc. than if solemnized under the Special Marriage Act 1954 between the same parties. Further, the learned single judge, in the judgment under appeal, has also observed that the provisions of the Indian Divorce Act which are applicable to a marriage under the Indian Christian Marriage Act are rather orthodox and do not permit divorce on the-ground of cruelty.
(39) With these observations, both the appeal and the cross objections are dismissed but in the circumstances of the case, leaving the parties to bear their own costs.