JUDGMENT 1. - This is an appeal arising out of the decree passed under section 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as `the Act,) declaring the marriage between the parties as void and annulling the same by a decree of nullity on the ground that the marriage has not consummated owing to the impotency of the appellant. 2. Dr. Sri Kishan Pathak (hereinafter referred to as 'Pathak') was married to respondent Indu Kumari on April 5, 1969 at Gwalior according to Hindu Rites. The case of Pathak was that consummated owing to the impotency of Indu Kumari the marriage between the parties was not consummation of marriage from the very inception and showed repugnance to the sexual act and whenever Pathak desired to exercise is conjugal rights, Indu Kumari stated weeping and threatened to shout if Pathak forced her for performing the sexual intercourse. According to the petitioner, Indu Kumari left the marital house on April 19, 1970 and was since then living in her father's house at Gwalior and she has refused to return and live with Pathak. It was alleged that Indu Kumari showed invincible repugnance to the sexual act with Pathak, with the result that the consummation of marriage was impossible and that Indu Kumari was impotent with regard to Pathak and on that ground a decree declaring the marriage to be void and a nullity was prayed for. 3. In her written statement, Indu Kumari admitted that the marriage took place on May 5, 1969 but she denied the case set up by Pathak about non-consummation of marriage and about absence of sexual intercourse. According to Indu Kumari she never resisted the consummation of marriage but she allowed Pathak to have sexual intercourse with her several times. It was stated by her that she never resisted Pathak from exercising his conjugal rights and that she always allowed Pathak to have sexual intercourse and that she enjoyed the same and they lived together as husband and wife. 4. During the trial the parties examined themselves as witnesses. An application was moved by Pathak for medical examination of Indu Kumari with reference to the question of impotency, but she refused to appear for medical examination and it was stated on her behalf that she could not be forced to appear for medical examination. 4. During the trial the parties examined themselves as witnesses. An application was moved by Pathak for medical examination of Indu Kumari with reference to the question of impotency, but she refused to appear for medical examination and it was stated on her behalf that she could not be forced to appear for medical examination. The learned Additional District Judge No. 2 Jodhpur, who tried the petition, held that Indu Kumari showed invincible repugnance to having sexual intercourse with Pathak. He also held that the marriage between the parties was not consummated and it was also held that Indu Kumari was impotent with regard to Pathak. Having come to this finding the Additional District Judge declared the marriage between the parties to be void and passed a decree of nullity under section 12 of the Act. 5. In this appeal, it was argued by the learned counsel for the appellant that the Additional District Judge was in error in coming to the conclusion that the marriage between the parties was not consummated. It was further argued that the finding arrived at by the trial court in respect of impotency was erroneous. It was also argued that there was no material on the record to support the finding that Indu Kumari showed invincible repugnance to sexual intercourse with Pathak. 6. So far as the first question, regarding the consummation of marriage, is concerned, the parties came to the court with absolutely divergent pleas. While Pathak averred that the marriage was not consummated, Indu Kumari stated in her written-statement that the marriage was consummated and that she had sexual intercourse with Pathak several times and that she always allowed Pathak to have sexual-intercourse with her. In his statement on oath Pathak stated that he tried to consummated the marriage but every time Indu Kumari resisted and, therefore, he could never have sexual-intercourse with her. It was stated by her that after marriage, they stayed together at Jaipur and Jodhpur, but whenever his wife stayed with him and he intended to have sexual-intercourse with her. She got annoyed. According to Pathak, Indu Kumari probably did not like him and rather hated him Indu Kumari in her statement in the witness box stated that she never refused her husband to have access to her body, and she repeated what was stated in her written statement that she had sexual-intercourse with her husband several times. She got annoyed. According to Pathak, Indu Kumari probably did not like him and rather hated him Indu Kumari in her statement in the witness box stated that she never refused her husband to have access to her body, and she repeated what was stated in her written statement that she had sexual-intercourse with her husband several times. But in cross-examination, Indu Kumari admitted that her husband attempted to have sexual intercourse with her only on the first night after the marriage, yet the physical act could not be completed as she was too much terrified and her husband had to withdraw himself without completing the physical act. Thereafter, according to Indu Kumari, her husband never made any attempt to have sexual intercourse with