JUDGMENT
1. This appeal raised essentially human problems and exposes the inadequacy of the present judicial system to solve them, because the Courts do not have at their command satisfactory and necessary resources and techniques to probe deeper into the problems than warranted by the strait–jacket evidence led before them. The case emphasises the urgent need for adequate marriage counselling services. This is the sad story of an ill–fitted young couple unable to consummate their marriage, each throwing the blame on the adequacy of the other. The needless and unhappy mutual recrimination would have been avoided and the marriage might yet have been made a success instead of floundering in the Matrimonial Court, if the two young people concerned in the tragedy had early expert advice and guidance. The liberalisation of the grounds and procedures for divorce etc. is, without doubt, a welcome step in the right direction, since it is pointless to prop up broken–down marriages. But, there certainly are marriages which are well–worth saving. The consequences of divorce and annulment of marriage, such as the emotional shock, the collapse of one’s world, the wounded pride, the difficulty of re–building one’s life, can be far more shattering than the seemingly simple solutions, of divorce and annulment of marriage, to marital troubles. Timely intervention and advice by expert marriage counsellers may avert disaster and may help marriages about to break down to blossom into happy marriages. Young people, confronted with problems too great for them and running into storms which they cannot weather alone, are be–wildered by what is happening to them. At that stage, what they need is the understanding and helpful guidance of an expert marriage counsellor who can save rather than break the marriage. It is of the utmost importance that side by side with the liberatlisation of the grounds and procedure for divorce, annulment of marriage etc., well–trained and well–equipped marriage–counselling services should be developed. Perhaps if such services were available, the very marriage with which I am now concerned could be saved.
2. The petitioner and respondent were married on 6-3-1972 according to Hindu rites. Just two months after the marriage on 11-5-1972, the husband filed a petition under S. 12 of the Hindu Marriage Act for annulment of the marriage on the ground that the wife was impotent. He stated in the petition:–
“The parties never cohabited as husband and wife after marriage though they remained at Hissar, for the reason the respondent being impotent. There is no issue from this wedlock. The respondent was impotent at the time of marriage and continued to be so until the institution of these proceedings. The marriage was never consummated between the parties on account of impotency of the respondent.”
That was the entire allegation made by the husband in the petition. He did not give any particulars of the alleged impotency of the wife. He did not say whether the impotency was due to any physical defect or whether it was due to emotional inadequacy.
3. The wife filed a written statement denying the allegations of the petitioner. She counter–alleged as follows:–
“The petitioner is taking advantage of his own wrong. His mental and physical condition makes consummation of marriage a practical impossibility. He is himself impotent for the respondent and makes no attempt for consummation of marriage. He has got hatred and dislike for the respondent.”
The petitioner filed a reply in which he denied the allegation of the wife and reiterated his case that the wife was impotent. He added that he had made attempts for consummation of marriage right from the time of marriage but the marriage could not be consummated as the wife was impotent and would not “admit to cohabitation”.
4. When the proceeding was pending in the lower Court, the petitioner filed an application to direct the medical examination of the wife by a competent lady doctor. The application was opposed by the wife who stated in her reply to the application that she had already been subjected to medical examination in the last week of April, 1972 at the Churamani Vaishno Devi Maternity Hospital, Hissar, at the instance of the petitioner and that the doctor had certified that she was a normal woman’, ‘fit conjugal relationship’. She stated that all the papers were with the petitioner himself and that he should be asked to produce them in Court. She added that she was undergoing treatment at the Lady Harding Medical College and Hospital, Delhi, and that the necessary papers would be duly produced in Court at the proper time. It was pleaded that no further medical examination was, therefore, necessary.
5. Later, the wife expressed her readiness to submit herself to medical examination. A medical board was constituted consisting of Drs. Mrs. S. Thakur, P. K. Aggarwal and Pushpinder Singh. The Board submitted its report stating:–
“Secondary sex characters well–developed. External genitalia well developed. On her vaginal examination vaginal opening easily admits two fingers. There is all round septum at the junction of upper 1/3rd with the lower 2/3rd of the vagina and septum loosely admits two fingers and the cervix is clearly felt through it. Uterus is multipanium in size and freely mobile. Fornices are clear. Speculum examination shows healthy cervix. On general physical examination, nothing abnormal is seen.”
