Jayaraj Anthony vs Mary Seeni Ammal on 11 February, 1969

    Jayaraj Anthony vs Mary Seeni Ammal on 11/2/1969

JUDGMENT

   Eamakbishnan, J.

   1. This case came before this Court on an earlier occasion and our decision
has been reported in Jayaraj v. Seeni Animal, . The reference arose out of a
petition under Section 18 of the Indian Divorce Act, by the husband for a
declaration of nullity in respect of the marriage between him and his wife, Mary
Seeniammal, on the substantive ground that the wife declined all access to the
husband subsequent to the marriage and refused to consummate the marriage and
hence must be regarded as impotent both at the time of the marriage and at the
time of the institution of the proceedings. When the matter came before this
Court on the earlier occasion this Court found that sufficient evidence had not
been adduced for the purpose of proof of the alleged impotency, and after
setting out the relevant principles, this Court remanded the matter to the lower
Court for disposal after a fresh evidence.

   2. After the remand, the learned District Judge took a great deal of trouble
to secure the presence of the wife, before him for examination in Court. She
appears to have responded only after a warrant of arrest had been issued, and
then she appeared through counsel and was examined very carefully by the learned
Judge. The following is the gist of her evidence:

     "I am not willing for divorce. (This witness is not answering purposely the
questions put by the Court why she was not giving room to consummate the
marriage and to have sexual intercourse). I do not want to give any answer to
the question why I did not give room to consummate the marriage or to have
sexual intercourse with him. Now I am willing to be with my husband to
consummate and to have sexual intercourse with him. I am not willing to submit
to any medical examination to find out whether I am impotent or whether there is
any defect in my system. (The witness is not answering the question -- 'Why did
you not allow your husband to consummate by having Sexual intercourse?)."

   3. In the typed script of the evidence which we have extracted above there is
a Statement which will indicate that the woman was willing at the time when she
gave evidence to consummate the marriage with her husband and to have sexual
intercourse with him. But the learned Judge in the course of his judgment has
not dealt with this part of the evidence of the woman as a subsequent offer by
her to consummate the marriage and which the husband was bound to accept. He has
viewed the whole evidence as a refusal on the part of the wife to consummate the
marriage and deliberate failure to explain why she failed to consummate the
marriage even though a long time had lapsed since the marriage. She also refused
to submit herself to medical examination to find out whether there was any
inherent defect in her, whether bodily or psychologically, which stood in the
way of consummation or the marriage. Hence, the learned Judge concluded after
carefully studying her attitude that he was constrained to draw the Inference
that the reason why she did not permit her husband to consummate the marriage
for all this long period of time (she is 35 years old) was her impotency both at
the time of the marriage and at the institution of the suit.

   4. Decisions under the corresponding provisions of the English Matrimonial
Act have held that where a woman is shown 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 (vide
Bayden on 'Divorce' 9th Edn. page 114). There is also authority in the standard
English text books on the subject that where the husband or the wife refused to
submit to inspection, the Court may nevertheless grant a decree --Vide Raydon on
'Divorce' 9th Edn. p. 117.

   5. In the present case, we are satisfied that the wife s consistent refusal
to consummate the marriage and also her refusal to submit herself to medical
examination, are strong circumstances from which a legitimate inference of her
impotency at the time of the marriage and also at the time of the institution of
the proceedings against her, within the meaning of Section 19(1) of the Indian
Divorce Act, can be drawn.

   6. At the hearing of this reference, the wife, the respondent was ex parte.
The learned Counsel engaged amicus curiae for the respondent, pleaced a great
deal of reliance upon the statement contained in the record of the deposition of
the wife by the lower Court about her present offer to consummate the marriage.
We are of opinion that this offer cannot be divorced from the rest of her
statement, which clearly amounts to an admission of her having been not in a
position to consummate the marriage both at the time of marriage and also at the
time when the petition was filed. Her refusal to submit herself to medical
examination also appears to us to show that the subsequent offer, if she had
really made such an offer, was not a genuine one. In any case it is inconsistent
with the rest of her evidence, and if it was a genuine offer the learned Judge
would have certainly made a point of this offer and considered it in the context
of his findings.

   7. In the above circumstances, it appears to us that this is a genuine case
where the husband has made out the ground of impotency for claiming relief which
he has sought under Section 18 read with Section 19(1) of the Indian Divorce
Act. We therefore accept the reference and confirm the decree of nullity of
marriage passed by the learned District Judge. There will be no order as to
costs.