1. The appellant is the wife of the respondent. Her petition for nullity of her marriage with the respondent on the ground set out in Clause (a) of Sub-section (1) of Section 12 of the Hindu Marriage Act, 1955 (hereinafter called as the Act) namely that the respondent was impotent at the time of marriage and continued to be so until the institution of the proceedings has been dismissed by the Judge of the City Civil Court, Ahmedabad. She has come in appeal.
2. According to the averments in the petition, which averments have not been controverted by the respondent by pleadings as he has chosen to remain absent, the marriage between the appellant and the respondent took place on 8th May, 1960 and the appellant went to reside with the respondent a month after that date. The appellant avers that after she went to reside with the respondent to fulfil the physical obligations of marriage, the respondent avoided to do so on the ground that he was not keeping well. The appellant states that believing in that explanation she did not press him immediately, but later on she found that the respondent was not able to physically consummate marriage and the respondent also admitted his inability to do so and stated that he was taking medical treatment. Therefore, the appellant waited, She goes on to aver in the plaint that in August 1963 the respondent left for America and came back on 16-7-1967 and when he came on 16-7-1967 the appellant went to him again but she found that there was no improvement in the physical condition and in fact the respondent did not sleep with her and slept at another place. Therefore, the appellant gave a notice and then the suit is filed.
3. Before referring to the evidence led in the case on behalf of the appellant it would be convenient to refer to the exchange of notices between the parties. The appellant first sent a notice on 20-7-1967 and in that notice she set out in detail the very case which has been set out in the plaint. To that notice the respondent sent a reply on 27-7-1967 denying therein that he was not physically in a position to consummate marriage or that he did not have any physical relation with her or that he had put forward an excuse of ill-health. He, however, appeared to concede in para 2 of that reply that the physical relation s with his wife were little for he stated in that para-
"In turn as I was studying and so that there should not be any disturbance in my studies and I should be able to carry on the studies well I had informed (you) to keep as little physical relations as possible and you have misconstrued this suggestion."
To that reply the appellant sent a rejoinder on 10-8-1967 reaffirming her case but offering to live with him as his wife if he got himself examined by a doctor of his choice to whom both of them may go after taking a previous appointment and if the doctor certified that he was not impotent but was potent. A copy of this last rejoinder which has been produced in the proceedings by the appellant has not been exhibited by the learned trial Judge on the ground that the acknowledgment receipt of that letter was not produced. But the fact is that such a letter has been averred to in the petition and also deposed to by the appellant as having been addressed at the address to which the previous notice was sent and was received by the respondent. There is, therefore, no reason for not believing the petitioner that such a letter was sent. If she is believed on that point it would not be unreasonable to hold that the letter reached the respondent.
4. Now the evidence in the case is the deposition of the appellant and the copies of the correspondence just referred to. In the deposition the appellant set out on oath the case she had set out in the petition. She added that all these years that she lived with the respondent, he had no sexual intercourse with her and that was because he had no manly power and whenever he attempted to have sexual intercourse with her, he failed. She also stated that the petition was not filed in collusion with any one. In answer to questions put separately by the learned Judge she stated again that she had no sexual intercourse with her husband at all and that was because he was impotent and incompetent to have sexual intercourse with her and that this condition continued till the petition was made. This was the evidence. The respondent though served did not appear. He was served while he was staying in India and, therefore, his absence cannot be explained on the ground that he being out of India, it was not possible for him to plead or to attend.
5. The learned trial Judge did not consider this evidence sufficient to prove the facts which the law requires to be proved to entitle a party to get a decree for nullity on the ground of impotency. The facts required to be proved are:
(i) that the respondent was impotent at the time of the marriage;
(ii) that the respondent continued to be so until the institution of the proceeding.
