Kanhaiya Lal, J.:— This and the connected appeal arise out of a suit brought by the husband for the restitution of conjugal rights and another brought by his wife for the annulment of her marriage with him. They were married on the 15th May 1914 when the woman was 13 years old and the husband about 3 or 4 years older. The woman lived in the house of her husband for about 6 years; but owing to subsequent differences she came away from his house and has been living with her parents since. Her allegation is that her husband was impotent and that she came to know of that fact after her marriage. A certain amount of medical evidence was examined on either side. On a consideration of that evidence the Court of first instance came to the conclusion that the husband was impotent and that fact was not known to the wife when she was married. The lower appellate Court, however, thought that the medical evidence produced by the husband was entitled to a greater weight; and it decreed the claim brought by the husband for conjugal rights and dismissed that brought by the wife for the annulment of the marriage.
2. The medical evidence, adduced by the woman, consisted of two lady doctors, one of whom, Miss Massey, is an Assistant Surgeon in charge of the Duffer in Hospital at Aligarh. Her statement was that she examined the girl on the 13th July 1921 and she thought that she was a virgin, as her hymen was intact. She admitted that the presence of the hymen was not a conclusive proof of virginity in every case but she explained that the hymen of this woman was complete and not torn in any way and that there were no symptoms, such as exist in rare cases, where in spite of co-habitation the hymen remains unaffected. The other lady doctor; who was examined, was Miss Bakhsh in charge of the Singhara Hospital at Hathras. She stated that she examined the woman on the 8th August 1921 and that in her opinion she was a virgin and has had no sexual intercourse with any man. She examined other parts of her body and found that the other symptoms noticeable were consistent with that opinion. On behalf of the plaintiff Major Barber, at one time Civil Surgeon of Aligarh, was examined. He testified to his having examined the husband on the 15th June 1921 and deposed that he found no physical or mental defects in him, his genital organs perfectly formed, and his general health good; and he thought that he was capable of sexual intercourse. Lieut. Mathews, who succeeded as Civil Surgeon of Aligarh examined the husband on the 18th July 1921 and stated that he was not incapacitated by any mental or physical disease from having sexual intercourse, that he found no malformation in his male organ and that in his opinion he was normally capable of performing the sexual act. He further said that the husband had a partial erection before him. Lt. Col. Ilias, another Civil Surgeon of Aligarh, stated that he examined the husband on the 8th September 1921 and found that he was potent and quite fit for sexual intercourse. He further said that no disease or deformity was found in his male organ, that could incapacitate him from sexual intercourse, and that the man had an erection before him quite full. 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 recognized by the Mahomedan Law. It is material in any circumstances to not that according to the evidence of the lady doctor, the hymen of Mst. Altafan, the wife in question, was intact and there were no conditions, such as exist in exceptionally rare cases where continual cohabitation might exist and the hymen may yet remain unaffected. If the hymen was intact and there was nothing to show that the physical conditions of the hymen were of an abnormal character, very strong evidence is needed to rebut the presumption which arises from that state of things against the consummation of the marriage by the husband in spite of the wife having lived with him for about 6 years.
3. In Lewis v. Hayward (1) where after a co-habitation of fourteen years, a woman presented a petition for a decree of nullity of marriage on the ground of the man's impotence and the report of the Inspectors and the medical evidence showed that the woman was virgo intacta et auta viro and there was no apparent defect or malformation in the man and the trial Court was satisfied that the marriage had never been completely consummated but was not satisfied that the non-consummation arose from the incapacity of the man, it was held by the House of Lords that the woman was entitled to a decree that the marriage was null and void on the ground that the co-habitation had been for a much more lengthened period than was required to raise the presumption against a husband and that the onus was thrown upon the husband either of disproving the facts or of showing by clear and satisfactory evidence that the result was attributable to other causes than his own impotency.
4. 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 apporture is of small size and undilatable, and if accompanying this condition of the hymen, the other signs of virginity are present (Lyon's 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.
5. 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 occessions. The condition of the hymen, however renders his story wholly improbable.
