Kan Singh, J.
1. This is a wife's appeal and is directed against the judgment and decree of the learned District Judge, Jaipur District annulling her marriage under Section 12 of the Hindu Marriage Act, 1955, hereinafter to be referred as the 'Act', on the ground of wife's impotency and her consequent incapacity to consummate the marriage.
2. Smt Laxmi Devi, the wife, and Babulal, the husband, were married according to Hindu rites on 17-2-1967. According to the husband, appellant Smt. Laxmi Devi had no vagina and was thus Impotent at the time of the marriage and continued to be so till the present proceedings for annulment under Section 12 of the Act were instituted on 3-7-1969. The husband relied on a certificate Ex. 1 given by one Dr. E. Peters (D. W. 3) who examined the wife on 6-1-1968 and found that the wife had no vagina. The wife resisted the application. She denied that she was impotent. According to her, she had a vagina and after the marriage she had been sleeping with her husband and the marriage had been duly consummated. She proceeded to say that she had been ill-treated by her husband and his people and was turned out of the house after being relieved of the ornaments given to her by her parents. She added that the husband wanted to marry one Mst. Pishta daughter of one Chhaganlal of Manoharpur and to restrain the marriage she had to file a suit in the Court of Munsif, Shahpura and it was at that stage that the husband came forward with the allegations that the wife was impotent. She further took the stand that her father got her treated and she was found to possess all the female characteristics and further as a result of a surgical operation her vagina was reconstructed on 9-7-1968. She Was thereafter examined on 13-4-1969 by Dr. Padma P. Mir Chandani and she certified that the wife had all the female characteristics.
3. The main Issue that thus arose In the case was whether the wife was at the time of the marriage impotent and continued to be so till the presentation of the petition and had not consummated the marriage. Babulal, the husband, examined himself as P. W. 1. The wife examined herself as D. W. 1 and further produced Dr. Padma P. Mir Chandani D. W. 2 and Dr. E. Peters D. W. 3 in her evidence. Subsequently the husband made a request that the wife be sot examined by Dr. Miss Chandrawati Saxena, Professor. S. M. S. College, Jaipur and accordingly Dr. Saxena examined the wife and gave evidence as P. W. 2.
4. The learned District Judge accepted the evidence of Babulal as correct. He further relied on the certificate issued by Dr. E. Peters, Ex. 1, wherein she had stated that it was a case of vaginal atresia and that there was complete absence of vagina. Another certificate of Dr. Peters Ex. A/2 dated 27-6-1968 was also referred to in which Dr. Peters had diagnosed the wife's trouble as atresia vagina and advised Williams operation. Further Dr. Peters stated that the operation was performed by her on 9-7-1968 and patient's vagina was reconstructed. Thereafter the wife was discharged on 17-7-1968. D. W. 2 Dr. Padma P. Mir Chandani had examined the wife on 13-4-1969 and certified vide Ex. A/1 that Smt. Laxmi had all the female characteristics. One more certificate Ex. A/4 given by a Clinical Tutor, Zenana Hospital, Jaipur and countersigned by Dr. E. Peters was also produced in which it was stated that Smt. Laxmi had been admitted to the Zenana Hospital, Jaipur on 10-2-1970 for re-examination and it was found that she had a vagina 3' long admitting two fingers and that she was fit for intercourse.
