It was however pointed out to us that the husband did produce a medical certificate granted by the District Surgeon of Gulbarga on September 9, 1963, in which it was stated that the secondary sexual characters of the husband had become fully developed and that the general organs, the secrotum and the penis were also fully developed. It was also pointed out to us that the husband was a physically and fully developed individual. The complaint made to us was that this certificate was overlooked. But this certificate was granted only on September 9, 1963, and it must have been produced only later. The outermost point of time within which the husband had to demonstrate that he had ceased to be impotent was July 31, 1963, and a certificate granted in September 1963 could not therefore have any relevance. Even otherwise if it is remembered that the evidence of P.W. 3 was that the husband was suffering from functional impotence, notwithstanding the absence of any structural defect in the male organ, the certificate granted by the District Surgeon which is also to the effect that the genital organs were in normal condition, could not establish the disappearance of the functional impotence discovered by P.W. 3. We, therefore, negative the argument that the opportunity enjoined by proviso (c) was unreasonably refused.
1. This appeal arises out of a suit brought by a Muslim wife under the Dissolution of Muslim Marriages Act, 1939, for the dissolution of her marriage, on the ground that her husband who was impotent at the time of the marriage continued to be so. The spouses were married on June 12, 1960 and the suit for dissolution was brought on October 3, 1960. The husband was at the time of the marriage 20 years and the wife 18.
2. The District Judge of Gulbarga recorded a finding on July 31, 1962 that the impotence of the husband was clearly established. But, since the husband had made an application on July 25, 1962 for an opportunity to satisfy the court within a period of one year that he had ceased to be impotent, the District Judge made an order adjourning the proceedings by one year to enable the husband to prove that he had ceased to be impotent.
3. On the expiry of the period of one year for which period the suit was adjourned, the wife made an application on August 19, 1963 for a decree of dissolution. The District Judge made the decree on July 31, 1965 and the husband appeals.
4. The two submissions made on behalf of the husband by his learned Advocate Mr. Kagalkar in support of his case, are, firstly that the finding of the District Judge that the husband was impotent at the time of the marriage and continued to be so is unsustainable, and secondly that the opportunity for the establishment of the cessation of impotence was inadequate.
5. The finding of the District Judge on impotence rested upon the evidence given by three witnesses examined for the wife, one of whom was herself, the other her father and the third a medical practitioner. The evidence given by the father of the wife that the consummation of the marriage was arranged on the very night of the wedding, and that the two spouses were allowed to sleep together on the night of June 12, 1960 and the next day. He stated that for that purpose the two spouses were taken to his house on the next night. He added that after the marriage the wife lived with the husband for about a fortnight and thereafter she returned to her parental home weeping with the complaint that the husband was impotent.
6. In another part of his evidence the witness stated that about a month later the witness and the father of the husband took the husband to a medical practitioner who is examined as P.W. 3, and that after the husband was examined for about 3/4 hours and he was pronounced impotent. P.W. 3, according to the witness, gave the certificate which is marked Exhibit P-2.
7. A very strange question was put to this witness in his cross-examination which elicited the following answer:
"It is not true to say that we knew even before the marriage that the defendant was impotent".
The question to which this answer was given can perhaps be understood as suggesting that even according to the cross-examining counsel, the husband was impotent, and that the father of the wife had knowledge about it. But we do not wish to proceed upon that assumption.
8. In his cross-examination that witness proceeded to state that there were two panchayats in the context of the complaint made by the wife about the husband's impotence, once in the witness's house and for the second time in the house of the husband. The witness proceeded to state that at those panchayats it was asserted for the husband that he was not impotent and that the wife should be sent to him. It was also elicited that the husband was not permitted to spend some particular night with his wife in the witness's house after the wife returned thereto.
