Jagdish Lal Petitioner- v. Smt. Shyama Madan And Others Opposite Parties-

Gangeshwar Prasad, J.:— This appeal arises out of a petition for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act.

2. Jagdish Lal petitioner was married to Smt. Shyama Madan respondent no. 1 (hereinafter referred to as the respondent) at Varanasi on 13th February 1961 according to Hindu rites. After the marriage, the couple lived together at Meerut at the house of the petitioner for above a month and thereafter the respondent went to her father's place at Varanasi. The petitioner went to Varanasi in June 1961 and wanted to take the respondent back to his house at Meerut but the respondent refused to go and she has been living at her father's place at Varanasi. The petitioner is about 25 years of age and the respondent too is an adult. These facts are admitted.

3. It was alleged in the petition that the respondent had withdrawn from the society of the petitioner without any reasonable excuse and that the other respondents who are her parents and brothers were supporting her in the withdrawal. It was also alleged that the marriage between the petitioner and the respondent had been properly consummated. The petition was opposed by the respondent principally on the ground that the petitioner was impotent. The respondent stated in her reply to the petition that the marriage was never consummated and the petitioner was incapable of consummating it on account of his complete and total impotency. She denied that her withdrawal from the society of the petitioner was without any reasonable excuse and attributed it to the total impotency of the petitioner. She also mentioned in her reply that as the petitioner was impotent at the time of the marriage and had continued to be so she had already moved for the annulment of the marriage under Sec. 12(1)(a) of the Hindu Marriage Act. The other pleas taken by the respondent are not relevant for the purpose of the appeal.

4. The evidence in regard to the question of impotency, which is the only question involved in the case, consists of the statements of the respondent herself, and Dr. Sushila Sharma on the one side and those of the petitioner and Dr. Kakkar, Civil Surgeon of Meerut on the other. On a consideration of this evidence the learned Civil Judge who tried the petition found that the petitioner was impotent when the respondent lived with him at Meerut after the marriage and there was nothing to show that the impotency had been subsequently cured. He accordingly held that the petitioner was not entitled to restitution of conjugal rights and dismissed the petition. On appeal by the petitioner the learned Additional District Judge agreed with the finding of the trial court and upheld its decision. The petitioner has now preferred an appeal to this Court.

5. The contentions raised before by the learned counsel for the petitioner are two firstly, that in view of the statement of Dr. Kakkar there was no justification for the finding that the petitioner was impotent; and secondly, that there was no proof of the fact that the petitioner had continued to be impotent till the institution of the proceeding, and as such a decree for restitution of conjugal rights could not have been refused to him under the law.

6. In connection with the first contention it has been urged that although the finding as to the impotency of the petitioner is a finding of fact it is based entirely on an assessment of the value and effect of the opinions of medical experts examined in the case, and since the expert evidence has not been properly appreciated and correct conclusions have not been drawn from it the finding does not deserve acceptance. While I do not agree that the finding recorded by the courts below rests entirely on the opinions of experts, I propose to test the validity of the criticism to which the finding has been subjected. Before, however, I do so some preliminary matters have to be stated and the ground for the examination of the evidence produced in the case cleared.

7. Impotency means incapacity for accomplishing the act of sexual intercourse, and by sexual intercourse, in this context, is meant not an incipient, partial or imperfect but a normal and complete coitus. Impotency is to be distinguished from sterility which may in some cases accompany impotency but is not necessarily associated with it, the two expressions denoting lack of two different powers a person may be incapable of accomplishing the sexual act and yet be capable of procreating and, conversely too, 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, whether local or general or in the mind, manifesting itself in repugnance for the sexual act, fear, lack of confidence etc. It may also happen that a person is capable of having sexual intercourse but incapable of performing it with a particular individual, and in such a case the person must be regarded as impotent in relation to that particular individual regardless of his potency in general. These matters are too well settled need reference to any medico-legal or legal authorities.

