A Handbook On Impotency As A Ground For Dissolving Marriage In India

divorce on impotence

Author: Richard Shane Hammish

1. INTRODUCTION

Courts have opined that Intercourse is one of the foundations of marriage and without vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. A valid marriage can only be annulled or dissolved provided one or more specified grounds for divorce have been made out. Conjugal intercourse is one of the objects of marriage. When this object is not fulfilled as a result of the impotency of one of the parties, it becomes a ground for dissolution of marriage.

 The statutes referred are Hindu Marriage Act (HMA) 1955, Special Marriage Act (SMA), 1954, Parsi Marriage and Divorce Act (PMDA), 1936, Indian Divorce Act (IDA), 1869, Dissolution of Muslim Marriage Act (DMMA), 1939. This work is a detailed study on impotency as a ground for relief of a marriage.

2. EXTRACTS FROM STATUTES:

2.1. HINDU MARRIAGE ACT:

Section 12 (1) (a) 

2.2. DISSOLUTION OF MUSLIM MARRIAGE ACT:

Section 2 (v) read with 2 (ix) (c)

2.3. SPECIAL MARRIAGE ACT:

Section 24 (1) (ii) 

2.4. INDIAN DIVORCE ACT:

Section 18 read with Section 19 (1) 

2.5. PARSI MARRIAGE AND DIVORCE ACT:

Section 30

3. ISSUES POINTED OUT:

In the case of dissolution of marriage on the ground of impotency, the following issues are pointed out for consideration:

3.1. SMA and IDA: [i]

  1.  A. Was the respondent impotent at the time of marriage?
    B. If so, what was the nature of impotency?
    C. Was he or she generally impotent or impotent Vis a Vis the petitioner?
    D. What was or were the cause(s) of the impotency?
  2. A. Was the respondent impotent on the date when the suit was instituted?
    B. If so, what was the nature of impotency?
    C. Was he or she generally impotent or impotent vis a vis the petitioner?
    D. What was or were the cause(s) of the impotency?
  3. Was the marriage ever consummated either at the time of 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?
    The court dealing with such question (1.B and 2.B) has to take a practicable and reasonable view on
    the basis of evidence led before it. 2
    The phrase “At the time of marriage” here refers to the time of first consummation of marriage. 3In IDA and SMA, Impotency must exist not only at the time of marriage, but also at the time of
    institution of suit. The relief cannot be granted in absence of evidence about continuance of
    impotency at the time of institution of suit. 4

3.2. DMMA:

  1. Impotency existed at the time of marriage.
  2. Wife had no knowledge of it at the time of marriage.
  3. The defect had not since been removed.

The material date, according to Act viii of 1939, is the date of marriage and not the date of consummation.

3.3. HMA:[v]

  1. Whether consummation has taken place?
  2. (If it is found that consummation has not taken place) Whether it is due to the impotency on the part of the spouse?

3.4. PMDA:

  1. Whether consummation has taken place?
  2. If not consummated, is the non – consummation due to natural causes? 

4. FILING OF THE SUIT:

4.1. WHO CAN FILE A SUIT?

In DMMA only the wife can file a suit if her husband is impotent. In PMDA either party to the marriage can file a suit and not necessarily the aggrieved party which means the impotent person can also file a suit for annulment of the marriage when the marriage is not consummated owing to his or her impotency. Whereas in HMA, IDA, SMA only the aggrieved party i.e. the person whose marriage is not consummated because of the impotency of his or her spouse, can file a suit.

4.2. AFTER HOW MANY DAYS FROM THE MARRIAGE CAN A SUIT BE FILED?

There is no minimum period to get over prior to presenting a petition for nullity.[vi]

In Urmila Devi v. Narinder Singh[vii], the marriage lasted just about six weeks and ended immediately after the medical examination which said that the wife would not be able to consummate the marriage and the petition for annulment was also filed within four months of marriage. Husband was held entitled to a decree of nullity

4.3. WITHIN HOW MANY YEARS SHOULD THE SUIT BE FILED?

4.3.1. DELAY IN FILING SUIT SHOULD BE DECIDED ON ITS OWN FACTS:

In S v. R[viii], it was argued for the appellant that there was an unnecessary and improper delay in instituting petition and it was a good reason for refusing to grant any relief under section 12 of HMA. The court said that it was true that there was considerable delay. But, we couldn’t ignore the condition of society in which parties lived and the traditions of the families to which they belong. The Hindu society looked with disfavour at the dissolution of marriage. The question whether in a given case there had been an unnecessary or improper delay in instituting the proceeding has to be decided on its own facts. No hard and fast rules can be applied to deciding that question.

4.3.2. NO NULLITY CAN BE GRANTED IF THERE IS NO EXPLANATION FOR DELAY IN FILING PETITION:

In Samar Som v. Snigdha[ix], no explanation was given as to why the suit was filed 10 years after the marriage. So, nullity was not granted.

4.3.3. DELAY IN FILING SUIT CAN BE NO BAR IN GRANTING RELIEF:

In Rita Nijhawan v. Balkishan Nijhawan[x], the parties were married in 1954 and the petition was filed in 1967. The court held that delay in circumstances is no bar to grant relief.

Mere delay in presenting application under section 19 (1) of Indian Divorce Act couldn’t be a ground for refusing relief.[xi]

5. MEANING OF IMPOTENCY:

Impotency is the lack or absence of capacity to consummate a marriage by an act of normal, natural and complete intercourse. It is a state of mental or physical condition which makes consummation of marriage a practical impossibility.[xii]

Impotency is an incapacity for sexual intercourse or where coitus is either impossible or very painful.[xiii]

6. MEANING OF CONSUMMATION:

Consummation is ordinary or complete intercourse.[xiv]

Any penetration, however transient, doesn’t amount to the consummation of marriage. Full and complete penetration is an essential ingredient to complete intercourse.[xv]

Capacity to have sexual intercourse doesn’t depend on the capacity to conceive, and the inability to conceive is not a ground for annulment. Sexual intercourse or consummation is referred to as Vera copula, as the natural sort of coitus without power of conception. Vera copula consists of erectio and intromissio, i.e. of erection and penetration by male of female. The degree of sexual satisfaction obtained by the parties is irrelevant.[xvi]

6.1. NUMBER OF DAYS TO CONSUMMATE A MARRIAGE:

There is no mention of the maximum number of days within which the marriage must be consummated in any statute while dealing with impotency.

