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1. This appeal arises out of an application made under Section 12 of the Hindu Marriage Act, 1955 at the instance of the husband against the wife for annulment of the marriage celebrated on 13th May, 1973. The application was filed on 13th December, 1973. The husband in his petition stated that they were married according to the Hindu rites on 13th May, 1973. On 14th May, 1973 the couple returned to the residence of the petitioner at 7, Haridas Daw Road, p. S. Behala. On the night of 15th May. 1973 which was the Fulsajja night, the petitioner, it is alleged, desired and demanded to consummate the marriage but the respondent refused to agree and in fact she made terrible opposition amounting to invincible repugnance to the act of consummation and the petitioner found her to be mentally depressed which deterred the petitioner from making further progress for consummation of marriage. On May 20, 1973 the couple went back to the quarters of Ashis Bhowmick, brother of the wife, where the marriage was celebrated and stayed there for the night. It is alleged that the petitioner husband made an attempt tor consummation of marriage at Garia house but the consummation could not be made due to the opposition of the wife respondent. On or about 4th June, 1973 the respondent went to live at Poddar Park residence from her brother's quarter and on 27th June, 1973 the wife returned to the residence of the petitioner at Behala. Because of the repeated refusals by the respondent to consummate the marriage, the petitioner persuaded the respondent to be examined by a doctor and accordingly with her consent the respondent in or about the first week of August, 1973 was examined by a Gynaecologist. The doctor after due examination found the respondent to be suffering from malformation of her organ and that in her present condition she was unable to allow the consummation of the marriage and penetration is impossible. It is alleged by the husband that during short stay of the respondent at the petitioner's residence or the short stay of the couple at the quarter of Ashis Bhowmick the petitioner made repeated attempts for consummation of the marriage but there could not be any conjunction of the body. It is alleged that the respondent suffers from low physical infirmity and/or abnormality. It is stated that the petitioner possesses sound normal health of young person with the ability to consummate marriage. It is further stated that the respondent is impotent and her mental and physical condition makes consummation of the marriage a practical impossibility and such condition existed at the time of marriage and continued to be so until the institution of the proceeding. Due to the physical malformation of her female organ the wife is physically unable to have sexual intercourse. She is also mentally so high-strung that it is impossible far the petitioner to have normal sexual intercourse with the respondent. It is further stated that the respondent is physically, mentally and psychologically impotent of the type known as quoad hune or quoad hanc or in other words the respondent is at least impotent to the petitioner and the marriage cannot be consummated. On these allegations, the petitioner-husband prayed for annulment of the marriage. On 9th February, 1'974 the wife respondent filed written statement to the allegation made in the petition. It is alleged that it was the petitioner who on Fulsajja night suggested that he would proceed cautiously to consummate the marriage and asked the respondent to be ready for the coitus gradually. The respondent did not at all oppose the desire of the petitioner for consummation or demonstrate any repugnance in the said act. It is alleged that there wag a consummation of the marriage on 20th May, 1973 at the quarter of the respondent's brother but the penetration was slightly painful. It is stated that both the petitioner and the respondent felt and understood that it was the usual experience of a virgin girl who is married more than a decade after attaining puberty. Both of them agreed at that time that the trouble would be over in course of time and naturally. The respondent further stated that she never demonstrated any reluctance for cohabitation. On the contrary, it is alleged, on a few occasions the petitioner enjoyed the respondent but the respondent felt considerable pain during coitus. It is alleged that the respondent believed that the petitioner did not allow time for preparation in respondent's body and the pain she had experienced was mainly due to rashness and want of reciprocal sympathy from the husband. It is further stated that having regard to the wishes of the petitioner the respondent agreed to consult a Gynaecologist and she was taken to Dr. D. L. Poddar who suggested a minor operation. It is stated by the Doctor that the difficulty could be over without the minor operation but that would require some time and co-operation amongst the spouses. The respondent denied any malformation of female organ or that penetration was impossible. It is stated that as Dr. Poddar suggested the minor operation, the respondent was willing to have the same but the petitioner and his relatives did not agree to bear the expenses whereupon the elder brother of the respondent undertook to pay the costs but the petitioner refused to cooperate. The respondent registered herself as a patient of E. E. D. F. Health Centre in or about June 1973 in order to seek assistance or advice in the matter. The attending Gynaecologist however was of the firm view that no operation was necessary and/or advisable and that the little difficulty that might have been experienced would be over by sympathetic co-operation of the husband. It is alleged that on 17-8-1973 the doctor of E. E. D. F. Health Centre wanted to talk with the petitioner but he avoided meeting the doctor. It is alleged that the respondent possesses normal health and the marriage between the parties was consummated. The allegations of mental incapability or repugnance to sexual intercourse when approached by the husband were denied by the respondent. It is alleged that the husband never enjoyed love plays. To the husband sex acts meant absolutely casual satisfaction, that is, mere physical action and nothing more. It is alleged that the elder sister-in-law of the petitioner was the first lady of the family and the wife found out that she has no claim on her husband's income. It is alleged that all the marriage gifts were made over to the elder sister-in-law. It is stated that it is really shocking to find that such thing could happen. The respondent suggested that she should be given some money to defray her personal expenses, the petitioner directed her to seek for the money from her sister-in-law. It is further stated that the petitioner husband was habituated in drinking and suffered from guilty conscience.