8. Admittedly, for about a month after the marriage the petitioner and the respondent lived together at the house of the petitioner. The statement of the respondent is that during this period the petitioner tried-to have sexual intercourse with her but he could not accomplish the act and consummate the marriage on account of his incapacity. The petitioner, on the other hand, stated that during the stay of the respondent at his place he had sexual intercourse with her several times. This, therefore, is not a case in which the husband has not had access to the wife and his potency has not been put to test. The question only is whether the testimony of the respondent or that of the petitioner is entitled to acceptance. Both the courts have believed the evidence of the respondent and having regard to the facts disclosed by her medical examination and the circumstances of the case there can be no doubt about the truth of her testimony in this respect. Dr. Sushila Sharma examined the respondent medically on 2nd September 1962 and found that the hymen of the respondent was intact; her breasts were developed and firm; nipples were pink in colour; there was no injury, redness, inflammation or discharge in her vagina, and the vagina could admit only one finger and was not lax. On the basis of these data Dr. Sushila Sharma gave the opinion that the respondent was a virgin on the date of the examination. The facts, which the medical examination of the respondent disclosed, are so inconsistent with sexual intercourse having been had with her that Dr. Kakkar Civil Surgeon Meerut admitted that if the indications motioned by Dr. Sushila Sharma were correct the respondent was a virgin at the time of the examination. It is not, therefore, really on the opinion formed by Dr. Sushila Sharma that the case rests, but on the facts observed by her, and the observations too were not of such a nature as might have been attended with possibilities of error. The question, thus, resolves into one of believing or not believing the testimony of Dr. Sushila Sharma. The courts below relied upon the evidence of Dr. Sushila Sharma and I think they were right in doing so.

9. The learned counsel for the petitioner has urged that medico-legal authorities do not exclude the possibility of sexual intercourse with a virgin taking place without rupturing the hymen and that the evidence of Dr. Kakkar who examined the petitioner on 1st September 1962 is indicative of such a possibility in the case of the respondent. Dr. Kakkar has stated that he found no malformation of the generative apparatus and no local or general disease or anything else to suggest that the petitioner was not capable of sexual intercourse and his urine and semen also showed no abnormality. This statement, according to the learned counsel, completely destroys the charge of impotency against the petitioner and points to the conclusion that the hymen of the respondent somehow remained intact in spite of sexual intercourse. For a number of reasons it is not possible to accept this contention.

10. Firstly, sexual intercourse with a virgin without the hymen being ruptured is not a normal phenomenon and it would be a strange coincidence indeed that the respondent who had withdrawn herself from the society of her husband at least from June 1961 and was resisting the claim of her husband for restitution of conjugal rights from April 1962 on the ground of the husband's impotency should also, have been discovered by a medical examination conducted on 1st September 1962 to be a women whose hymen had remained unruptured in spite of sexual intercourse.

11. Secondly, it should be noted that Dr. Sushila Sharma found that the vagina of the respondent could admit only one finger and was not lax. The fact that the hymen of the respondent was intact might not in itself have ruledout the remote chance of sexual intercourse having taken place, but when it is taken in conjunction with the other facts noticed by Dr. Sushila Sharma, even that remote chance appears to be totally eliminated. Modi in his Text book of Medical Jurisprudence and Toxicology says, in cases where the hymen is intact and not lacerated, it is necessary to note the distancibility of the vaginal orifice. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred if the vaginal orifice is big enough to admit easily the passage of two fingers.”

12. Obviously, the condition noticed by Dr. Sushila Sharma leaves no scope for such an inference.

13. Thirdly, it has to be borne in mind that the question in this case is not whether the condition of the parts of the respondent can in some manner be consistent with a single act of intercourse but whether it can be consistent with the petitioner's statement that he had intercourse with her several times during her stay with him. Dr. Kakkar has no doubt stated that so far as he remembers it has been mentioned by some authorities on medical jurisprudence that the local use of some medicines may reduce the laxity of the vagina to a little extent, but no authority has been cited. However, Dr. Kakkar has conceded in cross-examination that the chances of reduction of the laxity are rare after 8 or 10 acts of sexual intercourse. In the circumstances of the present case, therefore, the features noted by Dr. Sushila Sharma, considered in their totality, lead irresistibly to the conclusion that the respondent was a virgo in tact at the time of her medical examination and they are totally incompatible with the case of the petitioner that he had sexual intercourse with the respondent several times during her stay with him.