6. The husband was examined as A. W. 1. He deposed that he was married to the respondent on 6-3-1972. They were together for two nights. He tried to have sexual intercourse with her but she put him off saying that she was tired and they had a long time ahead for sexual intercourse. Thereafter, both of them went to Ambala to the house of the wife’s parents. He returned to Hissar, resumed duty on 11th. On 9-4-1972, the wife joined him at Hissar, stayed with him up to 13-4-1972. Again he kissed her and embraced her but she did not respond. When he tried to have sexual intercourse, he stated, “there was no way for entering the penis; therefore I could not succeed.” He took her to the house of his parents at Jind on the 13th and left her there. On 24th April, she returned to him and stayed with him up to 30th April. Again he tried to consummate the marriage but he did not succeed for the same reason. He got her medically examined at the Churamani Hospital at Hissar on 26-4-1972. He was told by the Lady Doctor that the respondent was impotent. Again on 27th April, he got her medically examined at the Civil Hospital, Hissar. He was advised to take her to Rohtak. She refused to go to Rohtak and so he left her with her parents at Ambala. In cross–examination, he stated that he did not obtain any certificate from, the Civil Hospital at Hissar. He stated that the lady doctor in–charge of the Churamani Hospital refused to give him a certificate saying that he should take her to the Civil Hospital. He admitted that he did not mention in his petition the fact that he had got her examined by two lady doctors. That he did get his wife examined by the lady doctor in–charge of the Churamani Hospital is beyond doubt. The wife admitted as much in the reply filed by her to the application filed by the husband to have her medically examined. But in that reply, the wife had categorically stated that the doctor had stated that she was “a normal woman, fit for conjugal relationship”. She had also stated that all the papers were with her husband. The husband on his part refrained from making any reference to the medical examination by the lady doctor in–charge of the Churamani Hospital in his petition. Though he stated that the lady doctor told him that his wife was impotent, he took no steps to summon the lady doctor.
7. A friend of the petitioner and the brother of the petitioner were examined as A. W. 3 and A. W. 2. They merely stated that the petitioner told them that his wife was impotent. No reliance can be placed on the evidence of this nature and the learned counsel for the petitioner also did not place any reliance on their evidence.
8. The respondent in her evidence as R. W. 2 stated that she had a passion for sexual intercourse, perhaps meaning thereby that she was not averse to sexual intercourse. She stated that her vagina was normal and she could have sexual intercourse. On the first right of the marriage, there was no cohabitation as the petitioner failed to arrange for a separate room. Next day she tried, but he would not come near her. She embraced him and kissed him but he kept away. After two days at Kharar, they went away to Ambala. At Ambala also, there was no cohabitation. Since he had done nothing at his house, she did not do anything at her house. They went back to Hissar. Then she had menses and, therefore, the petitioner did not have sexual intercourse with him. In cross–examination, she stated that she had not got her vagina operated after marriage. She admitted that she had been taken to the Churamani Hospital in Hissar in April 1972. She admitted that she had written a letter Exhibit R. W. 2/1 to her husband. She denied that she avoided the petitioner at Kharar after the marriage and that when the petitioner attempted to have sexual intercourse with her at Hissar, she evaded. She denied that the male organ did not penetrate the vagina. She stated that it was due to the penetration that her vagina had bled.
9. Exhibit R. W. 2/1 was a letter written by the respondent to the petitioner or 8-5-1972 in which she bemoaned their fate and said that she had consulted some private doctors and was advised to go Delhi or Patiala for treatment. She had got herself examined in the Civil Hospital on 5th. They had asked her to get herself admitted in the hospital. She did not want to do so without obtaining his prior permission. She requested him not to worry and assured him that God would set everything all right. This letter indicates that there was some defect or ailment which required treatment. The nature of the ailment or defect does not appear from the letter.
