JUDGMENT Edgley, J. - In this case the plaintiff, Sm. Ratan Moni Debi, sues for a declaration to the effect that her marriage with the defendant is void and inoperative and is, therefore, a nullity. She asks for a further declaration that she is not the wife of the defendant. According to the plaintiff the parties are Sikhs, both of whom profess the Hindu religion and are governed by Hindu law. They went through a form of marriage in Calcutta on 20th April 1928, according to Hindu rites. The plaintiff's case is that at the time of the marriage and thereafter the defendant was and still is impotent and physically unfit to consummate the marriage, and that this marriage has never been consummated. The plaintiff further alleges that, on 20th February 1940, she was severely assaulted by the defendant who turned her out of the house. 2. The suit is undefended, but as the allegations contained in the plaint raise an important point of Hindu law, the late Mr. S.N. Banerjee very kindly consented to argue this matter before me as amicus curiae. The case remained part heard immediately before the vacation of 1943 and no opportunity occurred for resuming the hearing before Mr. S.N. Banerjee's death. When I was in a position again to take up the hearing of the case Mr. N.C. Chatterjee kindly agreed to act as amicus curiae and I am much indebted to him and also to Mr. Barwell, who appears for the plaintiff, for the case with which they have placed before me all the relevant authorities. 3. Both Mr. Chatterjee and Mr. Barwell agree that the unrebutted evidence of the plaintiff as it stands may be taken as sufficient to show that both at the time of the marriage and at all material times since the marriage the defendant must be regarded as impotent and incapable of consummating marriage with the plaintiff. 4. According to the law of England there is no doubt that the plaintiff would be entitled to a decree of nullity. 4. According to the law of England there is no doubt that the plaintiff would be entitled to a decree of nullity. The matter is, however, complicated in the present case because admittedly both the parties to the suit are governed by Hindu law which regards marriage not as a contract but as a sacrament constituting a holy and indissoluble union between the parties to the marriage, primarily perhaps for the propagation of children but also to ensure the performance of certain religious duties. Learned Counsel have not been able to refer me to any reported Indian decision in which it has been expressly held that the impotence of either party to a Hindu marriage has the effect of rendering that marriage a nullity. Therefore, in order to decide this point it has been necessary to examine a number of ancient and modern texts in which reference has been made to this question by the most authoritative Hindu jurists and commentators on Hindu law. 5. The leading text on the subject is contained in the Manu Smriti, which was probably compiled about the 2nd century B.C., during the period of the Sunga Kings. Max Muller's translation of verse No. 203 of Chap. IX of the Laws of Manu is as follows: If the eunuch and the rest should somehow or other desire to (take) wives, the offspring of such among them as have children is worthy of a share. Mr. N.C. Chatterjee is of opinion that a more correct translation of the latter part of this verse would be: Then the offspring begotten on such wives as have children is worthy of a share. 6. If verse No. 203 be read in conjunction with verse No. 59 and the following verses of the same chapter it would appear that in verse No. 203 Manu must have intended to refer to the niyoga system under which in certain circumstances a woman might be authorised to raiser up progeny to her husband by the appointment of some other man for this purpose. It seems to be doubtful, however, whether the niyoga system as described by Manu contemplated the adoption of such a course except in the case of widows, and, even in the latter case, Manu condemns the system in verse No. 64 as being inappropriate for the twice born classes. It seems to be doubtful, however, whether the niyoga system as described by Manu contemplated the adoption of such a course except in the case of widows, and, even in the latter case, Manu condemns the system in verse No. 64 as being inappropriate for the twice born classes. According to Max Muller's translation this verse reads as follows: By twice born men a widow must not be appointed to (cohabit with) any other (than her husband); for they who appoint (her) to another (man), will violate the eternal law. 7. The text contained in the Manu Smriti does not appear to be very clear on the subject, but it is possible that recourse may have been had to the niyoga system for the purpose of enabling the wife of an impotent husband even during the latter's lifetime to cohabit with another man for the purpose of raising up progeny to her husband. On this point Mayne (Hindu Law, 10th Edn., p. 117) says: The Niyoga usage was only a particular illustration of the very general levirate prevalent at one time amongt many ancient people. In ancient India, wherever it existed, it was hedged round by many restrictions. The practice was confined to cases where the husband was either impotent or diseased or dead and where the wife or widow had been authorised either by the husband during his lifetime or, after his death, by the members of the family. 