On both these facts the material evidence was the deposition of the appellant. Now there are two possible grounds on which that deposition could be disbelieved or not acted upon. One is that the appellant was in collusion with the respondent and the other that the evidence is not reliable. The learned Judge does not state that the appellant is in collusion with the respondent. In fact if the reply of the respondent to the appellant's notice is any indication there was absence of collusion. Collusion cannot be inferred merely from the fact that the respondent does not appear or from the fact that the case is unusual. As pointed out by their Lordships of the Nagpur High Court in Kishore Sahu v. Snehprabha Sahu, AIR 1943 Nag 185 (SB):
"We see no more reason (once the petitioner's evidence is accepted) to suspect collusion than the learned District Judge did. The suspicion, if it is to be acted upon, must in our opinion, be founded on something more tangible than a vague uneasiness that an unusual case may not be true."
In the present case there are no circumstances giving rise to any suspicion of collusion. As I have pointed out that the learned Judge himself does not say that there was collusion in fact or that he suspected collusion. The principle on which he proceeded to evaluate the evidence and find it insufficient is set out by him in these words:-
"Before a Court holds that a husband is impotent, it will look for reliable evidence. It is equally well settled that it is not safe in such matters to pass a decree on the interested testimony of one of the spouses."
At another place also the learned Judge states it to be a well settled principle that in such matters the Court would be justified in looking for independent evidence or evidence corroborating the say of the interested party. The learned Judge has therefore, considered corroboration necessary and looked for corroboration. That corroboration in his opinion was wanting. The learned Judge noted that if the respondent had been present it would have been possible for the court to direct him to appear before a medical expert for medical examination. But that could not be done because the respondent chose to remain absent. Therefore, to satisfy himself in the light of the principle he had referred to, the learned Judge called upon the appellant's learned advocate to get the appellant examine by a medical expert to adduce the negative evidence that the marriage was not consummated. The learned advocate took time but did not adduce that evidence. The learned Judge says in his judgment that if such negative evidence had been available he would have felt safe in passing a decree on the ground that the opponent was impotent on the date of marriage and continued to be so at the date of the institution of the petition. In the circumstances and having regard to the inability of the appellant to tell the learned Judge, whose treatment her husband was taking and her inability to produce any correspondence with her husband previous to the notice, the learned Judge could not persuade himself to accept the appellant's evidence as sufficient to discharge the burden which admittedly lay on her to prove the two facts earlier set out to succeed in the petition.
6. Mr. A. H. Mehta, the learned advocate of the appellant argued that the learned Judge was in error in proceeding on the footing that a decree cannot be passed on the interested testimony of one of the spouses. Mr. Mehta has also taken exception to the learned Judge requiring evidence of the appellant's virginity to be adduced, but has at the same time endeavoured to adduce that evidence before this Court. I propose to refer to it later Mr. Mehta also submitted that the learned Judge has failed to draw legitimate inferences from the facts on record and has also not considered the fact that the respondent has chosen not to appear.
7. There is considerable substance in the submission of Mr. Mehta that there is no rule of law requiring that in a petition of this nature the evidence of the spouse must receive independent corroboration before it can be accepted as sufficient to justify the passing of a decree for nullity of marriage. Before referring to the authorities to which he invited my attention it would be appropriate to deal with the matter on principle. Section 134 of the Evidence Act which provides that no particular number of witnesses shall in any case be required for proof of any fact embodies therein the principle that sufficiency of evidence is not a matter of number or quantity but of quality. In Sarkar's Evidence Act the authority in his commentary under that section refers to certain English laws requiring quantitative proof in certain cases. Our legislature has not made any such provision in respect of the proof of any fact in any particular case. This is referred to by the Supreme Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, where after pointing out to this part of the commentary of Sarkar that there have been a number of statutes in England forbidding convictions on the testimony of a single witness, their Lordships go on to say:-
"The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognised in S. 134 quoted above . the section enshrines the well recognized maxim that 'Evidence has to be weighed and not counted'. Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon."
