Krishnamoorthy Iyer, J.
1. The petitioner in a petition under Section 18 of the Indian Divorce Act (4 of 1869) asking for a declaration of nullity of her marriage with the respondent is the appellant, the ground being that the respondent was impotent at the time of the marriage and at the time of the filing of the petition and therefore there was no consummation of marriage. The learned District Judge of Trivandrum after trial dismissed the petition holding that the evidence adduced is not sufficient to prove that the respondent was impotent at the time of the marriage and at the time of the filing of the petition. The correctness of this finding was challenged before us on behalf of the appellant.
2. Though the petition for declaration of nullity was contested before the learned District Judge by the respondent there was no appearance for him in this Court. The appellant has filed C. M. P. 1055 of 1967 in the appeal for alimony pending the proceedings. The respondent has entered appearance in that petition and filed his objection. His learned counsel submitted before us at the time of the hearing of the appeal that he has no instructions to appear in the appeal and he has been instructed only to oppose the petition for alimony. The notice of appeal has been served on the respondent. It was agreed to by both counsel appearing in the petition for alimony that the petition need be disposed of only after the disposal of the appeal. We are not therefore considering the application now but we proceed to dispose of the appeal on the merits.
3. The parties to the proceedings are Syrian Christians and they were married on2-4-1964 at St. Thomas Jacobite Syrian Church at Kakkanad very near Ernakulam. At the time of the marriage the respondent had been selected for the All India Telegraph Engineering Service and was undergoing training at Bombay as Assistant Divisional Engineer. An outline of the married life of the parties can be stated thus. On the same date on which the marriage took place the appellant and the respondent were taken by the respondent's parents to their residence at Trivandrum where the parties stayed till 5-4-1964. On the evening of 5-4-1964 the parents of the appellant took her and the respondent to Thrikkakara where they stayed till 9-4-1964. On that date the parties went back to Trivandrum where they stayed with the parents of the respondent till 29-4-1964. The respondent had to return to duty at Bombay early in May 1964. The parties along with the mother of the respondent proceeded to Bangalore on 1-5-1964. The appellant and the respondent stayed in the Inspection Bungalow of the Indian Posts and Telegraphs Department at Bangalore till 7-5-1964, while the respondent's mother stayed at the Y.W.C.A. in Bangalore. On 7-5-1964, the respondent proceeded to Bombay to rejoin duty while the appellant along with the mother of the respondent returned to Trivandrum. In June 1964 the appellant was admitted in the second year of the B. A. degree class in the University Women's College, Trivandrum. During her studies there the appellant stayed with the parents of the respondent in Trivandrum. It is agreed that subsequent to the return of the appellant from Bangalore the appellant and the respondent never stayed together. On 6-8-1964 the appellant discontinued her studies at Trivandrum and returned to her parents at Thrikkakara. From there she proceeded to Bombay with her mother and brother and met the respondent on 12-8-1964 at the flat where he was staying. It is admitted that the appellant was immediately sent back and the never stayed with the respondent at Bombay.
4. It is thus seen that after the marriage the appellant and the respondent stayed together for a period of 34 days. The parties are agreed that there was no consummation of the marriage during that period. In paragraph 5 of the written statement the respondent stated thus:
'But that it (marriage) has not been 'consummated' is admitted. But the non-consummation was not for the reason alleged in the petition, but for the reasons and circumstances stated in para 7 below.'
It will be useful to give the reason for the non-consummation of the marriage in the words of the respondent himself and we are therefore extracting the reason as stated in paragraph 7 (a) of his written statement.
'In view, however, of the long and continuous and Intense intellectual strain that he had sustained, and was still workingunder, with the object of gaining outstanding distinction in the special training and probationary service as well, and with a view to prepare and equip his proposed life-partner also in a manner befitting the high objectives and hopes entertained for their future sphere of life and occupations, it was deliberately agreed between the parties, that until the respondent completed his special training and probation and comfortably settled down, and the petitioner completed her graduate course ....... from thebeginning of the academic year 1964.'
The agreement is denied by the appellant.
