K. Malla Reddy and Others vs K. (SIC) bama.

Viswanatha Sastry, J.—This is a husband''s appeal against a decree awarding separate maintenance to his wife on the ground of cruelly. The liability is denied on the ground that the marriage was void and a nullity by reason of the impotence of the husband. Objection is also taken to tire amount of maintenance decreed.

It is admitted that both at the time of the marriage and since the marriage, the husband has been impotent and incapable, of consummating the marriage with the Plaintiff. Under the English law there is no doubt thtffin such circumstances the wife would be entitle a decree of nullity.

It has on held that the marriage of a person who is imgmtent and has never been able to consummater ferriage is a nullity under the Hindu Law too. SeajffTdgley, J. in - ''Ratan Moni Debi v. Nagendra Gain ILR (1945) 1 Cal 407 (AIR 1949 Cal 404) (A) Chakravarthi and Ellis JJ. in - Tiakeya Bibi v. AnilkWu- Mukherji ILR (1948) 2 Cal 119 (R) Ten-dolkarX in A. v. B. AIR 1952 Bom 486 (C). The begetting of children is the primary object of marriage for the attainment of which the physical capacity of the spouses is an essential requisite.

A marriage, whatever else it is (i.e., a sacrament), is a contract with correlative rights and obligations. Marriage postulates physical capacity in the partners as the foundation of the contract. An impotent person has not the capacity to marry and .therefore the marriage of such a person is null and void. The texts of Hindu law are by no means clear, jnueh loss conclusive, on this topic and courts arc free to act at riding to justice, equity and good conscience.

It is abhorrent to a modern mind that an impotent person should be allowed to marry and courts should not recognise his or her marriage as valid. This is one view. The other view is that under the Hindu Law marriage is a sacrament. Marriage is not a contract in which a consenting mind is necessary.

The marriage ceremonial creates a spiritual or religious tie between the spouses which once created cannot be untied. Cohabitation and the begetting of children are not the only objects or purposes of marriage and a marriage once celebrated with due ceremonial is valid irrespective of any delects in the spouses.

There is no actual prohibition of the marriage of an impotent person though it is considered undesirable or improper in the texts of Hindu Law. Some of the texts recognise the validity of such a marriage once it is performed with the prescribed ceremonial. Therefore the marriage is not null and void. This is the other view. I have to choose between these two views.

I have gone through tire relevant texts of Hindu Law but I consider it mere pedantry to assemble all of them here or examine them at length particularly when many of them have no contemporary application at all. Marriage according to Hindu Law givers is only a samaskara or purifictory ceremony prescribed for all classes.

There is no textual warrant for equaling it to a scrament. Marriage also partakes of a civil contract made by the spouses or by their parents if they are minors and an essential part of the marriage ceremonial is the gift of the bride cither free as in the raise of a Brahma marriage or for money as in the case of an Asura marriage.

The object or purpose of marriage is both secular and religious, namely, "offspring, religious duties, faithful service and highest conjugal bliss" according to Manu (IX-28).. An impotent person is unfit for Vcdic Mantras or ritual or for performing sacrifices according to Manu (1V-205, 206'') and Katya-cana (Shrauta Sutra 1-4-5).

He can neither produce offspring nor conjugal diss. The marriage of such a person fails of its It docs not however follow from all this that he marriage is null and void. The texts of Hindu jaw do not say so.

There are passages in the Smritis and the commentaries dealing with the disqualifications of bridegroom or a bride and impotence is one of them. For instance Katyayana cited in Parasa fadhaviyam enumerates die following disqualifica-bns:

Madness, being an outcaste, leprosy, impomce, being of the same gotra, blindness, deafness, id epilepsy.

assages like these have reference to a stage before marriage and merely indicate who is not a pros bridegroom or bride.

In applying the rules of Hindu Law it must be member that it by no means follows that be-me an act has been prohibited it should therefore be considered illegal. The distinction between die vinculum juries and the vinculum pruderies is not always discernible. ''Ualwant Sjngji v. Jiauikishori'', 20 Ail 207 (PC) (D).

It is obvious that the above disqualifications do/ not all stand on the same footing with reference to'', the object and purpose of a marriage. There is also no prohibition of the impotent and the rest from marrying nor is there any text declaring that the marriage if it takes place, is void.

The texts also provide a permissive rule that in certain contingencies, including the husband''s impo-tence, a wife may marry another man. For instance, Vasista quoted in Madana Parijata says:

A damsel bethrolhed to one devoid of character and good, family or ''affected by impotency, blindness and the like or an outcaste or an epileptic or an infidel or incurably diseased or to one who is an ascetic or a sagotxa should be taken away from him and married to another.

Narada (XII-97) also enumerates , five situations in which a woman would be legally justified in seeking another husband and. one of them is where die husband is found to be impotent.

Here again die grounds on which a remarriage is allowed to the wife are not ejusdem generis with the impotency of the husband. A man may not come from a good family and yet be a good husband. So also a agora or an infidel. These texts allow a remarriage in the circumstances enumerated therein but do not lay down diet the first marriage is ab initio void.