6.2. NON – CONSUMMATION FOR A FEW DAYS CAN ESTABLISH IMPOTENCY:

Where the husband is wholly unable to perform the act of sexual intercourse with his wife for which he has full opportunity, having lived in the same room for two or three days and might immediately after marriage, it is a fair inference that non-consummation is due to impotency.[xvii]

If a newly married couple is allowed to spend six nights together in a separate room and the wife is still a virgin, it will be presumed that the marriage is not consummated.[xviii]

 Consideration of the number of days to consummate a marriage is insignificant. Given normal conditions, if consummation of marriage is a practical impossibility, impotency must be presumed.[xix]

When the complaint arises from a spouse that his/ her partner has not been responsive in the matter of sex not for a day or an occasion, but during a fairly reasonable period, one can assume that this may be due to incapacity of such a spouse.[xx]

Where the parties lived together for nine days after marriage, and where the wife consistently refused to consummate the marriage, it could be inferred that the wife was impotent.[xxi]

6.3. NON – CONSUMMATION FOR A NUMBER OF YEARS:

In Lewis v. Hayward[xxii], where after a cohabitation of 14 years a woman presented a petition for a decree of nullity of marriage on the ground of husband’s impotency. There was no apparent defect or malformation in the man. The trial court was satisfied that the marriage had never been completely consummated, but was not satisfied that non-consummation arose from the incapacity of the man. It was held by the House of Lords that the woman was entitled to a decree that the marriage was null and void on the ground that the cohabitation had been for a much more lengthened period than was required to raise the presumption against a husband and that the onus was thrown upon the husband either of disproving the facts or of showing by velar and satisfactory evidence that the result was attributed to other causes than his own impotency.

6.4. WHAT IF THE MARRIAGE IS ONCE CONSUMMATED?

If a marriage is once consummated, nullity cannot be given on the ground of subsequent impotency.[xxiii]

7. CONSUMMATION MUST BE IMPRACTICABLE FOR A DECREE TO BE PASSED:

The basis of the inference of the court is not the structural defect, but the impracticability for consummation. If, therefore, a case presents itself involving the impracticability (though it may not arise from structural defect) the reason for the interference of the court arises.

The impossibility of consummation must be practicable. It cannot be necessary to show that the other spouse is so formed that connection is physically impossible, if it is shown that connection is practically impossible or even if it be shown that it is only practicable after a remedy had been applied which the husband cannot enforce and which the wife, whether wilfully or acting under the influence of hysteria, is determined not to submit.[xxiv]

What matters is not the mere ability to have intercourse, but the ability to consummate the marriage.[xxv]

8. WHAT IF IMPOTENCY IS REMOVED AFTER FILING THE SUIT?

The respondent must prove that he or she regained potency before the filing of the petition. In Samar v. Snigdha[xxvi], the respondent-wife got herself operated as suggested by her doctor only after the case was filed.

It is stated in the statute if it is proved that the respondent was impotent at the time of marriage and continued to be so till the time of institution of the suit, a decree of nullity can be given. In this case, the court asked the couple if they are willing to reconcile for which the husband petitioner answered in negative. The marriage was declared to be null and void.

9. IMPOTENCY WHEN NOT LIVING TOGETHER:

It is for the petitioner to prove that the impotency of the respondent continued till the date of filing the petition. But, where the parties did not live together for years before the filing of the suit, the petitioner finds it difficult to prove that impotency of the respondent continued during that period.

In S v. R[xxvii], the couple lived together from 1946 to 1956, whereas the suit was filed by the respondent-wife in 1962. It was said by the counsel for the appellant-husband that he became potent after 1956 but before 1962. It was held that it is not the appellant’s case that he got himself treated for his impotence after 1956. As he grew older he is not likely to have acquired potency.

 In Jacranino Francisco v. Florance[xxviii], three years before filing the suit, the marriage was dissolved by the church. Henceforth, the parties didn’t live together. The court said that the petitioner in his testimony is completely silent about the state of affairs vis a vis the requirement of section 19 (1) (of Indian Divorce Act) at the time of institution of suit. It is not possible to grant the petitioner any relief in the absence of evidence for impotency of the respondent at the time of institution of the petition.

It can be noted that this issue is dealt differently in both the cases. Though, HMA is applied in the first case and Indian Divorce Act is applied in the second case, both the statutes had similar provisions with regards to impotency until section 12 (1) (a) of HMA was amended.

10. CURABILITY:

Except for DMMA, the other statutes have no mention about the curability of impotency. But, a conclusion can be drawn from the judicial pronouncements that if a person is capable of the consummation of marriage after undergoing some surgery or medical treatment, he cannot be said to be impotent. But, if he refuses to undergo the surgery or treatment, an inference of impotency will be drawn.

10. 1. CURABILITY IS IRRELEVANT:

In Samar v. Snigdha [xxix], it was held that Curability of impotency is not a relevant consideration.[xxx]

10.2. IMPOTENCY IS THE RESULT OF INCURABLE DEFECT:

But, in Suvarnabahen v. Rashmikant[xxxi], it was held that impotency may arise either from a structural defect in the genital organs which is ‘incurable’ or from ‘incurable’ mental or moral disability vis-à-vis the other spouse resulting in inability to consummate.

10.3. DECREE CAN BE GRANTED, ONLY IF IMPOTENCY IS INCURABLE:

In an English case, it was held that the only question is whether the person is or is not capable of sexual intercourse or if at present incapable, whether that incapacity can be removed. If there is a reasonable probability that the respondent can be made capable of a Vera Copula of the natural sort of coitus, though without power of conception, I cannot pronounce the marriage void. If on the contrary the respondent is not and cannot be made capable of more than an incipient, imperfect and unnatural coitus, I would pronounce the marriage void.[xxxii]

10.4 CONSUMMATION CAN BE ACHIEVED BY CONSTRUCTION OF AN ARTIFICIAL VAGINA:

In the case discussed above, it was held that the marriage would be pronounced void if the coitus is unnatural. But, in contrary to the above pronouncement, in Laxmi v. Babulal[xxxiii], it was taken into consideration whether the wife could be considered impotent even after the operation had successfully taken place and her vagina reconstructed. The court took curability into consideration and held that sexual acts can be consummated by surgery creating an artificial vagina.