5. Taking into consideration the statements of the medical witnesses as also the various certificates and the direct testimony of the husband the learned District Judge had no hesitation in reaching the conclusion that the wife was impotent at the time of the marriage. He found the wife's statement to the effect that she had been having sexual intercourse with the husband to be wholly unreliable. The learned Judge then considered the next question whether the wife could be considered impotent even after the operation had successfully taken place and the wife had her vagina reconstructed. For this the learned Judge did not place much reliance on the statement of Dr. Padma P. Mir Chandani because she has simply stated that Smt. Laxmi had all the female characteristics. She had not even stated whether the girl was fit for sexual intercourse or not. Dr. Padma P. Mir Chandani also admitted that she was even unaware if the wife had undergone an operation for reconstruction of her vagina. The learned Judge then considered the evidence of Dr. E. Peters and that of Dr. Saxena. Both Dr. E. Peters and Dr Saxena had been Professors of Obstetrics and Gynaecology in the S. M. S. Medical College. Jaipur and further they had both been on the post of Superintendent Zenana Hospital. Dr. E. Peters stated that Smt. Laxmi had been operated by her for atresia vagina. This term, according to her. meant absence of canalisation of the vagina. She further stated that she had reconstructed Laxmi's vagina by plastic surgery by removing a V shaped flap from the thigh and suturing it in layers at the place where the normal vagina is. She further stated that after this operation Smt. Laxmi was capable of having sexual intercourse. She added that the vagina was likely to become bigger with repetition of sexual intercourse. Dr. E. Peters further stated that the normal length of vagina is about 4 1/2 inches varying according to the height of the person. The girl had no cervix or uterus and these could not be reconstructed. Dr. Miss Saxena P. W. 2 deposed that female impotency was not a medical term and such a state of woman is denoted by the expression absence of libido which meant that the woman had no desire for sex and satisfaction thereof. She further stated that the external genitalia of Smt. Laxmi were underdeveloped and only two fingers could be introduced into the vagina whose length was 24 inches. According to Dr. Saxena also there was no cervix and also no uterus. Further there was no failure of Mullarian duct system. Dr. Saxena admitted that the vagina of Smt. Laxmi had been artificially formed by use of skin graft from the thigh. According to Dr. Saxena. as the vagina admitted two fingers it was possible that Smt. Laxmi could have sexual intercourse. She how-ever could not say whether Smt. Laxmi was' used to sexual intercourse after the reconstruction of the vagina. According to Dr. Saxena too though the reconstructed vagina of Smt. Laxmi was 2 1/2 inches long yet repeated intercourse could increase the laxity. Further, according to Dr. Saxena, sexual act is complete when both the husband and wife are satisfied with the act. It further appears that the learned Judge during the course of hearing tried to persuade the wife and her people to allow the husband to examine the private parts of the girl with a view to seeing if he could have sexual intercourse with her, but as the wife and her people were unwilling for this the learned District Judge presumed that the wife was still incapable of sexual intercourse. The learned District Judge accepted the view propounded by Dr. Lushington in 1845 (1) Rob Eccl 279 about the kind of sexual satisfaction and then reached the conclusion that the wife was impotent at the time of marriage and continued to be so till the presentation of the petition by the husband under Section 12 of the Act and that she had failed to consummate the marriage. Consequently the learned Judge passed a decree for annulment of the marriage.
6. Learned counsel for the appellant found himself unable to challenge the conclusion of the learned Judge that the wife was impotent at the time of the marriage. He, however, maintained that after the operation and with the reconstruction of the vagina the wife cannot be said to be impotent at the time of the presentation of the petition under Section 12 of the Act. Learned counsel submitted that the reconstructed vagina could enable the husband to have full sexual satisfaction, though to start with there might be some difficulty in having complete satisfaction but with repeated intercourse the vagina would be enlarged as stated by the doctors and consequently it cannot be said that the husband had succeeded in proving the continued im-potency of the wife at the time of the presentation of the petition under Section 12 of the Act. Learned counsel placed reliance on Praiapati Ganeshji Idaji v. Hastuben Hemrai. (19671 8 Guj LR 966; Jadgish Lal v. Smt Shyama. AIR 1966 All 150 and S. v. S. (1954) 3 All ER 736.
7. Learned counsel for the respondent, on the other hand, submitted that the avowed object of marriage was not only sexual relationship but to procreate the children as well. Learned counsel relied on certain passages from Narad Smriti and other texts which have been referred to in Ganeshji's case. (1967) 8 Guj LR 966 = ILR (1967) Guj 681 Learned Counsel further submitted that in the present case there was complete absence of vagina and in a case where the vagina has been altogether newly constructed the sexual intercourse as would consummate the marriage Cannot be natural. Further, even the reconstructed vagina was under-sized, that is, 2 1/2 according to one lady doctor and 3' according to the other when the normal size of a vagina is 4' to 41/2'. Such a small artificial vagina. according to learned counsel, would not admit complete penetration and. therefore, the sex satisfaction can never be complete and one cannot be expected to so on with partial satisfaction in such a matter. Learned counsel relied on Dr. Lushing-ton's passage as also on D. v. D.. (1954) 2 All ER 598.
