Jaswant Singh, J.:— This is a wife's appeal against the judgment dated 27th February, 1969 of the learned District Judge, Kathua, dismissing her application for annulment of her marriage on the ground that the husband (respondent) was impotent at the time of marriage and continued to be so till the filing of the application.
2. Mr. Sethi appearing on behalf of the appellant has vehemently urged that the words “at the time of marriage” as used in Section 12(1)(a) of the Hindu Marriage Act 1955 (Central Act No. 25 of 1955) as applied to the State by the Jammu and Kashmir Hindu Marriage Act, 1955 (Act No. VIII of 1955) (hereinafter referred to as the Act) mean the date of the first consummation after marriage, and although, a man may be generally potent, he may be impotent with respect to his own spouse in which case he has to be treated as impotent. He has further contended that it was proved from the material on the record at the respondent was impotent at the time of the consummation or the marriage and continued to be so till the date of the institution of the proceeding. He has further submitted that the respondent has been treating the appellant with such cruelty as to raise a reasonable apprehension in her mind, that it would be harmful and injurious for her to live with him. Mr. Sharma appearing on behalf of the respondent has, on the other hand, contended that it was proved from the evidence adduced in the case including the medical evidence that the respondent has been potent throughout and the learned District Judge was perfectly justified in dismissing the appellants' aforesaid application.
3. We have given our careful consideration to the submissions made by the learned counsel for the parties and are of opinion that the judgment passed by the learned District Judge is correct and does not call for any interference. It is no doubt true that clause (a) of sub-section (1) of Section 12 of the Act is not very happily worded but keeping in view the well-recognized canon of construction that a statute should not be so construed as to make the meaning absurd or unworkable the clause has to be interpreted in a rational manner and the words ‘at the time of marriage’ occurring therein have to be understood in the sense in which they best harmonize with the subject-matter of the enactment and the object which the legislature had in view. Accordingly in our opinion the aforesaid, words namely ‘the time of marriage’ in the context in which they are used imply and mean the time of first consummation after marriage. Any other interpretation of the words would make the provision absurd and unworkable and lead to hardship and injustice presumably not intended.
4. We also agree with the learned counsel for the appellant that for a finding of potency what matters is ability to consummate the marriage with the other spouse and not ability to have intercourse in general. The following statement in Loistory on Divorce, fourth edition (1958), is helpful in this connection:—
“It sometimes happens that a person is capable of having intercourse, but incapable of performing it with the particular individual…….
This is sufficient to found a decree of nullity, as what matters is ability to consummate the marriage with the other spouse and not ability to have intercourse in general.”
5. It would also be beneficial to refer to the following observations made by Gangeshwar Prasad, J., in Jagdish Lal v. Smt. Shyama, AIR 1966 All 150:
“In some cases 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.”
6. Thus we have no hesitation in holding that even when an individual is generally potent but is impotent with respect to his own spouse he has to be regarded as impotent, for purposes of the Act.
7. This, does not, however, conclude the matter. In order to be successful in this appeal the appellant has to show that the respondent was impotent at the time of first consummation after marriage and continued to be so till the institution of the present proceedings. The facts and circumstances proved in the case do not however lead us to the conclusion that the respondent was impotent at the time of the consummation of the marriage. The marriage between the parties to this case was according to the statement of Bua Ditta, the father, and Mst. Gangi, the mother, of the appellant took place when the appellant was hardly 7 years of age and the respondent 11 years of age. On the date of the consummation of the marriage, as alleged by the appellant, she could not be more man 10 or 11 years and the respondent could not be more than 15 years. They could not at this tender age be held to be capable of understanding the nature or implication of sexual intercourse nor could their genital organs be expected to have fully developed at that age. It also appears from the examination-in-chief of the appellant that she shared the bed of the husband only once. In these circumstances it cannot be said that the respondent continued to be impotent till the filing of the present application. On the contrary the statement of Dr. Jai Krishan who examined the respondent on 9-12-67 and appeared as Page: 132a witness on behalf of the appellant herself shows that the respondent was potent and was capable of performing sexual intercourse and procreating children. In these circumstances we are not in a position to hold that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding.
8. The other ground of ill-treatment of the appellant by the respondent was not seriously canvassed before us nor can it be a ground for annulment of the marriage.
9. For the foregoing reasons we do not find any merit in this appeal which is hereby dismissed but in the circumstances of the case, without any order as to costs.
10. Anant Singh, J.:— I agree with my learned brother that the appeal be dismissed without costs.
11. I may only add that on the language of Section 12(1)(a) of the Hindu Marriage Act, the ground of impotency of the husband existing “at the time of the marriage” can seldom be brought home to the husband in the case of children marriages, even if we were to stretch the interpretation of “the date of marriage” as the date of first consummation after the marriage.
12. Child marriages in spite of legislation to the contrary are very frequent particularly among the backward communities, when the manhood is yet in formation. The couple can hardly have at that stage any sense of sex. The wife even upto the age of 12 or 13, speaking generally, can hardly be able to appreciate the potency in her husband before he is a fully grown up man. In such contingencies, it will be well nigh impossible to prove the impotency of the husband “at the time of the marriage.”
13. The wife appellant was only about 7 years old, and the husband respondent only about 11 years old at the time of their marriage. According to the appellant when they first met for consummation, she could not be more than 10 or 11 years, and her husband more than 14 or 15 years old. They were never on the same bed thereafter. I do not think the appellant had reached an age of maturity at her first consummation to appreciate, if really her husband was impotent. Having had no further opportunity to cohabit with her husband, it cannot be said that he continued to be impotent. On the other hand, the doctor on examination found the respondent to be quite potent. The application of the appellant was rightly dismissed by the District Judge. The provisions of Section 12, as it stands, appear to be unworkable in so many cases, and with a view to making it a practical one, the legislature may consider the desirability of amending it suitably. The loss of potency of the husband occurring any time after the marriage up to a certain age, and its continuance thereafter for a reasonable period should be made a good ground for annulment of marriage.
14. Appeal dismissed.