JUDGMENT
C.K. Prasad, J.
1. Wife being aggrieved by the judgment and decree dated 4.4.1994 passed by the Second Addition District Judge, Mandle in Civil Suit No. 5-A/92 whereby on the application filed by husband-respondent, he has annulled the marriage performed between the parties, has preferred this appeal under Section 28 of the Hindu Marriage Act.
2. Admitted facts of the case are that the marriage between the parties took place on 13.6.1987 according to the Hindu rites. After the marriage wife remained with the husband and his family members for about three months. During her stay the husband on the first night after the marriage as also on subsequent days tried to have sexual intercourse with his wit, but she had unbearable pains. She had cyst in her vagina leading to formation of nodule and she was examined by specialist Doctor Swamy, Dr. Rama Shrivastava and Dr. Rita Shrivastava.
3. According to the husband after the marriage on 13.6.1987 he brought his wife to his place and in the first night because of the obstruction in the vagina and of her impotency, he did not had intercourse with his wife. According to the husband, during her stay she did not had period and she is impotent. She was examined by Dr. Smt. Pandit and Dr. Ku. Rama Shrivastava the Gynecologists on 7.11.1987 and 25.11.1987and from their examination it came to the light that his wife has no uterus and the size of the vagina is small. According to the husband, he had no option than to pray for annullment of the marriage by a decree of nulity.
4. Wife in her reply denied the allegation of the husband and has asserted that she is fully developed lady having all female characters and after the marriage husband had intercourse with her and inspite of pains she co-operated in the same. According to the wife before her marriage odourless fluid used to flow from her vagina which she thought to be the menstruation and on the first night inspite of entry of the pens with difficulty and severe pain, she bore the same and requested for medical assistance. According to the wife on this she was abused and the husband stated that she has not brought enough dowry from her father’s place for treatment. Thereafter according to the wife the husband started beating and abusing her and disclosed his intention to marry second time. It is the stand of the wife that on 12.11.1987 her jewellery were removed. It is further stated that she came to the Medical College, Jabalpur alongwith her father and fibre nodule was removed from the vaginal passage. According to the wife because of the aforesaid fibra nodule the vaginal passage was bifurcated resulting into unbearable pain during the intercourse. She had further stated in her reply that her uterus is fully developed, and although she may not bear a child, but the same cannot be said to be impotercy.
5. On the pleadings of the parties one of the issues framed by the Trial Court was in relafion to the impotency of the wife. The Trial Court, on analysis found that the wife is impotent and consequently annulled the marriage by decree of nulity.
6. Husband in support of his case examined Dr. V. Swamy as PW1 and himself as PW 2. Wife in support of her case examined Dr. Rama Shrivastava, Professor and Head of Department, Medical College, Jabalpur. Dr. Rama Shrivastava has also given a report dated 22.3.1993 in pursuance of the direction of the Trial Court (Ex. Dl). One Dr. Rita Shrivastava of District Hospital, Mandla has also been examined as a Court witness and she has also submitted a report dated 19.1.1994 (Ex. Cl).
7. Mr. Agrawal appearing for the appellant submits that the finding recorded by the Trial Court that the wife is impotent and the marriage has not consumated owing to her impotency is erroneous. He has drawn my attention to the deposition of DW 1 Dr. Rama Shrivastava wherein she has stated that her secondary sex characters are fully developed, but primary sex character is developed in vary low degree. She has further stated that in view of the depth and breadth of the vagina she is capable of intercourse. According to this doctor the wife is not impotent. Learned Counsel has further drawn my attention to the deposition of Dr. Rita Shrivastava, Court Witness No. 1. In her deposition she has stated that during her examination, she found the secondary sex character of the wife developed. She further stated that two fingers can enter into her vagina and during the examination she experienced nodule in her vaginal passage. This doctor is of the opinion that sexual intercourse was possible. She has further stated that the wife had feminine character and her secondary sex characters are developed and for primary sex character, she advised for ultra-sonography. This witness has further stated that in the present state of affairs sexual intercourse is possible by grave difficulty and at the time of intercourse she must be experiencing unbearable pains. PW 2 Sudeep Kumar Chourasiya, the husband has stated in his evidence that he did not had penetration after the marriage in the first night and when he enquired from her, she did not explain the same. This has happened in the subsequent dates also. He did not succeed in sexual intercourse, inspite of several attempts. He has further stated in his evidence that during her stay for about five months, she did not had period and when questioned she stated that she did not had period. How/ever, wife Gayatri Devi (DW 2) in her evidence has stated that during her stay for about five months, her husband had sexual intercourse. She has further stated in her evidence that her husband during the said period did not complain to her. According to her own evidence, she used to suffer pain during intercourse.
8. From the evidence of Dr. Swami, Dr. Rama Shrivastava and Dr. Rita Shrivastava and from their reports it is apparent that the secondary sex character of the wife is fully developed, but the vagina and uterus are undeveloped. From their evidence and reports it is further apparent that the vagina of the wife is undeveloped. PW 1 Dr. Swami in her report Ex. P1 stated that the wife had vagina of the size of 1½” and accordingly she opined that complete sexual intercourse is not possible. DW 1 Dr. Rama Shrivastava although has opined in her evidence that the wife is capable of sexual intercourse, but she has undeveloped vagina. Court Witness No. 1 Dr. Rita Shrivastava in her report has stated that on pushingvaginal slide inside, vagina admits two fingers rightly from tip of index anid middle and small nodule was felt on examination. However, she opined that it is possible to do intercourse with her. On analysis of the evidence of the aforesaid witnesses, I am of the opinion that vagina of the wife is of vary small size and that is the position of the uterus.
