A Vs. B

JUDGEMENT

(1.) THIS is a suit filed by a Hindu husband against his wife for a declaration that their marriage is null and void, or in the alternative for a decree for divorce under the Bombay Hindu Divorce Act, 1947. The parties were married on 12th May 1950, at Bombay according to Hindu Vedic rites. At the date of the marriage, the defendant was sixteen years of age having been born on 16th August 1934. The plaintiff alleges that the defendant did not have at the time of marriage either a vagina or uterus and she still has neither the vagina nor uterus, or to use medical expressions, she has had no development of vaginal cervix, uterine or the genital tract and the internal organs, and, therefore, she is impotent and incapable of having sexual intercourse with any male. The plaintiff also alleges in the plaint that the parents of the defendant practised fraud and deception upon him, as they did not disclose these physical defects of the defendant, which they should have known, as the defendant had no menstruation periods prior to marriage and does not have them still. The defendant by her written statement admits that she had no vagina at the time of marriage and has not got one even now; but she says that she has been advised that a vagina can be created by a surgical operation. As regards the uterus, it is her case that she has underdeveloped uterus. She admits that she was at the time of marriage and still is incapable of having sexual intercourse and is unable to consummate the marriage.

(2.) AT the hearing, the allegations of fraud and deception were unreservedly withdrawn; and the defendant, whilst maintaining that her alleged impotence was not permanent and wag curable did not lead any evidence to show that a vagina can be created by a surgical operation. The result, therefore, is that I have to deal with this case on the footing that the defendant has not and never had a vagina, and is, therefore, and has always been incapable of consummating the marriage, or having sexual intercourse with her husband. On these facts there can be little doubt that she must be considered to have been impotent at the time of marriage and she still continues to be impotent.

(3.) IF marriage amongst Hindus was a contract, there can be little doubt that on these facts the plaintiff would have been entitled to a decree for nullity of marriage; but it is urged on behalf of the defendant that a Hindu marriage is a sacrament and not a contract and there can, therefore, be no decree for nullity.