CHANCHAL KUMARI Vs. KEWAL KRISHAN

JUDGEMENT

(1.) THIS is a wife's appeal against the order of the District Judge, Amritsar, whereby her petition under Section 12 (1) (a) of the Hindu Marriage Act for annulment of her marriage with the respondent, Kewal Krishan, was dismissed. Chanchal Kumari appellant and Kewal Krishan respondent were married on 9th October, 1965. The present petition for the annulment of the marriage on the ground that the respondent was impotent at the time of the marriage and continued to be so till the institution of the proceedings, was filed on 31st December, 1965. In the petition it was alleged that though after the marriage the parties lived together on two occasions there was no consummation of marriage as the respondent was impotent and incapable of performing sexual intercourse. The petition was contested by the husband who pleaded that there had been consummation of the marriage and that the parties had been living together happily. The allegation of impotency was denied. It was, however, added that inability to produce children could not be termed as impotency. The pleadings of the parties and their statements, which were recorded before the framing of the issues, gave rise to the following issue :-Whether the respondent was impotent at the time of the marriage and continued to be so until the institution of these proceedings?

(2.) ON a consideration of the evidence led by the parties the learned trial Court came to the conclusion that the respondent had a normal male organ and had been having sexual intercourse with his wife every day during the period of their stay together. From the failure of the husband, however, to subject himself to a test for ascertaining as to whether he could produce semen, an inference was drawn that if such an examination had been held the respondent would not have been able to produce healthy semen or for that matter any semen. Having found these facts the learned Trial Court further came to the conclusion that the respondent was not impotent within the meaning of Section 12 (1) (a) of the Hindu marriage Act as he was able to perform sexual intercourse even though no healthy semen could be discharged by him.

(3.) THE above findings of the learned trial Court have not been assailed before me and the only argument advanced on behalf of the appellant is that in the absence of discharge of healthy semen in the case of a male, coitus cannot be considered normal and that such an incomplete coitus would not amount to consummation of marriage. Support for this argument was mainly sought from G. Venkateswara rao v. Smt. G. Nagamani, AIR 1962 Andh Pra 151; Jagdish Kumar v. Smt. Sita Devi, air 1963 Punj 114 and Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137. I proceed to examine these cases.