8. Mr. Sadhan Gupta on the other hand contended that there was no doubt that the respondent was suffering from the disease and there was a defect. In the words of Mr. Gupta "undoubtedly there was a defect in the respondent but the defect was curable and in fact was cured though after the suit was filed". Therefore it is argued by Mr. Gupta that the learned Judge is right in his finding and he held that there was no repugnancy to the act of consummation on the part of the respondent.

9. In so far as the consummation is concerned only two direct evidences are available, as usual, these are of the husband and of the wife. Hie husband styled that he tried to consummate on the dale of Fulsajjya but it could not be consummated due to the violent resistance by the wife. It is further stated that the respondent did not agree to consummate the marriage. Between 15th May, 1973 and 20th May, 1973 the husband made several attempts to consummate the marriage but failed as the respondent did not co-operate. Even on 20th May, 1973 when the husband and the wife stayed at Garia house of the brother of the wife, the attempted consummation failed. He stated that there was no penetration at all in view of the respondent's malformation of the female organ though the husband tried for consummation. As against this, the wife stated in her evidence that there was consummation for 2 or 3 days out of 8 days of attempted coitus. It is admitted by the respondent wife that the intercourse for those 2 or 3 days was painful. It is stated that the respondent wife consulted a doctor in E. E. D. F. Health Centre at the insistence of the husband. It is further stated that the husband and the sister-in-law of the husband took her to Dr. D. L. Poddar on 8th August, 1973 and it is stated that none of the doctors detected any organic defect in the respondent. Dr D. L. Poddar sug gested to use a jelly; but the husband did not use it. She denied that the respondent was impotent. It is stated that the husband did not make any approach to consummate the marriage. She stated that there was consummation of marriage on 20th May, 1973 in normal course but the respondent felt some pain and there was a full penetration by the husband. It is, however, admitted by the respondent that the coitus was painful and that the wife had to see the doctor on 9th June for the purpose as there was pain. The wife contradicted herself in cross-examination when she said that she had sex acts for 7 or 8 days between 8th July, 1973 and 15th August, 1973. It appears from the examination-in-chief that out of 15 days there were attempts to have coitus for 8/9 days and the marriage was consummated for 2/3 days only but the intercourse was painful.

15. Mr. Gupta however contended that unless the impotency is incurable the petitioner is not entitled to a decree. It is conceded by Mr. Mukherjee and Mr. Gupta that the change in law during the pendency of this case does not affect this application at all. Mr. Gupta however contended that if the impoteney is curable the petitioner is not entitled to a decree for nullity.

16. From the evidence as hereinbefore made the respondent must be held to be suffering from vaginismus. In Novak's Text Book of Gynaecology, at p. 663, it has been found that "dyspareunia, or painful coitus, may be due to the presence of an actual lesion or it may be of psychic origin. The latter variety is not infrequently a defence mechanism built up by the woman who for one reason or another finds coitus distasteful."

In the present case, in view of the doctor's evidence it is quite clear that the dilatation of vagina performed in March 1974 did not correct the condition of the wife for successful "vera copula" even 6 months after the operation of dilatation of vagina, the disease of vaginismus was still there, and if a wife is suffering from vaginismus, the coitus or complete penetration is not possible. It has been stated by the respondent that the coitus when attempted by the husband was painful and the husband categorically stated that there was no sexual intercourse between the parties due to the impotency of the wife.