her on the ground that she did not permit him to complete the sexual act and she was feeling terrified. She also stated that her husband was of dark complexion and had small pox marks on his face. In cross-examination, when Indu Kumari was expressly asked whether she was a virgin because the sexual act could not be completed with her husband even on the first night, she replied that it was so from the medical point of view. Thus, a perusal of statement of the Indu Kumari shows that she did not disclose true and correct facts in her written-statement, but came to the court with an erroneous plea that she always allowed her husband to have sexual intercourse with her and that both of them enjoyed the sexual act. It was clear from her statement on oath that Pathak and Indu Kumari tried to have sexual intercourse only once during their marital life, on the first day after the marriage and on that day also the sexual act could not be completed due to the fact that she felt too much terrified and became nervous. There is no doubt that the physical act could not he completed on that day because of the attitude of Indu Kumari herself. It was admitted by her that thereafter no attempt was made to consummate the marriage. The only fact, which has been relied upon by the learned counsel for the appellant in support of his submission that the marriage was consummated, was the alleged incomplete act of sexual intercourse which is said to have taken place on the first day of marriage. The only fact, which has been relied upon by the learned counsel for the appellant in support of his submission that the marriage was consummated, was the alleged incomplete act of sexual intercourse which is said to have taken place on the first day of marriage. The alleged case of partial consummation of marriage on the first day of the marriage appears to have been subsequently developed at the time when indu Kumari appeared in the witness-box and the story clearly appears to be an afterthought, because no question in that regard was put to Pathak in cross-examination, when he appeared in the witness-box. Pathak denied that he had sexual intercourse with Indu Kumari on the first day of marriage or on any other day thereafter. A consideration of the evidence of both the parties go to show that at least it is indisputable that the parties did not have sexual intercourse on any other day except the partial act alleged to have taken place on the first day of the marriage. It is also clear that the case with which Indu Kumari came to the Court that she allowed her husband to have sexual intercourse with her several times and that she enjoyed the same, the pleas taken by her in the written-statement is falsified by Indu Kumar's own statement on oath and it is established that she did not have sexual intercourse with her husband except on the first day of the marriage and even on that day the physical act remained incomplete as she was too much terrified and the husband had to withdraw on account of her behaviour.In view of the changing stands adopted by Indu Kumari at different stages in the case regarding consummation of the marriage, it is difficult to accept her statement with regard to the alleged incomplete sexual act on the first day after marriage. Pathak has clearly denied having sexual intercourse with her even on the day after the marriage and according to Indu Kumari, the physical act could not be completed on that day as she was too much terrified and resisted her husband. Indu Kumari might have developed a fear psychosis and might have threatened to shout if Pathak persisted in his attempt to complete the physical act and on account of her attitude, Pathak had to withdraw himself. Indu Kumari might have developed a fear psychosis and might have threatened to shout if Pathak persisted in his attempt to complete the physical act and on account of her attitude, Pathak had to withdraw himself. Indu Kumari admitted in her statement on oath that as a matter of fact the marriage was not consummated. To quote from her statement on oath, She said:- " eSa o Mk0 ikBd ifr&ifRu ds :i esa dkQh dqN djrs jgs exj lgh rkSj ij Consummation ugh gqvkA " Although in examination-in-chief, she stated that on the wedding night Pathak had sexual intercourse with her but in cross-examination she admitted that thereafter they did not have sexual intercourse. Further in cross-examination she also admitted that even on the wedding night when her husband began the sexual act for the first time, she was too much terrified and she did not enjoy the act and even before penetration could take place she was very much terrified that her husband had to withdraw himself with the result that no copulation could take place. `Rayden on Divorce', Volume I (13th Edition) has described sexual intercourse resulting in consummation of marriage as under:- "Capacity to have sexual intercourse does not depend on capacity to conceive, whether of husband or wife, and incapacity to conceive is not a ground of annulment (c), Sexual intercourse or consummation is sometimes referred to as vera copala, as the natural sort of coitus without power to conception (d) vera copula consists of erection and intromissio (e) that is, of erection and penetration by male of the woman. Full and complete penetration is an essential ingredient of ordinary and complete intercourse (f) The degree of sexual satisfaction obtained by the