Srinivasan, J. - (1.) THE wife has sought for declaration that the marriage is null and void on the ground that the husband was impotent. THE marriage took place on 27.12.1993. THE wife was living with him for some time. According to her, there was no sexual intercourse during that period, she wanted the husband to go to a Doctor, but he refused to consult a Doctor. THEre was separation between the spouses and attempts at mediation failed. THEn there was a representation in the All Women Police Station at Tuticorin. At their instance, there was a re-union between the parties. THEreafter again, they got separated as there was no intercourse.
(2.) THE wife has given evidence as P.W.I repeating the averments made in the Original Petition. In the evidence she has stated that she did not want to live with her husband even though the Legal Aid Committee advised herself and her husband to live together. THEreafter, according to her, the All Women Police Station advised them to live together and she went and lived with her husband for some time. As there was no consummation, she got separated. It is significant to note that according to her deposition, her husband refused to consult a Doctor before the parties are advised by the Legal Aid Committee or the All Women Police Station to live together. A notice was issued by the husband to the wife on 1.9.1994, calling upon her to join him. She sent a reply on 7.9.1994, alleging that he demanded exorbitant dowry and she was not willing to live with him. She had made other allegations also, but she had not made any allegation that he was impotent or that there is no consummation of the marriage at any time. Thereafter, she sent a notice on 19.9.1994 under Ex.P-5, alleging for the first time impotency on the part of the husband. That notice was replied by the husband on 15.11.1994 under Ex.P-3, in which he denied her allegations. Then the wife filed the petition for divorce. She has examined herself as a witness on her side. She had marked the marriage invitation, the copy of the Register of marriage of the petitioner and the notice and reply notice. Apart from that, there is absolutely no evidence on her side to prove that the husband was impotent. The learned Judge after making a reference to the various notices, observed that the conduct of the wife would throw some doubt on the impotency of the respondent as she had admitted that she was living with him for one or two months after the marriage and even thereafter, after compromise. In spite of having made that observation, the learned Judge held that an inference has to be drawn that the husband was impotent in view of the fact that the husband had not entered the witness box and denied the allegation of impotency. It was the only ground on which the learned Judge has upheld the claim of the wife and granted a decree as prayed for by her. The judgment of the learned Judge is clearly erroneous and unsustainable. It has been repeatedly held by this Court that impotency has to be proved to the satisfaction of the court and merely because the opposite party remains ex parte, the court cannot take it for granted that impotency is proved.
(3.) IN Jean Emeline Thavamani v. Joseph Taylor, (1966)1 M.L.J. 8: A.I.R. 1966 Mad. 155: I.L.R. (1966)1 Mad. 360(F.B.), the FullBench of this Court said that 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. The court said that where there is no medical inspection and none but the parties testify, the court 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. The court also cautioned that there is a possibility of collusion and at times when there is an apparent contest, collusion may prevent a vigorous and bona fide defence. In Jayaraj Antony v. Mari Seeniammal, (1967)1 M.L.J. 152: A.I.R. 1967 Mad. 242 (F.B.), the Full Bench said that impotency as defined as incapacity to consummate marriage,which may be physical or psychological and when impotence is alleged as ground evidence will certainly be necessary, particularly, in the form of expert medical testimony. In the circumstances of the case, we are of the opinion that the evidence adduced in this case is not sufficient to hold that the husband was impotent both at the time of marriage and at the time of filing the proceedings. ;