(1.) THOUGH the petition for declaration of nullity was contested before the learned District Judge by the respondent there was no appearance for him in this Court. The appellant has filed C. M. P. 1055 of 1967 in the appeal for alimony pending the proceedings. The respondent has entered appearance in that petition and filed his objection. His learned counsel submitted before us at the time of the hearing of the appeal that he has no instructions to appear in the appeal and he has been instructed only to oppose the petition for alimony. The notice of appeal has been served on the respondent. It was agreed to by both counsel appearing in the petition for alimony that the petition need be disposed of only after the disposal of the appeal. We are not therefore considering the application now but we proceed to dispose of the appeal on the merits.
(2.) THE parties to the proceedings are Syrian Christians and they were married on 2 41964 at St. Thomas Jacobite Syrian Church at Kakkanad very near Ernakulam. At the time of the marriage the respondent had been selected for the AH India Telegraph Engineering Service and was undergoing training at Bombay as Assistant Divisional Engineer. An outline of the married life of the parties can be stated thus. On the same date on which the marriage took place the appellant and the respondent were taken by the respondent's parents to their residence at Trivandrum where the parties stayed till 5-4-1964. On the evening of 5 41964 the parents of the appellant took her and the respondent to Thrikkakara where they stayed till 9 41964. On that date the parties went back to Trivandrum where they stayed with the parents of the respondent till 29 41964. THE respondent had to return to duty at Bombay early in May 1964. THE parties along with the mother of the respondent proceeded to Bangalore on 151964. THE appellant and the respondent stayed in the Inspection Bungalow of the indian Posts and Telegraphs Department at Bangalore till 7-5-1964 , white the respondent's mother stayed at the Y. W. C. A. in Bangalore. On 7 51964, the respondent proceeded to Bombay to rejoin duty while the appellant along with the mother of the respondent returned to Trivandrum. In June 1964 the appellant was admitted in the second year of the B. A. degree class in the University Women's College, Trivandrum. During her studies there the appellant stayed with the parents of the respondent in Trivandrum. It is agreed that subsequent to the return of the appellant from Bangalore the appellant and the respondent never stayed together. On 6 81964 the appellant discontinued her studies at Trivandrum and returned to her parents at thrikkakara. From there she proceeded to Bombay with her mother and brother and met the respondent on 12 81964 at the flat where he was staying. It is admitted that the appellant was immediately sent back and she never stayed with the respondent at Bombay.
It is thus seen that after the marriage the appellant and the respondent stayed together for a period of 34 days. The parties are agreed that there was no consummation of the marriage during that period. In paragraphs of the written statement the respondent stated thus: "but that it (marriage) has not been'consummated' is admitted. But the non-consummation was not for the reason alleged in the petition, but for the reasons and circumstances stated in para 7 below. " It will be useful to give the reason for the non-consummation of the marriage in the words of the respondent himself and we are therefore extracting the reason as stated in Para. 7 (a) of his written statement. "in view, however, of the long and continuous and intense intellectual strain that he had sustained, and was still working under, with the object of gaining outstanding distinction in the special training and probationary service as well, and with a view to prepare and equip his prow posed life-partner also in a manner befitting the high objectives and hopes entertained for their future sphere of life and occupations, it was deliberately agreed between the parties, that until the respondent completed his special training and probation and comfortably settled down, and the petitioner completed her graduate course from the beginning of the academic year 1964. " The agreement is denied by the appellant.
Though there is no proper discussion or clear finding in the judgment under appeal on the agreement set up by the respondent as a reason for the non-consummation of the marriage the learned trial judge would seem to hold that 'the abstention of the respondent from sexual intercourse with the appellant was rather the result of the decision than any physical incapacity or allergy towards the petitioner. ' We are not satisfied with the inference drawn by the District Judge. Not only there is no evidence to prove the agreement pleaded by the respondent but it seems to us that the agreement pleaded is highly improbable. It has not been contended by the respondent that this marriage was forced on him by his. parents. The respondent was at the time of the marriage a member of the All India Telegraph Engineering Service and holding a responsible position. The marriage must have taken place only with his complete consent and full concurrence. The details relating to the agreement namely the time and place when it was entered into are not given in the written statement. The correspondence between the parties evidenced by Exts d1, P3, P4, D2, D6 and D8 prove positively that the agreement pleaded by the respondent cannot be true. The respondent has not examined himself to speak to the agreement. On the other hand, the appellant as pw. 3 has denied the same in her evidence. There is no counter evidence. We have therefore no hesitation in holding that the agreement set up by the respondent is not proved.
