Annulment of
Marriage on grounds impotency in India.
the decision in G. v. G.(1) holding that a Court would be
justified in annulling a marriage if it was found that the marriage had not
been and could not be consummated by
the parties thereto, though no reason for
nonconsummation was manifest or apparent.In that decision both the husband and
the wife were perfectly normal and each
charged the other as being responsible for non-consummation of the marriage.
The Court held that without going into the question as to who was the guilty
party, it was evident that the marriage had not been consummated and could not
be consummated in future also. Accordingly the Court annulled the marriage for
the reason that it was satisfied that "quoad hunc et quoad hunc, these people cannot
consummate the marriage."
Section 12(1) in The
Hindu Marriage Act, 1955
(1) Any marriage solemnised, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of
nullity on any of the following grounds, namely:—
12 [(a) that the marriage has not been consummated owing to
the impotence of the respondent; or]
(b) that the marriage is in contravention of the condition
specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the consent
of the guardian in marriage of the petitioner 13 [was required under section 5
as it stood immediately before the commencement of the Child Marriage Restraint
(Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained
by force 14 [or by fraud as to the nature of the ceremony or as to any material
fact or circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage
pregnant by some person other than the petitioner.
In appeal I am of the same opinion as the learned
Subordirite Judge on both these issues and here are my reasons.
'Point I.' Impotence
as a ground for dissolution of marriage is a medico-legal problem and I shall
consider it now under both these heads.
Impotence is defined
as lack of ability to perform sexual act and sterility is defined as lack of
ability to procreate children. Questions of impotence and sterility arise when
divorce is sought (a) because, marriage cannot be consummated (i.e., one of the
parties is incapable of complete sexual intercourse), (b) if incapacity for
consummation can-not be surgically remedied, or, the defective party is
unwilling to submit to a surgical operation; or (c) if the incapacity existed
before marriage. (Sterility, by itself, offers no ground for divorce).
Impotence is attributed to injury to head, neck, or loins.
If a marriage is once consummated; nullity cannot be given
on ground of subsequent impotency. Impotency must be present at time "Of
marriage and suit: Kishore Sahu v. Mrs. Snehprabha Sahu, AIR 1943Nag 185 (SB)
(L).
Proof of impotence, that is physical unfitness for
consummation, must be proved or there must be facts from which this can be
inferred; Edward Charles Dawson v. Matty Dawson, AIR 1916 Mad 675 (2) ,(FB)
(M). Non attainment of puberty by a woman is no ground as the fact does not in
any manner preclude the consummation of marriage: 29 Mad LJ 183: (AIR 1916 Mad
675 (2)) (M). Loathsome and incurable syphilis of wife, resulting in her
incapacity to consummate marriage entitles husband to a decree for nullity on- ground
of her impotency: Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 464 (N); E.
A. Wylie V. Mrs. R. Section Wylie, AIR 1930 Oudh 83 (O), Syphilis to amount to
impotency must be incurable, even though the disease is not an absolute'bar to
compulation. But where woman is discharged from hospitals as cured, with a
negative blood test, syphilis cannot be said to be incurable and the marriage
cannot be dissolved. But see AIR 1930 Oudh 83 (O).
Madras High Court
T. Rangaswami vs T. Aravindammal
Equivalent citations: AIR 1957 Mad 243
JUDGMENT Ramaswami, J.
1. This is an appeal directed against the order and decree
of the learned Subordinate Judge of Tiruchirapalli in O. P. No. 186 of 1952.
(1a) This O. P. was filed under Section 5 of the Madras
Hindu (Bigamy Prevention and Divorce) Act VI of 1949 Clause (h) which provides
that either party to a marriage solemnised before or after the commencement of
this Act..... may pray that the marriage be dissolved on the ground that the
other party was impotent at the time of marriage and continued to be so until
the presentation of the petition. This Act has been repealed and replaced by
the Hindu Marriage Act 1955, Section 12(a). The Clause (h) of Section 5 of Act
VI of 1949 is identical in language with Clause (a) if Section 12 of the Hindu
Marriage Act 1955. Therefore no vested right has been taken away and no new right
has accrued.
2. The petitioner T. Rangaswami is seeking divorce' on the
ground of alleged impotence and alleged desertion. He married the respondent
Ara-vindammal, who is his own niece on 13-9-1945. After living for sometime
together, the respondent has been living before the presentation of the
petition with her parents for a considerable time. The case for the respondent
is that she is not as alleged either on the date of the marriage or On the date
of the petition and that she is not the deserting party and that on the other
hand she has been driven out of the house and that her husband wants to get rid
of her in order to re-marry.