10. Dr. Mrs. Thakur, who was the Chairman of the Medical Board appointed by the Court was examined as R. W. 1. She deposed to the contents of report of the Medical Board and stated that the respondent was fit for cohabitation and could give birth to children. In cross–examination she stated that the organ could go into the vagina easily and that the length of the vagina was normal which was about 1 1/2″. She stated that the respondent had told her that she had been operated upon in connection with the septum. It was suggested to her that the septum would obstruct the sexual enjoyment by the male partner. She denied the suggestion. There was no further cross–examination about the capacity of the respondent for sexual intercourse and to give normal satisfaction to the male partner.
11. After the close of the trial, the petitioner filed an application on 24-4-1973 stating that Dr. Mrs. Thakur had deposed that the length of the vagina was 1 1/2″ only and it was, therefore, necessary to ascertain whether consummation of marriage was possible or practicable with the respondent having regard to the size of the vagina. He wanted that he should be medically examined to ascertain whether he was impotent or whether it was possible or practicable to consummate the marriage with the respondent the length of whose vagina was 1 1/2 only. This application was opposed by the respondent who pleaded that the petitioner had full opportunity to cross–examine Dr. Mrs. Thakur when she was in the witness box. The learned District Judge does not appear to have passed any separate orders on this application. It must be inferred that he rejected the application since he pronounced the final judgment in the case on 26-4-1973 dismissing the application under S. 12 of the Hindu Marriage Act.
12. This is the entire but scanty, material on the basis of which I am asked to decide whether the marriage was not consummated owing to the impotence of the respondent. Before the Marriage Laws (Amendment) Act, 1976, it was necessary to prove that the respondent was impotent at the time of marriage and continued to be so until the institution of the proceedings. As a result of the Marriage Laws (Amendment) Act, 1976, the petitioner has now to establish that the marriage has not been consummated owing to the impotence of the respondent. It is common case that the provisions of Amended Act are attracted in view of the express provision made by S. 39 of the Marriage Laws (Amendment) Act, 1976.
13. Impotence simply means inability to perform the sexual act. It may be pathological or psychological, permanent or temporary, complete or partial. The judgment of Ramaswamy J. in Rangaswamy v. Arvindemmal, AIR 1957 Mad 243, contains a full and comprehensive discussion of what impotence means. It is unnecessary to refer to the wealth of literature on the subject. I will confine myself to the consideration of a few cases where problems similar to the one behalf me had arisen.
14. In D–e v. A–g (Orse, D–e), (1845) 1 Rob. Ecc. 279, the wife concerned had no more than an incipient vagina in the form of a cul–de–sac which made it impossible for the husband to achieve full penetration. Dr. Lushington after adjourning the case for enquiry whether the defect was curable by medical skill and on being satisfied that it was not, granted the husband a decree of nullity. At the dated of D–3 v. A–g (Orse, D–e), surgical operation to restructure the vagina was unknown to medical science. The observations of Dr. Lushington which have achieved the status of a classic must be understood in the context of what was known to medical science then and should be applied in the light of the present state of medical knowledge. Dr. Lushington had observed as follows:–
“I apprehend that we are all agreed that, in order to constitute the marriage bond between young persons, there must be the power, present or to come, of sexual intercourse…………Though all are so far agreed, this unanimity of opinion does not remove the existing difficulty, for that difficulty lies in the meaning of the term “sexual intercourse”. How is it to be defined? This is a most disgusting and painful inquiry, but it cannot be avoided. Sexual intercourse, 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…….If there be a reasonable probability that the lady can be made capable of 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, ands unnatural coitus, I would pronounce the marriage void.”
15. In B. v. B. 1955 P. 42, the wife was born with certain male organs which were removed by operation when she was some 17 years of age. She had no vagina. She had no menstrual periods. She went through a ceremony of marriage with the husband. The marriage was not consummated. The wife then underwent an operation and an artificial vaginal passage of some four to six inches was created. The husband was never able to achieve penetration of more than two inches. Mr. Commissioner Grazebrook held that there was no proper consummation which could be said to be vera copula or proper coitus between husband and wife. He appeared to think that he could not hold that there was consummation having regard to the artificiality of the vagina.
