(1) This case comes before us for confirmation of the decree of the learned District Judge, West Tanjore, declaring the marriage between the petitioner and the respondent as null and void on the ground of the impotency of the respondent. The petitioner is the wife and the parties are Christians. Their marriage was solemnised on 29th May 1961 at Kumbakonam and according to the case of the petitioner, as set out in her petition, "during her stay with the respondent, in spite of her best efforts, she was not able to get conjugal happiness from the respondent" and "found that the respondent was impotent at the time of the marriage". It is also averred in the petition that the respondent did not want to live with the petitioner and began to shun her presence. Three months after the date of the marriage itself, the petitioner was sent away to her parents' house. The petition for declaration of the nullity of marriage under Ss. 18 and 19 of the Indian Divorce Act was filed on 26th October 1962. The petitioner herself, at the time of the marriage, must have been aged about 24 years and a teacher. The respondent, husband, is employed as a Physical Instructor at Madurai and aged about 30 years.
The application under the Indian Divorce Act was preceded by a lawyer's notice Ex. A-2, the receipt of which has been acknowledged by the respondent. As the learned District Judge placed some reliance on this notice for his conclusion as to the impotency of the respondent, it is necessary to refer to the material allegations therein. All that is stated there amounts to this. Since the date of solemnisation of the marriage, the respondent never lived with the petitioner as her husband; and he was not physically capable of having conjugal relationship with the petitioner. The respondent is further charged with having stated before certain mediators, who approached him on behalf of the petitioner, that he would never again live with the petitioner and that he would consent for a divorce, as he was not willing to continue the marital relationship. In the proceeding before the District Court, the respondent who had been served has been ex parte.
(2) The petitioner was represented by counsel and the material portion of her evidence which is not very articulate on the question for consideration, can be set out:
"I went with the respondent to his place on the third day of marriage. I desired to co-habit with respondent. But respondent refused. He said that he was impotent. I lived with him for three months. In spite of several attempts on my part he refused to cohabit with me and said that if I forced he would leave the house." This is all the evidence that is available on the record regarding the charge of impotency and it is on this evidence that the petitioner has sought a declaration of nullity of marriage.
(3) While S. 18 of the Indian Divorce Act, 1869, enables the husband or wife to present a petition for declaration of a marriage as null and void, the grounds for such a decree are set out under S. 19. Clause (1) of S. 19 provides that a declaration of nullity could be had on the ground that the respondent was impotent at the time of the marriage and at the time of the institution of the suit. Modi in his Text Book of Medical Jurisprudence and Texicology (13th Edn.) at page 291 defines "impotency" as "physical incapacity of accomplishing the sexual act, while sterility means inability for procreation of children". The causes of impotence and sterility in the male, according to the learned Author, may be age, malformations, local diseases, general diseases and psychical influence. Temporary absence of a desire for sexual intercourse may result from fear, anxiety, guilt, sense, timidity, aversion, hypochondriasis, excessive passion and sexual over-indulgence. Sometimes a person may be not impotent generally but impotent with reference to a particular individual; Impotentia quoad huno vel hano. A reference to the English text books on matrimonial jurisprudence shows that impotency has been generally understood as meaning an incapacity to have sexual intercourse, that which undeniably is considered to be one of the objects of a marriage.
(4) In matrimonial causes, particularly, where a declaration of nullity of marriage is sought on the ground of impotency, difficulty will be experienced in arriving at a satisfactory conclusion from the evidence that may be placed before the court. As already stated, impotence may be caused either by physical defects or it may be psychical. When there is no medical inspection and none but the parties testify, courts should be hesitant to accept the mere statement of a party, particularly, when the petitioner's evidence is left unchallenged and the respondent chooses to remain ex parte. There is possibility of collusion and at times even where there is an apparent contest, collusion may prevent a vigorous and bona fide defence. In England, rules provide for medical inspection in nullity suits, the medical inspector being in the rota of the court. The court has no doubt a discretion to dispense with an order for medical inspection and it is not always obligatory. Medical inspection of the parties, while no doubt it may be helpful, may not always be conclusive. Even where the medical report on the virginity of the wife is inconclusive, the court may pronounce on the nullity of the marriage when there is other evidence from which an inference may be drawn as to the impotency of the husband. There may be cases where a woman had lost her virginity before the marriage in question and in cases where it is repugnance on the part of the husband to consummate the marriage, not from any physical defect but for other psychical reasons, his medical inspection may not be of much use. However, as observed in Latey on Divorce, 14th Edn., page 199:
"If, in a nullity suit, a respondent now refuses to submit to treatment or medical examination, he or she will be deemed to be incurably impotent, on adequate proof and in the absence of evidence to the contrary."
(5) But in this case neither from the averments in the petition nor from the oral evidence, one can infer the reason for impotency of the respondent, whether it is a passing phase due to repugnance of consummation of the marriage at a particular period or it is due to an incurable physical defect or aversion that could not be got over for all time. Impotency, to furnish a ground for nullity, must be present not only at the time of the marriage, but also at the time of the suit. In this case, the petitioner admittedly had lived with the respondent just for a period of three months. There does not appear to have been even any attempt physically at consummation. The evidence of the petitioner is vague in this respect and one cannot infer therefrom a basis for the conclusion that the respondent is impotent, apart from his alleged admission. The extract from the notice Ex. A-2 has already been set out and it is also laconic.
