1. This case came before this Court on an earlier occasion and our decision has been reported in Jayaraj v. Seeni Animal, : AIR1967Mad242 . The reference arose out of a petition under Section 18 of the Indian Divorce Act, by the husband for a declaration of nullity in respect of the marriage between him and his wife, Mary Seeniammal, on the substantive ground that the wife declined all access to the husband subsequent to the marriage and refused to consummate the marriage and hence must be regarded as impotent both at the time of the marriage and at the time of the institution of the proceedings. When the matter came before this Court on the earlier occasion this Court found that sufficient evidence had not been adduced for the purpose of proof of the alleged impotency, and after setting out the relevant principles, this Court remanded the matter to the lower Court for disposal after a fresh evidence.
2. After the remand, the learned District Judge took a great deal of trouble to secure the presence of the wife, before him for examination in Court. She appears to have responded only after a warrant of arrest had been issued, and then she appeared through counsel and was examined very carefully by the learned Judge. The following is the gist of her evidence:
'I am not willing for divorce. (This witness is not answering purposely the questions put by the Court why she was not giving room to consummate the marriage and to have sexual intercourse). I do not want to give any answer to the question why I did not give room to consummate the marriage or to have sexual intercourse with him. Now I am willing to be with my husband to consummate and to have sexual intercourse with him. I am not willing to submit to any medical examination to find out whether I am impotent or whether there is any defect in my system. (The witness is not answering the question -- 'Why did you not allow your husband to consummate by having Sexual intercourse?).'
3. In the typed script of the evidence which we have extracted above there is a Statement which will indicate that the woman was willing at the time when she gave evidence to consummate the marriage with her husband and to have sexual intercourse with him. But the learned Judge in the course of his judgment has not dealt with this part of the evidence of the woman as a subsequent offer by her to consummate the marriage and which the husband was bound to accept. He has viewed the whole evidence as a refusal on the part of the wife to consummate the marriage and deliberate failure to explain why she failed to consummate the marriage even though a long time had lapsed since the marriage. She also refused to submit herself to medical examination to find out whether there was any inherent defect in her, whether bodily or psychologically, which stood in the way of consummation or the marriage. Hence, the learned Judge concluded after carefully studying her attitude that he was constrained to draw the Inference that the reason why she did not permit her husband to consummate the marriage for all this long period of time (she is 35 years old) was her impotency both at the time of the marriage and at the institution of the suit.
4. Decisions under the corresponding provisions of the English Matrimonial Act have held that where a woman is shown 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 (vide Bayden on 'Divorce' 9th Edn. page 114). There is also authority in the standard English text books on the subject that where the husband or the wife refused to submit to inspection, the Court may nevertheless grant a decree --Vide Raydon on 'Divorce' 9th Edn. p. 117.
5. In the present case, we are satisfied that the wife s consistent refusal to consummate the marriage and also her refusal to submit herself to medical examination, are strong circumstances from which a legitimate inference of her impotency at the time of the marriage and also at the time of the institution of the proceedings against her, within the meaning of Section 19(1) of the Indian Divorce Act, can be drawn.
6. At the hearing of this reference, the wife, the respondent was ex parte. The learned Counsel engaged amicus curiae for the respondent, pleaced a great deal of reliance upon the statement contained in the record of the deposition of the wife by the lower Court about her present offer to consummate the marriage. We are of opinion that this offer cannot be divorced from the rest of her statement, which clearly amounts to an admission of her having been not in a position to consummate the marriage both at the time of marriage and also at the time when the petition was filed. Her refusal to submit herself to medical examination also appears to us to show that the subsequent offer, if she had really made such an offer, was not a genuine one. In any case it is inconsistent with the rest of her evidence, and if it was a genuine offer the learned Judge would have certainly made a point of this offer and considered it in the context of his findings.
7. In the above circumstances, it appears to us that this is a genuine case where the husband has made out the ground of impotency for claiming relief which he has sought under Section 18 read with Section 19(1) of the Indian Divorce Act. We therefore accept the reference and confirm the decree of nullity of marriage passed by the learned District Judge. There will be no order as to costs.