In the course of the enquiry this respondent produced a
certificate issued by Srimati G. Poriniah, Lady Doctor, regarding her potence
and this Lady Doctor has been examined also as R. W. 3. The medical evidence
puts it beyond doubt that this respondent is suffering neither from organic nor
atonic impotence permanent or temporary. This evidence is corroborated by the
respondent examined as R. W. 1 and her father examined as R. W. 2.
This was not in any way displaced by the evidence of the
petitioner examined as P. W. 1 and his mother as P. W. 3. Before the learned
Subordinate Judge the issue of desertion was not pressed with any seriousness
as noted by him in paragraph 6 of his order and in fact there were no materials
to make out the ground of desertion put forward as a second string to the bow
by the petitioner. This petition was therefore dismissed with costs. Hence this
appeal,
3. In appeal I am of the same opinion as the learned
Subordirite Judge on both these issues and here are my reasons.
4. 'Point I.' Impotence as a ground for dissolution of
marriage is a medico-legal problem and I shall consider it now under both these
heads.
5. Impotence is defined as lack of ability to perform sexual
act and sterility is defined as lack of ability to procreate children.
Questions of impotence and sterility arise when divorce is sought (a) because,
marriage cannot be consummated (i.e., one of the parties is incapable of
complete sexual intercourse), (b) if incapacity for consummation can-not be
surgically remedied, or, the defective party is unwilling to submit to a
surgical operation; or (c) if the incapacity existed before marriage.
(Sterility, by itself, offers no ground for divorce). Impotence is attributed
to injury to head, neck, or loins.
6. Potence in case of males means power of erection of the
male organ 'plus' discharge of healthy semen containing living spermatozoa and in
the case of females means (1) development of external and internal genitals and
(2) ovulation and menstruation.
7. Causes of impotence: (*Apply to males only. --*Apply to
females only; those unmarked, apply to both sexes):--
1. Organic: 1. 'Nervous Lesions*': Diseases of, or injury
to, brain or cord. 2. 'Malformation or absence of parts* male organ may be
absent, non-developed, ill-developed, or two or more in number: adherent to
scrotum or abdomen; fibrous or cartilaginous; hypospadias; congenital phimosis,
anorchidisni, cry-ptorchidism; diseases of or accidents to or operations on the
male organ, testicles or ducts (perinaeum).
*Atersia or narrowness of vulva, absence of uterus, tough
hymen or vagina. (Though according to law, a boy under 14 is impotent, in fact,
he is not always so). Also -- Obesity, 3. 'Inflammations or Cicatricial'
contractions*. 'Vaginismus'. Krauroses vulvae; internal piles, tight stricture.
4. Tumorous*:--Elephantiasis; 'hernia', big hydrocele.
"Psychial* 1. Absence of voluptuous thoughts. 2.
'Repugnance' towards individuals, 'fear', 'timidity', 'excessive passion'. (For
this reason, a man may be potent towards one woman and impotent towards
another.
Atonic.* (Therefore, often temporary impotence). 1. 'From
general diseases' and 'conditions': -- Old age, too frequent coitus, wasting
diseases (diabetes); anaemia; uraemia, cholaema, rhumatism, diptheria, Heart
diseases, chronic nephrities, acute fevers, parotitis. 2, 'From Over-indulgence
in drugs': lead, potassium Iodide, opium, cannabis indica and other narcotics;
alcohol, tobacco, thyroidin. 3. 'From chronic irritation of genital passages --
due to gonorrhoea, stricture, masturbation vaginismus.
8. This information can be gathered from standard text-books,
English and Indian, on the subject like Glaister's Medical Jurisprudence and
Toxicology (1953), 9th Edn., Chapter XII, p. 358 ff; Taylor on Sexual Disorders
(2nd Edn,), Chapter VIII, page 98ff, (atonic); Organic impotence, Chapter IX,
p. 105 ff; Forel's Sexual question and Psychic Impotence, pp. 85, 219; Mody's
Medical Jurisprudence and Toxicology (12th Edn.), Chapter XIII, p. 284ff; Ray's
Medical Jurisprudence and Treatment of poisoning (6th Edn.) page 23lff;
Kanmth's Medical Jurisprudence. (MLJ publication.)
9. In regard to the legal aspect it would be interesting to
examine analogous laws. Under the Hindu Law concerning impotence as affecting
the status and continuance of marriage, the following extracts from the
standard commentaries are sufficient;
Mayne's Hindu Law (11th Edition), para 105 (page 143):
"As the great and primary object of marriage is the
procuring of the male issue, physical capacity is an essential requisite so
long as mere selection of a bridegroom is concerned; but a marriage with an
eunuch is not an absolute nullity.....It has now been held by the High Courts
of Madras and Allahabad 'in decisions of questionable correctness the under the
Hindu Law an impotent person can be lawfully married" Amirthammal v.