8. Now there is no manner of doubt in my mind that the wife was impotent at the time of the marriage. According to Dr. Peters, there was complete absence of vagina which the doctor had later on explained as absence of canalisation of the vagina. In cross examination Dr. Peters had admitted that she had examined the respondent on 6-1-1968 and issued the certificate Ex. 1 and further at that time she found a complete absence of the vagina. Therefore, the present is a case where the vagina did not exist and only an artificial vagina or a cavity had been constructed. The ques-tion is whether thereby the impotency in the woman can be said to nave come to an end. The woman had no cervix or uterus and was thus incapable of bearing a child. Learned counsel for the res-pendent wants me to take this into consideration in judging the impotency or otherwise of the girl. Dr. Lushington's oft-quoted passage is :--
'If there be a reasonable probability that the lady can be made capable of a veracopula of the nature 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'.
In England these observations have been taken to be emanating from a great authority and were approved by the House of Lords in Baxter v. Baxter, (19471 2 All ER 886. These observations were again considered in S. v. S., (1962) 3 All ER 55. The learned Lord Justices pointed out that this statement on the part of Dr. Lushington was by no means conclusive as he had nowhere denned what was meant by 'vera copula'. In S. v. S. (1962) 3 All ER 55 the wife had malformed vagina, too short to permit full penetration but according to the medical evidence it was capable of being enlarged by an operation with good chance of the operation being successful so as to allow full penetration. The operation would involve removal of the soft tissues where the normal vagina would be in order to create a passage which would be lined by skin from the thigh. The absence of the natural membrane and its special sensory quality and of normal secretions would affect the degree of sexual satisfaction obtainable from intercourse by the wife but would not affect materially that of husband though there would be no conception of children, the wife having no uterus. It was considered that inability to conceive was no around for finding incapacity to consummate the marriage and further the degree of sexual satisfaction obtainable was immaterial. The learned Lord Justices came to the conclusion that the fact that lull penetration could only be rendered possible either by surgery eradicating a malformation of the wife's vagina or on the hypothesis that there was no natural vagina, by surgery creating an artificial vagina, would not prevent subsequent sexual acts amounting to consummation of the marriage. In other words, the wife's incapacity was thus curable and a decree of nullity was refused.
9. In (1967) 8 Guj LR 966 on which learned counsel for the appellant strongly leans, the wife was found to have a short vagina and that it was communicating with rectum. Three operations were then performed on the wife namely, colostomy. vagina plasty and repair of recto vagina fistula as well as closure of colostomy. According to the doctor, after these operations were performed the husband would be able to have normal coitus.
10. I have carefully considered these cases. To my mind, these cases would govern a situation where the vagina would be there, but it may not enable completion of the act on account of it being undersized or on account of any other structural defect, but where there is complete absence of vagina, as in the present case, the sexual intercourse even if it were possible cannot be said to be a natural one and. to my mind, vera copula would be wanting. The observations in S. v. S. (1962) 3 All ER 55 came to be considered in a recent case Corbett v. Corbett, (1970) 2 All ER 33 Ormrod, J. who decided the case observed thus regarding the observations in S. v. S. (1962) 3 All ER 55 :--
'I am aware that this view is not in accordance with some of the observtions of the Court of Appeal in S. v. S. (otherwise W), but in my respectful opinion, those parts of the judgments which refer to a wholly artificial vagina, go beyond what wag necessary for the decision in that case and should be regarded as obiter. The respondent in that case was assumed to be a woman, with functioning ovaries, but with a congenital abnormality of the vagina which was only about two inches long and small in diameter, according to the report of the medical inspectors. This is a very different situation from the one which confronts me. There are. I think certain dangers in attempting to analyse too meticulously the essentials of normal sexual intercourse, and much wisdom in another of Dr. Lushingoton's observations in the same case where he said:
'It is no easy matter to discover and define a safe principle to act upon perhaps it is impossible affirmatively to lay down any principle which, if carried to either extreme, might not be mischievous'. The mischief is that, by over-refining and over-defining the limits of 'normal', one may in the end, produce a situation in which consummation may come to mean something altogether different from normal sexual intercourse. In this connection. I respectfully agree with the iudgment of Brandon. J. in W (otherwise K) v. W. The possibility mentioned by Willmer, L. J. in his iudgment in S. v. S. (otherwise W) that a married man might have sexual relations with a person, using a so-called artificial vagina, and yet not commit adultery, does not seem to me to be very important, since neither oral intercourse with a woman, nor mutual masturbation will afford the wife the remedy of adultery: Sapsford v. Sapsford and Furtado.'