9. P.W. 2 is the wife. Her evidence was that, on the date of her marriage the two spouses were sent during the night into a room for consummation, but that the defendant did not have any sexual intercourse, and not even once during a period of fifteen days when they slept together. Her evidence was that the husband did not have sexual intercourse with her as he was impotent. In her cross examination she stated that the defendant was impotent since he made no attempt to have any sexual intercourse with her. It was suggested to her that on the night of the wedding she was in menstruation but she denied the truth of that suggestion. She was asked whether the defendant was able to have any erections and she was unable to give any information about it. It was elicited in her cross-examination that the defendant did touch her during the period they slept together, and that although they slept on the same bed there used to be some distance separating one from the other.
10. It was argued by Mr. Kagalkar that this witness admitted that although her sisters and her mother had come to the feast on the day next to the date of the wedding, she did not tell them about the defendant's impotence. It was also pointed out to us that even the next morning, she did not complain to her father about it. But we do not think that failure on the part of the wife to make an immediate complaint to any of her relations can be a ground on which we can discard her testimony. It is not impossible the wire was still hoping that the incapacity for consummation was perhaps attributable to some kind of frigidity which she hoped the husband would be able to overcome within a very short time. It is quite intelligible that when during the long period of fifteen days the incapacity for consummation continued, she went to her father and explained her difficulties.
11. We think that the District Judge was right in believing the evidence of P. Ws. 1 and 2 which appears to us to be natural and true. It should be remembered that the suit for dissolution was brought within a period of four months from the date of the marriage and it transpires from the evidence of P.W. 1 that the betrothal ceremony was performed four months before the date of wedding, and that between the date of the betrothal and the wedding the members of the two families used to visit one another. We do not see any reason to distrust the testimony of the wife that the husband made no attempt to consummate the marriage during a long period of fifteen days, and the only inference which is possible is that the abstinence from consummation was attributable to incapacity.
12. That inference receives strong support from the evidence of P.W. 3, a medical practitioner of Gulbarga. According to his evidence the husband was brought by P.W. 1 for medical examination along with two others, and when he was so brought, he was examined by the witness. The witness stated that there were three methods of examining of a person concerning impotence, and that the first was to massage the male organ to produce an erection if possible. The witness stated that the first method did not produce any useful results. The second method according to him was the administration of a drug which can produce erection, and that for that purpose an injection was administered and that although the witness waited for half an hour the reaction was very feeble. He however added that he attempted to produce ejaculation discharge, and that there was a discharge.
13. According to the evidence of the witness the size of the husband's organ was normal and there was no constitutional defect concerning it. The witness proceeded to state that the husband explained that he got scared when he found himself alone for the first time with a woman. So, in his certificate Exhibit P-2, he stated that the impotence was functional and this conclusion he reached after an examination occupying three hours. This evidence materially corroborates the wife's evidence about the husband's invincible repugnance for consummation and incapacity for its accomplishment. The structure of the male organ which could not produce an erection can have therefore no importance, and, we think that the opinion of P.W. 3 that the impotence was curable was a mere speculation and no evidence was produced that any such cure was even attempted.
14. The husband giving evidence as P.W. 1 stated that he never went to P.W. 3 or any doctor for examination. We are satisfied that the husband was not speaking the truth when he stated that he was not examined by the doctor. We see no reason to distrust the testimony of P.W. 3 who appears to be a witness of truth. If he was not, he would not have stated that the impotence was functional and not constitutional.
15. If we believe the evidence of P.W. 3 what follows is that when the husband was examined by him he was suffering from a type of functional impotence which rendered him incapable of consummation.
16. Since the incapacity for consummation was discovered by the wife on the very night of the wedding and since even in July 1960 when P.W. 3 examined the husband it continued, it is clear that the husband was impotent at the time of the marriage and that he continued to be so.
17. Section 2(v)(c) of the Dissolution of Muslim Marriages Act reads:
"2 A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
(v) that the husband was impotent at the time of the marriage and continues to be so:
** ** **
Provided that--
** ** **
(c) before passing a decree on ground (v) the Court shall on application by the husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground."