parties is irrelevant (g)". Thus, sexual inter-course in order to constitute proper consummation of marriage should not be partial or imperfect but should be a normal and complete coitus. This view was taken in Jagdish Lal v. Smt. Shyama, A.I.R. 1966 All. 150 in Smt. Laxmi Devi v. Babulal, A.I.R. 1973 Raj. 89 , and in Samar v. Snigdha, A.I.R. 1977 Cal. 213 . Thus, sexual inter-course in order to constitute proper consummation of marriage should not be partial or imperfect but should be a normal and complete coitus. This view was taken in Jagdish Lal v. Smt. Shyama, A.I.R. 1966 All. 150 in Smt. Laxmi Devi v. Babulal, A.I.R. 1973 Raj. 89 , and in Samar v. Snigdha, A.I.R. 1977 Cal. 213 . On the basis of the admission of lndu Kumari herself, contained in her statement on oath, it is apparent that a normal and complete coitus, which is essential ingredient of an ordinary sexual act or intercourse, did not take place even on the wedding right and thereafter admittedly no sexual intercourse had taken place between the pasties. In this view of the matter, the finding arrived at by the learned Additional District Judge that the marriage between the parties was not consummation is fully supported by the evidence on record and more so by the admission of Indu Kumari herself. 7. As regards the question of impotency, it is the case of Pathak that Indu Kumari showed invinciable repugnance to sexual intercourse with him and on that ground it has been claimed that she was impotent qua Pathak. Where it is shown that a woman did not have an intercourse with her husband, even after a reasonable time or consummation of marriage has elapsed and it appears that she had refused to have intercourse and resisted the husband's attempt, the court can draw an inference that such refusal or resistence from intercourse arose out of some incapacity proceeding from nervous or invincible repugnance to the act of consummation of marriage, of such refusal was not due to mere obstinancy or incapacity (see Rayden on Divorce-Vol I at page 170) Where the wife made stiff resistance to the attempts of husband to consummate the marriage and Continued that resistence even though she formally consented to perform the conjugal duty. The refusal may be considered to have arisen from invincible repugnance to the act of consummation of marriage, consistent only with incapacity. Impotency is understood to mean incapacity to consummation the marriage, to have full and complete sexual intercourse. Further it is not absolutely necessary that the incapacity to perform sexual act must he general, because although a person may have general capacity of performing the sexual act, yet such person may he incapable of doing so vis-a-vis a particular individual. Impotency is understood to mean incapacity to consummation the marriage, to have full and complete sexual intercourse. Further it is not absolutely necessary that the incapacity to perform sexual act must he general, because although a person may have general capacity of performing the sexual act, yet such person may he incapable of doing so vis-a-vis a particular individual. If one spouse is found impotent in relation to the other spouse, although he or she may not be generally impotent, yet a decree holding the marriage to a nullity can be granted. In Jagdish Lal's Case (1) it was observed as under : "Impotency means incapacity for accomplishing the act of sexual intercourse and by sexual intercourse, in this context, it meant not an incipent, partial of imperfect but a normal and complete coitus. Impotency is to be distinguished from sterilly which may in some cases accompany impotency, but is not necessarily associated with it, the two expressions denoting lack of two different powers. A person may be incapable of accomplishing the sexual act and yet be capable of accomplishing the sexual act. The cause of impotency may be in the malformation or structural defect in the parts; in the functions, resulting in imperfect erection or premature ejaculation; in diseases, whether local or general or in the mind, menifesting itself a repugnance for the sexual act, fear, lack of confidence etc. It may also happen that a person is capable of performing it with a particular individual, and in much a case the person must be regarded as impotent in relation to that particular individual, regardless of his potency in general." (emphasis added) In Yuvraj Digvijay Singh v. Yuvraj Kumari, A.I.R. 1970 S.C. 137 their Lordships of the Supreme Court. "A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings." (emphasis added) 8. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings." (emphasis added) 8. It may be noted that section 12 (1)(a) was amended in the year 1976 and now it is not necessary to prove the impotence of the other spouse at the time of the marriage and continuance thereof until the filing of the petition. Now what is necessary to be proved for obtaining a decree declaring that the marriage was nullity under section 12 (1)(a) of the at is non-consummation of the marriage and the fact that the respondent was impotent. If these two facts are proved then the marriage being voidable, the other spouse is entitled to a decree declaring the marriage to be a nullity. If there is no consummation of marriage due to impotency of the respondent qua the petitioner, then he is entitled to obtain a decree of nullity. Both the ingredients, namely that the marriage has not been consummation and that the absence of consummation was caused due to the impotency of the respondent are equally important and must be established by the petitioner. 