Since present is the case of complete absence of vagina and a wholly artificial vagina had been constructed. I find myself unable to come to the conclusion that the husband can be said to have the normal satisfaction coming from a sexual intercourse. Apart from this, even after the operation the so-called vagina was yet under-sized being only 21/2 inches or 3 inches in length. The lady doctor had admitted that the tissues would be softened with repetition of sex act and then the intercourse may be giving full satisfaction. Be that as it may the fact remains that, in the first place, the girl had no vagina and the vagina was artificially constructed and in the second place, the constructed vagina was at any rate under-sized. Consequently in this case it cannot be said that the husband can have sexual intercourse to his satisfaction. The learned District, Judge has tried to persuade the wife to go to the husband and to give him the opportunity of examining her and then satisfying himself if he could have sexual intercourse with her. From the refusal of the wife and her people the learned District Judge presumed the continued incapacity of the wife for sexual intercourse. I am afraid one cannot approve of the way in which the learned District Judge proceeded. It is not for the Court to persuade the parties for having an opportunity of sexual intercourse. It is for the parties themselves to call upon each other and then prove that such an opportunity was denied. In that case the Court might draw such presumption as may be justified but such proposals should not normally emanate from the Court. Be that as it may even otherwise I am satisfied that normal sexual intercourse with this girl is not possible.
11. Learned counsel for the respondent wanted to bring in the concept of ability to procreate with the capacity of having sexual intercourse and he wanted to place reliance on certain texts. He referred to Verse 19 from Narad Smriti (Sacred Books of the East, Vol. 33. Chapter 12, p. 169). The Verse runs thus:
viR;kFkZ fL=;% l`'Vk% L=h{ks=a chftuka ujk%A
{ks=achtors ns;a ukchtk{ks=egZrk AA
The translation of the verse is as follows:
'Women have been created for the sake of propagation, the wife being the field and the husband the giver of the seed. The field must be given to him who has seed. He who has no seed is unworthy to possess the field'.
However, I am unable to accept the position that the ability to procreate children is a necessary ingredient of potency. Impotency in matrimonial cases has been understood to mean incapacity to consummate the marriage, that is to say incapacity to have conjugal Intercourse which is one of the objects of the marriage. Further it is not absolutely necessary that the incapacity to perform the sex act must, be general because though a person may generally be capable of a sex act yet he may be incapable of it vis-a-vis a particular individual. The Court can grant the relief if one spouse is found to be impotent in relation to the other spouse.
12. In AIR 1966 All 150 this is what has been said about impotency :--
'Impotency means incapacity for accomplishing the act of sexual intercourse and in this context, sexual intercourse means not an incipient partial or imperfect but a normal and complete coitus. Impotency has to be distinguished from sterility which may in some oases accompany impotency but is not necessarily associated with it. The two expressions denote lack of two different powers. A person may be incapable of accomplishing the sexual act and yet be capable of procreating. Conversely also, a person may be incapable of 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, local or general or in the mind, manifesting itself a repugnance for the sexual act, fear, lack of confidence, etc. In some oases a person may be capable of having sexual intercourse but incapable of performing it with a particular individual, and in such a case he must be regarded as impotent in relation to that particular individual regardless of his potency in general'.
I find myself in respectful agreement with the above passage.
13. I, therefore, affirm the finding of the learned District Judge about the impotency of the wife both at the time of the marriage and at the time of the presentation of the petition under Section-12 of the Act and that the marriage has not been consummated on account of the wife's incapacity.
14. Learned counsel for the appellant orally prayed that costs of the litigation in this Court be allowed to the appellant and further in the event of the decree being affirmed permanent alimony be allowed to the wife. The prayer is reasonable. Rupees one hundred had been allowed as expenses of litigation by the learned District Judge and Rs. 50/- per month were allowed as interim alimony. I should think Rupees 100/- be allowed as expenses of litigation in this Court to the appellant and she should get a maintenance of Rs. 50/- per month from the husband during her lifetime till she remarries. Learned counsel for the respondent has paid Rs. 100/-to learned counsel for the appellant as costs of the appeal.
15. The result is that I allow the appeal in part. While I maintain the judgment and decree of the learned District Judge regarding the annulment of the marriage. I order that the respondent husband shall pay Rs. 50/- per month to the appellant wife as her maintenance during her lifetime till she remarries. The parties are however, left to bear their own costs.