No doubt these observations are made with reference to a criminal case but they have a general application. The Hindu Marriage Act does not make a departure from this principle. It dose not lay down in respect of cases falling under it any standard of proof other than that arising from the Evidence Act. It does not lay down any minimum standard of proof. It so the only question the court has to ask itself is whether the evidence before it inspires confidence. The need of corroboration may arise not because the evidence is of an interested person- in a case of this type the party is of necessity interested in the result - but because the evidence of the party is such as does not inspire confidence. It may not inspire confidence for the reason that there is in fact or there is a reasonable suspicion of a collusion or for the reason that the witness does not strike the court as a witness of truth having regard to all the circumstances in the case. If there is no collusion, then the veracity or the reliability of the witness can be judged by the usual tests such as the probabilities of the story, the conduct of parties before and during litigation, the manner in which the party gave evidence in court and such other factory as bear on the honesty, turthfulness and reliability of a witness. If the evidence is reliable and can be safely acted upon there is no impediment in law for the court acting upon it though it is of an interested party.
8. In AIR 1943 Nag 185 (SB) (supra) to which Mr. Mehta invited my attention the petition was by the husband against the wife for nullity of marriage on the ground of impotency of the wife. The contention was that every attempt on his part to consummate the marriage immediately reduced his wife to a state of hysteria - she would bite and kick and cry bitterly and, therefor, short of using force and being brutal and virtually raping her, it was impossible to obtain consummation. The petitioner deposed to these facts and that was substantially the only evidence in support of the petition. The wife who appeared denied these allegations. Her complaint was that her husband's approach 'lacked the spiritual and more gentle element; he was altogether too possessive and caveman'. Their Lordships had to choose between these versions. After referring to the fact that in cases where the only evidence is the evidence of the parties, the court have to be careful because the danger of collusion is so great, they proceeded to examine the question whether corroboration is necessary to the evidence of the parties and said,
"It is clear therefore, the rules of evidence are not different in these cases than elsewhere and that there is no minimum standard of proof necessary. The uncorroborated testimony of the petitioner is sufficient if it can be believed. The only question is whether it can be believed"
. In that case they believed the petitioner and a decree was given.
9. The next decision to which Mr. Mehta invited my attention in support of his submission is Wilson v. Wilson AIR 1931 Lah 245. There the husband was the petitioner and he asked for nullity of marriage on the ground of the impotency of the wife who was the respondent. His case was that on each occasion when he attempted sexual intercourse with her she pushed him away, jumped out of bed and became hysterical. Therefore the impotency alleged was vis-a-vis the petitioner. The respondent did not appear in person but filed a written statement through counsel and admitted that the marriage had never been consummated owing to an uncontrollable repugnance on her part to sexual intercourse with the petitioner. The petitioner was found on medical examination to be virile potents but the respondent refused to submit herself to medical examination. The proof of the petitioner's case substantially rested on the testimony of the petitioner. The learned District Judge before whom the petition was filed was not prepared on that evidence to hold that the respondent was impotent quoad her, the petitioner as proof of this rested on the uncorroborated testimony of the petitioner. He therefore dismissed the petition. Their Lordships said:
"The learned District Judge was favourably impressed by this evidence and the absence of corroboration should not therefore have made him hesitate in granting the petitioner a decree. In case of the nature of the present one corroboration can only be obtained from the evidence of the other party to the marriage who while a competent witness (S. 120, Evidence Act), is not a compellable one except under certain circumstances, vide S. 51, Divorce Act."
10. The next decision to which Mr. Mehta invited my attention was of the Madras High Court in T. Rangaswami v. T. Aravindammal. AIR 1957 Mad 243. There again the husband filed the petition against the wife for nullity of marriage on the ground of impotency of the wife. It seems the petition alleged organic impotency. The wife appeared and contested denying that she was impotent either on the date of the marriage or on the date of the petition. One of the points raised before the learned Judge was the question of corroboration and on that point the learned Judge observed:-
"There is no minimum standard of proof necessary. Even uncorroborated testimony of the petitioner is sufficient if it can be believed. In cases of this nature, corroboration can only be obtained from the evidence of the other party to the marriage. Under S. 180, Evidence Act, the other party to the marriage is a competent witness."
