Gudivada Venkateswararao vs Smt. Gudivada Nagamani

P. Chandra Reddy, C.J.

1 These appeals are directed against the order of the District Judge, West Godavari dismissing the appellant''s petition (O.P. No. 108 of 1956) u/s 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and accepting the respondent''s petition (O. P. No. 127 of 1956) u/s 12(1) of the said Act for annulment of the marriage.

2 The appellant and the respondent were married on 15-5-1955. Admittedly, the marriage was not consummated though the nuptial ceremony fixed a week after the marriage was gone through. According to the appellant, this was due to his having fever on these days, while it is the case of the respondent that consummation could not take place because he was impotent. There are also differing versions as to why the respondent did riot live with the appellant. It is alleged for the respondent that the appellant was not anxious to have her with him because of the defect mentioned above, while it is the appellant''s version that the respondent''s relations were anxious to have the marriage dissolved, so that they could misappropriate the jewels he presented to her at the time of the marriage. Be that as it may, the appellant filed the petition for the relief mentioned above. The respondent filed a counter with the recitals that the appellant being an impotent man could not claim the relief of restitution of conjugal rights and that for this reason her marriage should be declared null and void. She also initiated separate proceedings for this relief under Sec. 12(1) (a) of the Act. Both the petitions were tried together, and the learned Judge delivered a common judgment with the result indicated above.

3 The only question that arises for consideration in these appeals is whether the appellant was really impotent. The case of the wife was that on the nuptial night her husband did not talk to her and did not have sexual intercourse pretending to be ill and that she had the same experience with him whenever they were let into the bed-room the appellant always complaining of not being well and taking medicine for fever. The respondent found this to be a mere pretence to avoid marital life with her. Though she questioned him several times as to what his sickness was, he stated that he was having some defect which if disclosed would pain her very much. It is also her evidence that in August 1955 when the appellant came to her house he slept outside the room and when he was taken to the doctor, the doctor stated that the appellant was impotent. Her version is confirmed by P. W. 2, a relation of the appellant and by P. Ws. 3 and 4.

4 The appellant sought to support his version by his evidence and that of R.W. 1 the doctor. The doctor deposed that his examination of the appellant did not disclose anything from which it could be said that he was suffering from incurable impotency or that he was physically unfit to have sexual intercourse. In cross-examination he admitted that he had not made a note of the tests he carried out for finding as to whether the appellant was impotent. He has not noted any secondary sex characteristics. He further admitted that the testis were under-developed and would state that the potency may or may not depend upon their development, and that the re-productive organs were not normal. While the appellant was nearly thirty years old at the time of his giving evidence, the doctor stated that he was only eighteen or nineteen years old and that there was the possibility of developing potency later on. It is futile to believe that a person in the position of the appellant, aged thirty years, could develop potency in later life. It is not as if that he was in the adolescent stage. Moreover, on his own showing, the appellant was not having normal potency which a person of his age should have. We do not, therefore regard the testimony of the doctor as lending much assistance to the appellant''s case.

5 The appellant''s evidence itself does not support the theory of his being a person of normal potency. He admitted that he did not have intercourse with his wife. He wanted the court to believe that he was having a concubine and yet he had intercourse with that woman only once. Further, he did not make any attempt to go to his wife''s place but was sending only his relations to get her. The several letters written by his relations to induce the respondent to go back to her husband contain significant recitals. In most of the letters, it is stated that the appellant was taking medicine and consulting doctors and that the presence of the wife might be useful in curing him of his ailment. The appellant further deposed that he heard a gossip in the bazzar that he was impotent and that he was also afraid of being beaten by his parents-in-law, if he should go to their house. Surely, if there was nothing wrong with him and if he would give satisfaction to his wife there is no reason why he should apprehend being ill-treated or being beaten by his wife''s people. Further, the question is not whether the appellant was capable of having sexual intercourse but it is whether he could have a complete sexual intercourse.

6 As pointed out in T. Rangaswami Vs. T. Aravindammal, the marriage would be avoided or dissolved on the ground of impotence if it is established that at the time of the marriage either of the spouses was incapable of effecting the consummation either due to structural defect in the organs of generation rendering complete sexual intercourse impracticable or due to some other cause. It was observed in that decision thus:

Potency in case of males means power of erection of the male organ plus discharge of healthy semen containing living spermatozoa and in the case of females menses...

7 In order to consummate marriage, ordinary and complete sexual intercourse must take place. There can be little doubt on the material before us that the instant case falls within the principle enunciated in T. Rangaswami Vs. T. Aravindammal, The unnatural conduct of the appellant in trying to avoid the company of his wife, in not going to her house to bring her and in having his bed in the verandah apart from his wife the admissions of the doctor and the several letters written by him on his behalf all lead to the conclusion that the case of the respondent that the marriage could not be consummated because of the impotency of the appellant is true. The learned Judge who had the opportunity of seeing the witnesses in the witness-box giving evidence, chose to believe the respondent and her witnesses in preference to that of the appellant and his witnesses. The learned Judge also adduced valid reasons in support of his decision. We find no justifiable grounds to differ from him in that behalf.

8 In the result, the order of the District Judge dismissing the appellant''s petition and allowing the respondent''s petition is confirmed and both the appeals are dismissed with costs.