Decided on January 06,1970



- (1.) THE wife at her instance, on ground of impotency of her husband, has been granted a decree for divorce subject to confirmation by this Court. They were married in May 1959 in the Church of South India at Kovaikulam in Nanguneri taluk. She averred that on the night of the marriage and on several subsequent occasions, there was attempt at sexual intercourse, but because of the impotency of her husband they could not have it. The husband filed a written statement denying impotency. It appears that he instituted a suit for restitution of conjugal rights, which he did not pursue. He did not appear in court; nor in spite of requisition therefor would he submit himself to medical examination. The wife gave evidence to the effect that her husband was unable to have sexual intercourse with her and that this fact she had also mentioned to a co-teacher who gave evidence in court. The District Judge accepted the evidence of the wife and her co-teacher. He was also inclined to draw an adverse inference from the unwillingness or refusal of the husband to submit himself to medical examination.
(2.) WE have anxiously considered the question whether it is safe to confirm the decree in the absence of medical examination of the husband. Like the District judge we are however satisfied that in the circumstances of this case, there was no room for collusion. That this is so appears from the fact that the husband himself filed a suit for restitution of conjugal rights and in the present proceedings in the written statement he denied his impotency. What is more, he also resisted and refused to have medical examination. In Pratima Routh v. Hirday Ranjan routh, (FB) the court was inclined in similar circumstances to draw an adverse inference against the husband. The English Matrimonial Causes rules 1957, by Rule 24, specifically provides for medical examination. But so far as the provisions of our Act are concerned, no such specific provision has been made. Even assuming without deciding that this court can in proper cases compel medical examination, in the case on hand we are satisfied that that course is unnecessary. As Rayden on Divorce, 9th, Edn. , page 117, points out, where the husband or wife refuses to submit for medical inspection, the court may nevertheless grant a decree. The wife has given clear evidence and it does not appear to us that she did so as a result of collusion. There is no reason to disbelieve her. Her story appears to be natural and earnest. If the husband was really not impotent, there is no reason why he should have refused to subject himself to medical examination, particularly after his categorical denial in the written statement of impotency. We are satisfied that the wife is entitled to the decree for divorce. The decree is confirmed. Reference accepted.;

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