18. The requirement of clause (v) of this section is that the husband is not only impotent at the time of the marriage but that he continues to be impotent when the suit is instituted for the dissolution of the marriage. There are tow important points of time at which the evidence establishes impotence. That impotence is established both at the time of the marriage and when P.W. 3 examined the husband in July 1960. Although the suit was instituted in October 1960, we think that the District Judge was right in deducing that the impotence continued at the date of the institution of the suit, since nothing to the contrary was established.
19. On behalf of the husband he examined himself and his grandfather, and, as we have already observed we do not believe the husband's evidence that he was not taken to a doctor for his examination. We do not also believe the evidence that he abstained from sexual intercourse on the ground that the wife was in her menstruation. We think that that explanation is an afterthought and in any event can have no relevance in respect of the long period of fifteen days during the whole of which, according to the wife, there was incapacity for consummation.
20. The evidence of the grand father of the husband is not of any use to him. All that he stated was that, when he went to the wife's house on June 15, 1960 to take her to the husband's house, she did not come with him, and that the wife's father exhibited annoyance when he went there again. The witness stated that the husband's father had sent him to take the plaintiff but the husband's father himself has not been examined. We prefer to believe the evidence of the wife, and that we do so since the evidence by the grandfather of the husband is incredible.
21. The evidence of P.W. 3 that there was no constitutional defect in the structure of the male organ of the defendant does not however eclipse the fact that the husband was unable to perform the sexual act. The inability or incapacity for consummation is one pattern or impotence and it is that impotence which in our opinion is completely established in this case.
22. We must therefore negative the criticism of the finding on impotence, Mr. Kagalkar however maintained that even so the decree of dissolution cannot be sustained. His submission was that even before the District Judge recovered his finding on impotence, the husband had made an application for an opportunity to prove within a period of one year from the date of the order which the District Judge was called upon to make, that he had ceased to be impotent.
23. It has to be observed that the suit was adjourned for a year for that purpose. But the complaint made on behalf of the husband is that during that period of one year the husband was refused the opportunity to which he was in law entitled, to demonstrate that he had acquired the ability to consummate the marriage. It was maintained by Mr. Kagalkar that under the Mohammedan Law by which the parties were governed, the husband had an indisputable right to the company of the wife during the period of one year to which proviso (c) to Section 2 refers, and that the District Judge should have directed the wife to live with the husband during that period, in order to enable the husband to consummate the marriage.
24. It was pointed out to us that, in the application presented by the husband to the District Judge under proviso (c) to Section 2 on August 25, 1962, the husband stated that he had issued a notice to the wife calling upon her to reside with him, and that that notice had been refused. The husband therefore sought a direction in that application that the wife should reside with him during that period in his house. The District Judge was of the opinion that the wife was under no duty to make any such opportunity available to the husband. He repelled the argument that the rule of Mohammedan Law made in t the imperative duty of the wife to live with her husband during the period of one year to which proviso (c) refers. The District Judge therefore reached the conclusion that the defendant had failed to demonstrate the cessation of impotence.
25. The first submission made by Mr. Kagalkar was that the District Judge had over-looked the rule of Mohammedan Law which was evolved by the Allahabad High Court in at least two decisions. It was pointed to us that in Altafan v. Ibrahim, AIR 1924 All 116, Kanhaiyalal, J. expressed the view that in a suit brought by the wife for the annulment of her marriage on the ground of impotence, the decree nisi should incorporate a direction that the wife should allow full access to the husband at all reasonable times to exercise his marital rights as her husband during a period of one year. The decision in that case was affirmed in appeal in Ibrahim v. Altafan, AIR 1925 All 24. But it is seen that these two pronouncements were founded on the principle of Mohammedan Law that the right of the husband to an opportunity to demonstrate his ability to consummate the marriage was a "substantive right" and not a mere rule of procedure. Indeed, Kanhaiyalal, J negatived the request by the husband for a direction that the wife should be directed to live with him and apprehended that such direction would expose the wife to the peril of insecurity, and, he however made the direction that in her own parental house the husband should be allowed access, for consummation.