(6) The absence of contest and protest by the respondent against the charge of impotency, appear to have considerably weighed with he learned District Judge in his conclusion. Here, the learned District Judge has failed to remember that divorce proceedings and nullity suits are not like ordinary civil suits in which the parties are litigating only their own rights and seeking decrees to which they are indisputably entitled if the facts on which their right is founded are proved. Grant of divorce is to a certain degree in the discretion of the court and the slightest evidence of bad faith, collusion or want of candour would entitle the court to stay its hand. It is the State that is vitally concerned in the institution of marriage and the divorce law as it stands does not permit the grant of divorce or declaration of nullity on admissions even. The respondent's remaining ex parte may itself be due to collusion. Strict proof, and close investigation of the evidence tendered are necessary before the marriage tie is cut. The decree cannot be granted lightly, as in simple suits for money. It is the society that is interested and admission by one or other or both the contestants will not be strictly evidence against the society. One would expect in cases of this kind, where there is no defence, the court itself to put appropriate questions to find out whether there was no collusion, whether the essential elements are present and whether the evidence could be relied upon. Lord MacDermott in Preston Jones v. Preston Jones, 1951-AC 391 at p. 417, observes:
"The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry."
Nullity cases are not an exception this rule.
(7) When examined in the light of the above principles, one finds that it is difficult to conclude on the scanty material on record that the charge of impotency has been established in this case. Hardly three months had elapsed since the marriage and all that one finds is that in spite of several attempts on the part of the petitioner, her husband had refused to cohabit with her and wanted her to live away in Kumbakonam itself, evidently meaning that she need not join him at Madurai. No doubt, in English law, there has been a change when one of the spouses takes this attitude. The Matrimonial Causes Act. 1937, provided for the avoiding of marriage on the ground that the marriage had not been consummated owing to the wilful refusal of the respondent to consummate. This enabling provision has been repeated in the Matrimonial Causes Act, 1950. Unfortunately, there has been no corresponding advance in the Indian Divorce Act, with the result that even if the non-consummation be due to steadfast and persistent refusal, the court cannot make a decree of nullity. No doubt, if the circumstances warrant it, from a refusal to consummate the marriage, inference of impotency can be drawn. Non-consummation, in spite of a reasonable period of cohabitation, coupled with refusal to submit to medical examination, would justify the court in drawing an inference of incapacity. Lately on Divorce (ibid) at p. 195 states the rule for inference of incapacity this way:
"Where after a reasonable time it is shown that there has been no sexual intercourse and that the wife has resisted all attempts, the court, if satisfied of the bona fides of the suit, will now usually infer (unless it is merely a case of wilful and knowing refusal.....) that the refusal arises from incapacity, caused by nervousness or hysteria; or from an invincible repugnance to the act of consummation resulting in a paralysis of the will, and pronounce a decree."
Referring to the husband's failure, the learned Author observes at page 195:
"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."
(8) In this case, no attempt has been made to secure a medical examination of the respondent; if an order had been obtained and he had refused to submit to medical examination, then no doubt it would provide a plank for an inference against him. The notice Ex. A-2 itself is not clear and decisive in charging the respondent with impotency at the time of the marriage. His non-reply to the same cannot, in the circumstance, be made a ground for inference against him. The petitioner in her evidence has advanced the case no further. No doubt, in the absence of any contest by the respondent in spite of the notice, the court may accept, if the surrounding circumstances negative any idea of collusion or want of bona fides, the uncorroborated testimony of the petitioner herself if it is otherwise clear and sufficient. But in this case, the acceptance of that testimony will not carry the matter much further. It is difficult to pronounce, on the evidence that is before court, that the respondent was impotent giving the word its due significance, at the time of the marriage and had continued to be so till the date of petition.
(9) We have to sound a note of caution that we are not resting our decision solely or to any considerable degree on the ground that the spouses in the case had lived together only for three months. In Kishore Sahu v. Mrs. Snehaprabha Sahu, AIR 1943 Nag 185 at p. 191, there is a collection of cases from England, where the time-lag has ranged between 19 months, 8 months, 5 months, and even one day only in one case. In another case, the spouses had never lived together at all. What is required is, the court has to be satisfied that the case of the petitioner has been proved. The evidence on the whole, taking the inferences, presumptions and probabilities, all, must be such as to sustain what Sir William Scott described in Lovedon v. Lovedon, (1810) 161 ER 648 as "the guarded discretion of a just and reasonable man".
(10) On the evidence before us, we have no other option but to set aside the decree of nullity of marriage pronounced by the learned District Judge. Of course, this does not preclude the petitioner from re-agitating the matter and seeking a divorce or nullity in circumstances, since the institution of the present proceedings, warrant it.
(11) In the result, O.P. 67 of 1962 filed by the petitioner in the Court below is dismissed. No costs.
(12) Petition dismissed.