8. It should, however, be noticed that the text of the Manu Smriti does not go so far as to say that a marriage contracted between a woman in normal health and an impotent man is void. On the other hand, it recognises the validity of the marriage but it prescribes a method by which the wife in certain circumstances may be authorised to cohabit with a man other than her husband. 9. In the course of time the niyoga system appears gradually to have fallen into disuse, and it is noticeable that some of the later jurists seem to hold the view that impotence should be regarded as a disqualification for marriage. 9. In the course of time the niyoga system appears gradually to have fallen into disuse, and it is noticeable that some of the later jurists seem to hold the view that impotence should be regarded as a disqualification for marriage. On this point the Yajnavalkya Smriti, which was probably compiled about the 2nd century A.D., states that a bridegroom should be carefully examined with regard to his manly powers, and, according to the text of Yajnavalkya as interpreted in the Mitakshara, neither an impotent man nor a sexless woman can marry (Mayne's Hindu Law, 10th Edn. pp. 151 and 152). This was also the view taken in the Narada Smriti, which was probably compiled during the 4th century A.D. Narada states: 8. The man must undergo an examination with regard to his virility; when the fact of his virility has been placed beyond doubt, he shall obtain the maiden, but not otherwise. 19. Women have been created for the sake of propagation, the wife being the field, and the husband the giver of the seed. The field must be given to him who has seed. He who has no seed is unworthy to possess the field. 37. Madness, loss of caste, impotency, misery, to have forsaken his relatives (affliction with a chronic or hateful disease, and deformity): these are the faults of a suitor. 97. When the husband is lost or dead, when he has become a religious ascetic, when he is impotent, and when he has been expelled from caste: these are the live cases of legal necessity, in which a woman may be justified in taking another husband. (Gour's Hindu Code, 3rd Edn. p. 317). 10. On the same point Parasara, who apparently belongs to a slightly later period, says: Another husband is ordained for women in five calamities, viz., if the husband be unheard of, or be dead, or adopt a religious order, or be impotent or become an outcaste. 11. Again, Kullukabhatta, who probably lived in Bengal daring the 13th century A.D. and composed his commentary on Manu in Benares, states that the impotent are disqualified from marrying. Further, according to the Mitakshara (II, X, 11) an impotent man is even forbidden to adopt a son (Mayne, 10th Edn., pp. 152 and 204). 11. Again, Kullukabhatta, who probably lived in Bengal daring the 13th century A.D. and composed his commentary on Manu in Benares, states that the impotent are disqualified from marrying. Further, according to the Mitakshara (II, X, 11) an impotent man is even forbidden to adopt a son (Mayne, 10th Edn., pp. 152 and 204). This view is, however, based on Colebrooke's translation with regard to the correctness of which Sirkar is doubtful (Hindu Law of Adoption, 2nd Edn. p. 202). On this point it may be noticed that Setlur's translation (p. 54) seems to agree with that of Colebrooke. 12. Having regard, therefore, to the texts which had been cited above it would not appear to be inconsistent with the general principles of Hindu law to grant a decree of nullity in a case as that with which we are now dealing. It is true, as pointed out by the Bombay High Court in the case of Purshotamdas Maneklal v. Bai Mani, 21 Bom. 610 that marriage does not exist solely for sexual intercourse but that it also involves the performance of many reciprocal duties and obligations some of which are of a religious nature. The fact remains that the tendency of the Hindu jurists seems to be to place an impotent man in the same category with people who are incapable of performing religious sacraments (such as marriage) and, further, there can be no doubt that the recognition of a matrimonial alliance between an ordinary healthy woman and an impotent man as an indissoluble union might be regarded as contrary to public policy. In the case of Kanahi Ram v. Biddya Ram, 1 ALL. 549, the learned Judges who decided the matter appear to have been of the opinion that it would amount to a gross abuse of the father's authority for him to arrange the marriage of an infant daughter with an old and impotent man and that such a marriage might result in an