14. Fourthly, the facts to which Dr. Kakkar has deposed are insufficient for counteracting the inference which inevitably follows from the facts found by Dr. Sushila Sharma. Absence of any malformation in the generative apparatus of the petitioner and of any local disease could eliminate only some of the causes of impotency but it could not exclude impotency due to general diseases, to functional disorders and deficiencies or to psychological factors. The omission of semen and the presence of spermatozoa in it also, could only establish that the petitioner was possessed of the capacity to procreate and it could thus negative sterility but not impotency. Indeed, at the very outset of his statement in cross-examination Dr. Kakkar admitted that on the basis of a medical test it is not possible to pronounce that a person is not impotent. There is thus no inconsistency between the facts (as distinguished from opinions formed on their basis) found on the medical examination of the petitioner and the respondent and they could both be true. The examination of the respondent clearly showed that she was a virgin and in the circumstances of the case this could he accounted for only by a lack in the petitioner of the power of accomplishing a normal and complete sexual intercourse or at least of the power of doing so with the respondent. The condition of the respondent was so conclusive of her virginity that Dr. Kakkar candidly stated that on the data mentioned in the report of Dr. Sushila Sharma he agreed with the opinion that the respondent was a virgin.

15. From the above discussion it is clear that the evidence of Dr. Kakkar does not demolish the case of the respondent regarding the impotency of the petitioner as contended by the learned counsel for the petitioner; nor is it in such conflict with the evidence of Dr. Sushila Sharma as to justify the inference that by some physiological freak there was no sign of loss of virginity in the respondent in spite of repeated acts of sexual intercourse. The inference could, in my opinion, be palpably fantastic. The courts below rightly felt that the result of the medical examination of the respondent by Dr. Sushila Sharma furnished a most valuable and authentic corroboration of the testimony of the respondent and it demonstrated the falsity of the case of the petitioner. Their finding regarding the impotency of the petitioner during the stay of the respondent at his house is, therefore, not open to challenge and must be accepted.

16. Reference may here be made to the case of Mt. Altafan…Plaintiff v. Ibrahim…Defendant . A.I.R 1924 Alld. 116. which bears a resemblance to the instant case in this respect that there too the medical evidence adduced by the parties in regard to the question of impotency appeared to lead to divergent conclusions. The Court had before it two suits under the Mahommedan Law, one in which the wife who had lived with her husband for six months was contesting the latters' claim for restitution of conjugal rights and the other in which the wife was herself seeking annulment of the marriage. The evidence of two lady doctors produced on behalf of the wife was to the effect that the hymen was complete and not torn in any way and that all other signs of virginity in eluding the condition of the breasts and the vagina and the fourchette were present. The husband had examined as his witness three doctors who were successively posted as Civil Surgeon at Aligarh where the case arose and their evidence was that the husband had no physical or mental defect or disease, there was no malformation, and that he was potent and quite fit for sexual intercourse. Quoting Lyon's Medical Jurisprudence, Kanhaiya Lal, J. observed:

“If the hymen is intact (not even lacerated), the probabilities, except in the case of females below the age of puberty, are according to Lyons, very strongly in favour of virginity and the inference of virginity becomes almost certain, if the membrane is normal in position and structure and its aperture is of small size and undilatable, and if accompanying this condition of the hymen, the other signs of virginity are present, (Lyons Medical Jurisprudence, sixth Edition, page 264). One of the Lady doctors examined has referred in her evidence to these signs of virginity, including the condition of the breasts, the vagina and the fourchette.

There was no allegation that the husband has had no access to the woman. On the other hand the husband stated that he has had sexual intercourse with her on numerous occasions. The condition of the hymen, however, renders his story wholly improbable.”

17. Earlier in the Judgment the learned Judge referred to the conflict in medical opinion and said:

“Where there is so much conflict in medical opinion it is not always easy to find which opinion is to be accepted in preference to the other. A man may, however, be nominally or temporarily potent, due for instance to the use of certain medicinal drugs or other cause; or he may be potent as regards some women and not potent as regards his wife. The latter fact was acknowledged by the medical witnesses and is also recognised by the Mahommedan Law.”

18. A decree nisi was accordingly passed by him. The decision of the learned Judge was confirmed in letters patent appeal Mohammad Ibrahim v. Mst. Altaian A.I.R 1925 Alld. 24., where the seeming conflict between the medical experts examined by the parties was disposed of by Sulaiman, J. (as he then was) with whom Mukerji, J. agreed, in the following words:

“We are of opinion that the evidence of the two sets of medical experts was not necessarily contradictory. The lady doctors had tried to prove that the Woman was still a virgin and that her hymen was still intact. The male doctors, who had no opportunity of examining the wife, could not of course express any opinion on this point. Their evidence, was confined to what they gathered after examining the husband. There was, therefore a possibility that both these sets of medical evidence were true, namely, that although outwardly the husband was potent nevertheless, for some reason or other he had not had an inter course with his wife or was impotent towards her.”