26. But these two cases on which Mr. Kagalkar relies were decided, before the Dissolution of Muslim Marriages Act, 1939 which codified the law on the subject of dissolution, was enacted. So it would be impermissible for us to appeal to the rule of Mohammedan Law which formed the foundation of the decision in the two cases to which we have referred. The only opportunity to which a husband is entitled after the Dissolution of Muslim Marriages Act came into force, is the opportunity directed by proviso (c) to Section 2 of that Act, and that opportunity does not make it the duty of the wife to allow access to the husband during the period of one year to which it refers, either in her parental house or elsewhere. Proviso (c) enjoins the postponement of a decree of dissolution only when the husband makes an application for an opportunity to establish the cessation of impotence. That that opportunity becomes unavailable except on an application, demonstrates that its source is no longer the rule of Mohammedan Law, which was invoked in the two Allahabad cases.
27. So, the Dissolution of Muslim Marriages Act abrogated that rule and substituted for it proviso (c) to Section 2, under which the only opportunity claimable is the opportunity to satisfy the Court within a period of one year that the impotence has ceased. It is not necessary to enumerate the processes by which such cessation could be established, although it is plain that production of medical evidence is one. There may be others equally efficacious. But we hesitate to recognise the right of the husband to demand the company of his wife to be able to establish the disappearance of his impotence. The right does not flow from anything contained in the Dissolution of Muslim Marriages Act in the absence of a clear provision creating it, we feel reluctant to say that the wife could be compelled to submit herself to the experiments of a humiliated husband whose exacerbation can provoke dangerous reprisals. The duty to involve herself in such great peril does not either expressly or by necessary implication emanate from proviso (c) to Section 2 or any other part of the Act, which is a complete and exhaustive code on dissolution.
28. But it was suggested that impotence being the incapacity for consummation with the wife the demonstration of its disappearance is not possible except by the performance of the sexual act on her. It was also maintained that medical evidence was an inferior substitute for the sexual act.
29. We do not agree that the postulate that impotence is the incapacity for consummation of the marriage, involves the concept that its disappearance cannot be established except by the performance of the sexual act on the wife.
30. Impotence of the husband which is a ground for dissolution is the deficiency in the power of manhood produced by inability for consummation and is excluded where consummation is made impossible by the wife's frigidity or unreasonable opposition. So it would not be right to say that the subsequent acquisition of virility could be proved only through ability for the sexual act with the wife. The view pressed on us to the contrary, if accepted, would make it the duty of the wife to make available her person to the husband again and again whenever demanded during the entire period of a year about which proviso (c) speaks for the fulfillment of the husband's hope that at some point of time during that period he might make the discovery that manhood has returned to him. An interpretation which subjects the wife to this queer predicament cannot be sound.
31. It was however pointed out to us that the husband did produce a medical certificate granted by the District Surgeon of Gulbarga on September 9, 1963, in which it was stated that the secondary sexual characters of the husband had become fully developed and that the general organs, the secrotum and the penis were also fully developed. It was also pointed out to us that the husband was a physically and fully developed individual. The complaint made to us was that this certificate was overlooked. But this certificate was granted only on September 9, 1963, and it must have been produced only later. The outermost point of time within which the husband had to demonstrate that he had ceased to be impotent was July 31, 1963, and a certificate granted in September 1963 could not therefore have any relevance. Even otherwise if it is remembered that the evidence of P.W. 3 was that the husband was suffering from functional impotence, notwithstanding the absence of any structural defect in the male organ, the certificate granted by the District Surgeon which is also to the effect that the genital organs were in normal condition, could not establish the disappearance of the functional impotence discovered by P.W. 3. We, therefore, negative the argument that the opportunity enjoined by proviso (c) was unreasonably refused.
32. The only other submission made by Mr. Kagalkar was that the suit should have been instituted in the Munsiff's Court and not in the court of the District Judge. But, as Mr. Suresh Joshi has pointed out to us, this objection to jurisdiction was raised very late and it was raised only when the District Judge was called upon to make a decree on the application of the wife after the finding had been recorded on impotence. Mr. Joshi in our opinion, is right in contending that in that situation, Section 21 of the Code of Civil Procedure stands attracted. We are satisfied in our minds that the assumption of jurisdiction by the District Judge, even if he did not possess it, did not result in a failure of justice. We are of the opinion that we should overrule the objection as to want of jurisdiction.