Vallimayil Am-mal, ILR 1942 Mad 807: (AIR 1942 Mad 693) (FB) (A); Bhagavati
Saran Singh v. Parameshwari Nandan Singh, ILR 1942 All 518: (AIR 1942 All 267
(2)) (B); Kaura Devi v. Indra Devi, ILR 1943 All 703; (AIR 1943 All 310) (C).
The views expressed by the learned Editor of the 10th
Edition of Mayne's Hindu Law have been dissented from in the Madras and
Allahabad decisions, 'Mulla's Hindu Law (llth Edition) page 537:' "It has
been held by the Calcutta High Court that the marriage of a female with a male
who is impotent and is not able to consummate the marriage is nullity"
Ratan Moni v. Nagendra Narain, 48 Cal WN 689: (AIR 1949 Cal 404) (D).
'Raghavachariar's Hindu Law' (3rd Edition) page 51:
"Marriage does not exist solely for sexual intercourse
and a marriage with an impotent person cannot be held invalid though one of the
chief objects of marriage, viz., begetting of children is defeated
thereby". Purushotam Das v. Bai Mani, ILR 21 Bom 610 (E). See also Kanahi
Ram v. Biddya Ram, ILR 1 All 549 (F). See contra 48 Cal WN 689: (AIR 1949 Cal
404) (D).
10. 'Muslim Law:' Under Muslim taw impo-tency as a ground
for divorce was available even before the passing of the Dissolution of Muslim
Marriages Act VIII of 1939. Under the Act which has accepted all principles of
Muslim Law with slight changes in the. procedure and conditions, a Mahomedan
wife --- in the converse case of the husband he being simply left to his
-ordinary power of divorce is entitled to seek divorce on the ground of
impotency of the husband subject to the following conditions:
(i) that the impotence existed at the time of marriage;
Feroze-din v. Mt Wazir Eegam, AIR 1926 Lah 218 (G); Mt. Altafan v. Ibrahim, AIR
1924 All 116 (H) confirmed in Mohamed Ibrahim v. Altafan, AIR 1925 All 24 (I).
(ii) that the wife had no knowledge of it at the time of
marriage; (AIR 1924 All 116 (H) supra).
(iii) that the defect had not since been removed, Badardim
v. Mt. Allah Rakhi, AIR 1937 Lah 383 (J).
According to the Act VIII of 1939 the material date is the
date of marriage and not the date of consummation. It would mean that if a
husband is potent at the time of marriage but becomes impotent be fore the date
of consummation the wife will not be entitled to Judicial divorce. It was
necessary even before the Act to prove that the impotency existed all through
the period of marriage and remained incured since the time of marriage, (Pir
Bux v. Muha mmad Unnissa, AIR 1927 All 100 01); AIR 1937 Lah 383 (J);
An impotent person is defined by the Mahomedan Law as one
who is unable to have a connection with a woman, though he has the natural
organs; and a person who is able to have connection with ah enjoyed woman, but
not with a virgin, or with some women but not with others whether the
disability be by reason of disease, or weakness or original constitution, or
advanced age or enchantment, is still to be accounted impotent with respect to
her with whom he cannot have connection. Bailie's Mahomedan Law, Vol. I, page
347; AIR 1924 All 116 (H). This definition seems to hold good under the Act.
Under Shia Law the wife was not entitled to separation if the impotency was
only special in her case or what is called 'ad hoc' in English Law. The Act
does not make any difference and it appears provisions of the Act would be
applicable to all schools of Muslim Law.
A man, may, however, be nominally or temporarily potent due
for instance to the use of certain medical drugs or other cause; or he may be
potent as regards some women and not potent as regards his wife: AIR 1924 All
116 (H). For detailed exposition (see R. B. Sethi Muslim marriage and its
dissolution (1955) p. 97 and foll; R. K. Wilson Anglo-Muhammadan Law Fifth Edn.
p. 145).
11. Section 30 of the Parsi Marriage and Divorce Act III of
1936, which has not amended section 28 of Act XV of 1865, runs as follows:
"In any case in which consummation of the marriage is
from natural causes impossible, such marriage may, at the instance of either
party thereto, be declared to be null and void". It will be noticed that
under this Act impotency is not a ground for divorce but for declaring the
marriage null and void (See Parsi Marriage and Divorce Act by Wadia and
Katpitia, 1939 Edn. page 60).
