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(1) This is a wife's appeal against the order of the Additional District Judge, Delhi, dated 18th of September, 1972.

(2) On 2nd April, 1971, the wife made a petition for a decree of nullity under Section 12 of the Hindu Marriage Act, hereinafter refferred to as the Act. The parties were married on 16th April, 1970. They lived together for four months but the marriage could not be consummated as the husband was impotent. The wife in her petition stated that the husband was impotent at the time of marriage and continued to be so until the institution of the proceedings. She further stated that the husband in the presence of her mother and brother-in-law admitted that he was impotent and was unable to cohabit with the petitioner as he was "sexually very weak."

(19) Collusion is not to be inferred merely from the fact that the case is unusual. it was said: "THEsuspicion if it was to be acted upon, must in our opinion, be founded on something more tangible than a vague uneasiness that an unusual case may not be true."

(20) The wife stated in her petition that the petition had not been made in collusion. She also affirmed this in her statement on oath. Her own case as disclosed in the evidence was that the husband was impotent qua her. He was unable to have erection and, therefore, could not cohabit with her. The fact remained that the marriage was not consummated. The husband himself admitted that because of an aversion in his mind he became funky whenever he thought of having sexual intercourse with the wife. He clearly stated that he consulted the doctors and they found that he was otherwise potent.

(22) The mere fact that the wife's brother-in-law denied the suggestion made to him about the impotency of the husband qua the wife was not a ground for casting suspicion and doubt over his entire statement. It is not necessary that every witness should understand this distinction which is made by medical jurists and psychologists that a certain person can be impotent qua his own wife but may otherwise be sexually powerful. For a finding of potency what matters is ability to consummate the marriage with the other spouse and not ability to have intercourse in general The following statement in Tolstoy on Divorce, Sixth edition (1967) at page 114 is helpful in this connection: "ITsometimes happen that & person is capable of having intercourse, but incapable of performing it with the particular individual i.e. impotent quoad hunc or quoad hanc. This is sufficient to found a decree of nullity, as what matters is ability to consummate the marriage with the other spouse and not ability to have intercourse in general."

(25) It was held that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto, though no reason for non-consummation was manifest or apparent. In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non-consummation of the marriage. The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that-"quoad hunc et quoad hunc, these people cannot consummate the marriage." The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery. I, therefore, come to the conclusion that even when an individual is generally potent but is impotent with respect to his own spouse and is unable to consummate marriage he has to be regarded as impotent for the purposes of Section 12(a) of the Act. In impotence cases the emphasis is on consummation. A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility (rialsbury-P. 228).