16. In S. Y. v. S. Y., 1963 P. 37, the marriage had never been consummated because of a defect in the wife’s sexual intercourse. She had never menstruated, had no uterus, and was incapable of conceiving children although she had perfectly normal external sex characteristics. She had no more than an incipient vagina in the form of a cul–de–sac. It was possible to extend the cul–de–sac artificially by a plastic operation and thus to remove the impediment that existed to full penetration by her husband and she was willing to undergo such an operation. Karminski J., in the first instance, and the Court of Appeal, on appeal, held that the marriage was capable if consummation by sufficiently enlarging the wife’s natural but abnormal vagina by plastic surgery and, therefore, a decree for nullity could not be granted. It was also held that even if the wife had no natural vagina she could be given an artificial vagina by plastic surgery, and coitus by means of an artificial vagina constituted vera copula, so as to consummate the marriage. The dictum in B.V.B. 1955 P. 42 was disapproved. An argument that a reconstructed vagina could never be considered a real vagina was answered by Donovan L.J. as follows:-
“Supposing a blockage in one nostril was partially relieved in the same way and the new passage lined with skin from elsewhere, would one say the patient had an imitation nostril?’
Ormrod J., in Corbett v. Corbett, (1970) 2 All ER 33, appeared to doubt some of the observations of the Court of Appeal in S.Y. v. S.Y. But, Ormrod J. Was concerned with a marriage between a man and a man, one of whom had undergone what was called a sex change operation. The learned Judge held that notwithstanding the operation, the man continued to be a man chromosomally. The learned Judge, however, observed that even if the marriage was valid, he was prepared to hold that ‘the woman’ was physically incapable of consummating the marriage since there could be no “ordinary and complete intercourse.”
17. In M v. S., 1963 Ker LT 315, T. K. Joseph, Ag. Chief Justice and K. K. Mathew J. Had to consider the case of a wife who suffered from a structural malformation of the vagina which rendered it difficult for a normal man to have sexual intercourse with her but who underwent an operation making it possible for a normal man to have sexual intercourse with her. The learned Judges observed that the true test of incapacity was the practical impossibility of consummation and denied a decree of nullity to the husband. Reference was made to the decision of Karminki J. in S. v. S. 1963 P. 37.
18. In Ganeshji, v. Hastuben, (1967) 8 Guj LR 966, the Court was concerned with a wife whose vagina was too short for normal intercourse. She underwent three operations, as a result of which according to the medical evidence, normal sexual intercourse with her was possible though there was no possibility or her bearing children. Shelat J. held that the wife could not be said to be impotent. The petition of the husband for annulment of marriage was dismissed.
19. In Laxi Devi v. Babu Lal, AIR 1973 Raj 89, there was a complete absence of the vagina initially but after surgical operation an artificial vagina of the length of about 2 1/2″ was constructed. A learned single Judge of the Rajasthan High Court held that the construction of an artificial vagina where there was none previously would not put an end to the impotency of the wife. He also observed that even the reconstructed vagina was only 2 1/2 or 3 inches in length and it could not be said that the husband could have sexual intercourse to his satisfaction. Though the last observation might given an impression that the shortness of the vagina was itself a ground for concluding impotency on the part of a wife, earlier the learned Judge distinguished the cases of S. Y. v. S. Y. (1963 P. 37) and Ganeshji v. Hastuben (1967) 8 Guj LR 966) on the ground that they were cases of under–sized or structurally defective vagina but not cases of complete absence of vagina.
20. The question in the present case, therefore, is, whether the wife was incapable of satisfactory participation in the sexual act. The doctor R. W. 1 deposed that in spite of the size of the vagina, which was only 1 1/2″ long, she was fit for sexual intercourse and was even capable of giving birth to children. She denied that the septum would obstruct the sexual enjoyment by the male partner. She was not cross-examined about the capacity of the wife for sexual intercourse and to give normal satisfaction to the male partner. In the absence of any other material, it is impossible to hold that the wife is impotent. Whatever might have been the position at the time of the marriage, it is clear, be it due to the operation or otherwise, that the marriage is now capable of consummation. No decree for annulment of marriage can, therefore, be granted. The appeal is, therefore, dismissed, without costs, but with the expression of the hope that the young couple may come together again, without bitterness and rancour, but, with mutual trust and confidence.
21. Appeal dismissed.