5. Though there is no proper discussion or clear finding in the judgment under appeal on the agreement set up by the respondent as a reason for the non-consummation of the marriage the learned trial Judge, would seem to hold that 'the abstention off the respondent from sexual intercourse with the appellant was rather the result of the decision than any physical incapacity or allergy towards the petitioner.' We are not satisfied with the inference drawn by the District Judge. Not only there is no evidence to prove the agreement pleaded by the respondent but it seems to us that the agreement pleaded is highly improbable. It has not been contended by the respondent that this marriage was forced on him by his parents. The respondent was at the time of the marriage a member of the All India Telegraph Engineering Service and holding a responsible position. The marriage must have taken place only with his complete consent and full concurrence. The details relating to the agreement namely the time and place when it was entered into are not given in the written statement. The correspondence between the parties evidenced by Exts. D-1, P-3, P-4, D-2, D-6 and D-8 prove positively that the agreement pleaded by the respondent cannot be true. The respondent has not examined himself to speak to the agreement. On the other hand, the appellant as P.W. 3 has denied the same in her evidence. There is no counter evidence. We have therefore no hesitation in holding that the agreement set up by the respondent is not proved.
6. Under Section 19(1) of the Divorce Act, a decree for nullity of marriage can be made if it is proved that the respondent was impotent at the time of the marriage and at the time of the presentation of the petition. The question to be decided is whether the abstention on the part of the respondent to consummate his marriage with the appellant was due to his impotency at the time of the marriage and at the time of the filing of the petition. It is agreed that in order to constitute the marriage bond between two persons, 'there must be the power, present or to come, of sexual intercourse'. The term 'impotency' has been understood by English Judges in matrimonial cases as meaning incapacity to consummate the marriage, that is to pay, incapacity to have sexual intercourse, which is one of the objects of the marriage. Dr. Lushington in D-E v. A-G (1845) 163 ER 1039 dealt with the meaning of the term 'sexual intercourse', thus:
'Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect intercourse; yet, I cannot go to the length of saying that every degree of imperfection would deprive it of its essential character. There must be degrees difficult to deal with; but if so imperfect as scarcely to be natural, I should not hesitate to say that legally speaking, it is no intercourse at all ........ If there be a reasonable probability that the lady can be made capable of a 'vera coupla' of the natural sort of coitus, though without power of conception I cannot pronounce this marriage void. If on the contrary, she is not and cannot be made capable of more than an incipient, imperfect and unnatural coitus, I would pronounce the marriage void.'
The rule laid down by Dr. Lushington was followed in G. v. G. (1871) 2 P & D 287. In that case, the husband prayed for a declaration of nullity of marriage because of the wife's peculiar hysterical condition which made it impossible for the husband to consummate the marriage. It was held Chat even in the absence of any structural defect, a declaration of nullity could be made if there are circumstances present which render sexual intercourse impossible Lord Penzance observed:
'The invalidity of the marriage, if it cannot be consummated on account of some structural difficulty, is undoubted; but the basis of the interference of the Court is not the structural defect, but the impracticability of consummation. If, therefore, a case presents itself involving the impracticability (although it may not arise from a structural defect) the reason for the interference of the Court arises. The impossibility must be practical. It cannot be necessary to show that the woman is so formed that connection is physically impossible if it can be shown that it is possible only under conditions to which the husband would not be justified in resorting. The absence of a physical structural defect cannot be sufficient to render a marriage valid if it be shown that connection is practically impossible, or even if it be shown that it is only practicable after a remedy has 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 to. The question is a practical one, and I cannot help asking myself what is the husband to do in the event of his being obliged to return to cohabitation in order to effect the consummation of the marriage? Is he by mere brute force to oblige his wife to submit to connection? Every one must reject such in idea.'
