1. In this painful case, the complaining spouse was the wife. She raised this action under the provisions of Sections 18 and 19 of the Indian Divorce Act, 1869 (Act IV of 1869) hereinafter called the Act concluding for declarator that the husband was, at the time when the pretended marriage between him and the pursuer was entered into and still is impotent, and unable to consummate marriage; that the pretended marriage was from the beginning, is now and in all time corning, shall be null i.e., of no avail, force, strength and effect.
2. The charge of impotency, particularly physical, is nevertheless a grave and wounding imputation viz., that the respondent is lacking at least quoad hanc, in the power of reproducing his species, a power which is commonly and rightly considered to be the most characteristic quality of manhood. The observations of Dr. Lushingtoh in D. v. A., (1845) 1 Rob Eccle 279 (298) as to the two principal ends of matrimony being 'a lawful indulgence of passions to prevent a licentiousness and procreation of children according to the evident design of Divine Providence', though not being wholly followed, the practical statesman still continues to regard the marriage relation as a civil institution whose chief purpose is the legalisation of sexual commerce. The capacity for sexual intercourse must therefore exist at least in posse. It is for this reason, impotency is recognised as the ground for annulment of marriage.
3. The parties are Christians. The marriage was celebrated under the Christian rites (thought to be sacred) on December 18, 1954, The Christian maxim 'let not man separate those whom God hath joined' cannot be unfortunately literally acted on by the Courts today. The effective ground in the case being the impotency of the husband, is stated to have been discovered by the wife immediately after the marriage. There are also allegations of cruelty, namely that, the petitioner was a virtuous girl; but the husband forcibly compelled her to live with the husband's younger brother (a bachelor) against her will and compelled her to get conceived by him, as a result of which she delivered an illegitimate female child on October 2, 1956. It is also stated that the husband drove the petitioner by taking away all her personal properties and that the petitioner being helpless, took shelter in her sister's husband's home with the baby, aged five years. We are next brought down to the date i. e., August 1, 1962, when the instant application was filed by the wife for a decree for nullity, resting her case as stated on the ordinary rule that she is entitled to be relieved on the ground propter impotentiam. The cause of action is stated to have arisen, on December 18, 1954, i. e., the date of marriage.
4. On November 26, 1962 (first date fixed for hearing) the case was transferred to the Court of the Additional District Judge. The wife alone gave evidence in the case on that date and her whole evidence about impotency reads as follows: 'I went to my husband's house after the marriage, then I found him to be impotent. The marriage was not consummated'. About the cruelty and torture, she gave evidence as stated in her application. The husband did not aver his potence, rather did not appear and the whole matter virtually rested on the petitioner's own account. An ex-parte decree nisi was immediately pronounced dissolving the marriage. The whole of the judgment of Shri B. Pal, the learned Additional District Judge, after reciting the statement of the case, is to the following effect:
'..... It appears that the parties beingChristians were married according to the Christian rites on 18-12-54. The allegations of the impotency of the husband respondent at the time of the marriage and of cruelty and torture inflicted by him to the petitioner after the marriage have been made out from the evidence of the petitioner (P. W. 1). The case is therefore proved. Hence it is ordered that the suit be decreed ex parte .....'
5. The following further facts emerge. The case has proceeded on the footing of physical impotency. There is neither any allegation nor proof that the impotency is permanent and incurable. The age of the wife was 12 at the time of marriage (see her age when giving evidence). The suit for nullity was filed 8 years after the date of marriage. There is no attempt even to explain the delay, which appears to have been overlooked. There is no date given as to the last act of cruelty viz., when the wife was stated to have been driven away by the husband; but taking the date of the birth of the baby and her age being 5 years when the shelter was taken; it comes to this that the wife lived with her husband upto the year 1961, i. e., about 7 years after the marriage. Her evidence was not that her life has been a protest all the time. There was no medical inspection of the husband. There is no statement, no evidence and no finding that the suit is not collusive. There is no corroboration. The wife has at least her sister and sister's husband to corroborate her story.
6. Upon this history of the married life of the parties we have to ask overselves whether the decree nisi should be confirmed, which has been sent to this Court under the provisions of Section 18 (should have been Section 20) of the Act. Now applying the general principles of law as to (1) Nature and measure of proof (2) Whether medical inspection is necessary (3) Whether delay will debar relief (4) Whether corroboration is needed and (5) what constitutes cruelty on the facts of the case, I should like to be brief; because this clause of facts is one which it is neither agreeable to one's self, nor edifying or useful to others to dwell upon.