10.5. ONE YEAR’S TIME TO CURE IMPOTENCY (DMMA):

DMMA on the other hand, considers the question of curability. If the respondent husband is agreeable to cure the defect by operation and proves to the court that he has regained his potency within a year, it will not be a cause for granting the nullity of the marriage.

11. THE FOLLOWING DEFECTS CANNOT BE ACCEPTED AS IMPOTENCY:

11.1. INABILITY TO PROCREATE:

Sterility or incapacity of conception cannot be regarded as impotency. Sterility unaccompanied by impotency is no ground for nullity.[xxxiv] By the use of the word ‘impotent’, the legislature didn’t intend to bring in the idea of sterility or incapability to conception. Impotency here signifies incapacity to consummate the marriage in other words incapacity to have normal sexual intercourse. It is possible that a person may be sterile, still he or she may be capable of conjugal intercourse. Sterility alone, however, is no ground for holding the marriage voidable.[xxxv]

11.2. INABILITY TO SATISFY THE SPOUSE:

The degree of sexual satisfaction obtained by the petitioner is immaterial.[xxxvi] Therefore, when the petitioner is sexually unsatisfied, it cannot be said that the respondent is impotent.

11.3. UNATTAINED MENARCHE IN WOMEN:

Non – attainment of puberty by a woman is no ground as the fact dos not in any manner preclude the consummation of marriage.[xxxvii]

11.4. RESPONDENT UNWILLING TO LIVE WITH PETITIONER:

No presumption can be drawn from the fact that the wife was unwilling to live with her husband because she was impotent.[xxxviii]

11.5. WIFE CANNOT BE SAID TO BE IMPOTENT WHEN HUSBAND’S APPROACH FOR INTERCOURSE WAS IMPROPER:

Lack of proper approach by husband for consummating the marriage might be responsible for non – consummation. In that case, the evidence of the husband that he went on making attempts on several occasions for consummation cannot be believed and the wife cannot be said to be impotent.[xxxix]

11.6. AMENORRHOEA AND ABSENCE OF UTERUS, OVARY, FALLOPIAN TUBE:

Where a wife suffers from sterility and amenorrhoea i.e. no menstruation, whose right tube and ovary are small and flat and left tube and ovary are rudimentary i.e. very small like a streak, who has no ovarian tissue, cannot be said to be impotent.[xl] All those conditions including absence of uterus, ovaries and fallopian tubes, still allows the gratification of sexual intercourse.[xli]

11.7. USAGE OF CONTRACEPTIVE METHODS:

The use of artificial methods of contraception does not prevent consummation of marriage.[xlii]

11.8. INABILITY TO EJACULATE SEMEN:

Where the husband was able to effect an erection and a full penetration of the wife, but was never able to produce the emission of semen into the wife’s body, it was held that marriage was consummated and no decree of nullity was granted.[xliii]

11.9. REASONABLE EXCUSES FOR REFUSING TO CONSUMMATE:

If there is a reasonable or plausible excuse for refusal to consummate the marriage it will not lead to a presumption of impotency.[xliv] It is no doubt true that a refusal to consummate a marriage would not necessarily lead to a conclusion that the spouse was impotent.[xlv]

11.10. ABSENCE OF DESIRE FOR SEXUAL INTERCOURSE:

The mere absence of a desire for sexual intercourse may not by itself amount to impotency. Absence of such desire may be temporary and the attitude of the person may be a passing phase and may be due to age or other similar factors or may be due to psychical influence. It has been noted that temporary absence of a desire for sex may be due to fear, anxiety, guilt sense, timidity and the like sometimes due to sexual over indulgence.[xlvi]

11.11. WHEN ONE SPOUSE IS RELATIVELY OVER – SEXED THAN THE OTHER:

The fact that one spouse is over – sexed does not warrant the inference that the other spouse is impotent.[xlvii]

11.12. INCLINATION TOWARDS RELIGIOUS LIFE:

Mere fact that one spouse feels no charm in marriage or that she is inclined towards religious life is not at all conclusive on the point of impotency.[xlviii]

12. THE FOLLOWING DEFECTS ARE CONSIDERED TO BE IMPOTENCY:

12.1. DESPITE THE BIRTH OF CHILD, CAN A MARRIAGE BE SAID TO BE UNCONSUMMATED?

Fecundation ab extra doesn’t amount to consummation of marriage. 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.[xlix] Even when there is conception there is not necessarily intercourse in law. There are chances for semen to encounter thee vagina and cause pregnancy without penetration or ordinary intercourse. The birth of a child in such a case is due to an accidental freak of fecundation ab extra during an abortive attempt to consummate.[l]

12.2. PHYSICAL DEFECTS:

Malformation of an organ can cause impotency. Vaginismus in women causes impotency.[li] Impotency can be due to psychological inhibition or physical incapacity.[lii] There may be cases where the husband’s organ is large and it may not be possible for the wife to submit to sexual intercourse. Physical deformity of the organ of husband is not the only criterion to judge his potency, but that deformity must make consummation impossible.[liii]

12.3. NATURAL DISABILITIES:

Natural and inherent disabilities of a spouse leading to non – consummation could lead to a decree of dissolution.[liv]

12.4. REFUSAL TO CONSUMMATE:

The court may infer from the refusal to consummate the marriage, the party is impotent. Wife’s invincible repugnance to act of coitus resulting in paralysis of will and rendering her incapable of sexual intercourse entitle husband for declaration of nullity of his marriage.[lv]

12.5. PSYCHOLOGICAL DEFECTS:

 The mere absence of a physical or anatomical defect is not reason enough to hold that the marriage cannot be dissolved. In case it is proved that sexual life is virtually impossible due to some mental apathy which is likely to be permanent, the court must annul the marriage.[lvi] Mental defect or mental block which precludes consummation of marriage is also a ground for annulment tantamount to a physical shortcoming. Absence of desire for sexual intercourse, timidity, psychological reasons like depressive psychosis[lvii] may lead to impotency.[lviii]

12.6. RELATIVE IMPOTENCY:

A person may be capable of having intercourse but incapable of performing it with his or her spouse. And, in such a case he must be regarded as impotent in relation to that spouse regardless of his or her potency in general.[lix] This is sufficient to find a decree of nullity, as what matters is the ability to consummate the marriage with the other spouse and not ability to have sexual intercourse in general.