33. We therefore dismiss this appeal. In the circumstances we make no direction in regard to costs.
34. RSK/D.V.C.
35. Appeal dismissed.
Karnataka High Court
Abdul Azeem vs Fahimunnisa Begum on 18 January, 1967
Equivalent citations: AIR 1969 Kant 226, AIR 1969 Mys 226
Bench: A S Iyer, B Kalagate
1. This appeal arises out of a suit brought by a Muslim wife under the Dissolution of Muslim Marriages Act, 1939, for the dissolution of her marriage, on the ground that her husband who was impotent at the time of the marriage continued to be so. The spouses were married on June 12, 1960 and the suit for dissolution was brought on October 3, 1960. The husband was at the time of the marriage 20 years and the wife 18.
2. The District Judge of Gulbarga recorded a finding on July 31, 1962 that the impotence of the husband was clearly established. But, since the husband had made an application on July 25, 1962 for an opportunity to satisfy the court within a period of one year that he had ceased to be impotent, the District Judge made an order adjourning the proceedings by one year to enable the husband to prove that he had ceased to be impotent.
3. On the expiry of the period of one year for which period the suit was adjourned, the wife made an application on August 19, 1963 for a decree of dissolution. The District Judge made the decree on July 31, 1965 and the husband appeals.
4. The two submissions made on behalf of the husband by his learned Advocate Mr. Kagalkar in support of his case, are, firstly that the finding of the District Judge that the husband was impotent at the time of the marriage and continued to be so is unsustainable, and secondly that the opportunity for the establishment of the cessation of impotence was inadequate.
5. The finding of the District Judge on impotence rested upon the evidence given by three witnesses examined for the wife, one of whom was herself, the other her father and the third a medical practitioner. The evidence given by the father of the wife that the consummation of the marriage was arranged on the very night of the wedding, and that the two spouses were allowed to sleep together on the night of June 12, 1960 and the next day. He stated that for that purpose the two spouses were taken to his house on the next night. He added that after the marriage the wife lived with the husband for about a fortnight and thereafter she returned to her parental home weeping with the complaint that the husband was impotent.
6. In another part of his evidence the witness stated that about a month later the witness and the father of the husband took the husband to a medical practitioner who is examined as P.W. 3, and that after the husband was examined for about 3/4 hours and he was pronounced impotent. P.W. 3, according to the witness, gave the certificate which is marked Exhibit P-2.
7. A very strange question was put to this witness in his cross-examination which elicited the following answer:
"It is not true to say that we knew even before the marriage that the defendant was impotent".
The question to which this answer was given can perhaps be understood as suggesting that even according to the cross-examining counsel, the husband was impotent, and that the father of the wife had knowledge about it. But we do not wish to proceed upon that assumption.
8. In his cross-examination that witness proceeded to state that there were two panchayats in the context of the complaint made by the wife about the husband's impotence, once in the witness's house and for the second time in the house of the husband. The witness proceeded to state that at those panchayats it was asserted for the husband that he was not impotent and that the wife should be sent to him. It was also elicited that the husband was not permitted to spend some particular night with his wife in the witness's house after the wife returned thereto.
9. P.W. 2 is the wife. Her evidence was that, on the date of her marriage the two spouses were sent during the night into a room for consummation, but that the defendant did not have any sexual intercourse, and not even once during a period of fifteen days when they slept together. Her evidence was that the husband did not have sexual intercourse with her as he was impotent. In her cross examination she stated that the defendant was impotent since he made no attempt to have any sexual intercourse with her. It was suggested to her that on the night of the wedding she was in menstruation but she denied the truth of that suggestion. She was asked whether the defendant was able to have any erections and she was unable to give any information about it. It was elicited in her cross-examination that the defendant did touch her during the period they slept together, and that although they slept on the same bed there used to be some distance separating one from the other.
