M. Anantanrayan, C.J.
1. This is a reference made by the learned District Judge of Triunveli under Section 18 of the Indian Divorce Act (4 of 1869) in a petition by the husband (Jayaraj Anthony) for a declaration of nullity in respect of the marriage between him and his wife (mary Seeniammal) on the substantive ground that the wire(respondent) declined all access to the husband subsequent to the marriage, refused to consummate the marriage, and hence must be regarded as 'important' both at the time of the marriage and at the time of the proceeding. The learned District Judge accepted the evidence for the plaintiff and granted a decree in the usual form, subject to our confirmation.
(2) Under Section 19(1) of Act 4 of 1869, one of the grounds on which the petition for a decree of nullity, in respect of a marriage, could be successfully maintained is that the respondent was impotent at the time of the marriage, and at the time of the institution of the suit. This is what the husband alleged, and we have got to see whether there is evidence which the court can accept in proof of this averment, which is the foundation of the petition for nullity.
(3) When the matter came up before us at the first hearing, we were so dissatisfied with the state of the record that we instructed the learned counsel appearing amicus curiae for the wife (respondent) to get into touch with her and to obtain instruction including the instruction whether she would be willing to submit herself to a medical examination. The learned counsel appearing as amicus cruise reports that he has been unable to get into touch with the respondent, and that she has declined service of a letter sent trough registered post of her address. The respondent (wife) never appeared before the learned District Judge of Tirunelveli, and did not in any way meet the main allegation. As fat as the petitioner(husband) is concerned, the record, as we stated earlier, is sadly inadequate and imperfect. All that is clear from the record, including the letters filed, is that the marriage was actually never consummated. The husband as P.W. 1 states that during the time that the wife stayed with him 'she refused sexual intercourse and began to quarrel with me'. She seems to have stayed with her husband over some period, but she never allowed cohabitation, according to P.W. 1. That is corroborated, in the circumstantial sense, by the father P.W. 3, concerning what the son (plaintiff) told him. One Amirthammal (P.W. 4) also gives evidence, and it is extremely vague. The wife is supposed to have told P.W. 4, that she had no charm for matrimonial living and the President of the Panchayat (P.W. 5) states that the wife told him categorically that she had no taste for marriage, and should be permitted to follow her own course in life. We might add that, apparently, she was inclined to a religious life.
(4) On this material, we have anxiously considered whether the requirement of the law can be held satisfied by us. We have come to the conclusion that, emphatically, that is not the case, and that the suit would have to be remanded for further trial and fresh finding, before the husband, can hope to succeed. We shall first record, briefly, our reasons for this view, and then proceed to give suitable directions in the matter of remand.
(5) At the outset itself we may observe that it is noticeable that the Divorce Act IV of 1869 does not include, in Section 19, any such grounds as 'wilful refusal' on the part of the wife to allow a sexual access or the consummation of the marriage. Such a ground of relief was introduced in the United Kingdom under Matrimonial Causes Act 1950 (see Tolstoy on Divorce 4th Edn. page 109). Even so, as this author points out, importance on the part of the wife was considered to be a sufficient ground for declaring the marriage void prior to these amendments. But that 'importance' will have to be understood in the proper legal perspective.
(6) It is ordinarily described or defined as an incapacity to consummate the marriage, present case, since impotence is alleged with regard to the wife, if it is physical or psychological, evidence will certainly be necessary, particularly in the form of expert medical testimony. Courts have had no hesitation in declaring a marriage void, for instance, where there was an incurable psychological defect in the wife, or for reasons of biological immaturity, the marriage could not be consummated. Even where there was a curable physical defect, divorce has been granted, in cases where the wife declined to have the defect cured. But present is a far different case of a refusal to consummate, which, at the highest, can be put only upon the psychological level. There is such a thing as sexual potency in general, and impotency with regard to a particular spouse, described in the books as impotency quid Hun or quad hand. We simply do not know whether the present case is a case of that kind. If may be so circumstance. But the mere fact that the spouse felt that there was no charm in marriage, or that she expressed an inclination to a religious life, is not at all conclusive on that aspect. Simply, if does not prove that the wife was impotent at the time of the marriage, and that she continued impotent till the time of the petition.
(7) Under these circumstances, and in this state of the record, we are unable to confirm the decree granted by the learned District Judge. The decree will be set aside and the original petition remanded for further trial, in the light of the following directions.
(8) The wife has never attended court in these proceedings; nor submitted any pleading, nor offered testimony. But she is an essential party, and, in matrimonial jurisdiction, the presence of both spouses at the hearing may well be imperative in the interests of justice. Hence, we consider that the wife should be summoned to court to give evidence, and if she does not appear, that steps should be taken to compel her appearance and examination by the court. The court must the record whether she admits the averments of the husband and corroborates his version of a continuing and persistent denial on her part to allow consummation of marriage, or does not do so. The wife must also be specifically asked why if she did not allow consummation, she adopted that course, and whether she is willing to submit to a medical examination. If she declines to do so, her refusal should be recorded and the entire matter should be further considered by the Court in the light of the evidence subsequent to the remand, as well as the provisions evidence. The Court may then proceed to dispose of the matter according to law, and, if the provisional decree is granted, the matter will come up before us by way of reference. If the petition is dismissed, it is equally open to the aggrieved party to come up here by way of appeal. No order as to costs.
(9) Order accordingly.