MUSAMMAT ALTAFAN Vs. IBRAHIM

JUDGEMENT

(1.) This and the connected appeal arise out of a suit brought by the husband for the restitution of conjugal rights and another brought by his wife for the annullment of her marriage with him. They were married on the 15 May 1914 when the woman was 13 years old and the husband about three or four years older. The woman lived in the. house of her husband for about six years; but owing to subsequent differences she came away from his house and has been living with her parents since. Her allegation is, that her husband was impotent and that she came to know of that fact after her marriage, A certain amount of medical evidence was examined on either side. On a consideration of that evidence the Court of first instance came to the conclusion that the husband was impotent and that that fact was not known to the wife when she was married. The lower Appellate Court; however, thought that the medical evidence produced by the husband was entitled to a greater weight and it decreed tie claim brought by the husband for conjugal rights and dismissed that brought by the wife for the annulment of the marriage.

(2.) The medical evidence adduced by the woman consisted of two Lady Doctors, one of whom Miss Massey, is an Assistant Surgeon in charge of the Dufferin Hospital at Aligarh. Her statement was that she examined the girl on the 13 July 1921 and she thought that she was a virgin, as her hymen was intact. She admitted that the presence of the hymen was not a conclusive proof of virginity in every case, but she explained that the hymen of this woman was complete and not torn in any way and that there wore no symptoms, such as exist in rare cases, where, in spite of cohabitation, the hymen remains unaffected. The other Lady Doctor, who was examined, was Miss Bakhsh in charge of the Singhara Hospital at Hathras. She stated that she examined the woman on the 8 August 1921 and that in her opinion she was a virgin and has had no sexual intercourse with any man. She examined other parts of her body and found that the other symptoms noticeable were consistent with that opinion. On behalf of the plaintiff, Major Barber, at one time Civil Surgeon of Aligarh, was examined. He testified to his having examined the husband on the 15 June 1921 and deposed that he found no physical or menial defects in him, his genital organs perfectly formed, and his general health good; and be thought that he was capable of sexual intercourse. Lieut. Mathews, who succeeded as Civil Surgeon of Aligarh, examined the husband on the 18 July 1921 and stated that he was not incapac tated by any mental or physical disease from having sexual intercourse, that he found no malformation in his male organ, and that in his opinion he was normally capable of performing the sexual act. He further said that the husband had a partial erection before him. Lieut. Col. Ilias, another Civil Surgeon of Aligarh, stated that he examined the husband on the 8 September 1921 and. found that be was potent and quite fit for sexual intercourse. He further said that no disease or deformity was found in his male organ that could incapacitate him from sexual intercourse and that the man had an erection before him quite full.

(3.) Where there is so much conflict in medical opinion it is not always easy to find which opinion is to be accepted, in preference to the other. A man may, however, be nominally or temporarily potent, due for instance to the use of certain medicinal drugs or other cause, or be may be potent as regards some women and not potent as regards his wife. The latter fact was acknowledged by the medical witnesses, and is also recognised by the Muhammadan Law. It is material in any circumstance to note that, according to the evidence of the Lady Doctors, the hymen of Musummat Altafan, the wife in question, was intact and there were no conditions such as exist in exceptionally rare cases where continual cohabitation might exist and the hymen may yet remain unaffected. If the hymen was intact and there was nothing to show that the physical conditions of the hymen were of an abnormal character very strong evidence is needed to rebut the presumption which arises from that state of things against the consummation of the marriage by the husband in spite of the wife having lived with him for about six years.