11. These decisions lay down that the rules of evidence in cases of this type are no different than in other cases and that there is no minimum standard of proof necessary. The uncorroborated testimony of the petitioner would be sufficient if it inspires confidence and is believed. The learned trial Judge in taking the view that corroboration must be had in view of the interested nature of the testimony of the petitioning spouse, appears to have been guided by some observations made by my brother Shelat J., in Ganeshji v. Kastuben (1967) 8 Guj LR 966. I shall refer to these observations presently but before I do so it will be convenient to refer to two aspects of impotency in so far as they may have a bearing on the availability of corroborative evidence. The essential ingredient of impotency is the incapacity for accomplishing the act of sexual intercourse and in the context it means not partial or imperfect, but a normal and complete coitus. This incapacity may arise either from a structural defect in the organs of generation which is incurable and renders complete sexual intercourse impracticable or from some incurable mental or moral disability vis-a-vis the other spouse resulting in inability to consummate marriage. Two of the cases cited by Mr. Mehta viz., the Nagpur and the Lahore cases relate to impotency of the second type that is impotency arising from psychological inhibition. The Madras case was not of the same character for the petition in that case was dismissed on the ground that the medical evidence proved that the respondent was suffering neither from organic or atonic impotency permanent or temporary. The petition in that case was therefore founded presumably on an allegation of impotency arising from a structural defect. In the case with which we are now concerned there is no allegation of any impotency arising from psychological inhibition but the allegation is that the respondent is physically incapable of sexual intercourse. Does this make any difference in principle on the question of standard of proof required in the two types of cases? It should not. In both the types of cases the party coming to the court by way of petition for nullity of marriage on the ground of impotency is interested in the result of the petition and, therefore, the evidence of such a party is interested evidence. It is true that in the second type of cases, that is cases of psychological inhibition, the impotency arising from that fact would be within the exclusive knowledge of these spouses and it would be difficult to test it by medical evidence. However, such a difficulty of a medical test can arise even in the first type of cases if the respondent chooses to remain absent in the proceeding and chooses not to contest the same. It will then be difficult for the court to direct him to submit to medical examination. Therefore, the necessity for corroboration in respect of the first type of cases cannot be founded on any such consideration. None of the decisions cited by Mr. Mehta is founded on any such distinction between the two types of cases.
12. The case of (1967) 8 Guj LR 966, Ganeshji v. Kastuben (Supra) which has been relied on by the learned trial Judge was a case where the husband had sought by petition nullity of marriage on the ground that the wife was physically impotent, that her genital organs were structurally of such character that complete and normal intercourse was not possible. In support of the petition the only evidence was of the husband and that of a friend of his to whom the husband had spoken about his getting no satisfaction whatever from his wife in respect of sexual relations. As against that there was considerable medical evidence adduced on behalf of the wife to show that although at the time of marriage a structural defect in the vagina of the wife existed making a normal and complete intercourse impossible, that structural defect has been removed by operation and after the operation no defect had remained and normal and complete intercourse was possible. No less than four doctors were examined. Three of them were gynaecologists. In this state of evidence it was argued on behalf of the petitioner that his evidence should be preferred to this medical evidence because he is personally in the know of the fact whether he is able to have a normal and complete intercourse and therefore when he states that he is not able to do so, there is no reason to doubt him. It was with reference to that argument that my learned brother stated.
"As already stated hereabove, the evidence of the parties in such a proceeding, much though at first sight may appear to be the only proper evidence, is always difficult to act upon by reason of their being interested in the result of the proceeding, and more so when no other testing evidence or circumstances are possible to be had for verifying the truthfulness of such persons in the case. Therefore, something more such as the expert medical evidence on examination of the spouse whose potency is challenged, would be essential and the court, in normal circumstances should attempt to obtain the same in deciding such cases. The court can direct the spouse whose potency is at question to submit to such examination by some doctor who has been an expert in that sphere, and have his report and even evidence before the Court."
These observations must be read in the light of the facts of the case and the arguments advanced with reference to which these observations are made. What is laid down is that to inspire confidence in the petitioner's evidence, there should in normal circumstances be medical evidence to show that the other spouse is impotent. Therefore, medical evidence is to be looked for in respect of the impotency if it is available. Reading the observations in the light of the facts of the case it cannot be said that the decision lays down that it is not possible or prudent in such matters to pass a decree on the interested testimony of petitioning spouse.