7. To begin with impotency, as a slur on the manhood of the husband, must be strictly proved Burden of proof is certainly on the petitioner (wife) and all reasonable doubt must be removed before passing a decree. The- question is whether the burden is discharged and the doubt is reasonably removed in the instant case. There is of course need of caution in dealing with evidence of impotency; because it happened in some of the oid cases that after the person was pronounced impotent, had issue in a later marriage. On the ground of physical impotency (when there was no other test applied in the instant case) medical inspection of the husband, in my judgment, was essential. The practice of inspection has been followed since the day of Ecclesiastical Courts. It was laid down by Canon 105 (though some doubt-ed as to whether that rule has been made part of the laws of England): that 'credit be not given to the sole confession of the parties 'themselves however taken on oath either within or without Court', In Briggs v. Morgan, (1820) 2 Hag Con 324 etc., Lord Stowell, then Sir William Scott, thought inspection the usual mode of proof. The expression that medical inspection is 'indispensable' or 'invariably required' in each case, being a condition precedent before passing a decree, are in my view, too strong and sweeping expressions, if it is to be taken as laying down as exact doctrine or absolute proposition of law. In my judgment, it is most useful though not an absolutely necessary step. It is a prudent procedure or per-haps a wise course of action. It is certainly a convenient and fitting rule and the same is not to be departed from on slight ground. And lastly it is the most valuable safeguard against collusion a well known rule debated of old time for the guidance of the Court. (See Intract v. Intract (otherwise Jacobs) reported in 1933 P. 190.) The decree nisi passed without medical inspection in this case suffers from the said defect.
8. On the question of delay the Court should be guided by the principle that persons who seek relief under such circumstances as the present, ought to come before it not with special promptitude but without any marked delay (E. v T. (falsely called E), (1863) 33 LJPM and A 37.) The Court in my view is not to be used as a plate to which people can come for redress, just when it suits them. If a weapon is held in reserve over the head of the spouse, who is affected, the Court is entitled, in my judgment, in the exercise of its discrelion, to refuse to accede to the prayer of the petition. The principle in Boulting v. Boulting, (1864) 3 Sw and Tr 329 at p. 337 : 33 LJPM and A 33 is in point: 'The petitioner must feel and suffer under the wrong of which complaint is made and the Court must satisfy that Ihe remedy is sought as genuine relief from the pressure of that grievance'. What I understand all the authorities to say upon the subject of time is, that time like any other circumstance of conduct is a very material element. The fact that this suit was not commenced until the lapse of about 8 years after the celebration of marriage not only renders the burden peculiarly onerous, but makes it a case of marked delay. For lapse of time, independently oi its effect as a bar to relief, has always an important bearing on the evidence by which the charge of impotency is sought to be established and upon the measure of proof to be required.
9. It is therefore always desirable in Matrimonial cases to have corroboration of the story if possible. The necessity of corroboration is greater in the instant case being an undefended suit. Since there is a strong presumption in favour of the vali-dity of a marriage, the Court is to be satisfied, in my view, beyond reasonable doubt that a spouse whose impotence is alleged was at the time of the marriage and has been thereafter incapable of consummating it (See Poynter, Marriage and Divorce 2nd Edn. 1824 p. 131). But I do not wish to be taken as saying, that corroboration is required as a matter of law or neces-sary in law but we. in practice require it unless its absence can be satisfactorily accounted for. The decision of Hodson, J., in Hodgkins v. Hodgkins, 1950 P 183 at p. 191 : 1950-1 All ER 619 is on the point. Lord Penzance in the case of U. (falsely called J) v. J., (1867) 1 P and D 460 observed, 'to pronounce a marriage invalid on the unsupported oath of the party who seeks to be relieved from its obligations is a serious matter, within the province of the Court, no doubt, but only to be done when the last trace of reasonable doubt as to truth and bona fides of the case has been removed.'
The judgment was referred to with approval by Lord Birkenhead in the case of C (otherwise II) v. C, 1921 P 399 at p. 403 which is interesting, because it established that a man may be impotent as regards one woman although he may not be impotent as regards another.