12. Under the Special Marriage Act, 1954, impotency is not a
ground for divorce, but only a ground for nullity of marriage. Section 24
states:
"(1) Any marriage solemnized under this Act shall be
null and void and may be declared by a decree of nullity; -
(2) If the respondent was impotent at the time of the
institution of the suit". (see page 104 of D. H. Chaudhari's Special
Marriage Act, 1954).
13. Under the Hindu Marriage Act, 1955, also, impotency is
not a ground for divorce but a ground for nullity. Section 12 states:
"Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of
nullity on any of the following grounds namely--
(a) that the respondent was impotent at the time of the
marriage and continued to be so until the institution of the proceedings;
......
(See Commentaries of Hindu Marriage Act XXV of 1955 by K. P.
Saxena, page 159).
14. Under the Indian Divorce Act IV of 1869, impotency is
not a ground for divorce but a ground for nullity of marriage under sections 18
and 19 of that Act. -
Section 18 states:
"Any husband or wife may present a petition to the
District Court or to the High Court, praying that his or her marriage may be
declared null and void." -
Section 19 states:
"Such decree may be made on any of the following
grounds:
1. that the respondent was impotent at the time of the
marriage and at that time of the institution of the suit;......"
15. The following case-law under Section 19 of the said Act
is apposite:
Capacity for sexual intercourse must exist at-least 'in
posse' at the time of marriage. Permanent and incurable impotency such as to
render complete and natural sexual intercourse between parties practically
impossible is a ground for annulment of marriage. Impotency means physical and
incurable incapacity to consummate marriage. Incapacity may result from
loathsome and incurable syphilis: 'Birendra Kumar v. Hemlata Biswas', AIR 1921
Cal 459 (K).
If a marriage is once consummated; nullity cannot be given
on ground of subsequent impotency. Impotency must be present at time "Of
marriage and suit: Kishore Sahu v. Mrs. Snehprabha Sahu, AIR 1943Nag 185 (SB)
(L).
Proof of impotence, that is physical unfitness for
consummation, must be proved or there must be facts from which this can be
inferred; Edward Charles Dawson v. Matty Dawson, AIR 1916 Mad 675 (2) ,(FB)
(M). Non attainment of puberty by a woman is no ground as the fact does not in
any manner preclude the consummation of marriage: 29 Mad LJ 183: (AIR 1916 Mad
675 (2)) (M). Loathsome and incurable syphilis of wife, resulting in her
incapacity to consummate marriage entitles husband to a decree for nullity on-
ground of her impotency: Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 464
(N); E. A. Wylie V. Mrs. R. Section Wylie, AIR 1930 Oudh 83 (O), Syphilis to
amount to impotency must be incurable, even though the disease is not an
absolute'bar to compulation. But where woman is discharged from hospitals as
cured, with a negative blood test, syphilis cannot be said to be incurable and
the marriage cannot be dissolved. But see AIR 1930 Oudh 83 (O).
Wife's invincible repugnance to act of coitus rendering her
incapable of sexual intercourse entitles husband for declaration of nullity of
his marriage, Burden of proof is on time and is increased by delay on his part.
But delay by itself is not an absolute bar unless the respondent has thereby in
any way suffered: Bull v. Mrs. Bull, AIR 1938 Cal 684 (P) When husband is
impotent as regards his wife only, decree for nullity can be granted H. v. H.,
AIR 1928 Bom 279 (Q); Wilson v. Wilson, AIR 1931 Lah 245 (R); AIR 1943 Nag 185
(L); (Attempt to consummate, reducing wife to state of hysteria, making
consummation impossible). See also Section v. B. 16 Bom 639 (S):
No presumption can be drawn from the fact that the wife was
unwilling to live with husband that she was impotent; Emmanuel Singh v. Kamal
Saraswati, AIR 1934 Pat 870 (1) (FB) (T).
Courts have wide discretion in ordering physical examination
of the party suffering from the disease and always do so, subject to such
conditions as will afford protection from violence to natural delicacy and
sensibility. Where a party refuses to attend for medical inspection, the court
may probably draw an unfavourable inference: AIR 1921 Cal 459 (K); H. v. H., 30
Bom LR 523 at p. 527: (AIR 1928 Bom 279 at p. 280) (Q); Intract v. Intract,
(1933) P 190 (U), under the (U.K. ) matrimonial causes Rules (of Rule 24)there
is specific provision for medical inspection).
In regard to the nomination of doctors and their
certificates -- See Agnes Sumathi Ammal v. D. Paul, AIR 1936 Mad 324: 70 Mad LJ
32 (FB) (V), Coral Indira Gonsalves v. J. F. Iswariah, (W).