The dictum laid down in (1848) 163 ER 1039 was again followed in Dickinson v. Dickinson, 1913 P. 198, even though in that case the impossibility to perform the intercourse was inferred on account of a wilful and persistent refusal on the part of the wife to allow any marital intercourse. According to the books on the subject there can be sexual impotency in general or impotency with regard to a particular spouse described as impotency quoad hune or quoad hanc. The burden is no doubt on the appellant to prove affirmatively and to the satisfaction of the court that the non-consummation is due to incapacity or wilful neglect to consummate on the part of the respondent. The court will have to be satisfied beyond reasonable doubt that the husband was impotent at the time of the marriage and has been therefore incapable of consummating It. We have already found that the agreement alleged by the respondent as the reason for non-consummation of the marriage has not been proved. In Rayden on Divorce, 9th Edition, page 114, paragraph 66, it was observed:
'Before the Matrimonial Causes Act, 1937, wilful wrongful refusal of sexual intercourse was not in itself sufficient to justify the Court in declaring a marriage to be null on the ground of impotence; but the view has been taken that where a woman is shown not to have had intercourse with her husband after a reasonable time for consummation of the marriage, and it appears that she has refused intercourse and resisted her husband's attempts, the Court, if satisfied that the refusal was not due to mere obstinacy or caprice, may draw the inference that it arose from some incapacity proceeding from nervousness or hysteria, or from an invincible repugnance to the act of consummation, resulting in a paralysis of the will which was consistent only with incapacity. 'The inference of incapacity is readily drawn when a man refuses to attempt, or abstains from attempting to consummate the marriage''
(The underlining (here into' ') is ours).
In G. v. G. 1924 AC 349 where wife resisted frequent attempts by the husband over a protracted period to consummate the marriage, and continued that resistance after she had formally consented to perform her conjugal duty, it was held that the refusal was due to an invincible repugnance to the act of consummation consistent only with incapacity. In Eversley on Domestic Relations, 6th edition, page 25, the learned author made the following observation:
'where there has been persistent refusal to consummate a marriage on the part of one of the spouses (who also refuses to obey an order for medical inspection) while the other spouse has been desirous that there should be consummation, the court will assume the existence of some latent impediment amounting to incapacity.'
7. It is In the light of the principles above stated that the evidence adduced in the case before us has to be appreciated. The evidence on this aspect consists only of P.W. 3. The respondent did not get himself examined in the proceedings. The examination of the appellant was completed on 26-7-1966 and the case was posted to 20-8-1906 for the examination of the respondent. The respondent moved for adjournment which was granted on terms and the case stood posted again for his examination on 13-9-3966. At the instance of the respondent the case was further adjourned to 28-10-1966 on which date his advocate filed a memo that the respondent need not be examined. The respondent also did not adduce any evidence.
8. On 20-6-1966 the appellant filed I. A. 635 of 1966 praying for an order for the medical examination of the respondent and for carrying out the necessary physical, psychical and psychological investigation. On 25-6-1966 the respondent filed his objection stating that no psychical and psychological tests need be made and the prayer for his being medically examined is premature. The respondent further stated that if the court is satisfied after the examination of the appellant and the respondent that a medical examination is essential for determining the allegation of impotency against the respondent, he has no objection to appear before a competent medical board for examination at the cost of the appellant. Subsequently the respondent did not express any willingness to undergo the medical examination as prayed for. In the course of the judgment the learned Judge observed that no attempt has been made on behalf of the petitioner to secure an order for medical examination and the advocates appearing for the appellant did not press for a medical examination' The correctness of this statement in the judgment under appeal was disputed before us by the learned counsel for the appellant. The learned counsel for the appellant who argued the appeal had appeared for the appellant in the trial court as well. The learned counsel submitted that the application for medical examination was pressed at the time of the final arguments as well. I. A. 635 of 1966 was disposed of only on 30-11-1966, the date on which the main petition was dismissed. The order in I.A. 635 of 1966 is only to the effect 'Dismissed -- Vide order on the main petition' The progress diary in the case shows that I.A. 635 of 1966 was posted for hearing to 20-8-1966. It was not taken up on that day and it is not seen that the petition was posted to any subsequent date. On 13-2-1967 the appellant has filed a petition for review challenging the correctness of the statement in the judgment under appeal that I.A. 635 of 1966 was not pressed at the time of the arguments. The review petition has not been disposed of. We therefore take the view that the statement contained in the judgment is not correct and it the result of amistake on the part of the learned Judge. The learned Judge has also stated that medical examination of the respondent cannot be ordered because no prima facie ground has been made out by the appellant to annul the marriage. The view taken by the learned Judge cannot be sustained. P.W. 3 deposed that while at Trivandrum. Thrikkakara and Bangalore the appellant and the respondent slept in the same room. According to P.W. 3, the respondent showed an unnatural aversion towards her. She stated that on the second night she embraced him when he appeared ill at ease and in spite of her embrace he remained cold and frigid. She stated that even in her father's house at Thrikkakara where the parties went from Trivandrum the behaviour of the respondent was the same in spite of her approaches. She stated 'I embraced him and kissed him, but again there was no response. Then I asked him why he was behaving like this. I asked him whether he did not like me. He said he did; but he said that he was feeling allergy to me. He then said that he would consult a doctor ' Subsequent to her coming to Trivandrum the position was the same and during their stay at Bangalore for about five or six days P. W 3 would say that though they slept in the same room the respondent did not allow her to share the same bed and he was cold and frigid to all her physical advances. She stated thus : 'I embraced him, I kissed him and I asked him to touch me. But he remained cold to my physical advances.' If the agreement pleaded by the respondent cannot be accepted -- we have already rejected the same -- the conduct of the respondent is inexplicable. At the time of the marriage the appellant was 19 years old and the respondent was 25 years old. The correspondence between the parties show the high hopes which the appellant entertained because of the marriage and that they were shattered to pieces by the cold behaviour of the respondent. She was bitterly disappointed. We are Impressed with the evidence of P W 3.
