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4. Thereafter, during the period from 18th September 1960 to 30th October 1960 the respondent was admitted as an indoor patient at the Vadilal Sarabbai Hospital, Ahmedabad, where she had undergone some surgical operations. From the evidence of Dr. Miss Saudaminiben Pandya, Ex. 40, it appears that on her examination during that period at the Hospital, she was found to have a short vagina and that it was communicating with the rectum. By short vagina she meant to convey that her vagina was not of normal length. She had then performed three operations on her namely (1) colostomy, (2) vagina plasty and (3) repair of recto vagina fistual as well as closure of colostomy. From her evidence it further appears that in her opinion after those operations were performed on her, her partner viz., her husband would be able to have normal coitus with her and both the parties to the marriage, can have normal sexual satisfaction.

8. With all this evidence on record the learned Judge, as observed by him in para 7 of his judgment, it would be better if the respondent's medical examination is carried out by two renowned and impartial Gynecologists in the City of Ahmedabad. During the course of the respondent's evidence she was asked as to whether she would be ready and willing to subject herself to any such medical examination. She readily agreed to it. The parties then agreed to the names of the two Gynecologists and she was then seat for examination to them. Certain questions were set out for them to reply so that they may give specific attention to the points involved in this case. Those doctors were Dr. R.M. Nadkarni and Dr. Saudaminiben Pandya. It was also explained to those two doctors that their examination may not be confined only to those three points referred to them as the ultimate question which was required to be determined was whether she was potent or not. The points referred to them were as to whether Bai Hastuben was capable of having and enjoying the natural coitus, and the second was whether it was possible for the partner to have and enjoy the natural coitus with her. The third point was that in case she was not potent either partially or wholly, whether the infirmity in question was permanent or curable. Both of them had examined her independently and they sent their reports Exs. 51 and 52 respectively to the Court. They have given their evidence in Court and substantiated the reports made by them. Turning to their evidence which has been almost on the basis of their reports, it appears abundantly clear that in the opinion of both of them she was quite potent and her husband would be able to consummate marriage with her. They have explained their reports giving reasons for coming to those conclusions. Dr. Nadkarni has stated that apart from her secondary sex-characters were quite developed, she was capable of sexual intercourse with vigour and power and there was no infirmity whatever. She and her partner were capable having and enjoying natural coitus with her. It is no doubt true that the question of vigour and power of women during copulation as stated by him, depends much upon her mental frigidity. But this is not a case in which the husband or the wife had developed any aversion or repugnance towards one another as already stated above, to an extent as not to be able to have sexual relations with each other. The question of impotency on that ground has not been at issue at all in the present case. Going further, the same conclusions are arrived at by Dr. Miss Pandya, Ex. 56, and she has also explained her report made on the examination of the respondent. Both of them have stated clearly that uterus and cervix were found absent. Dr. Miss Pandya has also clearly stated that her vagina was normal in size and shape. In her opinion, she was found to be completely normal and that her partner would not have difficulty to have sexual intercourse with her. She was thus physically capable of giving sexual response. Thus the medical evidence consists of experienced Gynecologists and the last two of them happened to be the persons who were requested to examine her by the Court at the instance of both the sides. Their evidence was, therefore, unassailable and the conclusion reached by the learned Judge on that basis, that her vagina was quite normal and that she was in a position to consummate marriage is perfectly correct.

12. Now the term 'impotent' has been described in Halsbury's Laws of England, Volume 12, at page 228, to be such a state of mental or physical condition which makes consummation of the marriage a practical impossibility. In Corpus Juris Secundum, Volume 42, at page 410, it is stated that the term 'impotent' has been held synonymous with "incapacity for copulation, or sexual intercourse. " In other words, the incapacity for sexual intercourse is an essential ingredient of impotency. Such an inability may arise from a variety of causes including the mental and physical disability. In Words and Phrases, Permanent Edition, Volume 20, at page 284, it has been stated that want of power for copulation is impotence, but mere sterility is not. 'Impotency' thus means incapacity to perform the act of sexual intercourse that is to say, inability to copulate. In the case of Jagdish Kumar v. Sita Devi A.I.R. 1963 Punjab 114, it was held that incapacity of sexual intercourse is an essential ingredient of impotency under Section 12(1)(a) of the Act. In another case of Jadishlal v. Smt. Syama Madan and Ors. , the term 'impotent' used in Section 12(1)(a) of the Act, was held to be meaning incapacity for accomplishing act of sexual intercourse, and in this context it means not partial or imperfect, but a normal and complete coitus. It was then observed that impotency has to be distinguished from sterility which may in cases accompany impotency, but is not necessarily associated with it. A person may be incapable of accomplishing sexual act, yet be capable of procreating; conversely also a person may be incapable of procreating, and yet be capable of accomplishing sexual act. The case before us, is of this latter type-as of one who cannot procreate, but can give sexual satisfaction to her husband. Thus sterility is not impotency in a woman, and that is no ground for annulment of marriage under Section 12(1)(a) of the Act.