12.7. IMPOTENCY IN MEN:

Impotency may result in imperfect erection or premature ejaculation. It might be local or general in mind, manifesting itself a repugnance for the sexual act, fear, lack of confidence etc.[lx]

12.8. SYPHILIS:

Loathsome and incurable syphilis of wife resulting in her incapacity to consummate marriage entitles husband to a decree of nullity on ground of impotency.[lxi]

13. TYPES OF IMPOTENCY:

13.1. GENERAL AND RELATIVE:

General or Universal or Absolute Impotency renders the person unable to have intercourse with anybody.

Impotency can be towards a particular person – relative impotency called impotency quoad hunc or quoad hanc[lxii]. A man may be potent to one woman and not to another woman[lxiii] Court can grant relief even if the spouse is found to be impotent only in relation to the other spouse.

13.2. PERMANENT AND TEMPORARY:

Impotency may be temporary[lxiv] which can be curable. It may also be permanent.

13.3. PHYSICAL AND MENTAL:

Though there might not be any structural incapacity, there might be refusal owing to the invincible repugnance to the act of consummation.[lxv] 

14. BURDEN OF PROOF:

14.1. ONUS IS ON PETITIONER:

 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.[lxvi]

 No doubt the onus of proving the impotency of the husband is on the wife and the court would not lightly presume such impotency merely because the wife speaks to it.[lxvii] The burden of proof is heavy on the petitioner as it involves a slur on the manhood or womanhood of the other party.[lxviii]

The issues are determined on the basis of preponderance of evidence and onus to discharge an issue keeps on shifting throughout the trial.[lxix]

14.2. WHEN IS THE BURDEN OF PROOF ON RESPONDENT?

When a state of affairs is proved to exist at a particular point of time, it shall be presumed to continue unless the party alleging to the contrary leads cogent evidence in that behalf. Where a husband was unable to consummate the marriage and the wife continued to be a virgin at the date of the petition filed by her, the burden shifts onto the husband to prove that he regained potency before the filing of petition.[lxx] If he doesn’t prove that he is potent, the natural inference will be that he is impotent.[lxxi]

When a husband abstains from or fails to attempt intercourse with his wife the inference of incapacity is even stronger, and the onus is on him to rebut that presumption.[lxxii]

14.3. DELAY IN PROVING IMPOTENCY:

Burden of proof is on time and is increased by delay on the part of the petitioner. But, delay by itself is not an absolute bar unless the respondent has thereby in any way suffered.[lxxiii]

14.4. ONUS OF PROOF IF BOTH THE SPOUSES ARE CAPABLE:

It is said that where the marriage remains unconsummated and both man & woman appear to be capable, there is a presumption that the incapacity must be imputed to the man.[lxxiv]

 15. EVIDENCE:

In regard to proof of impotency, the rules of evidence are not different than elsewhere. Impotency that is physical unfitness for consummation must be proved or there must be facts from which they can be inferred. The proof must not be suspicio probablis, but has to be vehemens proesumptio. To prove impotency, there is no minimum standard of proof necessary.

15.1. EVIDENCE IS A MATTER OF QUALITY:

Sec 134 of Indian Evidence Act says that sufficiency of evidence is not a matter of quantity but of quality. Evidence for impotency also doesn’t make any departure from this principle.

15.2. INFERENCE FROM FACTS OF THE CASE CAN BE DRAWN:

The court can draw inference such as from the fact that intercourse has not taken place over a long period. Physical unfitness for consummation must be proved or there must be facts from which this can be inferred.

If it be satisfactorily proved that repeated endeavours of a potent husband who has tried all means short of force had been uniformly unsuccessful, it was for the court, in the absence of any alleged or probable motive for wilful refusal, to draw the inference that the non – consummation was due to some form of incapacity on the part of the wife.[lxxv]

15.3. EVIDENCE OF NON – ACCESS:

Evidence of non – access is admissible, if given in nullity suits for incapacity.[lxxvi]

15.4. EVIDENCE IN CASES OF PSYCHOLOGICAL DEFECT:

In psychological inhibition, the impotency arising from the fact would be within the exclusive knowledge of spouses and it would be difficult to test it by medical evidence.[lxxvii]

15.5. PARTIES TO THE MARRIAGE ARE THE DIRECT EVIDENCE:

Decision can be arrived about impotency by the only available witnesses who are the parties to the marriage who can give direct evidence of the fact.[lxxviii] Apart from medical evidence the other evidence in case of impotency could normally be that of the husband or wife, as the case may be, who has failed to receive sexual attention from his/her partner. [lxxix] Even uncorroborated testimony of the petitioner is sufficient, if it can be believed.

In cases of impotency, corroboration can only be obtained from the evidence of the other party to the marriage. Under section 120 of Indian Evidence Act, the other party to the marriage is a competent witness . Also, conduct of the parties subsequent to marriage is a competent witness.[lxxx]

15.6. FRIENDS AND RELATIVES OF THE PARTIES CAN BE RELEVANT WITNESSES:

In Surinder Singh v. Nirmaljit Kaur[lxxxi], wife disclosed the events immediately after marriage to her colleague. Though her colleague couldn’t give any direct evidence of the allegations made by the wife, she corroborated the statement made by the wife. Ergo, she was taken as a relevant witness.