The burden of proof is heavy on the petitioner as it
involves a slur on the manhood or womanhood of the other party: 29 Mad LJ 183:
30 Ind Gas 565: (AIR 1916 Mad 675 (2)) (FB) (M). Impotency means incapacity to
consummate the marriage and that therefore in the circumstances the respondent
must be deemed to be impotent so far as the petitioner was concerned at the
time of the marriage and at the time of the institution of the suit and the
marriage between the petitioner and the respondent must be declared mill and
void: Kanthy Balavendran v. Section Harry; (FB) (X); 30 Bom LR 523 at p. 527:
(AIR 1928 Bom 279 at p. 280) (Q); ILR 16 Bom 639 (S) (A case under Parsi
Divorce and Marriage Act): AIR 1931 Lah 245 (R); AIR 1943 Nag 185 (FB) (L);
Ramesh v. Kusum, AIR 1949 Bom 1: ILR (1949) Bom 190: 50 Bom LR 426 (Y) (See AIR
Manual Civil and Criminal Vol. IV (1947) p. 3488 and foil, and Manchanda The
Law and Practice of Divorce (Eastern Law House (1945) p. 206 and foil. In
regard, to both these very useful publications, a new edition is long over-due.
(16) In England impotence has always been a ground for nullity only but not a
ground for divorce. The law on the subject has been summed up by Tolstoy Jin
his "Law and Practice of Divorce and Matrimonial Causes" (Second
Edition) at page 94 and following as follows:
"Impotence is inability to consummate the marriage and
to be a ground for nullity, such inability roust exist at the time of marriage
(Note one) and continue to exist at the date of the petition. Sterility
unaccompanied by impotence is no ground for nullity. (Note Two) if he or she be
otherwise 'apta viro'.
At one time it was necessary to wait three years before
asking for relief and it was the practice of the Court to adjourn the case to
give the parties an opportunity for further attempts. If this failed, then
impotence was presumed. This is no longer the practice and there is now no
minimum period to get over prior to the presenting a petition for nullity.
To consummate a marriage, ordinary and complete sexual
intercourse must take place. Partial intercourse or intercourse which, is so
imperfect as scarcely to be natural is insufficient (Note Three). In
determining whether intercourse is ordinary and complete the word 'consummate'
must be construed as it is understood in common parlance and in the light of
social conditions known to exist. (Note Four).
The inability to consummate may be due to a physical defect
which is incurable, or to one which is curable but which the respondent refuses
to have cured, (Note Five) or to mental or moral disability, (Note Six). In the
latter case, it sometimes happens that a' person is capable of having
intercourse, but incapable of performing it with the particular individual,
i.e., impotent 'quoad hunc' or 'quoad hanc'. This is sufficient to found a
decree of nullity, as what matters is ability to have intercourse in general
(Note seven).
Provided there are no circumstances which constitute a bar
to relief, e.g., knowledge of the defect at the date of marriage, the impotent
party can himself petition for nullity and his right to do so is not
conditional on repudiation of the marriage by the other party.
Generally speaking, a spouse who does not attempt or fails
in his attempts at sexual intercourse will have the burden of proving that he
or she is capable and the burden is heavier in the case of a, man. (Note
eight). The Matrimonial Causes Rules 1950, Rule 24 provides for a medical
inspection of the parties in the case of nullity for impotence or wilful
refusal to consummate. (Rule 24), but the Court may grant a decree though the
respondent refused to submit to the inspection (Note nine). In fact, the
respondent's refusal may incline the court to draw the inference that the
petitioner's allegations are true.
The birth of a child is not conclusive evidence that the
marriage has been consummated as it is well established that fecundation 'ab
extra' can take place (Note ten).
In a proper case the court will order a petitioner who
alleges that the respondent is incapable of consummating the marriage to give
particulars of the nature of the incapacity alleged. (Note Eleven.) Evidence of
non-access is admissible, if given in nullity suits for incapacity."
(Note one) Brown v. Brown, (1828) 1 Hag ECC 523 (Z),
(Respondent becoming impotent subsequently is no ground for nullity) Napier v.
Napier, (otherwise Goodban) 1915 P 184 at p. 190 (Z1). 'Note two: L. v. L.
(1922) 38 TLR 697 (Z2); so that voluntary sterilisation before marriage is no
ground for relief: Baxter v. Baxter, (1943) AC 274 (Z3); overruling J. v.
J.,(1947) P158 (Z4); R.v. R. (otherwise F) 1952-1 All ER 1194 (Z5); (penetration
but no ejaculation). But see also Grimes v. Grimes, (1948) P. 323 (Z6); White
v. White, (1948) P. 330 (Z7).
