M Vs. S

JUDGEMENT

(1.) WE shall for convenience refer to the parties as the husband and the wife.

(2.) THE allegations in the petition were that, when the husband and the wife began to live together, the husband found that the wife was impotent, a fact not disclosed by the wife's parents to the husband's parents who arranged the marriage, and that he took her to her parents' house so that she could be given necessary treatment. The wife's parents told him that she was treated for curing the structural malformation but even after that the marriage could not be consummated as the defect continued. According to the husband the defect is incurable. The wife objected to the granting of the order stating that she was not impotent, that she had capacity for sexual intercourse and that they had lived together as husband and wife. According to her the petition was filed on account of avaricious nature of the husband who insisted on getting more jewellery and other articles than were given at the time of the marriage. Evidence was taken and the petition was dismissed holding that the wife was not impotent, at any rate, on the date of institution of the proceedings.

(3.) THE evidence of CPw. 2 to which we attach great importance shows that the structural defect was removed by the operation performed by her. The husband was not satisfied with this evidence and he applied to the court to order the wife to be examined by one of his doctors named by him in the application. The wife readily agreed and she was accordingly examined on 15121961 by Dr. Chandramathy Amma who sent a report Ex. C-1 to the court. Her report reads: "depth of her vagina is 31/2" and a vaginal speculum could be introduced easily without causing any discomfort or pain to her. This shows clearly that there is no defect causing incapacity in sexual intercourse. There is no malformation, structural or other defects in her genital organs making her incapable of sexual intercourse". The opinion was given in these terms: "i am of opinion from the observations made at the time of examination and the facts mentioned overleaf that she has no defects making her incapable of sexual intercourse". Counsel for the appellant argued that the report of Dr. Chandramathy Amma should not have been relied on as she was not examined in the case. There is no force in this argument. On the application of the husband, dr. Chandramathy Amma was appointed commissioner to examine the wife and report on her condition after the operation. If the husband wanted to prove that her conclusions were wrong, he should have taken steps for her examination. The report of a commissioner appointed by court is evidence in the case and forms part of the record.