15.7. THE FOLLOWING QUESTIONS MUST ALSO BE TAKEN INTO CONSIDERATION TO TAKE OTHERS AS WITNESS:

Did they speak of the impotency to anybody? Was it mentioned to any friend or relative or to their parents? If not, why? Would it be natural to do so? Or was there no opportunity? It wouldn’t be natural for everybody to speak these matters to another. A reserved or shy person would not. On the other hand, other types of people would. Whether the parties to the case fall within the first class or the other, it is for the trial judge to discover.[lxxxii]

15.8. WOMAN WITH NORMAL HYMEN:

If a wife has normal hymen and is found to be a virgin, it can be said that the marriage was not consummated.

15.9. IF THERE IS NO PHYSICAL DEFECT, AND YET THE MARRIAGE IS NOT CONSUMMATED:

The fact that medical examination showed no constitutional defect in the organ of the husband will not eclipse the proved and established fact that the husband was unable to perform the sexual act at the relevant time.[lxxxiii]

15. 10. MEDICAL EXAMINATION:

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. [lxxxiv]

Medical examination can be ordered by a court either suo motu or at the instance of a party. A matrimonial court has power to order a person to undergo a medical test. However, the court should exercise such power, if the applicant has a strong prima facie case and there is sufficient material before the court.[lxxxv]

15.10.1. DOCTOR MUST BE EXAMINED IN THE COURT:

Medical evidence of impotency is the best evidence. The doctor who examines either party or both the parties shall be examined as a witness. Where the respondent relies on a doctor’s certificate that he was able to have intercourse and was potent that day, the certificate must be strictly proved by examining the doctor who issued it. Certificates like this, do not prove themselves. The doctor giving the certificate has to state what tests he carried out to arrive at his conclusion and must stand cross examination and convince the court that his conclusion about the potency is correct.[lxxxvi]

15.10.2. ADVERSE INFERENCE:

Although it is true that a party cannot be compelled to undergo medical examination from a medical board constituted under the valid order of the court, a refusal by one of the parties to undergo medical examination has its own situation in the consequence of inference.[lxxxvii] Where a party refuses to attend for medical inspection, the court can legitimately draw an unfavourable inference. [lxxxviii]

15.10.3 ADVERSE INFERENCE CAN BE DRAWN WHEN THE ENTIRE CASE DEPENDS ON THE MEDICAL STATUS OF THE PARTY:

 Where a party refuses to submit to a medical examination in a case where the whole case depends on the state of his mind and body, it will be open to the court to draw an adverse inference or presumption against the recalcitrant party. Such a party is on a par with a party who wrongfully withholds evidence in his possession. The adverse inference that may be drawn by any court is from the circumstances in each case and having regard to the refusal to let the best evidence be brought before the court.

Section 114 of IEA provides for presumption by the court regarding existence of facts. Illustration (g) to that section is to the effect that the court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. This illustration is based on the maxim “Omnia praesumuntur contra spoliatorem”. If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be raised against him.[lxxxix]

Factually the situation gets much more fortified if the other party submits to such medical examination and clears it with flying colours.[xc]

15.10.4 REFUSAL TO ADMIT TO MEDICAL EXAMINATION CANNOT BE A GROUND FOR ADVERSE INFERENCE:

The ground of impotency is in the nature of defamation. It is a black spot in society on one individual’s personality. It ought not to have been decided in a very casual manner. The refusal of the spouse for a medical check – up could not be taken to be a ground for adverse inference, because it was her right to refuse the same.[xci]

15.11. WHAT IF THE RESPONDENT IS EX – PARTE?

In Samar Som v. Sudhana[xcii], respondent wife did not appear and examine herself and the appellant husband was not cross examined. The evidence of the husband went unchallenged. But, that was not conclusive. Before a decree of nullity could be granted, the court must be satisfied about the truth of allegations made by one party against the other, though those allegations are ex parte and are not controverted at the trial.

Since the court was not satisfied about the truth of allegations of husband against wife, though the wife was ex parte, decree was not granted in favour of husband.

In Jayaraj v. Mary[xciii], the respondent wife never attended court proceedings, nor submitted any pleading, nor offered testimony. It was held that she was an essential party and in matrimonial jurisdiction, the presence of both spouses at the hearing may be imperative in the interests of justice.

Hence, the court considered that the wife should be summoned to court to give evidence and if she did not appear that steps should be taken to compel her appearance and examination by the court.

In John v. Mary[xciv], the respondent wife remained ex parte. Petitioner husband presented himself for examination and in his evidence he has substantiated the allegations made in the petition.

Where only the wife’s evidence was available. The husband’s non – appearance inclined the court to draw an inference that the wife’s allegations were true.[xcv]

15.12. THERE SHOULD BE NO COLLUSION BETWEEN PARTIES:

Dissolution or annulment of a marriage tie is not the mere private concern of the parties, but the state is vitally interested in preserving the institution of marriage and the court must be satisfied that there was no collusion.

Every young couple who marry in haste and subsequently want to get the marriage dissolved could very easily bring a petition of this type alleging impotency of one of the parties towards the other and not general impotency as the sole ground for annulment of the marriage, thereby avoiding the allegation of adultery and cruelty against each other which are ordinarily put forward as grounds for divorce.

The court must be vigilant and see that such an unusual method of getting the marriage bond annulled is not adopted by the parties acting in collusion with each other.[xcvi]

The court must make sure that there was no collusion between the parties. In Mary Kurian v. T T Joseph[xcvii], the wife was certified to be a virgin by physicians and the husband did not offer himself for a medical examination. Inference of impotency was held to be justified only after making sure that there was no collusion between the parties.

15.13. VIRGINITY OF WIFE WHEN HUSBAND IS IMPOTENT:

Wife must prove that she was a complete virgin on the date when her petition was filed.[xcviii]

If the wife has been able to prove that the husband was impotent, her being a virgin or not is wholly immaterial.[xcix]

15.14. WHAT IS NOT EVIDENCE?

Where the husband relied only on the information said to have been given by wife herself and didn’t have any knowledge of the fact nor he claimed either in petition or in his statement, the alleged admission or information of the wife that she was impotent is not enough for giving a decree of nullity particularly when she has denied this fact in reply to the petition as well as in her statement.[c]

16. SECOND CHANCE TO PROVE POTENCY:

Court cannot grant another opportunity to prove the capacity to consummate the marriage.[ci]

16.1. COHABITATION TO PROVE POTENCY IS REGAINED:

 It was argued by the counsel for an impotent husband in Usman v. Inderjeet[cii] that if the appellant wife was made to live with the respondent husband, the latter might be able to consummate the marriage, and so, the court should be slow in granting a decree of nullity and It was held that granting a second chance would advance the superiority of male over female.

