Appeal No 905 of 1968
560 Appeal by special leave from the judgment and order dated August 25 1966 of the Punjab High Court Circuit Bench Delhi in FA0
132 D of 1961
I N Shroff and Anand Prakash for the appellant
section T Desai I M Lal section R Agarwal Champat Rai and E C Agarwal for the respondent
The Judgment of the Court was delivered by Vaidialingam J
This appeal by special leave is directed against the judgment dated August 25 1966 of the Circuit Bench of the High Court of Punjab at New Delhi confirming the judgment of the District Judge Delhi dismissing the petition filed by the appellant under section 12 of the Act XXV of 1955 hereinafter called the Act
At the conclusion of the hearing of this appeal on April 28 1969 we had indicated our conclusion that no interference with the judgment of the High Court was called for and that the appeal is dismissed without any order as to costs
The detailed reasons for our decision were to be given later
Accordingly we hereby give our reasons for coming to the said conclusion
The appellant had married the respondent according to Hindu rites on April 20 1955
After the marriage the parties lived together for about three years at various places such as Delhi Alwar Bombay and Europe and according to the appellant during this period the marriage was not consummated
The appellant filed an application before the District Judge at Delhi on March 15 1960 under section 12 of the Act praying that the marriage between himself and his wife the respondent being voidable may be annulled by a decree of nullity
In brief the case of the appellant was that since his marriage he had made frequent attempts to consummate it but due to an invincible and persistent repugnance on the part of the respondent to the act of consummation he had failed to achieve it and as such the marriage had remained unconsummated
He further averred that his wife the respondent was impotent at the time of the marriage and continued to be so until the filing of his petition
According to him the impotency of the respondent was responsible for the nonconsummation of the marriage
The respondent wife contested the application on various grounds
She emphatically denied that she had shown any repugnance whatever to the act of consummation of marriage
She further stated that she had lived with the appellant for about three years and had also accompanied him on his visit to England and 561 the Continent and during that period she was always ready and prepared to give full access to the petitioner to her person for consummating the marriage
She specifically averred that the consummation could not take place because the appellant was suffering from some physical disability or impotency and that he never made any attempt at consummation
She repudiated the allegation that she was either impotent at the time of the marriage of that she was impotent at the time of institution of the proceedings
She reiterated that the appellant was physically and emotionally unable to consummate the marriage and he had made a false excuse of impotency of the wife as being the cause for non consummation of the marriage
She further stated that the appellant was physically and sexually impotent and consequently unable to perform the normal sexual functions and in view of this he had never expressed his willingness by his conduct or behaviour to consummate the marriage even though the parties lived together for a number of years and had occupied the same bed in the same room
It will therefore be seen that while the appellant filed the application on the ground that the respondent was impotent the respondent in turn had alleged that it was the appellant who was impotent
The material provision of the Act under which the application was filed by the appellant is section 121 a which is as follows   121 Any marriage solemnized whether before or after the commencement of this Act shall be voidable and may be annulled by a decree of nullity on any of the following grounds namely a that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility 
The condition must be one according to the statute which existed at the time of the marriage and continued to be so until the institution of the proceedings
In order to entitle the appellant to obtain a decree of nullity as prayed for by him he will have to establish that his wife the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings
Both the appellant and the respondent have been examined by doctors and their oral evidence and reports are on record
562 Though the impotency of the appellant does not strictly arise for consideration in a petition filed by him nevertheless the trial Court framed issues even in that regard  Issues Nos 1 and 2 which are material are as follows  1
Whether the respondent was impotent at the time of the marriage and has continued to be so till the filing of the present petition  2Is the petitioner impotent and consequently unable to perform the normal sexual function with the respondent  If so what is the effect thereof  The learned District Judge after a consideration of the evidence on record ultimately held that the appellant had failed to prove that the respondent was at any time impotent and as such decided issue No 1 against the appellant
He further held on issue No 2 that the facts of the case on the contrary showed that because of some physical or psychological cause it was the appellant who was not able to consummate the marriage with the respondent
In this view the petition filed by the husband appellant was dismissed
On appeal by the appellant the learned Judges of the Circuit Bench of the Punjab High Court differed from the finding of the trial Court on issue No 2
The learned Judges however held that it had not been proved that the appellant was impotent but on the material issue regarding the impotency of the respondentwife the learned Judge were of the view that there were various factors and circumstances throwing a serious doubt on the allegation made by the appellant
The High Court held that it had not been established by the appellant that non consummiation of the marriage was due to the impotency of the respondent
It further held that on the state of evidence it did not believe that the respondent wife had been proved to be impotent
