Judgment Case ID: 2632

Judgment:
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 F.A.0. 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 non	consummation 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 12(1) (a) which is as follows : " 12(1) 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 ? 2.Is 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 Lords(2 )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 G.(1) 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 12(1)(a) of the Act. The result is that the appeal fails and is dismissed. There will be no order as to costs. G.C. 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] S.C.R. 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] (ii)The case of G.v.G. 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] (iii)The case of G.v.G. 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.