To call upon a wife to once again share bed with a husband who is proved to be impotent would be nothing short of heaping insults on her.

In Laxmi v. Babulal[ciii], the lower court tried to persuade the wife to go to the husband and give him the opportunity of examining her and then satisfying himself if he could have sexual intercourse with her. It was held by the Rajasthan High Court that it is not for the court to persuade the parties for having an opportunity of sexual intercourse.

In Rita Nijhawan v. Balkishan Nijhawan [civ], the lower court suggested that the appellant wife should have given necessary stimulation for the husband. The Delhi High Court held that it was nobody’s case that the respondent was not able to have intercourse with his wife because of any inhibition shown by the appellant.

On the contrary, it is the case of the appellant which we are accepting that it was because of sexual weakness of the respondent that he wasn’t able to consummate.

16.2. OPPORTUNITY TO PROVE THAT POTENCY IS REGAINED: (only for DMMA)

There is an opportunity for the impotent husband to establish that he ceased to be impotent. Section 2 (c) of DMMA provides for the postponement of a decree of dissolution when the husband makes an application for an opportunity to establish the cessation of impotence in the court. The opportunity becomes unavailable except on an application by the husband.

16.2.1. COHABITATION TO PROVE THAT POTENCY IS REGAINED: (only for DMMA)

This opportunity does not make it the duty of the wife to allow access to the husband during the period of one year. It is not necessary to enumerate the processes by which such cessation could be established, although it is plain that production of medical evidence is one.

There may be others equally efficacious. Therefore, a wife cannot be compelled to submit herself to the experiments of  a humiliated husband as such compulsion does not either expressly or by necessary implication emanate from proviso 2 (c) or any other part of the Act.[cv]

16.2.2. WHY IS THIS SECOND CHANCE TO PROVE POTENCY IMPORTANT?

The provision of conferring a year’s time is intended to operate as a safeguard against error or a hasty or precipitate annulment of the marriage where a removal of the complaint or a disproof thereof is possible. Postponing the annulment of marriage for a year is to allow the parties an opportunity of resuming cohabitation during that period, if that is possible.  [cvi]

17. BOTH PARTIES ALLEGING IMPOTENCY OF EACH OTHER:

In an English case, both husband and wife filed for nullity of marriage alleging each other of impotency. It was admitted that the marriage was not consummated. It was found that the marriage had not been consummated by the parties thereto, though no reason for non – consummation was manifest or apparent.

The court held without question as to who was the guilty party that it was evident that it was evident that the marriage has never been and will be consummated for the reason that it was satisfied that “quoad hanc et quoad hunc” and passed a decree of nullity. The court further held that two parties should not be tied up together for the rest of their lives in a state of misery.[cvii]

18. IMPOTENCY OF EUNUCH:

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 a eunuch is not an absolute nullity.[cviii] Under the Hindu Law, an impotent person can be lawfully married.[cix] Therefore, a eunuch can be married to a potent person.

19. CONTROVERSY OVER THE USAGE OF THE CLAUSE – “at the time of marriage”:

Jaswant Singh, J. in Bawi v. Nath[cx] said, “It is no doubt true that clause (a) of Section 12 (1) of HMA (though it has been amended in HMA, it still remains the same in Indian Divorce Act) is not happily worded. But, keeping in view the recognized canon of construction that a statute should not be so construed as to make the meaning absurd or unworkable.

The clause has to be interpreted in a rational manner and the words ‘at the time of marriage’ occurring therein have to be understood in the sense in which they best harmonize with the subject matter of the enactment and the object which the legislature had in view.

It was also said by Anant Singh, J. in the same case that Section 12 (1) (a) as it stands, appear to be unworkable in so many cases, and with a view to making it a practical one, the legislature may consider the desirability of amending it suitably. The loss of potency of husband occurring any time after the marriage up to a certain age, and its continuance thereafter for a reasonable period should be a good ground for annulment of marriage.

20. IMPOTENCY – CRUELTY:

In Rita Nijhawan v. Balkishan Nijhawan[cxi], it was held that the wife was entitled to claim judicial separation under section 10 (1) (b) of HMA. In this case, the court did not resort to Section 12 (1) (a) (before amendment) of HMA.

20.1. WHY WOULD THE MARRIAGE NOT BE DECLARED VOID FOR IMPOTENCY?

Because there was a doubt wherein the court could not say that there was not even one occasion when proper penetration took place during all period from 1954 to 1967, especially when the appellant wife became pregnant in 1958 (the requirement was so strict that even if it could be shown that marriage was consummated just once during this period, a decree of nullity cannot be given). It is because of this peculiar nature and circumstances of the case that the court found that it was inappropriate to resort to impotency of the respondent husband.

But, the fact remains that because of the inherent physical weakness, the respondent husband was not able to have proper sexual relations with the appellant wife. The result being that every time the marriage bed became a source of misery to the wife.

20.2. HOW COULD IMPOTENCY BE CRUELTY?

It is not necessary to prove the culpability of the respondent in order to hold him guilty of cruelty. ‘An intention on the part of one spouse to injure the other is not a necessary element of cruelty as a matrimonial offence.’ The categories of cruelty are not closed. The persistent refusal of consummation is not excluded.[cxii]

Thus the law is well settled that if either of the parties to a marriage being of a healthy physical capacity refuses to have sexual intercourse, the same would amount to cruelty entitling the other party to a decree.

In the opinion of court, it would not make any difference in law whether denial of consummation is the result of sexual weakness of the respondent disabling him from having intercourse with the appellant or it is because of any wilful refusal by the respondent; this is because in either case the result is the same namely frustration and misery to the appellant due to denial of normal sex life and hence cruelty.