9. ‘Impotent’ means a practical impossibility to perform sexual act in complete and perfect manner. Full and complete sexual penetration is an essential ingredient for ordinary and :omplete intercourse. However, the degree of sexual satisfaction obtained by the parties is irrelevant. In the background of the aforesaid legal position when I refer to the evidence of the parties, I find that the wife herself in her evidence has admitted unbearable pain during the intercourse. CW 1 Dr. Rita Shrivastava had also found the vagina little developed and stated that: unbearable pain shall result in intercourse in such a situation. PW 1 Dr. Swami although stated that the sexual intercourse is impossible whereas Dr. Rita Shrivastava has stated that painful intercourse is possible. Thus, from the evidence of these doctors it appears that the statement of the husband that because of the size of the vagina and existence of nodule, there was obstruction and difficulty in intercourse deserves to be accepted. The wife in her written-statement has candidly admitted that inspite of the unbearable pain, she had intercourse with her husband and instead of orgasm she felt unbearable pain. CW 1 Dr. Rita Shrivastava has further stated that the vagina of the Wife could admit with difficulty two fingers. Accordingly, it is established that on the first night of the marriage the husband was not able to have full and complete intercourse, and the same situation exists today. As such, it is found and held that the marriage between the parties did not consumate and the wife is held to be impotent. Accordingly I concur with the finding of the Trial Court.
10. It is relevant here to state that while passing the decree of nullity of marriage the Trial Court directed the husband to pay a sum of Rs. 500/- p.m. as permanent alimony and to make her available accommodation of two rooms at village Hridaynagar or at other place where she resides. Husband has preferred cross-appeal challenging this portion of the direction. Learned Counsel for the husband attacks the aforesaid direction on the ground that without any material, the learned Judge has directed for payment of the maintenance of the rate of Rs. 500/- per month and to make available accommodation of two rooms which render his order illegal. He further submits that the wife being aware of the factum of impotency having ventured to marry suppressing and concealing the aforesaid fact from the husband, she is not entitled for grant of maintenance at all. However, learned Counsel for the wife contends that the direction for payment of Rs. 500/- per month and providing accommodation of two rooms is too meagre amount for maintenance and the wife is entitled for higher amount of alimony. It is further contended by the learned Counsel for the appellant that there being no evidence on the point of income of the husband, the Trial Court has reached on imaginary amount. Accordingly prayer has been made to remand the matter to the Trial Court for decision on the said question. Ordinarily I would have acceded to the request of the learned Counsel, but in view of the fact that the matter is pending consideration since 1989 and there is material on record in the form of affidavits filed by the wife and the husband regarding the income of the husband, I am not inclined to remit the matter to the Trial Court for decision on this question. It is an admitted position that husband is a Upper Division Clerk in the office of the Deputy Director and according to his own admission his carry home pay was Rs. 1,303/- per month in the year 1990. In the application filed by the wife for grant of alimony pendentelite she has stated that the monthly income of the husband to be Rs. 1,600/- and she had prayed for grant of ad-interim alimony at the rate of Rs. 750/- per month. According to the wife the husband has no other responsibility but this has been denied by the husband, but no details of other responsibilities have been given by him in the reply. Although in the reply filed to the application filed by the wife for alimony pendente lite, nothings has been stated about the employment of the wife but in the cross-objection, husband has stated that the wife is employed as teacher in Saraswati Shishu Mandir.
11. The submission of the learned Counsel for the husband that the wife getting married suppressing the fact of impotency, disentitles her the maintenance, does not appeal to me. Although I have held that the wife is impotent, but it does not mean that she was aware of the same. In his own statement he has stated that he attempted sexual intercourse for a large number of days, but did not succeed. Further it is an established position that the wife remained with the husband for about five months and during this period husband’s own assertion establishes attempt of sexual intercourse. In my opinion, had the impotency of the wife so apparent, this exercise on the part of the husband was completely ruled out. Therefore, I negative the submission of the learned Counsel for the husband that the wife got married suppressing the fact of her impotency.
12. As regards the amount of permanent alimony I am of the opinion that the husband being an Upper Division Clerk working in the State Government and having no responsibility should pay a sum of Rs. 750/- per month. As the direction of the Trial Court to make available two rooms accommodation at a place desired by the wife being vague and indefinite, I have directed for substitution of the amount by Rs. 750/- per month. I set aside the decree of the Trial Court so far as it relates to making available accommodation. However, other part of the decree of the Trial Court shall remain intact. In the absence of complete material, I am not inclined to go into the allegation of the husband that wife is now gainfully employed, but the same will not preclude the husband to take steps as provided under Section 25(2) of the Hindu Marriage Act.
13. In the result, appeal filed by the husband is dismissed with the aforesaid modification. Cross-objection also stands dismissed with the aforesaid modification. In the facts and circumstances of the case, there shall be no order as to cost.