immense injury to the girl. It was argued that under Hindu law a marriage might be dissolved on the ground of the bridegroom's impotency. This point was not decided, but Pearson J. stated: If this statement be correct, it is satisfactory to think that, should the defendant insist in carrying out his intention the girl may, if entitled to claim it, have a remedy at law. 13. This point was not decided, but Pearson J. stated: If this statement be correct, it is satisfactory to think that, should the defendant insist in carrying out his intention the girl may, if entitled to claim it, have a remedy at law. 13. There appears to be no doubt that, according to the views held by modern commentators on Hindu law, the niyoga system is now obsolete. This fact has, therefore, an important bearing on the question whether a decree of nullity should be pronounced in the case of impotency on the part of either party to the marriage. On this point Dr. Rajkumar Sarvadhikari says: The practice of appointing brothers to raise up mala issue (niyoga) has been abrogated in the Kali age, and cannot be justified by any rule of Hindu law. Jagannatha distinctly says, that 'mankind would perish if the practice of raising up a son on the wife of a kinsman and so forth were now followed.' Custom, however, legalises any practice whatever; but it should always be remembered that 'to establish a family custom at variance with the ordinary law of inheritance, it is necessary to show that the usage is ancient and has been invariable, and it should be established by clear and positive proof.' (Sarvadhikari's Hindu Law of Inheritance, p. 528). 14. Mayne points out that this practice if not wholly obsolete, must have become obsolescent even in the earliest times and, in commenting on Dr. Sarvadhikari's view, cited above, to the effect that a custom if well established would even now legalise the kshetraja son, he says: "Surely such a custom would be bad, being opposed to morality and public policy." (Mayne's Hindu Law, 10th Edn., p. 125). He further observes (at p. 162): Just as a marriage within the prohibited gotra or degrees or a marriage brought about by fraud or force is altogether invalid, notwithstanding the performances of the marriage rites, so too, a gift and acceptance by parent or guardian of a lunatic, an idiot or an Impotent man being invalid, the performance of marriage rites does not constitute the relation of husband and wife. In the one as in the other, there is a fraud on the policy of the marriage ceremony. This conclusion is in accordance with the clear general principle of Hindu law that marriage is for the perpetuation of one's line. In the one as in the other, there is a fraud on the policy of the marriage ceremony. This conclusion is in accordance with the clear general principle of Hindu law that marriage is for the perpetuation of one's line. It is, therefore, necessary that the bride and the bride-groom should be physically capable of consummating the marriage if adults, at the time of marriage, or if children, when they would be adults, in the course of nature..... Where archaie rules of Hindu law very plainly transgress the rule of justice, equity and good conscience, they cannot be enforced. The marriage of an impotent person not being merely sterile, or of a lunatic or of an idiot clearly tends to promote immorality and may also be regarded as contrary to public policy. The view of Sir Gooroodas Banerjee (Hindu Law of Marriage and Stridhan, p. 40 ) is as follows: Impotency, which is generally considered as a disqualification for marriage, is not viewed in that light in the Hindu law, as will appear from the passages of Manu and the Dayabhaga already quoted. This is because impotency did not formerly render marriage absolutely fruitless, as the impotent could appoint kinsmen to beget issue on their wives. This vicarious mode of fulfilling one of the primary objects of matrimony being, however, interdicted in the Kali or present age it is doubtful whether impotency ought not now to be regarded as a disqualifying cause, especially as Parasara, the sage whose institutes are held to be peculiarly authoritative in the present age, in his celebrated text in favour of the remarriage of widows, allows a woman to take a second husband if the first is impotent. Among the inferior classes, impotence is a ground of disqualification for marriage. Among the higher classes, happily the point has never been raised but some authorities hold that impotence in their ease would not nullify marriage. The authorities mentioned in the latter part of this quotation appear to be certain passage in the Manu Smriti, to which reference has already been made. 15. Among the higher classes, happily the point has never been raised but some authorities hold that impotence in their ease would not nullify marriage. The authorities mentioned in the latter part of this quotation appear to be certain passage in the Manu Smriti, to which reference has already been made. 15. On the same point