As the husband because of his sexual weakness remained unable to have normal intercourse, the mental torture, danger and apprehension to the health of the appellant was inevitable and the finding of cruelty inevitably follows.

The court was of view that the wife had successfully proved that the husband had treated her with such cruelty as to cause a reasonable apprehension in her mind that would be harmful and injurious for the appellant to live with the respondent. The appellant would therefore be entitled to a decree of Judicial Separation under Section 10 (1) (b) of HMA.

In Augustine v. Kunjamma[cxiii], the court was of the view that the denial of sexual activity in a marriage would bring forth very unfavourable influence on a woman’s body which leads to depression and frustration. There cannot be anything more fatal to a marriage than disappointing any consummation.

21. CONDONATION:

21.1. CAN IMPOTENCY BE CONDONED?

In Rita Nijhawam v. Balkishan Nijhawan[cxiv], where the respondent husband was impotent, the court resorted to Judicial Separation under Section 10 (1) (b) of HMA, where the husband’s impotency was regarded as cruelty to wife.

The respondent’s counsel sought to urge that under section 23 of HMA, even if any of the grounds exists for granting relief the court has still to be satisfied that the petitioner had not in any manner condoned the cruelty and it is only then and in such a case, but not otherwise that the court can decree such a relief.

The argument was that as the appellant came to know in 1957 onward that respondent was sexually not able to perform consummation and as the ground for cruelty is based on that the application which was then brought in 1967 would show that the appellant had condoned the cruelty.

In the court’s view the ground of condonation had no force. The cruelty that may be a matter of being condoned within Section 23 may be the acts of the physical cruelty which after their occurrence may be condoned by the parties living together from which an inference may be drawn that that particular act of cruelty had been condoned and, therefore if subsequently an application is brought on the ground of that act of cruelty, the court will have to see whether the cruelty which has taken place earlier and which has now made the basis of the petition has not been condoned by the subsequent act of the parties.

In the present case, the cruelty i.e. the basis of petition is based on sexual weakness of the husband and his inability to consummate. This kind of mental cruelty is a recurring and ever present one.

On the findings of the court that the husband is weak is apparent that cruelty is persisting for all these years and the grievance of the appellant is not based on something in the remote part but is based right up to the time in 1954 when the respondent was found in the same unsatisfactory condition. Condonation must mean cohabitation under one roof, but as by the very nature of the plea that there was no normal sex life between the parties no question of condonation could arise.

22. COMPARATIVE TABLE ANALYSIS:

Grounds HMA DMMA SMA IDA PMDA
Relief Voidable Divorce Void Void Void
Petitioner Aggrieved wife or husband Aggrieved wife Aggrieved wife or husband Aggrieved wife or husband Either party
Respondent Impotent wife or husband Impotent husband Impotent wife or husband Impotent husband or wife Either party
Second chance to prove potency No Yes. Must be proved within a year from the date of adjournment No No No

23. CONCLUSION AND SUGGESTION:

It is evidential that a few issues regarding impotency have been approached by various courts in different ways. Issues like whether virginity of wife must be essentially proved to hold a husband impotent, respondent being ex – parte, drawing adverse inference while respondent is not willing to submit to medical examination, delay in filing petition, burden of proof on respondent and a few more issues as discussed above change on a case to case basis. Ergo, it is for the court to take the facts into consideration in ordering relevantly.

Courts have also interpreted in unusual ways especially when there was no scope for granting a decree of nullity for impotency of husband, the court held that wife was entitled to judicial separation as the impotency of husband amounts to cruelty to his wife.

The amendment as made in HMA with regards to impotency must also be made in IDA and SMA.

The loss of potency of husband occurring any time after the marriage up to a certain age, and its continuance thereafter for a reasonable period should be a good ground for annulment of marriage.

 END NOTES 

[i]Rangaswami v. Aravindammal, AIR 1957 Mad 243

[ii] Urmila Devi v. Narinder Singh, AIR 2007 HP 19.

[iii] Bawi v. Nath, AIR 1970 J&K 130.

[iv] Jacranino Francisco v. Florance, AIR 1980 Del 275.

[v] Urmila Devi v. Narinder Singh, AIR 2007 HP 19.

[vi] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[vii]AIR 2007 HP19.

[viii] AIR 1968 Del 79.

[ix] AIR1975 Cal 413.

[x] AIR 1973 Del 200.

[xi] Probhat Kumar v. Sukriti Mitra, AIR 1971 Cal 1.

[xii] H. Giffard, Halsbury’s Laws of England (3rd edn, Butterworth 1953) 228.

[xiii] Samar Som v. Sudhana, AIR 1975 Cal 413.

[xiv] Vinay Kumar v. Jaya, AIR 2010 MP 112.

[xv] W v. W [1967] 3 All ER 178.

[xvi] W. Rayden, Rayden’s Law and Practice in Divorce and Family Matters in All Courts (12th edn, Butterworth 1974) 160.

[xvii] Jagdish Kumar v. Seetha, AIR 1963 Punj 114.

[xviii] Usman v. Inderjeet, AIR 1977 P&H 97.

[xix] Jacranino Francisco v. Florance, AIR 1980 Del 275.

[xx] Mary Kurian v. T T Joseph, AIR 1980 Ker 131.

[xxi] John v. Mary, AIR 1994 Mad 81.

[xxii] [1866] 35 L.J.P. & M. 105.

[xxiii] Rita Nijhawan v. Balkishan Nijhawan, AIR 1973 Del 200.

[xxiv] G v. G [1871] P&D 287.

[xxv] Bawi v. Nath, AIR 1970 J&K 130.

[xxvi] AIR 1977 Cal 213.

[xxvii] AIR 1968 Del 79.

[xxviii] AIR 1980 Del 275.

[xxix] Saman Roy v. Snigdha Roy, AIR 1977 Cal 213.

[xxx] It must be noted that section 13 (iii) of Hindu Marriage Act says that to get divorce the respondent must be incurable of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition. Whereas, with regards to impotency there is no mention of curability.

[xxxi] AIR 1970 Guj 43.

[xxxii] D v. A [1845] 1 Rob ECC 279.

[xxxiii] AIR 1973 Raj 89.