6. It is urged on behalf of the husband that the finding of the lower appellate Court is a finding of fact; and however erroneous, it ought not to be disturbed; but a finding based on the opinions of experts is not necessarily a finding based on facts proved or directly demonstrated. It is a finding based on an examination and balancing of the opinions and views of experts or of the impressions produced on their minds by what they may have seen, heard, or observed, and as in the case of some species of evidence about custom, the sufficiency of the facts observed or of the inferences or opinions, formed, can always be examined to ascertain and determine, their intrinsic value. The opinions of experts are relevant but not conclusive as to the matters to which they relate: and where they materially differ as in this instance, their value and sufficiency may legitimately form the subject of consideration and scrutiny despite the acceptance of any of them by one Court or another.
7. An impotent person is defined by the Mahommedan Law as one who is unable to have connection with a woman, though he has the natural organs; and a person who is able to have connection with an enjoyed woman, but not with a virgin, or with some women but not with others, whether the disability be by reason of disease, or weakness, or original constitution, or advanced age, or enchantment, is still to be accounted impotent with respect to her with whom he cannot have connection, (Baillie's Mahommedan Law Vol. 1 p. 347), The Mahommedan Law provides that where such is the case and a woman brings her husband before a judge, and sues him, demanding a separation on the ground of impotency, and the fact whether the woman is an enjoyed woman or a virgin is disputed, the case is to be adjourned for a year, and if after the expiry of that year the woman should allege that she is still a virgin, an inspection by women is to be ordered, and if they should declare her to be an enjoyed woman, the word of her husband is to be taken with his oath; but if they should declare her to be a virgin, her word as to non-intercourse is to be received without oath. The intention obviously is that if such a claim is brought by a wife and is contested, an opportunity should be given to the husband to show that the charge against him is unfounded or that the alleged incapacity is removable; and the woman should be required to appear again after a year before the Judge in order to establish her claim to the relief she ask for. (Ibid p. 348). If the husband should consumate the marriage in the interval, the petition of the wife requires to be dismissed after the lapse of the period fixed by the Judge. If he, however, fail in his marital obligation, the wife is entitled to a divorce (Ameer Ali's Mihommedan Law Vol. II p. 598 and Tyabji's Mahommedan Law p. 251).
8. It is contended on behalf of the appellant that the procedure enjoined by the Mahommedan Law in regard to the disposal of such a claim is not obligatory on the British Courts; but the provision aforesaid is intended to operate as a safeguterd against error or a hasty or precipitate annulment of the marriage where a removal of the complaint or a disproof thereof is possible and like the provisions relating to the preliminary demands requisite to valid it a claim for the enforcement of the pre-emptive righit, it must be treated as an essential part of the Mahommadan Law, regulating the annulment of marriages. In a similar case in which the parties were governed by the Mahommedan Law (21 Bom. 77) an interlocutory order was passed, postponing the annulment of the marriage for a year in order that the parties might be allowed an opportunity of resuming co-habitation during that period, if that was possible.
9. The right of a wife to claim a judicial divorce on the ground of the impotency of her husband is contingent on her succeeding to establish that she did not know of his impotency at the time of her marriage and that it has not since then been removed; but as pointed out by Wilson, the divorce must remain suspended for a year after the decree in order that it might be ascertained whether the defect is removable. (Wilson's Mahommedan Law 5th Edition p. 145).
10. A prima facie case having been made out, the wife can be granted a decree nisi, which can be confirmed after a year, in case the husband is found to be physically unable to perform the marital obligation during the interval; but she must allow full access to her husband at all reasonable times whether she is living in the house of her parents or elsewhere but not outside Aligarh. In view of the present litigtation, it would be risky and undesirable to compel her to leave the protection of her parents and live in the house of the plaintiff or his relations. An adjournment of the appeal really can serve no purpose, as the final enquiry has to be made by the Court of first instance.
11. The appeal is, therefore, allowed and a decree nisi passed in favour of the plaintiff, Musammat Altafan, for the annulment of her marriage with the defendant Ibrahim but this decree will not be made absolute till a year from this date, during which period, whether she lives in the house of her parents or elsewhere bit not outside Aligarh, she should allow full access to the defendant at all reasonable times to exercise his marital rights as her husband.
12. If after the expiry of the said period she satisfies the Court that the husband continues to be impotent and physically unable to perform his marital obligation, she will be entitled to have this decree made absolute. But if she fails to do so, the decree nisi will be discharged and the suit will be dismissed. An application for the above purpose will have to be made to the Court of first instance, to which the suit will be remanded for disposal in accordance with the directions above given. The costs here and hitherto will abide the result.
13. Appeal allowed.