1. This is a reference under Sec. 17 of the Indian Divorce Act for confirmation of the decree of the District Judge of Cuttack annulling the marriage of the petitioner with the respondent.
2. The parties are Indian Christians and it is admitted that they were lawfully married on 17-4-59 at Jamshedpur. The husband (petitioner) Is a young man aged about 26 years and his wife (respondent) is aged about 23 years. The petitioner alleged that after the marriage the respondent stayed with him at his residence till 9-5-59, but that the marriage could not be consummated on account of her aversion to have sexual intercourse With him. He further alleged that on three different occasions he attempted to have sexual intercourse with her but was unsuccessful as the respondent fainted away and was frequently complaining of burning sensation in her private parts, but she would not submit herself to medical examination. He therefore thought that there was something wrong with her though she would not disclose it. On these allegations he sought for a decree for annulment of the marriage on the ground that his wife was impotent towards him. The respondent, however, denied that anything was wrong with her sexual organ but admitted that the marriage could not be consummated on account of her aversion towards the petitioner. While giving evidence in court she stated that the petitioner was unwilling to treat her as his wife and she was also not well disposed towards him. She further stated that she was as eager as he was, to get the marriage annulled.
3. Apart from the statements on oath of the parties which were not challenged in cross-examination there was ho other corroborative evidence. The petitioner never applied to the Court for calling upon the respondent to submit herself to medical examination. If he had done so, and if in spite of that she had refused to submit herself to medical examination, the question of drawing an adverse inference about some physical infirmity in her sexual organs might arise.
4. We are satisfied that the case has not been properly conducted in the lower court apparently because counsel for both parties and the learned Judge also did not fully appreciate the nature of the evidence required in matrimonial cases of this type. Apparently, everyone concerned has proceeded on the assumption that the annulment of a marriage is purely private affair between the parties, and if their evidence is not challenged in cross-examination the Court must, as a matter of course, grant a decree., for such annulment. It should be remembered that 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 therefore 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.
5. In this connection I would invite the attention of the learned District Judge to the observations of the Nagpur High Court in Kishore Sahu v. Snehaprabha Sahu, AIR 1943 Nag 185 (SB); H. v. H. AIR 1928 Bom; 279, and Balavendram v. S. Harry, AIR 1954 Mad 316 (FB), and the English decisions cited therein. It is true that though a person may be generally potent he may be impotent towards a particular person of the opposite sex and that may be a good ground for annulling a marriage provided the other conditions required by section 19(1) of the Indian Divorce Act are satisfied. But in such cases the court would require some corroborative evidence to support the statement of the other side to the effect that the marriage was not consummated. If the wife was a virgin before marriage medical evidence would be the best piece of corroboration. Similarly, if there was any mal-formation of her sexual organs rendering normal sexual intercourse impossible, the medical evidence would be very valuable though nobody can compel the woman to submit herself for medical examination, nevertheless the court may, on the application of the other party call upon her to submit herself to such medical examination, and if she refuses the Court may draw an adverse inference. Apart from the medical examination it will always be possible to adduce some type of corroborative evidence to support the case of the Other spouse that the marriage was not consummated for those specific reasons. The mere statement by the wife that she was not well disposed towards her husband as he was not treating her as his wife and that consequently there was no consummation of the marriage would not be sufficient to show that she was impotent towards him.
6. As the case does not appear to have been conducted properly, I think the trial should be held de novo. Apart from other isssues which the court may frame we would direct it to try the following issues also:
1. (a) Was the respondent impotent at the time of her marriage?
(b) If so, what was the nature of the impotency?
(c) Was she 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 on which the petition was filed, namely 29th July, 1959?
(b) If so, what was the nature of the impotency?
(c) Was she 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 a full, frank and free disclosure of all material facts
The learned District Judge should give bothparties a full opportunity to adduce all availableevidence on these issues and then dispose of thecase according to law.