13. Ultimately, therefore, the question is whether on the facts and circumstances of the case the appellant's interested testimony should be believed. The learned Judge does not say she does not strike him as a witness of truth, or that on any particular material point she has given false answers or that her demeanour in the witness box has not been that of a straightforward witness. Her evidence then must be tested in the light of probabilities and conduct of parties. There is no allegation that the parties were not on good terms. The appellant states in her deposition that the behaviour of her husband towards her was good. The fact that before her husband left for America she had lived with him for three years - a fact not disputed in respondent's reply to appellant's notice - lends support to her statement. In the exchange of notices that took place before the partition there is no suggestion by either side of any ill-feeling or bad relations. Respondent's reply dated 27-7-1967 does not suggest any good reason why she should make such a serious allegation against him or want to end her marriage with him except that he had suggested to her to have as little sexual intercourse as possible as that he can carry on his studies well. This half-hearted admission by a young husband in relation to a young wife between whom there are no bad relations supports the appellant's contention that there was absence of physical intercourse and if that is so the probability is that the reason for such absence was not that the husband wanted to prosecute his studies but that the husband was not physically capable of it. The appellant had not attempted to obtain a decree by taking advantage of her husband's absence from India. She waited all the three years he was away and it was when he was again in India that she approached the court. The fact that she waited for seven years since marriage suggests in the circumstances of the case that she came to court only when she found that consummation of marriage was not possible. The respondent was served with summons of the suit when he was in India but he did not choose to appear before the court and contest. This conduct on his part if it did not arise from a desire to collude with the appellant could reasonably give rise to the inference that he had not much of a defence. Even in this appeal although he has been served he has not thought it necessary to contest. It is true that he is now again in America but that would not prevent him from issuing instructions to an attorney or advocate to appear and contest. If the explanation of the respondent in his reply dated 27-7-1967 was well founded, he could have easily offered to get himself examined by a competent medical practitioner. Not only he did not do so, by remaining absent he prevented the court from issuing directions for his examination. All these facts bearing on the conduct of the parties and the probabilities of the appellant's story are indicative of the truth of the appellant's version.
14. The learned trial Judge gives three reasons why he found it unsafe to accept the appellant's version. They are (i) that the appellant could not give the name of the doctor under whose treatment her husband was ; (ii) that the appellant did not produce any private correspondence which may have taken place between her and her husband and (iii) that the appellant did not get herself examined by a doctor although a suggestion to that effect was made by the Court. As for the first two, the appellant's case was that she did not know who was the doctor and that she had not preserved any correspondence. There is no reason for not accepting her explanation. But even if her explanation is not convincing that is not sufficient to get over the probabilities of the case to which I have earlier drawn attention. The third reason calls for more than a brief notice. Mr. Mehta argued, and I think rightly, that a woman's hymen may be ruptured from a variety of causes, though she may in truth be a virgin and a woman would not run the risk of an adverse inference and a possible blot on her if the hymen was found ruptured. The failure to produce that negative evidence should not therefore have weighed with the Judge. But he said he had advised the appellant before the appeal was filed to get herself examined by the Civil Surgeon and she had done so. He produced the report of the Civil Surgeon showing that the application for permission to lead that additional evidence. Rule was issued to the respondent and it was forwarded by post at the same time as the notice for the appeal but although the notice of the appeal has returned served, the notice of that application has not returned. It is not therefore possible to permit that additional evidence to be adduced. However, his submission that the appellant's failure to adduce the negative evidence which the learned Judge called for should not have weighed with the Judges is on the facts of this case well founded.
15. For these reasons, in my opinion, the evidence of the petitioner should have been accepted on the fact and circumstances of the case. Accepting it I hold it to have been proved that her husband was impotent at the time of the marriage and continued to be so till the institution of the petition. The petition must therefore be allowed.
16. The appeal is allowed and the respondent's marriage with the appellant is annulled under Section 12(1)(a) of the Hindu Marriage Act, 1955. The respondent having not contested there will be no orders as to costs.
17. Appeal allowed.