'Note Three': D. v. A., (1845) 1 Rob ECC 279 (Z8); Snowman
v. Snowman, (1934) P: 186 (Z9); Clarke v. Clarke, (1943) 112 LJ P. 1 (Z10); B.
v. B., (1955) P. 42 (Z11); R. v. R., (1952) 1 All ER 1194 (Z12). 'Note Four':
(1948) AC 274 (Z3).
'Note Five': L. v. L. (1882) 7 PD 16 (Z13); G. v. G., (1908)
25 TLR 328 (Z14); S. v. S. (otherwise C) (1954) 3 All ER 736 (Z15);
'Note Six': G. v. G., (1871) 2 P and D 287 (Z16) excessive
sensibility); P. v. L., (1873) 3 PD 73n (Z17) (hysteria); 1952-1 All ER 1194
(Z5); (1954) 3 AH ER 736 (Z15); Lewis v. Hayward, (1866) 35 LJ P and M 105
(Z18); G. v, G. (1924) AC 349 (Z19).
'Note Seven': (1924) AC 349 (Z19). 'Note eight': Kay v.
Kay., (1934) 152 LT 264 (Z20); (1866) 35 LJ P and M 105 (Z18). 'Note Nine':
(1933) P. 190 (U) where the authorities are dissented. (1908) 25 TLR 328 (Z14);
W. v. W., (1912) P. 78 (Z2J); S. v. S., (1908) 24 TLR 253 (Z22); B. v. B., (1901)
P. 39 (Z23); W. v. S., (1905) P. 231 (Z24); Section v. B., (1905) 21 TLR 219
(Z26). Note Ten: Clarke v. Clarke, (1943) 112 LJ P. 41 (Z26); (Child born
though marriage not consummated) (1934) P. 186 (Z9); L. v. L., (1949) P. 211
(Z27); (artificial insemination).
'Note Eleven': Wise, v. Wise, (1944) P. 56 (Z28). 'Note
Twelve': Farnham v. Farnham, (1937) P. 49 (Z29); Burgess v. Burgess, (1937) P
60 (Z30). For detailed discussion in standard commentaries see Vol. 12
Halsbury's Laws of England (1955); Simmonds Edn. Para 426 and Foll, at page 228
and foll; Latery on Divorce Fourteenth Edn. (1952) p. 194 and foll. Rayden on
Divorce, Fifth Edn. (1949) p. 70 & foll. Phillips practice of the Divorce
Division Fourth Edn. (1951) p. 39 and foil; Jackson The Law relating to the
Formation and Annulment of Marriage pp. 69-73 and 103-108 and 203-315 Etc.
(1951).
17. In America unless as in many states it is made so by
Statute, ante-nuptial impotency is not a ground for divorce. The American law
on the subject is found in two authoritative publications. In 19 Corpus Juris,
page 40, Section 71, it is stated thus:
'Impotency is an incurable incapacity that admits neither
copulation nor procreation, the copulation contemplated being copula vera and
not partial, imperfect, or unnatural. It must be incurable and render complete
sexual intercourse 'practically impossible. Thus absence of conceptive power or
barrenness does not constitute impotency if there is complete power of
copulation." ill. Griffeth v. Griffeth, 162 111 368 (Z31), J. G. v. H. G.
(1870) 33 Md. 401 (Z32); Minu Payne v. Payne, 46 Minn. 467 (Z33); PaLuckenbach
v. Luckenbach, 39 Pa Co 520 (234); Tenn Williams v. Williams, 1 Tenn. Civ A 538
(Z35); Alia - Anonymous 35 AL A 226 (236); Berdolt v. Berdolt, 56 Nebr. 792 (Z37);
S. v. S., 1922 Mass 194 (Z 38); Grosvenor v. Grosvenor,' 194 111 652 (Z39).
17a. American Jurisprudence, Sections 140 and 141, has the
following to say:
"Section 140. Capability of consummation is an implied
term in every marriage contract. It is so essential that on discovery of the
entire incapacity of one of the parties for that duty of wedlock, the other may
have a decree annulling the marriage. Underthe canaon law as administered in
England, impotency existing at the time of the marriage was ground a divorce a
'vinculo matrimonii". In this country in the absence of a statute so
providing, impotency on the part of either spouse is not a ground for divorce,
as the grounds for divorce are only those specified by the statutes.
Also, from the facts that impotence is canonical disability
cognizable only the ecclesiastical courts and that we have no such courts, it
follows and it is generally so held, that in the absence of statute on the
subject, our courts have no jurisdiction to grant a divorce on this ground. It
is well settled both in England and in this country that impotency does not
render the marriage void but merely voidable, and the marriage is regarded as
valid unless avoided by some court having jurisdiction during the life of both
parties.