9. Now, in the present case, Indu Kumari has not been medically examined. Pathak submitted an application before the trial Court on August 8, 1975 praying that in order to decide the question of impotency of Indu Kumari, she should be examined by the competent Medical Practitioner. But Indu Kumari did not agree for her medical examination. On the other hand, in her reply dated November 4, 1977 it was stated that she could not be compelled to undergo medical examination, more so as the case related to mental impotency. Thus, the fact remains that Indu Kumari refused to submit herself for medical examination with reference to the question of impotence. 10. Undoubtedly, the repugnance to the act of sexual intercourse need not be always physical, but it may due to mental causes. If the husband or wife refuses to submit for medical examination, the court may never-the- less infer that some impediment exists. 10. Undoubtedly, the repugnance to the act of sexual intercourse need not be always physical, but it may due to mental causes. If the husband or wife refuses to submit for medical examination, the court may never-the- less infer that some impediment exists. In Jayaraj Anthony v. Marry Seeni Ammal, A.I.R. 1970 S.C. 100 , the wife did not give any reason for non-consummation of marriage and also refused to submit herself for medical examination, although when she appeared in the Court, she offered to consummate the marriage, it was held that the offer could not be divorced from the other circumstances, namely, the consistent refusal of the wife to consummate the marriage and her refusal to submit herself for medical examination, which were considered as strong circumstances from which a legitimate inference of her impotency could be drawn and the subsequent offer to consummate the marriage could not be taken to be a genuine one. 11. In Smt. Suvurna v. G. M. Achary, A.I.R. 1979 Andhra Pradesh 185 , it was observed that for the purpose of section 12 (l)(a) it was not necessary for the petitioner to prove that the respondent was wholly and totally impotent. The petitioner was required to prove that the marriage was not consummated owing to the impotency of the respondent. It is sufficient that the petitioner succeeded in showing that the marriage was not consummated on account of the impotency of the respondent qua the petitioner and it is not necessary to show that the respondent was wholly impotent. It was also observed that a person may be impotent in respect of one spouse, though such a person can perform sexual act with others. 12. In the present case, the plea raised by Pathak that his marriage with Indu Kumari was not consummation is fully established. But the case set up by Indu Kumari that she had sexual intercourse with Pathak several times is falsified by her own statement on oath. As Indu Kumari came forward with the positive case of having sexual intercourse with Pathak several times, which has been found to he false and as Pathak alleged that absence of consummation of marriage was due to impotency of his wife towards him, it could not he unreasonable to infer that the consummation did not take place because of the sexual incompetency of Indu Kumari. So far as Pathak was concerned. So far as Pathak was concerned. There was neither lack of opportunity nor of willingness on the part of Pathak, which could have caused non-consummation. Moreover Indu Kumari stated on oath that she was so much terrified that she was unable to perform the sexual act, which goes to show that she might have developed a fear, complex, nervousness or mental repugnance to the sexual act with Pathak. 13. In these circumstances that despite the opportunities which the parties had, yet the marriage was not consummated and sexual intercourse did not take place. It would not be unreasonable to infer that consummation of marriage did not take place, on account of the incapability or impotency of Indu Kumari so far as Pathak was concerned. The circumstances of this case lead to the inference that there was invincible repugnance on the part of Indu Kumari to the sexual act with Pathak, which caused non-consummation of the marriage. From reading of her statement on oath, it appears that Indu Kumari has not been able to assign any reason why the marriage was not consummated except that her husband used to tell her that she was afraid of the sexual act. In Kishore Shabu v. Mrs. Snehprabha Sahu, A.I.R. 1943 Nagpur 185 , it was held that incapability in the women is possible vis-a-vis a particular man, even when the woman is shown to have previous sexual experience, because the incapability need not be merely physical but it can be due to mental and psychological causes. What is required to he proved in such cases is in invincible repugnance to the act of intercourse, either generally or with reference to the particular person, which may arise from a variety of causes, like nervousness or excessive sensibility, hysteria or unconquerable aversion. It appears that the first experience which Indu Kumari had on the wedding night was unfortunate and it created a terror or an unconquerable fear in her mind with regard to the sexual act with Pathak so as to lead to an invincible repugnance to