In the portions of the Sinrithis and Commentaries dealing not with marriage but with inheritance and partition, there are passages which Unoiv light on die present question. Manu Chapter IX verses 20f to 203 run as follows:

Impotent persons and. Out castes air excluded from a share of the heritage; and so aie persons born blind and deaf; as well as mad men, idiots-, the dumb, and those who have lost a sense (oi a limb.)

But it is just that a person who know (the Jaw) should give even to all of thoin food and raiment without stint, according to his alibi It Who docs not give will become an outcaste.

If the eunuch and the rest should at an. time dire to marry, the offspring of such as have issue shall be capable of inheriting." Yagnavalkya also lays down a rule of d/sqimlifii.iti. is for inheritance similar to that in Manu Ch. IX Verve 201. The comment of Vijnaneswara on tin''s topic is found in the Mitakshara Chapter II Section 10 plait''s 9, 10 and 11. Referring to the disqualified percent enumerated above, Vijnaneswara says.

"Placitum 10. The sons of these (disqualified persons, whether they be legitimate offspring or issue of the wife, are entitled to allotments or are rightful partakers of shares provided they be faultiest free from defects which should bar their participation, such as impotency, etc.

"Placitum 11. Of these the impotent man may have issue of the wife; the rest may have lcgHiimUtt progeny likewise. The specific mention of mate issue" and offspring of the wife" is intended to forbid the recognition of other sons.

Jimutavahana author of tie Dayabhaga common Manu''s verses regarding persons disqualified from Inheritance which I have quoted above in Ch. 17-18 in these terms:

A possibility exists of an impotent person and the rest as above enumerated espousing wives........

It must not be objected how can they contract marri-I ages since the eunuch," not being male, is incapable of I procreation........... The eunuch may obtain issue from his wife by means of another man............

Therefore the sons of such person, (mad men, idiots, those born deaf and dumb and eunuchs etc.,) being Neither their natural offspring or issue raised up by the wife, as the case may be, are entitled, provided |hey are free from similar defects, to take their allotments standing in the place of their fathers". EI do not propose to cite other and less authoritative passages from the books.

Manu and Yajnavalkya as well as Vijanan and Jimutavahana proceed on the assumption that an impotent person could marry. But how hould he have children? The Commentators explain the possibility of an impotent person marrying and having children by regarding the issue of ; the wife by another man as his children.

The reference is obviously to die levirate or to the usage of Niyoga sanctioning the appointment to the wife, of another man for the purpose of raising pregnancy by him. As pointed out in Mayno''s Hindu Law "11th Edition pages 117-118, this practice of Niyoga condemned by Manu (IX-64, 66'', O''.S) Blight have become obsolete by the 3rd or 2nd Century B.C. Vijnaneswara remarked that the practice was reprobated in law as well as by popular opinion. Mitakshara 11-1-18. In other words the custom was held to be paid as being opposed to morality and public policy.

The learned Judges of the Calcutta High Court in Ratan Moni Debi v. Nagendra Narain, (A) and llakiya Bibi v. Anil Kumar Mukhorji (B) decided that the marriage of an impotent person was null end void for the reasons summarised by Chakravar-jhi, J. (as he then was as follows: "In our opinion, the Hindu Law givers, who re-larded impotence as a disqualification for marriage, imitated marriage by impotent persons only bogIES till defect caused by their physical debility could be made good by recourse to the Niyoga sys-m and thereby borrowing the potency of another the time procreation of children............ Under flex law so stated, there can be no valid marriage then the Niyoga system has disappeared and jeans for fulfillment of the marriage in one vital aspect can no longer be supplied", ''he opinion of the learned Judges has received my aspectual and anxious consideration but I regret my (ability to accept it.

There is no Smriti text or commentary which cohabits the marriage of an impotent or an insane fron or an idiot or a deaf and dumb person who all placed in the same category or which says a marriage contracted by such persons is null void. On the other hand, Manu Yagnavalkya, ianeswara and Jimutavahna state that they could any and that the legitimate sons of the insane, it and deaf and dumb persons would, if they are from disqualification, take the share of the in-itance which their father would have taken if not qualified.

It has therefore been held in Madras, Calcutta Allahabad that the marriage of a congenital idiot or an insane person is valid, and that the sons of the marriage are legitimate and, if free from disqualification, take die share to which their father would have been entitled if not disqualified. Kalidas Das v. Krishna 2 Beng LR 103 (FB) (E), Amrithammal v. Vallirnayil Animal 1LII (1942) Mad 807 (All 1942 Mad 693) (FB) (F), Muthusami Gurukkal v. Meena-mmal 43 Mad 464 (AIR 1920 Mad 652) (2) (G)" Krishna v. Sami 9 Mad 64 (FB) (II), Venkatacharyulu v. Kanga Charyulu 14 Mad 316 (i), Bhagwati Saran v. Parmeshwari Nandan ILR (1942) All 518 (Aili 1042 All 267 (2)). (J). No doubt an insane person or an idiot or a deaf and dumb person is capable of begetting children and fulfilling the print/y purpose of marriage while an impotent person is not.