10. It was argued by Mr. Kagalkar that this witness admitted that although her sisters and her mother had come to the feast on the day next to the date of the wedding, she did not tell them about the defendant's impotence. It was also pointed out to us that even the next morning, she did not complain to her father about it. But we do not think that failure on the part of the wife to make an immediate complaint to any of her relations can be a ground on which we can discard her testimony. It is not impossible the wire was still hoping that the incapacity for consummation was perhaps attributable to some kind of frigidity which she hoped the husband would be able to overcome within a very short time. It is quite intelligible that when during the long period of fifteen days the incapacity for consummation continued, she went to her father and explained her difficulties.
11. We think that the District Judge was right in believing the evidence of P. Ws. 1 and 2 which appears to us to be natural and true. It should be remembered that the suit for dissolution was brought within a period of four months from the date of the marriage and it transpires from the evidence of P.W. 1 that the betrothal ceremony was performed four months before the date of wedding, and that between the date of the betrothal and the wedding the members of the two families used to visit one another. We do not see any reason to distrust the testimony of the wife that the husband made no attempt to consummate the marriage during a long period of fifteen days, and the only inference which is possible is that the abstinence from consummation was attributable to incapacity.
12. That inference receives strong support from the evidence of P.W. 3, a medical practitioner of Gulbarga. According to his evidence the husband was brought by P.W. 1 for medical examination along with two others, and when he was so brought, he was examined by the witness. The witness stated that there were three methods of examining of a person concerning impotence, and that the first was to massage the male organ to produce an erection if possible. The witness stated that the first method did not produce any useful results. The second method according to him was the administration of a drug which can produce erection, and that for that purpose an injection was administered and that although the witness waited for half an hour the reaction was very feeble. He however added that he attempted to produce ejaculation discharge, and that there was a discharge.
13. According to the evidence of the witness the size of the husband's organ was normal and there was no constitutional defect concerning it. The witness proceeded to state that the husband explained that he got scared when he found himself alone for the first time with a woman. So, in his certificate Exhibit P-2, he stated that the impotence was functional and this conclusion he reached after an examination occupying three hours. This evidence materially corroborates the wife's evidence about the husband's invincible repugnance for consummation and incapacity for its accomplishment. The structure of the male organ which could not produce an erection can have therefore no importance, and, we think that the opinion of P.W. 3 that the impotence was curable was a mere speculation and no evidence was produced that any such cure was even attempted.
14. The husband giving evidence as P.W. 1 stated that he never went to P.W. 3 or any doctor for examination. We are satisfied that the husband was not speaking the truth when he stated that he was not examined by the doctor. We see no reason to distrust the testimony of P.W. 3 who appears to be a witness of truth. If he was not, he would not have stated that the impotence was functional and not constitutional.
15. If we believe the evidence of P.W. 3 what follows is that when the husband was examined by him he was suffering from a type of functional impotence which rendered him incapable of consummation.
16. Since the incapacity for consummation was discovered by the wife on the very night of the wedding and since even in July 1960 when P.W. 3 examined the husband it continued, it is clear that the husband was impotent at the time of the marriage and that he continued to be so.
17. Section 2(v)(c) of the Dissolution of Muslim Marriages Act reads:
"2 A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
(v) that the husband was impotent at the time of the marriage and continues to be so:
** ** **
Provided that--
** ** **
(c) before passing a decree on ground (v) the Court shall on application by the husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground."
18. The requirement of clause (v) of this section is that the husband is not only impotent at the time of the marriage but that he continues to be impotent when the suit is instituted for the dissolution of the marriage. There are tow important points of time at which the evidence establishes impotence. That impotence is established both at the time of the marriage and when P.W. 3 examined the husband in July 1960. Although the suit was instituted in October 1960, we think that the District Judge was right in deducing that the impotence continued at the date of the institution of the suit, since nothing to the contrary was established.