having sexual intercourse with him. Learned Additional District Judge appears to be justified in coming to the conclusion that impotency of Indu Kumari, so far as Pathak was concerned, can he inferred from the circumstances of the case. Learned Additional District Judge appears to be justified in coming to the conclusion that impotency of Indu Kumari, so far as Pathak was concerned, can he inferred from the circumstances of the case. As the case set up by Indu Kumari has been found to he false, there is no reason not to accept Pathak's version that she had developed invincible repugnancy to the performance of the sexual act with him. In P. v. R., A.I.R. 1982 Bom. 400 , a learned Judge of the Bombay High Court relied upon the leading English decision on the subject, namely D.E. v. A. G., (1895) 163 England Reports 1039 and referred to the observation of Dr. Lushington, as under: "Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse, it does not mean partial and imperfect intercourse. Yet, that every degree of imperfection would deprive it of its essential character. There must be degrees difficult to deal with but if so imperfect as scarcely to be natural, I should not hesitate to say that legally speaking, it is no intercourse at all. If there be a reasonable probability that the lady can be made capable of "veracopula" of the natural sort of coitus, though without power of conception. I cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipent, imperfect and unnatural coitus, I would pronounce the marriage void." It was then argued by the learned counsel for the appellant, on the basis of the decision of this Court in Brij Vallabh v. Smt. Sumitra, A.I.R. 1975 Raj. 125 ) that it has not been proved that the husband made repeated attempts for sexual intercourse, as invincible repugnance to the physical act could be established only after repeated endeavours which were informly unsuccessful. In this connection it may be observed that the question is a practical one and depends upon the facts and circumstances of each case. What the husband should do in the event of the husband being resisted by the wife from an effective cohabitation in order to obtain consummation of marriage, if the wife refuses to have intercourse or resists her husband's attempts in that respect, he could not be expected to use force to oblige his wife to submit to the physical act. Such a submission deserve; to be rejected. Such a submission deserve; to be rejected. A practical and reasonable view of the evidence in the recent case leads to the conclusion that the consummation of the marriage was practically impossible owing to the peculiar mental reaction of the wife, on account of terror, fear, nervousness or aversion. I have, therefore, no doubt that the conclusion arrived at by the learned Additional District Judge that Indu Kumari showed invincible repugnance to the act of sexual intercourse with Pathak and that she should be held to be impotent qua Pathak, must be upheld. 14. It was lastly argued by the learned Counsel for the appellant that the Court at the time of passing decree declaring the marriage to be a nullity, should direct the respondent to pay to the appellant for her maintenance and support such gross sum as may be considered proper. Section 25 of the Act gives inherent jurisdiction to the Court to grant permanent alimony to either spouse, at the time of passing any decree or at any time subsequent thereto, directing the respondent to pay to the applicant for her maintenance such amount as may appear to court to be just. Although no written application has been filed on behalf of the appellant for seeking an order of permanent alimony, yet the court can pass an order in respect thereof on the oral application of the appellant's learned Counsel. Mr. Ranamal Mehta appearing for the respondent has no objection to the passing of an order in respect of permanent alimony under section 25 of the Act by this Court. This Court has undoubted jurisdiction to pass an order regarding permanent alimony while passing a decree a decree under section 12 (I)(a) of the Act, declaring the Marriage between the parties a nullity. After taking into consideration the submissions made by the learned Counsel for the parties in respect of the income and property of the respondent as admittedly the appellant has no income of her own, it would be proper to grant a sum of Rs. 25,000 by way of permanent alimony to the appellant. The respondent is allowed three months time to make payment of the aforesaid amount of Rs. 25,000 by way of permanent alimony, to the appellant Indu Kumari. 15. 25,000 by way of permanent alimony to the appellant. The respondent is allowed three months time to make payment of the aforesaid amount of Rs. 25,000 by way of permanent alimony, to the appellant Indu Kumari. 15. In the result, the appeal fails and the decree passed by the Additional district Judge No. 2, Jodhpur declaring the marriage of Indu Kumari with Dr. Shri Krishana Pathak as void and annulling the said marriage by decree of nullity is upheld. However, the decree passed by the learned Additional District Judge, No, 2 Jodhpur is modified and permanent alimony in the sum of Rs. 25,000 is awarded to Indu Kumari, from Dr. Pathak who is allowed three months time to make the aforesaid payment. The parties are left to bear their own costs of the proceeding in this court.Appeal dismissed. *******