The texts and commentaries however place all of them on die same footing so far as marriage and inheritance are concerned. I am unable to subscribe to the view that the marriage of an impotent person was recognised as valid only because die offspring of Iris wife begotten by snottier appointed man could be regarded as his issue. Why should die marriage be held void if no such issue were be-batten?

The fact a reference to the obsolete practice of Niyoga was made when referring to the marriage of an impotent person docs not detract from the efficacy of the rule recognizing the legality of the marriages of disqualified persons including impotent persons, if actually performed.

There are other branches of Hindu Law where a rule became so crystallized as to be followed and enforced even though the conditions which led to the lorni''ilaliou of the rule have long since disappeared. The principle embodied in the maxim "cessante Ratione Legis cessat Ipse Lex" does not apply where die custom outlives die condition , of tilings which gave it birth. tao Koshered Singh v. Mt. Gahenabai, 37 Mad LJ 562 574 (AIR 1919 PC 100 106) (K). The rule was clearly stated in Pudiava Nadan Vs. Pavanasa Nadan and Others, where a Full Bench decided that the rule of exclusion of a blind man from inheritance had not become obsolete and overruled Surayya v. Subbanmia 43 Mad 4 (AIR 1920 Mad 361) (M), which held the contrary.

The learned Chief Justice observed:

A law does not become obsolete because it is an anachronism or because it is antiquated or because the reason why it originally became the law, would be no reason for die introduction of such a law at the present time.

With great respect to die learned Judges of the Calcutta High Court, I am of the opinion that the rule recognising the legal validity of marriages by disqualified persons including impotent persons had become crystallised when Vijnaneswara, who is the supreme authority for this part of the''country and Jimutavahana the paramount authority in Bengal expounded the law and it has to be applied without reference to whether there is the same justification to-day for applying it as there was before the days of Manu.

As for modern writers in the editions of Mayne''s Hindu Law before the 10th Edition the opinion was expressed that under the Hindu Law the marriage of an impotent person was not an absolute nullity as it was by English law. In 10th Edition Mr. S. Srinivasa Iyengar expressed the opinion that the marriage of a lunatic, an idiot or an impotent person was invalid under the Hindu Law, an opinion which was not accepted as correct in the case of marriages of idiots and lunatics in Amritha-mmal v. Vallimayil Ammal (F) and Bhagwati Saran v. Parameshwari Nandan (J).

The correctness of these decisions is questioned by die learned Editor of the 11th Edition but there is no discussion of the topic. Dr. Rajkumar Sarva-dhikari is of the opinion that the marriage of an impotent person or a lunatic or idiot is invalid.

Sir Gurudoss Banergce in his law of marriage and Stridhanam observed that iinpotency which was generally considered as a disqualification for marriage, was not viewed in that light in the Hindu Law as would appear, from the passages of Manu and Dayabhaga quoted above and added "that it is doubtful whether impotency ought not now to be regarded as a disqualifying cause."

After an examination of the authoritative smites and the leading commentaries as well as the decided cases, I have come to the conclusion that though the marriage of an impotent person is condemned as reprehensible and improper, still, if the marriage has been performed and solemnized with the customary rites and ceremonies, it will be deemed to be valid.

The marriage is not void ab initio but only voidable at the instance of the wife. So long as the wife does not choose to get die marriage annulled u/s 12 of the Hindu Marriage Act 1955 she is entitled to be maintained by her impotent husband. Section 2 of die Hindu Married Women''s Rights to Separate Residence and Maintenance Act, ''1910, does not in terms entitle her to separate maintenance if the husband is impotent.

The impotence of the husband unknown to the wife at the time of marriage and subsequently discovered by her is in my opinion "other justifiable cause" within the meaning of Section 2 (7) of die Act en-Witling her to separate maintenance and residence.

The concurrent finding of the courts below not challenged before me, is that the husband has treat-3d her with such cruelty as renders it unsafe for her:o live with him. The wife is therefore entitled to leparate maintenance u/s 2 (2) of the Act. The Editor of the 11th Edition of Mayne''s Hindu Law Section 105, page 143) is of the opinion that the husband''s impotence would be justifiable cause" u/s 2 7) of the Act entiding a Hindu wife to separate naintenance.

I would have been sorry to deny mainte-lance to the wife in this case on the ground that ice marriage with her impotent husband was a nullity. Though she is young it is difficult to find a suitable second husband for her in view of the sentiments prevailing in the community. The husband as made it impossible for her to live in his house.

The other male and female inmates of the oust have wickedly ill-treated her. It will be /holly unjust to deprive her of even a bare maintenance at the instance of die husband, who being ally aware of his physical incapacity, married a liner girl and is now pleading his own infirmity as defence. I part with this case with no less statistician than the learned Judges of the Calcutta High Court, though I have reached the opposite.

As regards the rate of maintenance the award of the appellate Court is high considering the resources of die husband and his means of livelihood. I would award a sum of Rs. 45 per monde as maintenance to the Plaintiff. There will be no order as to costs in the Second Appeal or in the lower Appellate Court.