19. On behalf of the husband he examined himself and his grandfather, and, as we have already observed we do not believe the husband's evidence that he was not taken to a doctor for his examination. We do not also believe the evidence that he abstained from sexual intercourse on the ground that the wife was in her menstruation. We think that that explanation is an afterthought and in any event can have no relevance in respect of the long period of fifteen days during the whole of which, according to the wife, there was incapacity for consummation.
20. The evidence of the grand father of the husband is not of any use to him. All that he stated was that, when he went to the wife's house on June 15, 1960 to take her to the husband's house, she did not come with him, and that the wife's father exhibited annoyance when he went there again. The witness stated that the husband's father had sent him to take the plaintiff but the husband's father himself has not been examined. We prefer to believe the evidence of the wife, and that we do so since the evidence by the grandfather of the husband is incredible.
21. The evidence of P.W. 3 that there was no constitutional defect in the structure of the male organ of the defendant does not however eclipse the fact that the husband was unable to perform the sexual act. The inability or incapacity for consummation is one pattern or impotence and it is that impotence which in our opinion is completely established in this case.
22. We must therefore negative the criticism of the finding on impotence, Mr. Kagalkar however maintained that even so the decree of dissolution cannot be sustained. His submission was that even before the District Judge recovered his finding on impotence, the husband had made an application for an opportunity to prove within a period of one year from the date of the order which the District Judge was called upon to make, that he had ceased to be impotent.
23. It has to be observed that the suit was adjourned for a year for that purpose. But the complaint made on behalf of the husband is that during that period of one year the husband was refused the opportunity to which he was in law entitled, to demonstrate that he had acquired the ability to consummate the marriage. It was maintained by Mr. Kagalkar that under the Mohammedan Law by which the parties were governed, the husband had an indisputable right to the company of the wife during the period of one year to which proviso (c) to Section 2 refers, and that the District Judge should have directed the wife to live with the husband during that period, in order to enable the husband to consummate the marriage.
24. It was pointed out to us that, in the application presented by the husband to the District Judge under proviso (c) to Section 2 on August 25, 1962, the husband stated that he had issued a notice to the wife calling upon her to reside with him, and that that notice had been refused. The husband therefore sought a direction in that application that the wife should reside with him during that period in his house. The District Judge was of the opinion that the wife was under no duty to make any such opportunity available to the husband. He repelled the argument that the rule of Mohammedan Law made in t the imperative duty of the wife to live with her husband during the period of one year to which proviso (c) refers. The District Judge therefore reached the conclusion that the defendant had failed to demonstrate the cessation of impotence.
25. The first submission made by Mr. Kagalkar was that the District Judge had over-looked the rule of Mohammedan Law which was evolved by the Allahabad High Court in at least two decisions. It was pointed to us that in Altafan v. Ibrahim, AIR 1924 All 116, Kanhaiyalal, J. expressed the view that in a suit brought by the wife for the annulment of her marriage on the ground of impotence, the decree nisi should incorporate a direction that the wife should allow full access to the husband at all reasonable times to exercise his marital rights as her husband during a period of one year. The decision in that case was affirmed in appeal in Ibrahim v. Altafan, AIR 1925 All 24. But it is seen that these two pronouncements were founded on the principle of Mohammedan Law that the right of the husband to an opportunity to demonstrate his ability to consummate the marriage was a "substantive right" and not a mere rule of procedure. Indeed, Kanhaiyalal, J negatived the request by the husband for a direction that the wife should be directed to live with him and apprehended that such direction would expose the wife to the peril of insecurity, and, he however made the direction that in her own parental house the husband should be allowed access, for consummation.
26. But these two cases on which Mr. Kagalkar relies were decided, before the Dissolution of Muslim Marriages Act, 1939 which codified the law on the subject of dissolution, was enacted. So it would be impermissible for us to appeal to the rule of Mohammedan Law which formed the foundation of the decision in the two cases to which we have referred. The only opportunity to which a husband is entitled after the Dissolution of Muslim Marriages Act came into force, is the opportunity directed by proviso (c) to Section 2 of that Act, and that opportunity does not make it the duty of the wife to allow access to the husband during the period of one year to which it refers, either in her parental house or elsewhere. Proviso (c) enjoins the postponement of a decree of dissolution only when the husband makes an application for an opportunity to establish the cessation of impotence. That that opportunity becomes unavailable except on an application, demonstrates that its source is no longer the rule of Mohammedan Law, which was invoked in the two Allahabad cases.