9. In this connection it is necessary to mention that in paragraph 7(c) of Ms written statement the respondent did not even hesitate to attribute immorality to the appellant even from a period prior to the date of the marriage and according to the respondent the application which the appellant had filed for nullity is in anticipation of a petition to be filed by the respondent for dissolution of marriage on the ground of immorality It has to be said that there was not even any attempt to substantiate his allegation and we have to hold that his allegation which remains only as an allegation is quite unbecoming of the status and position which the respondent is occupying We have no hesitation to hold that these allegations have been made in a reckless manner and reject the same as baseless.
10. The net result of the evidence given by P. W. 3 shows that the made frequent attempts to consummate the marriage and she failed by the inability of the husband to respond to her. Her evidence shows that the appellant whose potency is admitted made frequent attempts extending over a considerable period but failed owing to the refusal of the respondent. She was willing to have intercourse with the respondent. The advances made by the appellant were sufficient to awaken any sexual instinct in the respondent and they were sufficient to show her sexual desires to him. His refusal was continued and persistent. The conduct of the respondent as disclosed by the evidence of Pw. 3 throughout the period of his stay with the appellant was that he had a continued aversion to the sexual act. In the absence of any other explanation we are entitled to draw the inference that it was incapacity that prevented the respondent from satisfying the sexual desire of the appellant. Though in his objection to I. A. 635 of 1960, the respondent expressed his willingness to appear for medical inspection after the examination of the parties, we are satisfied that the filing of the memo to the effect that his examination in the case is not necessary is only to escape from being medically examined. The conduct of the respondent can be explained only on the ground of impotency both on the date of the marriage and on the date of the filing of the petition. The treatment that she received at the hands of the respondent when she went to Bombay to meet the respondent only supports the version given by her. Ext. P-7 which is the letter written by the appellant to the respondent on 18-8-1964 described the nature of the treatment she was accorded at Bombay. In Ext- P-7 the appellant stated thus:
'As my life in your parent's house became unbearable I came to you to Bombay by plane on the 12th August 1964 along with my mother and brother. The treatment you accorded us on that occasion was most shocking and inhuman. You did not show us even the elementary courtesy that a host would show to a guest, when we met you at your house in Bombay. It was only through the intercession of your landlady Mrs. Alyanak that you could be persuaded to allow me to speak to you alone. Even then you would not talk to me for more than a couple of minutes. Your attitude was most unhusband-like and extremely cruel. All this was something that I hardly expected that I hardly deserved and that I could hardly tolerate I had therefore no option but to come away to my parent's house where I am now living.'
The respondent had ample time when the appellant was alone with him in the same room to consummate the marriage It was not consummated during 34 days. On the evidence on record we hold that the failure of the respondent to consummate the marriage was because he was impotent on the date of the marriage and on the date of the filing of the petition.
11. It therefore follows that the appellant is entitled to a decree for nullity of marriage under Section 19 Clause (1) of the Divorce Act. We set aside the decision of the learned District Judge and pass a decree in favour of the appellant declaring her marriage with the respondent null and void. The appeal is thus allowed. The appellant will have her costs in the trial court including advocate's fee Rs. 100 and the parties will hear their costs in this Court.