19. I need not add anything further in regard to the first contention of the learned counsel for the petitioner and may now proceed to consider the second contention raised by him. That contention involves an interpretation of Sec. 9 of the Hindu Marriage Act (hereinafter called the Act). The section runs as follows:—

(1) When either the husband of the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district Court, for restitution of conjugal rights and the Court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

(2) Nothing shall be pleaded in answer to a petition for restitution of conjugal rights which shall not be a ground for judicial separation or for nullity of marriage or for divorce.

20. The argument advanced by Mr. Kacker, the learned counsel for the petitioner, is that since under Sec. 12(1)(a) of the Act impotency of the petitioner can be a ground for annulment of the marriage only when it is proved that the petitioner was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the petition for restitution of conjugal rights cannot be dismissed unless impotency until the institution of the proceeding is also proved. The argument obviously assumes that the evidence led by the respondent is inadequate for establishing that the petitioner continued to be impotent until the institution of the proceedings, although the courts below have recorded a finding to that effect. According to the learned counsel, sub-Sec. (2) of Sec. 9 of the Act defines what would be ‘reasonable excuse’ within the meaning of sub-Sec. (1) of Sec. 9 and precludes the Court from refusing restitution of conjugal rights on a ground not covered by sub-Sec. (2). This does not, however, appear to me to be the true and proper construction of the provisions of Sec. 9.

21. Sub-Sec. (1) of Sec. 9 empowers the Court to pass a decree for restitution of conjugal rights only when it finds that the withdrawal of the husband or the wife from the society of the other is without reasonable excuse and it is also satisfied of the truth of the statements made in the petition and of the absence of any legal ground for not granting the petition. Sub-Sec. (1), therefore, lays down three conditions for a decree and none of them can be ignored or dispensed with Sub-Sec. (2) only lays down what would be considered to be a legal ground for refusal to grant a decree for restitution of conjugal rights and is, therefore, limited in its application to the last condition which is required by sub-Sec. (1) to be fulfilled. To construe sub-Sec. (2) as a bar to the consideration by the Court of any other matter, save what is mentioned: therein, in granting or refusing a decree for restitution of conjugal rights would, therefore, amount to rendering the two other conditions laid down in sub-Sec. (1) entirely nugatory: and such a construction would be opposed to one of the cardinal principles governing interpretation of statutes. Even, if therefore, a plea of the nature mentioned in sub-Sec. (2) of Sec. 9 is not substantiated the Court has still to decide whether the husband or the wife has withdrawn from the society of the other without reasonable excuse and has to be satisfied of the truth of the statements made in the petition. Indeed it may be said that it is only after the Court has found that the withdrawal has been without reasonable excuse, that the Court will proceed to determine whether there are any legal grounds for refusing to grant a decree for restitution of conjugal rights. However having regard to the nature of a decree for restitution of conjugal rights the legislature has not made it obligatory for a Court to pass such a decree merely because of the absence of any such fact as may form a ground for judicial separation or for nullity of marriage or for divorce, and it has cast upon the Court the obligation to also determine whether the husband or the wife has withdrawn from the society of the other without reasonable excuse.

22. A legal ground for the refusal to grant a decree for restitution of conjugal rights or in other words a plea covered by sub-Sec. (2), although it is founded on reason, cannot appropriately be described as a ‘reasonable excuse.’ What would be a reasonable excuse cannot be reduced to a formula and would vary with time and circumstance and will have to be determined by the Court in each individual case in the light of the features peculiar to it. Reasonable excuse cannot, therefore, be equated with legal ground, and the Court cannot grant a decree for restitution of conjugal rights if there is reasonable excuse for the husband or the wife for withdrawing from the society of the other even though a ground for judicial separation or for nullity or for divorce has not been made out.

23. The combined effect of sub-Secs. (1) and (2) of Sec. 9 of the Act came up for consideration in Mt. Gurdev Kaur v. Sarwan Singh A.I.R 1959 Pun. 162., Smt. Alop bai v. Ramphal Kunji lal A.I.R 1962 M.P 211. Sau Sakuntla Bai Baburao v. Baburao Daduji Mandlik A.I.R 1963 M.P 10. and Smt. Mango v. Prem Chand.6 The view taken in all these cases may be said to be that the words ‘reasonable excuse’ in sub-Sec. (1) include a ground in addition to the grounds mentioned in sub-Sec. (2). In fact, Dixit, C.J who delivered judgment of the Division Bench in Smt. Alop bai's case went further and said that even when the conditions mentioned in sub-Sec. (1) are satisfied it is in the discretion of the Court whether or not to pass a decree for restitution of conjugal rights. His Lordship also emphasised the fact that the discretion given in passing a decree for restitution of conjugal rights has to be exercised very cautiously and after deliberation, because after all, it is a very serious matter to pass a decree for restitution of conjugal rights and enforce a party to return to his or her conjugal home against the party's will.