Sir Earnest Trevelyan in his Hindu Law, 3rd Edn, p. 38, observes: The ancient authorities permitted a eunuch to marry on the ground that his wife could raise up a son to him by a man legally appointed, but now that the system of niyoga is obsolete, it may be a question whether the Courts will not declare the marriage of an impotent person to be void. 16. During the course of argument Mr. Barwell suggested that it might be necessary in this case to take evidence with regard to any particular custom in connection with this matter, which might be observed by the members of the Sikh community. On this point it may be noted that no such custom or usage has been pleaded. According to some of the authorities to which reference has already been made, impotency, according to the custom of the inferior classes, may be regarded as a disqualification for marriage. As already pointed out above the plaintiff has not relied on any such custom and her case seems to be that she was married according to the rites ordinarily observed by the higher classes of Hindus. In my view, whatever the Hindu rites may have been, according to which the plaintiff's marriage was celebrated, she has succeeded in proving that, as regards herself her husband is impotent and has never been able to consummate the marriage, and I hold that, according to the general trend of the authorities which have been discussed, she is entitled to a decree for nullity. 17. There is, however, one further point which has arisen in connection with this case. The plaintiff in her evidence stated that she herself was physically capable of consummating the marriage and that she was still a virgin. She also said that she was prepared to be examined by a lady doctor. Subsequently it transpired that her relations objected to her subjecting herself to any medical examination, and the question arises whether in these circumstances a decree for nullity should nevertheless be pronounced by this Court. 18. She also said that she was prepared to be examined by a lady doctor. Subsequently it transpired that her relations objected to her subjecting herself to any medical examination, and the question arises whether in these circumstances a decree for nullity should nevertheless be pronounced by this Court. 18. The English law with regard to this matter is that even when a husband or a wife refuses to submit to inspection, the Court may grant a decree (Rayden on Divorce, page 69). 19. There is no reason for disbelieving the plaintiff's evidence to the effect that she is still a virgin. Even if this were not the case, or the evidence with regard to her virginity were inconclusive it would nevertheless be competent for the Court to pronounce the marriage void, F. v. D. (1865) 164 E.R. 1448 : (4 Sw. and TR. 86), F. v. P., (1896) 75 L.T. 192. It is permissible in suitable cases in England even to grant such a decree in a wife's suit for nullity where the wife on being medically examined is found not to be virgo intacta (R. v. R., (1907) 24 T.L.R. 65) or where there is a positive refusal to submit to medical examination: P. v. P.,(1909) 25 T.L.R. 638). Further, in certain circumstances, where one of the parties to a marriage was incapable of ordinary complete sexual intercourse but the wife had nevertheless become pregnant by fecundation ab extra decrees for nullity have been granted by the English Courts. Snowman v. Snowman, (1934) L.P.P. 186 : (103 L.J.P. 87) Clarke v. Clarke 1943 2 ALL E.R. 540 : (168 L.T. 62.) It was also held in the case of Intract v. Intract, (1933) L.R.P. 190, that the Court has a discretion with regard to inspection and may proceed to a decision apart from inspection if there are sufficient materials available aliunde. 20. Having regard to the evidence which the plaintiff has given in this case, I do not think that it is necessary for her to submit herself to any medical examination, and her refusal should not constitute a bar to her obtaining the decree which she seeks. 21. Finally, it cannot be said that there has been any undue delay on the part of the plaintiff in instituting this suit against the defendant. 21. Finally, it cannot be said that there has been any undue delay on the part of the plaintiff in instituting this suit against the defendant. The law in England with regard to this matter is that delay however long, in bringing a suit for nullity is not in itself a bar, though it throws a special burden of proof upon the petitioner, (Halsbury's Laws of England, Vol. 10, 2nd Edn., P. 644). In the present case the plaintiff was married in April, 1928, when she was five years of age. The present suit was instituted in July, 1941 soon after she had reached the age of eighteen. It is, therefore, clear that there was no undue delay on her part in instituting these proceedings. 22. Having regard to the considerations mentioned above, the plaintiff's suit will be decreed with costs. It is declared that her marriage with the defendant is a nullity, and that she is not the wife of the defendant.