(3.) UNDER S. 19 (1) of the Divorce Act, a decree for nullity of marriage can be made if it is proved that the respondent was impotent at the time of the marriage and at the time of the presentation of the petition. The question to be decided is whether the abstention on the part of the respondent to consummate bis marriage with the appellant was due to his impotency at the time of the marriage and at the time of the filing of the petition. It is agreed that in order to constitute the marriage bond between two persons, "there must be the power, present or to come, of sexual intercourse". The term "impotency" has been understood by English Judges in matrimonial cases as meaning incapacity to consummate the marriage, that is to say, incapacity to have sexual intercourse, which is one of the objects of the marriage. Dr. Lushington in D-E. v. A-G. (1845) 163 ER. 1039 dealt with the meaning of the term "sexual intercourse", thus: "sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect intercourse; yet. I cannot go the length of saying that every degree of imperfection would deprive it of its essential character. There must be degrees difficult to deal with; but if so imperfect as scarcely to be natural, i should not hesitate to say that legally speaking, it is no intercourse at all if there be a reasonable probability that the lady can be made capable of a 'vera coupla' of the natural sort of coitus, though without power of conception i cannot pronounce this marriage void. If, on the contrary, she is not and cannot be made capable of more than an incipient, imperfect and unnatural coitus, I would pronounce the marriage void. " The rule laid down by Dr. Lushington was followed in G. v. G. (1871) L. R. 2 P. & D. 287. In that case, the husband prayed for a declaration of nullity of marriage because of the wife's peculiar hysterical condition which made it impossible for the husband to consummate the marriage. It was held that even in the absence of any structural defect, a declaration of nullity could be made if there are circumstances present which render sexual intercourse impossible. Lord Penzance observed: "the invalidity of the marriage, if it cannot be consummated on account of some structural difficulty, is undoubted; but the basis of the interference of the Court is not the structural defect, but the impracticability of consummation If, therefore, a case presents itself involving the impracticability (although it may not arise from a structural defect) the reason for the interference of the Court arises. The impossibility must be practical. It cannot be necessary to shew that the woman is so formed that connection is physically impossible if it can be shewn that it is possible only under conditions to which the husband would not be justified in resorting. The absence of a physical structural defect cannot be sufficient to render a marriage valid if it be shewn that connection is practically impossible, or even if it be shewn that it is only practicable after a remedy has been applied which the husband cannot enforce, and which the wife, whether wilfully or acting under the influence of hysteria, is determined not to submit to. The question is a practical one, and I cannot help asking myself what is the husband to do in the event of his being obliged to return to cohabitation in order to effect the consummation of the marriage? Is he by mere brute force to oblige his wife to submit to connection? Every one must reject such an idea. " The dictum laid down in D E v. A G (1845) 163 ER. 1039 was again followed in Dickinson v. Dickinson, LR. 1913 P. 198, even though in that case the impossibility to perform the intercourse was inferred on account of a wilful and persistent refusal on the part of the wife to allow any marital intercourse. According to the books on the subject there can be sexual impotency in general or impotency with regard to a particular spouse described as impotency quoad hune or quoad hanc. The burden is no doubt on the appellant to prove affirmatively and to the satisfaction of the court that the non consummation is due to incapacity or wilful neglect to consummate on the part of the respondent. The court will have to be satisfied beyond reasonable doubt that the husband was impotent at the time of the marriage and has been therefore incapable of consummating it. We have already found that the agreement alleged by the respondent as the reason for non-consummation of the marriage has not been proved. In Rayden on Divorce, 9th Edition, page 114, para. 66, it was observed: Before the Matrimonial Causes Act, 1937, wilful wrongful refusal of sexual intercourse was not in itself sufficient to justify the Court in declaring a marriage to be null on the ground of impotence; but the view has been taken that where a woman is shown not to have had intercourse with her husband after a reasonable time for consummation of the marriage, and it appears that she has refused intercourse and resisted her husband's attempts, the Court if satisfied that the refusal was not due to mere obstinacy or caprice, may draw the inference that it arose from some incapacity proceeding from nervousness or hysteria, or from an invincible repugnance to the act of consummation, resulting in a paralysis of the will which was consistent only with incapacity. The inference of incapacity is readily drawn when a man refuses to attempt, or abstains from attempting, to consummate the marriage. (The underline is ours ). In G. v. G. (1924) A. C. 309 where wife resisted frequent attempts by the husband over a protracted period to consummate the marriage, and continued that resistance after she had formally consented to perform her conjugal duty, it was held that the refusal was due to an invincible repugnance to the act of consummation consistent only with incapacity. In Aversely on domestic Relations, 6th edition, page 25, the learned author made the following observation: "where there has been persistent refusal to consummate a marriage on the part of one of the spouses (who also refuses to obey an order for medical inspection) while the other spouse has been desirous that there should be consummation, the court will assume the existence of some lament impediment amounting to incapacity. "
It is in the light of the principles above stated that the evidence adduced in the case before us has to be appreciated. The evidence on this aspect consists only of pw. 3. The respondent did not get himself examined in the proceedings. The examination of the appellant was completed on 26-7-1966 and the case was posted to 20-8-1966 for the examination of the respondent. The respondent moved for adjournment which was granted on terms and the case stood posted again for his examination on 13-9-1966. At the instance of the respondent the case was further adjourned to 28-10-1966 on which date his advocate filed a memo that the respondent need not be examined. The respondent also did not adduce any evidence.;