At the present time statutes exist in the several States
either authorizing divorces for impotency or conferring jurisdiction on some
court to annul the marriage therefor".
"Section 141....it is well settled that if, by reason
of malformation or organic defect existing at the time of marriage, there
cannot be natural and perfect coition -- vera copula -- between the gardes, the
case comes within the legal definition of impotency. If, however, there is a
probability of capacity to accomplish the sexual act, no decree will be
granted. (1870), 33 Md. 401-3 Am Ren & 183 (Z32).
The origin of the incapacity is immaterial. It may proceed
from malformation of the sexual parts or from absence of necessary organs. On
the part of the husband, it may arise from the excessive abnormal proportions
of his sexual organs or from genital weakness produced by self-abuse. On the
part of the wife, it seems not essential that there be any structural defect.
Excessive sensibility rendering sexual intercourse practically impossible on
account of the pain it would inflict or an invincible re-pugnance to sexual
intercourse resulting in a paralysis of the will may be sufficient: S. v. S., 192
Mass 194 (Z38).
Universal impotency does not seem to be essential. Impotency
quoad hoc, as it is termed, is sufficient; that is, if the defendant is
entirely incapable of sexual intercourse with the plaintiff, though not with
other persons, if such a thing is possible, a decree of nullity may be granted.
This view is said to be reasonable, for the marital relation is with the
plaintiff; and if the defendant is incapable of consummation with the
plaintiff, the incomplete con-tract ought to be dissolved, whatever may be the
defendant's powers with respect to other persons. On principal, therefore,
relative and not absolute Impotency would seem to be sufficient.....":
Vandonberg v. Vandonberg, 197 N Y S 641 (Z40).
18. To sum up, a marriage will be avoided or dissolved on
the ground of impotence, on the petition of either party if it is proved that
at the time of the marriage one of the parties is and continues to be Incapable
of effecting or permitting its consummation either of some structural defect in
the organs of generation which is incurable and renders complete sexual
intercourse impracticable or of some incurable mental or moral disability
resulting in the man inability to consummate the marriage with the particular
woman or in the woman to an invincible repugnance to the act of consummation
with the particular man.
19.Though in practice the terms, "declare the marriage
null and void" and "dissolution of marriage" are used
interchangeably, in strict reality, it is only voidable and void and non-existent
marriages which can be declared null and void, and the contract of marriage
made void ab initio; in regard to a valid marriage, it can only be annulled or
dissolved provided one or more-specified grounds for divorce have been made
out.
While in the case of 3 void marriage the decree merely
'declares' status, in the case of a voidable marriage the decree changes
status. The children of a void marriage for instance unless saved by
legislation (e.g., Section 26, Special Marriage Act, 1954) are never legitimate
(Jackson ibid 61), But there is the further distinction between void and
voidable marriages in that in the case of a voidable marriage till it is
annulled by a decree parties are husband and wife and children begotten of such
marriages are legitimate and secondly whereas in the case of a voidable
marriage it can be avoided only on a presentation of a petition by either party
thereto, a marriage which is null and void may be declared to be so even at the
instance of a stranger whose interest are affected by such a marriage.
20.In the case of dissolution of marriage on the ground of
impotence, the following issues as pointed out in Chandhr's useful publication
on the Special Marriage Act, p. 108, arise for consideration:
(a) Was the respondent impotent at the time of the marriage?
(b) If so, what was the nature of impotency?
(c) Was she (or he) generally impotent or only impotent
vis-a-vis. the petitioner?'
(d) What was the cause
or what were the causes of this impotency?
2. (a) Was the respondent impotent on the date when the suit
or petition was instituted?
(b) What was the nature of the impotency?
(c) Was she (or he) generally impotent or only impotent
vis-a-vis the petitioner?
(d) What was the cause
or what were the causes of such
impotency?
3. Was the marriage ever consummated, either at the time of
the marriage or thereafter?
4. Is there no collusion between the petitioner and the
respondent?
5. Has the petition been brought in good faith
and has there been full, free and frank disclosures
of all material facts?
Besides these, additional issues arising out of the
pleadings will have to be framed.
21.In regard to proof of impotency, the rules of evidence
are not different in the case of impotency than elsewhere. Impotency that is
physical unfit-ness for consummation, must be proved or there must be facts
from which this can be inferred. The proof must be, as used to be expressed in
the Ecdeciastical courts in England not suspicio probablis but has to be
Vehetnens proesumptio.