24. In the instant case, the impotency of the petitioner and his consequent inability to consummate the marriage after having had access to the respondent for about a month was a reasonable excuse for the withdrawal of the respondent from the society “of the petitioner. Even apart from the question, therefore, whether the petitioner had continued to be impotent until the institution of the proceeding his petition was liable to rejected. Further the petitioner's statement in his petition that he had consummated the marriage has been found to be false and the falsity of this statement also justified, if not imperatively called for, the rejection of the petition under sub-Sec. (1) of Sec. 9.

25. The courts below have also found that the impotency of the petitioner continued until the institution of the proceeding, and on this finding a plea recognised by Sec. 9(2) as an answer to a petition for restitution of conjugal rights has been made out. This finding is based on the fact that the case of the petitioner was that he was potent at the time of the marriage and consummated the marriage and not that there has been a subsequent acquisition or restoration of potency. In support of the finding the learned counsel for the respondent has also placed reliance on the statement of the respondent to the effect that the petitioner had told her during her stay at the house of the petitioner that he would get himself treated for impotency and further that the petitioner attempted to have sexual intercourse with the respondent at Varanasi also when he had gone there in June 1961 to take the respondent to his house but there too he failed in his attempt on account of his continued incapacity. The learned counsel has urged that the trial court wrongly and for a misconceived reason rejected the statement of the respondent in regard to the failure of the petitioner to have intercourse with her at Varanasi, and he has invited a finding from me on this part of the respondent's case as well “because of the absence of any finding on it by the lower appellate court. On this aspect of the case, what has been urged by Mr. Kacker, who has argued the case for the petitioner with the commendable fairness and ability, is as follows. If the story of the petitioner's unsuccessful attempt of sexual intercourse with the respondent at Varanasi had been true one would have expected a mention of it in her reply to the petition, but it is conspicuously absent there. The story is, therefore, an after thought and appears to have been falsely introduced in order to satisfy the requirements of Sec. 12(1)(a) of the Act. It is true that the petitioner has not come forward with a case of subsequent acquisition or restoration of potency but, Mr. Kacker has argued, this may be due to an understandable hesitation and feeling of shame. Further, if the respondent has truly stated that the petitioner had confessed his impotency to her at Meerut and had told her that he would get himself treated, he must naturally have undergone some treatment. It has been urged that the findings of Dr. Kakkar on the medical examination of the petitioner have to be viewed against this background and, chus viewed, they may be the result of treatment and indications of subsequently acquired or restored potency and, therefore, easily reconcilable with the findings of Dr. Sushila Sharma about the respondent. At any rate, if the impotency of the petitioner as evidenced by his failure to consummate the marriage during the period of the respondent's stay at his house was due only to some general disease or to functional disorders or deficiencies or to some mental cause operating against sexual intercourse in general or with the respondent in particular, such impotency might have been removed or overcome or might have otherwise disappeared subsequently. For these reasons Mr. Kacker contends, a finding that the impotency of the petitioner continued until the institution of the proceeding would not be justified in spite of the fact that the petitioner has not alleged having gained or regained potency since March 1961 when the respondent left in Meerut for her parents' house. On the view that I have taken of Sec. 9 of the Act, however, it is not necessary to go into the question whether the impotency of the petitioner had continued until the institution of the proceeding. Further, a petition under Sec. 12(1)(a) of the Act for annulment of the marriage has admittedly been filed by the respondent and is pending. I do not, therefore, enter into the question whether the petitioner continued to be impotent until the institution of the proceeding. What is sufficient for the disposal of this case is that it is clear that the respondent has not withdrawn from the society of the petitioner without reasonable excuse and the statements made in the petition for restitution of conjugal rights are not true. These reasons by themselves justify dismissal of the petition. The dismissal of the petition for restitution of conjugal rights is, therefore, confirmed and the appeal is dismissed with costs.

Appeal dismissed.