[xxxiv] Shakuntala Devi v. Amar Nath, AIR 1982 P&H 221.

[xxxv]Shewanti v. Bhaura, AIR 1971 MP 168.

[xxxvi] Laxmi v. Babulal, AIR 1973 Raj 89.

[xxxvii] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[xxxviii] Emmanuel Singh v. Kamal Saraswathi, AIR 1934 Pat 670.

[xxxix] Digvijay v. Pratap Kumari, AIR 1970 SC 137.

[xl] Shewanti v. Bhaura, AIR 1971 MP 168.

[xli] J. P. Modi, Medical Jurisprudence and Toxicology (16th edn, N. M. Tripathi 1967) 308.

[xlii] Baxter v. Baxter [1948] AC 274.

[xliii] R v. R [1952] 1 All ER 1194.

[xliv] Jacranino Francisco v. Florance, AIR 1980 Del 275.

[xlv] Renuka v. Rajendra, AIR 2007 Raj 112.

[xlvi] Mary Kurian v. T T Joseph, AIR 1980 Ker 131.

[xlvii] Rajendra Kapoor v. Man Mohan Singh, AIR 1972 P & H 142.

[xlviii] Jayaraj v. Mary, AIR 1967 Mad 242.

[xlix] D. Tolstoy, Law and Practice of Divorce & Matrimonial Causes (6th edn, Sweet & Maxwell 1967) 114.

[l] Manjula v. Suresh Deshmukh, AIR 1979 Del 93.

[li] Saman Roy v. Snigdha Roy, AIR 1977 Cal 213.

[lii] Suvarnabahen v. Rashmikant, AIR 1970 Guj 43.

[liii] Chaman v. Rupa, AIR 1966 J&K 68.

[liv] Vinay Kumar v. Jaya, AIR 2010 MP 112.

[lv] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[lvi] Urmila Devi v. Narinder Singh, AIR 2007 HP 19.

[lvii] John v. Mary, AIR 1994 Mad 81.

[lviii] Usman v. Inderjeet, AIR 1977 P&H 97.

[lix] Laxmi v. Babulal, AIR 1973 Raj 89.

[lx] Laxmi v. Babulal, AIR 1973 Raj 89.

[lxi] Birendra Kumar v. Hemalata Biswas, AIR 1921 Cal 464.

[lxii] Jayaraj v. Mary, AIR 1967 Mad 242.

[lxiii] Usman v. Inderjeet, AIR 1977 P&H 97.

[lxiv] Usman v. Inderjeet, AIR 1977 P&H 97.

[lxv]Digvijay v. Pratap Kumari, AIR 1970 SC 137.

[lxvi] Rangaswami v. Aravindammal, AIR 1957 Mad 243

[lxvii] Mary Kurian v.  T T Joseph, AIR 1980 Ker 131.

[lxviii] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[lxix] Surinder Singh v. Nirmaljit Kaur, AIR 2000 P&H 139.

[lxx] Usman v. Inderjeet, AIR 1977 P&H 97.

[lxxi] Chaman v. Rupa, AIR 1966 J&K 68.

[lxxii] W. Latey, Latey on Divorce: The Law and Practice in Divorce and Matrimonial Causes (14th edn, Sweet & Maxwell 1952) 196.

[lxxiii] Bull v. Mrs. Bull, AIR 1938 Cal 684.

[lxxiv] W. Rayden, Rayden’s Law and Practice in Divorce and Family Matters in All Courts (8th edn, Butterworth 1960) 109.

[lxxv] F v. P [1896] 75 LT 192.

[lxxvi] Rangaswami v. Aravindammal, AIR 1957 Mad 243

[lxxvii]64 Suvarnabahen v. Rashmikant, AIR 1970 Guj 43.

[lxxviii] Usman v. Inderjeet, AIR 1977 P&H 97.

[lxxix] Mary Kurian v. T T Joseph, AIR 1980 Ker 131.

[lxxx] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[lxxxi] AIR 2000 P&H 139.

[lxxxii] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[lxxxiii] Usman v. Inderjeet, AIR 1977 P&H 97.

[lxxxiv] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[lxxxv] Sharda v.Dharmpal, (2003) 4 SCC 493.

[lxxxvi] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[lxxxvii] George v. Saly, AIR 1995 Ker 289.

[lxxxviii] Mathuram v. Vijaya Rani, AIR 1980 Mad 1.

[lxxxix] Bipin Chandra v. Madhuri Ben, AIR 1963 Guj 250.

[xc] George v. Saly, AIR 1995 Ker 289.

[xci] Renuka v. Rajendra, AIR 2007 Raj 112.

[xcii] AIR 1975 Cal 413.

[xciii] AIR 1967 Mad 242.

[xciv] AIR 1994 Mad 81.

[xcv] Manjula v. Suresh Deshmukh, AIR 1979 Del 93.

[xcvi] Arun Kumar v. Sudhansu, AIR 1962 Orissa 65.

[xcvii] AIR 1980 Ker 131.

[xcviii] Chaman v. Rupa, AIR 1966 J&K 68.

[xcix] Surinder Singh v. Nirmaljit Kaur, AIR 2000 P&H 139.

[c] Renuka v. Rajendra, AIR 2007 Raj 112.

[ci] Usman v. Inderjeet, AIR 1977 P&H 97.

[cii] AIR 1977 P&H 97.

[ciii] AIR 1973 Raj 89.

[civ] AIR 1973 Del 200.

[cv] Abdul v. Fahimunisa, AIR 1969 Mys 226.

[cvi] Mt. Altafan v. Ibrahim, AIR 1924 All 116.

[cvii] G v. G [1912] PD 173.

[cviii] J. D. Mayne, A Treatise on Hindu Law and Usage (11th edn, Stevens and Haynes 1878) 143.

[cix] Rangaswami v. Aravindammal, AIR 1957 Mad 243.

[cx] AIR 1970 J&K 130.

[cxi] AIR 1973 Del 200.

[cxii] Sheldon v. Sheldon [1966] 2 All ER 257.

[cxiii] AIR 2001 Mad 480.

[cxiv] AIR 1973 Del 200.

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