10. Lastly in determining what constitutes cruelty, regard must be had to the circumstances of each particular case, to judge every act in relation to its attendant circumstances and the whole facts and atmosphere disclosed in the proof should be examined. Here you have a wife who has chosen to remain with her husband for about 7 years following the alleged acts of cruelty towards her, and it may be argued as Denning, L. J., puts it in the case of Llewellyn v. Llewellyn, 1955-2 Ali EH 110 (112) that the wife cannot all the while hold the past over his head, ready to strike with a divorce whenever it suits her and she cannot play fast and loose with marriage in that way. In the case of cruelty we look more anxiously for corroboration though we can act without it. In the instant case the petitioner has her sister and sister's husband to corroborate on the point but neither of them was examined. The learned Court below has not applied its mind to these aspects. Indian law as to voidability of marriage on ground of impotency being not different from English law the beaten track of some of the English decisions has been referred to here, though I do not wholly agree with the observation that it is difficult to head too faithfully in footsteps so wisely placed.
11. The judgment of the Court below seems to me to leave the case of the husband in a very unsatisfactory state. There are no findings as to whether the impotency continued upto the date of the presentation of the application and whether the same is permanent and incurable which finding is essential; for sound public policy would not permit an extension of the rule to a case where the defect is curable. There is no finding, in spite of the evidence, that the husband was unable to consummate the marriage. There is no finding of desertion, though there is a mere finding of cruelty. The learned Judge failed to consider that the wife has chosen to remain with her husband for about 7 years following the alleged acts of cruelty towards her as noticed above. It will not be proper for me to act on the general allegations of cruelty as they are not supported by specific instances coupled with time and place. The learn-ed Judge failed to notice the age of the wife on the date of marriage being 12 years, when she alleges to have found impotency of her husband. The learned Judge has not applied the test of caution on the evidence given by the pursuer in such cases. The petitioner lived with her husband until she says he drove her, If the petitioner was as she alleges, made cognizant of her husband's impotency immediately after the marriage, the Court below should have considered whether she could delay this proceeding for about 8 years without being open to the charge of want of promptitude. It would be no answer for the petitioner that she might not have known that such a suit as this could be entertained. Then the requirement of promptitude could never be enforced by-Court if it was just necessary to prove the existence of such knowledge. The teamed Judge also tailed to consider that she is unfortunately the mother of a child, of which her nominal husband is not the father and the status of the child was not a subject of care and consideration to her. If the marriage is declared to be a nullity, the learned Judge should have taken into consideration as to whether there is a possibility, if he is single, of her marrying the father of the child. The learned Judge should have considered whether the wife's behaviour is consistent with her story or whether the Court can recognise favourable feature in the wife's conduct. The Judge should have done well to remember that the happiness, respectability and credit of both the lives might depend upon the husband having an opportunity of proof of his potency. I am not unmindful of the fact that the wife's allegations if true are not trivial incidents which are only the ordinary wear and tear and give and take of married life. But the learned Judge has not directed himself to the several aspects discussed above and had also not considered whether the wife was merely holding her hand until it was convenient for her to strike at her husband. (12) I cannot therefore hesitate to say that the conclusion of the Court below on the evidence can never go to the length of holding that the respondent was incapable of performing a husband's duty and the marriage should be declared a nullity.
13. That being so, I think, and Justice requires that there should be a fresh trial where the matters can be gone into more fully and some further evidence, perhaps, either of live witnesses or of documents can be called to substantiate what the wife has said, other than the rather slender evidence which she has given. I must hold that there has not been that full investigation of the case, which the gravity of the result to the parties concerned, required. The question whether the condition of the respondent makes the rule of im-potency as explained above applicable will be carefully reconsidered. I may add that there should be a proper medical examination of the person of the respondent. Reference on this point may be made to the following passage in (1820) 2 Hag Con 324 (Supra).
'It has been said that the modes resorted to for proof on these occasions are offensive to natual modesty: but nature has provided no other means and we must be under the necessity of saying that all relief shall be denied or of applying the means within our power. The Court must not sacrifice justice to notions of delicacy of its own '
14. I make it clear that if there be an application by the wife for medical examination of the person of the husband and the respondent refuses to submit to such an examination, the Court might draw an unfavourable inference against him and might infer impotency and even permanent-in-capacity.
15. The pronouncement of the sentence of nullity is therefore set aside and the case is remitted back, for proper decision according to law, keeping in view the observations made heretofore and considering an application for amendment of pleadings, if made. There will be no order for costs.
16. I agree.
A.C. Sen, J.
17. I agree.