(1.) THIS revision under section 115 of the Code of Civil Procedure is directed against the order dated 14-8-1986 passed by the IVth Additional Judge to the Court of District Judge, Jabalpur in Civil Suit No. 74-A of 1984.

(2.) THE revisionist/wife Smt. Maya Gohiya has brought an action against her husband Premlal under section 13 of the Hindu Marriage Act, 1955 (for short the act) for seeking a decree of divorce on the ground of cruelty etc. It is contended that her husband Premlal is not capable of performing sexual act with his wife Smt. Maya Bai and as such incapability of performing sexual act amounts to cruelty on the part of her husband Premlal.

(3.) THE husband, denying the averments as levelled against him, submitted that he is fully capable of performing sexual act with his wife. However, the wife filed an interlocutory application seeking medical examination of her husband about his potency. This application by the impugned order dated 14-8-1986 has been dismissed by the trial Court giving rise to this revision.

(4.) SHRI D. D. Shukla, learned counsel appearing for the husband/non-applicant raised preliminary objection that the application as made and filed before the trial court for medical examination of Premlal to ascertain as to whether he is potent and capable to consummate the marriage, in real sense is not required in the instant case, as the petition has been filed under section 13 of the Hindu Marriage Act wherein impotency is not a ground for nullifying the marriage between the spouse. The said ground only exists in section 12 (a) of the Act and this petition is not based on section 12 of the Act.

(5.) A bare perusal of the provisions of section 13 of the Act postulates that ground of impotency is not available for annulling the marriage. However, Shri Gothalwal, learned counsel for the wife vehemently contended that ground under sub-section (1) (ia) of section 13, which reads as under: " (ia). . . . . has after the solemnization of the marriage, treated the petitioner with cruelty; or. . . " Provides cruelty as one of the grounds for annulling the marriage. He further submitted that non-consummation of marriage between the spouse amounts to mental cruelty, leading to matrimonial offence, which may well be a ground for annulling the marriage between the spouse.

(6.) IN Smt. Shantibai v. Tarachand, 1965 MPLJ 615 [LQ/MPHC/1965/82] = AIR 1966 M. P. 8. , Division Bench of this Court has laid down thus:

"whether for pleasure or for progeny intercourse, is an essential motive that actuates marriage. It is, therefore, implied in every marriage that both the parties must be capable of coition. The essential object of marriage would be frustrated by reason of impotency of either spouse. Impotency is incapacity to consummate the marriage by actual conjugal intercourse. That incapacity may exist either because of some structural defect in the sex organs of either spouse, or it may be due to mental causes. In 12 Halsbury (Simonds) 228, impotence is described as a state of mental or physical condition which makes consummation of the marriage practical impossibility. So also in 42 Corpus Juris Secundum 410, that term has been held synonymous with incapacity for copulation sexual intercourse. "

It is further observed that:

". . . . . . . . It must always be remembered that the provisions relating to dissolution of marriage and declaration of nullity have been introduced in the law of Hindus to give redress in genuinely hard cases. The provisions of the Hindu Marriage Act must never be allowed to be turned into an exit door easily accessible for satisfying a romantic nature of the parties or free lancing. . . "

(7.) IN Dastane v. Dastane, A. I. R. 1975 S. C. 1534, it has been ruled by the Apex Court that cruelty as a matrimonial offence shall also include mental cruelty. In another decision the Apex Court has held in Siraj Mohd. Khan v. Hafizunnisa, A. I. R. 1972 S. C. 1972, dealing with the provision of section 125 (3), second proviso, of the Code of Criminal Procedure, relating to the maintenance to the wife, that impotency of husband amounts to cruelty. Therefore, the contention so raised by Shri Gothalwal has some force and the objection of Shri D. D. Shukla, learned counsel for the non-applicant has no substance and is hereby repelled.

(8.) ON merits Shri Gothalwal has contended that if the case of the applicant/wife Smt. Maya Gohrya squarely falls within the meaning of section 13 (1) (ia) of the Act then how the wife is being treated with cruelty by the husband, has to be proved for getting the marriage annulled and since impotency of husband amounts to cruelty, Therefore, it is necessary, that the husband should stand medical test. In Birendra Kumar Biswas v. Hemlata Biswas, A. I. R. 1921 Cal. 459, it has been held that the Court trying the matrimonial proceedings has wide power to appoint Commissioner/doctor to examine the person in the event of dispute about potency of such a person.

(9.) THE trial Court, in the instant case, has repelled the submission of the applicant/wife on the ground inter alia that the case has not been set up under section 12 (a) of the Act and that the application was belated one. Suffice to say that since the application has been filed under section 13 (1) (ia) of the Act taking a ground of cruelty and as discussed above, cruelty under the facts and circumstances of the case, as discussed above, is covered and necessary result of impotency in the opinion of this Court, the trial Court has committed an error of law in appreciating the real controversy involved in the suit proceedings between the spouse and to prove such cruelty so alleged, the applicant/wife is certainly entitled to get her husband/non applicant medically examined by a competent physician. Mere delay in filing the application, considering the facts of the case, certainly cannot be a ground for rejecting the application.

(10.) FOR the reasons stated above, the order impugned is set aside. The revision is allowed and the parties are directed to appear before the trial Court on 28-8:1989. The trial Court is directed to get the husband/non-applicant Premlal examined by an expert physician, as may be proposed by him (husband). In the circumstances of the case, there shall be no order as to costs.