Kola Emmanuel vs Nallipogu Sunanda on 23 February, 1998

    Kola Emmanuel vs Nallipogu Sunanda on 23/2/1998

ORDER

   B. Subhashan Reddy, J.

   1. This Referred Case, arising out of O.P.No. 151 of 1994 on the file of the
District Judge, Ongole, filed under Section 18 of the Indian Divorce Act, 1869,
came up for confirmation of the decree of nullity by this Court under Section 17
thereof.

   2, We refer to the parties as arrayed before the court-below. The petitioner
is the husband and the respondent is his wife. They are Christians and their
marriage was solemnised on 20-10-1993. It is the case of the petitioner that
respondent had left him on 22-11-1993 and did not return thereafter. The
petitioner has sought the annulment of his marriage with respondent on the
ground that the respondent was impotent and that even though he had tried
several times to consummate the marriage, the same could not be done, for the
reason of impotency of the respondent.

   3. In response to the notice on the petition for annulment of the marriage,
the respondent had appeared through her Counsel, but thereafter remained
exports. The petitioner was examined as PW1 and his evidence was accepted by the
court-below and a decree of nullity of marriage was granted holding that the
respondent was impotent within the meaning of Section 19(1) of Indian Divorce
Act, and the matter has been referred to this court for confirmation. Before
this Court too, the respondent-wife has chosen to remain ex parts.

   4. When the case came-up before the previous Full Bench, a question was
framed as to "whether the word 'impotency' can be referred to woman and what
degree of proof it requires?"

   5. The word 'impotence' is not related to a particular gender like male only.
It relates to either gender. The criterion is the practical impossibility of
consummation of marriage on account of impotency of either the husband or the
wife. Incapability of couplation on the part of either of the spouses either due
to structural defects in the organs of generation or due to some other cause
resulting in non-consummation of marriage is impotence and the said word is
equally applicable to both husband and wife, It should not be misunderstood with
the word'sterility'. There were several decided cases, in which the husbands
were petitioners, alleging impotence on the part of their wives and we need not
refer to plethora of precedents. Suffice it to refer to the case decide by the
Supreme Court in Digvijay Singh v. Pratap Umari, , wherein it was held:

     "A party is impotent if his or her mental or physical condition makes
consummation of the marriage a practical impossibility. The condition must be
one, according to the statute, which existed at the time of the marriage and
continued to be so until the institution of the proceedings. In order to entitle
the appellant to obtain a decree of nullity, as prayed for by him, he will have
to establish that his wife, the respondent, was impotent at the time of the
marriage and continued to be so until the institution of the proceedings."

   6. With regard to degree of proof, it is, no doubt, true that in a case of
this nature, the Court should adopt caution to see as to whether there is
sufficient material to declare the marriage a nullity on the ground of impotency
of the respondent. We do not sec any undue advantage taken by the petitioner-
husband merely because the respondent remained ex parte. In fact, the respondent
had engaged the advocate who had filed vakalat, but, thereafter because of no
further instructions from the respondent, the respondent was set ex parte. In
case of this nature, the best witness to speak about impotency is the spouse and
the petitioner was examined as PW1 and he stated categorically with regard to
his endeavour to have sexual intercourse with the respondent and the
respondent's resistance of his acts and ultimately leaving the matrimonial home
on 22-11-1993. For a period well over a month, inspite of the petitioner's
readiness and persuasion to have coitus with the respondent, the respondent had
not shown any inclination to have the coitus and in fact, had shown aversion to
the same and the only conclusion can be that she was incapable of couplation
which resulted in non-consummation of marriage which is a sufficient ground
under Section 19(1) of the Act to declare the marriage a nullity. The degree of
proof which lay on the petitioner has been satisfactorily discharged.

   7. In view of what is stated above, we order:

     (1) that the word 'impotency' can be attributed to both husband and wife;
and

     (2) that the decree of nullity of marriage in favour of the petitioner as
proposed by the Court of the District Judge, Ongole is confirmed.

   8. Referred Case is accordingly allowed.