22.There is no minimum standard of proof necessary.
Even" uncorroborated testimony of the petitioner is sufficient if it can be
believed. In cases of this nature, corrboration can only be obtained from the
evidence 'of the other party to the marriage. Under Section 120 of the Evidence
Act, the other party to the marriage is a competent witness.
23. The conduct of the parties subsequent to the marriage
would be important. Did they peak lot the impotency to anybody? Was it
mentioned to any friend or relation or to their parents? If, not, why not?
Would it be natural not to do so? Or was there no opportunity? It would not be
natural for everybody to speak these matters to another. A reserved or shy or a
reticent person would not. On the other hand, other types almost certainly
would. Whether the parties to the case fall within the one class or the other,
it is for the trial, judge to discover: (AIR 1943 Nag 185) (L).
24. Impotency may be established by medical examination of
the parties. The doctor who examined either party or both the parties, may be
examined as witness.
Where the respondent relies on a doctor's certificate that ho
was able to have sexual intercourse and was potent that day, the certificate
must be strictly proved by examining the doctor who issued it. Certificates
like these, do not prove themselves. The doctor giving the certificate has to
state what tests he carried out to arrive at his conclusions and must stand
cross-examination and convince the Court that his conclusion about the potency
is correct: (W).
25. There is of course need of caution in dealing with the
evidence of impotency to avoid such after events as in some of the old cases
happened, when the person pronounced impotent had issue in a later marriage:
(ILR 16 Bom 639) (S)
26. No presumption can be drawn from the fact that the wife
was unwilling to live with her husband that she was impotent: (AIR 1934 Pat 67a
(1) (FB) (T).
27. Bearing these principles in mind if we examine the facts
of this case, we find that neither organic impotency nor atonic impotency quoad
this petitioner has been made out. Therefore this issue has been rightly
decided by the learned Subordinate Judge.
28. Point 2: The five essential factors which must be
establsihed to succeed in a petition for divorce on the ground of desertion are
as stated in Phillip's Practice of the Divorce Division Fourth Edn. (1951) P-19
and foll, that
(a) the spouses must have parted or terminated all joint
life;
(b) The deserting spouse must have an intention to desert
the other spouse;
(c) The deserted spouse must not have agreed to the
separation;
(d) the desertion must have been without cause;
(e) this State of affairs must have continued for at least
three years immediately preceding the presentation of the petition.
29. In certain circumstances the deserting spouse may not be
the person who actually leaves the matrimonial home. The actual parting may be
due to the deserting spouse making continued joint life impossible and thus
compelling the deserted spouse to leave the matrimonial home, In such cases the
actual abandoning of the matrimonial home is not the act of the person against
whom the allegation of desertion is made, but the act of the person making the
allegation. The test by which the offence is judged is not the abandoning of
the matrimonial home, but the fact that the other party has caused such
abandonment by his actions, since he must be taken to intend the consequence of
such actions. If it is a natural consequence of the behaviour of one spouse
that the other will leave the matrimonial home, the offending spouse must be
presumed to have intended that this should happen. Cases in which the parting
of the spouses has arisen in these circumstances are sometimes called
"constructive" desertions'.
30. This desertion may be terminated in the following ways;
(i) By resumption of cohabitation between the spouses.
(ii) By the desertion becoming a separation of the spouses
by agreement.
(iii) By the deserted spouse refusing a genuine offer made
by the deserting spouse to resume cohabitation.
(iv) By the deserting spouse becoming insane.
31. Bearing these principles in mind if we examine the facts
of this case, we find that though the wife is living now in her parents house,
the deserting spouse must be deemed to be the husband. The wife who is stated
to be a sturdy and healthy person and who even before marriage is closely
related to the husband as his niece and who comes from a community where
re-marriage is practically unknown end who would have had no possible motive to
live as a grass-widow, is extremely unlikely to persist in living separately
but for the fact that her husband is refusing all genuine efforts by her to
resume cohabitation.
On the other hand, as pointed out by the learned Subordinate
Judge, who had an opportunity of seeing the husband and the wife in the box,
all the evidence and the circumstances pointed out to the anxiety of the
husband to get rid of the wife once for all and to re-marry. Therefore, the
desertion alleged has not been made out. This issue also has teen rightly found
by the learned Subordinate Judge against the petitioner.
32. In the result, this appeal is dismissed and on account
of the fact that the wife has not appeared in this court, without costs.
33. I must express my appreciation of the presentation of
the case by Mr. K. Raman, who on account of the fact that the respondent was
not appearing in this court, took the trouble to place the entire evidence and
case, law before me, so that the respondent's case may not suffer by default.