The High Court also declined to believe the case of the appellant that the respondent had persisted in her attitude of exhibiting repulsion to the sexual act
It is not really necessary for us to deal elaborately with the evidence in the case on the basis of which concurrent findings have been recorded by the District Court and the High Court rejecting the case of the appellant that his wife the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings
Mr Shroff learned counsel for the appellant found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence
No doubt there was a feeble attempt made by the 563 learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed
When the two Courts have accepted her evidence it is futile on the part of the appellant to urge this contention
The reliance placed by Mr Shroff on the decision of this Court in Earnest John White vs Kathleen Olive White  is misplaced
In that decision it has been laid down that though it is not usual for this Court to interfere on questions of fact nevertheless if the Courts below ignore or misconstrue important pieces of evidence in arriving at their finding such finding is liable to be interfered with by this Court
We are satisfied that the Courts below in the instant case have neither ignored nor misconstrued important pieces of evidence when they came to the conclusion that the appellant s case regarding the impotency of the respondent could not be believed
On the findings that both the appellant and the respondent were not impotent and the marriage had not been admittedly cosummated counsel urged that the conclusion to be drawn was that such consummation was not possible because of an invincible repugnance on the part of the wife
Counsel further urged that taking into account the practical impossibility of consummation the application filed by the appellant should be allowed
So far as the charge of invincible repugnance to the sexual act  on the part of the respondent is concerned it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that on the other hand lack of proper approach by the appellant for consummating the marriage might have been responsible for non consummation
It is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed
Mr Shroff referred us to the decision of the House of Lords2 in G vs G
That was an action by a husband against his wife for a decree of nullity of marriage on the ground of impotency
It was established that the husband was potent and had made frequent attempts to consummate the marriage but he could not succeed owing to the unreasoning resistance of the wife
The wife was declared on medical examination not to suffer from any structural incapacity
Under those circumstances the House of Lords held that the conclusion to be drawn from the evidence was that the wife s refusal was due to an invincible repugnance to 1  2 564 the act of consummation and as such the husband was entitled to a decree of nullity
This decision does not assist the appellant as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on this aspect
Mr Shroff next relied on the decision in G vs G1 holding that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto though no reason for nonconsummation was manifest or apparent
In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non consummation of the marriage
The Court held that without going into the question as to who was the guilty party it was evident that the marriage had not been consummated and could not be consummated in future also
Accordingly the Court annulled the marriage for the reason that it was satisfied that  quoad hunc et quoad hunc these people cannot consummate the marriage
 The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery
The position in the case before us is entirely different
Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellant s plea that the respondent had always resisted his attempts to consummate the marriage
When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding the inevitable result is the dismissal of the appellant s application under section 121a of the Act
The result is that the appeal fails and is dismissed
There will be no order as to costs
GC Appeal dismissed


Summary:
The appellant married the respondent according to Hindu rites on April 20 1955
Thereafter the parties lived together for three years but the marriage was not consummated
The appellant filed an application before the District Judge at Delhi on March 15 1960 under section 12 of the  praying that the marriage between himself and his wife the respondent being voidable may be annulled by a decree of nullity
He averred that his wife had an invincible and persistent repugnance to the act of consummation and that she was impotent
The District Judge and later the High Court concurrently found that neither impotence nor invincible and persistent repugnance to the sexual act were proved against the respondent
In further appeal to this Court HELD  i Though it is not usual for this Court to interfere on questions of fact nevertheless if the Courts below ignore or misconstrue important pieces of evidence in arriving at a finding such finding is liable to be interfered with by this Court
563 B Earnest John White vs Kathleen Olive White 1958 SCR 1410 referred to
However in the instant case the Courts below has neither ignored nor mis construed important pieces of evidence when they came to the conclusion that the appellant s case regarding the impotency of the respondent could not be believed
563 C iiThe case of GvG could not help the appellant in the face of the High Court s finding that invincible repugnance to the sexual act  on the part of the respondent was not proved
563 G 564 A iiiThe case of GvG also could not help the appellant
In that case the Court without going into the question which party was impotent was satisfied that the couple could not consummate their marriage in the present or in the future and should not be tied up together for their lives in misery
The position in the present case was entirely different
Neither of the Courts below had found that the marriage could not be consummated in future and they had not also accepted the appellant s plea that the respondent had always resisted his attempts to consummate the marriage
564 B 564 E The appeal must accordingly be dismissed