Chennakesav Reddi, Acg.C.J.
1. This case comes up before us under S. 20 of the Divorce Act, 1896, hereinafter referred to as 'the Act' for confirmation of the decree of nullity of marriage of the petitioner with the respondent.
2. The petitioner and the respondent were married according to the Christian rites at Wesley Church, Secunderabad, on 12-7-1979, Ex.A-1 is the marriage certificate. The marriage between the parties was an arranged marriage. At the time of marriage, the petitioner-wife was working as Clerk-cum-Typist in Hindustan Aeronautics Ltd., Balanagar, Hyderabad on a salary of Rs.800/- per month, and the respondent was working in the Electronics Corporation of India Ltd., as a Supervisor.
3. Immediately after the marriage, the petitioner was taken to the house of her parents-in-law. On the same night, nuptials were arranged. But the marriage between the petitioner and the respondent was not consummated because the respondent was impotent. When the petitioner questioned the respondent as to why he could not have sexual intercourse with her, he told her that he was weak and would take some treatment. On the next day, the petitioner was taken to her parent's house as per the custom. In her house also, nuptials were arranged, but even on that night the respondent could not have sexual intercourse with her. Subsequently, the petitioner was taken to her parents-in-law house and she lived there for 4 1/2 months. Even during that period, the respondent could not have sexual intercourse with her. When the petitioner inquired the respondent's elder sister Mrs. Julee about the respondent's incapacity to have sexual intercourse, she told the petitioner that in due course he would be alright. On her advice, the petitioner advised the respondent to have an examination by a Doctor, but the respondent refused to get himself examined by any Doctor. Then the petitioner came to her parent's house and informed her mother (P.W.3) about the matter. The petitioner also gave an application to the Church authorities for mediation in the matter, but the mediated failed. The petitioner, therefore,filed this application for a decree of nullity of marriage under S. 19 of the Act.
4. The respondent resisted the application. He denied his impotency and stated that he was willing to get himself examined by a Doctor. He, however, admitted that after the marriage he and his wife came to his house and slept together on that night. According to him, the consummation could not take place as all his sisters were also present in his house. He also admitted that on the next day, the petitioner was taken to her parent's house but that he went to her parents' house only fifteen days thereafter. He, however, admits that by custom, the next three days after the marriage must be spent in the bride's house.
5. On behalf of the petitioner, she examined herself as P.W.1, her mother as P.W.3 and the brother of one Victoria whose marriage with the respondent broke down on the ground of the respondent's impotency as P.W.2. On behalf of the respondent, besides examining himself as R.W.1 he examined his sister and father as R.W.2 and 3 respectively.
6. The learned Chief Judge, on an effective evaluation of the entire evidence in the case,found that the very fact that the respondent, although had opportunity to consummate the marriage as he was in the company of his wife for nearly 1 1/2 months, failed to have sexual intercourse with her, showed that he was not in a position to have sexual intercourse with her. He found that the conduct of the respondent coupled with the evidence adduced in the case by the petitioner, conclusively established that the respondent was impotent and could not consummate the marriage. He, therefore, granted a decree of nullity of the marriage of the petitioner with the respondent.
7. In this reference, the learned Counsel for the respondent reiterates before us that the respondent was not given an opportunity to establish his potency and that he should be sent for medical examination now to prove his potency. We are unable to agree with this submission. It is now well established that impotency, as recognised by S. 19 of the Act, is the physical incapacity to consummate the marriage by complete and natural intercourse. Consummation of the marriage can be held to have taken place where there is ordinary and complete sexual intercourse between the parties, and not when the intercourse is imperfect or partial. P.W.1 categorically stated that, although they slept together continuously for four nights and there-after also lived together for nearly four months in the house of the respondent himself, the respondent could not have any sexual intercourse. She swears that even when she advised him to go to a Doctor for medical examination, he refused to accept her advice and go to a Doctor to have medical examination. This evidence of the petitioner is not only not contradicted,but the respondent admits that he did not go for medical examination although he was advised by the petitioner to do so. Therefore, on the facts and circumstances established in this case, it is impossible for us to escape the inference that the respondent abstained from having any sexual intercourse with his wife because of his physical incapacity to have sexual intercourse. In such circumstances, the onus is on him to rebut the inference that the was incapable of having sexual intercourse. Latey on Divorce, 15th Edition, at page 226 says:
'When a husband abstains from or fails to attempt intercourse with his wife, the inference of incapacity is even strong and theonus is on him to rebut that presumption.'
This principle laid down by the Court of Divorce and Matrimonial Cases in England is made applicable to the High Courts and District Courts of this land by S. 7 of the Act.
8. Therefore, on a careful review of the entire evidence in the case, we have no hesitation to hold that the decree of nullity of marriage has been rightly granted by the Court below. We accordingly accept the reference and confirm the decree of nullity of marriage of the petitioner with the respondent. No costs.
9. Order accordingly.