27. So, the Dissolution of Muslim Marriages Act abrogated that rule and substituted for it proviso (c) to Section 2, under which the only opportunity claimable is the opportunity to satisfy the Court within a period of one year that the impotence has ceased. It is not necessary to enumerate the processes by which such cessation could be established, although it is plain that production of medical evidence is one. There may be others equally efficacious. But we hesitate to recognise the right of the husband to demand the company of his wife to be able to establish the disappearance of his impotence. The right does not flow from anything contained in the Dissolution of Muslim Marriages Act in the absence of a clear provision creating it, we feel reluctant to say that the wife could be compelled to submit herself to the experiments of a humiliated husband whose exacerbation can provoke dangerous reprisals. The duty to involve herself in such great peril does not either expressly or by necessary implication emanate from proviso (c) to Section 2 or any other part of the Act, which is a complete and exhaustive code on dissolution.
28. But it was suggested that impotence being the incapacity for consummation with the wife the demonstration of its disappearance is not possible except by the performance of the sexual act on her. It was also maintained that medical evidence was an inferior substitute for the sexual act.
29. We do not agree that the postulate that impotence is the incapacity for consummation of the marriage, involves the concept that its disappearance cannot be established except by the performance of the sexual act on the wife.
30. Impotence of the husband which is a ground for dissolution is the deficiency in the power of manhood produced by inability for consummation and is excluded where consummation is made impossible by the wife's frigidity or unreasonable opposition. So it would not be right to say that the subsequent acquisition of virility could be proved only through ability for the sexual act with the wife. The view pressed on us to the contrary, if accepted, would make it the duty of the wife to make available her person to the husband again and again whenever demanded during the entire period of a year about which proviso (c) speaks for the fulfillment of the husband's hope that at some point of time during that period he might make the discovery that manhood has returned to him. An interpretation which subjects the wife to this queer predicament cannot be sound.
31. It was however pointed out to us that the husband did produce a medical certificate granted by the District Surgeon of Gulbarga on September 9, 1963, in which it was stated that the secondary sexual characters of the husband had become fully developed and that the general organs, the secrotum and the penis were also fully developed. It was also pointed out to us that the husband was a physically and fully developed individual. The complaint made to us was that this certificate was overlooked. But this certificate was granted only on September 9, 1963, and it must have been produced only later. The outermost point of time within which the husband had to demonstrate that he had ceased to be impotent was July 31, 1963, and a certificate granted in September 1963 could not therefore have any relevance. Even otherwise if it is remembered that the evidence of P.W. 3 was that the husband was suffering from functional impotence, notwithstanding the absence of any structural defect in the male organ, the certificate granted by the District Surgeon which is also to the effect that the genital organs were in normal condition, could not establish the disappearance of the functional impotence discovered by P.W. 3. We, therefore, negative the argument that the opportunity enjoined by proviso (c) was unreasonably refused.
32. The only other submission made by Mr. Kagalkar was that the suit should have been instituted in the Munsiff's Court and not in the court of the District Judge. But, as Mr. Suresh Joshi has pointed out to us, this objection to jurisdiction was raised very late and it was raised only when the District Judge was called upon to make a decree on the application of the wife after the finding had been recorded on impotence. Mr. Joshi in our opinion, is right in contending that in that situation, Section 21 of the Code of Civil Procedure stands attracted. We are satisfied in our minds that the assumption of jurisdiction by the District Judge, even if he did not possess it, did not result in a failure of justice. We are of the opinion that we should overrule the objection as to want of jurisdiction.
33. We therefore dismiss this appeal. In the circumstances we make no direction in regard to costs.
34. RSK/D.V.C.
35. Appeal dismissed.
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