Rama Natrajan v. Alexander Xavier Nathan — 1999 DIGILAW 246 (MAD)

Judgment :- The Order of the Court was as follows : The petitioner/wife has filed this petition under Sections 18 and 19 of the Indian Divorce Act, 1869, for declaration that the marriage between the petitioner and the respondent solemnized on 8-10-1986 is null and void. 2. The main averments found in the petition are as follows : The petitioner Rama Natarajan alias Rama Alexander Xavier Nathan was married to the respondent Alexander Xavier Nathan on 8-10-1986 as per the Roman Catholic rites after converting herself as a Catholic and embracing the Catholic faith from Hinduism. After the marriage, the petitioner realised that the respondent was not compatible in his behaviour towards her. Due to certain mental and psychological trauma which frustrated her relationship with him more so because of relative impotency towards the petitioner. The petitioner thought that the physical and psychological debilities found in the respondent would be rectified by love and affection and medical aid. But the obstinate attitude of the respondent frustrated the efforts made by the petitioner to get-out of the psychological condition. On many occasions the petitioner had drawn the respondent into the mood of having sex with her, but even though the respondent would be initially willing but at the crucial stage the respondent would avoid having an intercourse with the petitioner and reveal in things that seldom pleased the petitioner physically. This behaviour of respondent continued for 11 years. But notwithstanding such impotency and lack of vaginal penetration, due to the vaginal contact the respondent did have with the petitioner, the petitioner somehow became pregnant and gave birth to a female child on 18-10-1987. The respondent failed to get proper erection and could never perform sexual intercourse to consummate the marriage thereof. The petitioner after having patiently waited for some remedial measure, finding that there is no solution to the psychological trauma, the respondent was suffering from, and since there was no hope for petitioner to get the fundamental pleasure from the respondent, from and out of her marriage with him finally compelled to live away from the respondent for the past two years. The petitioner issued a notice dated 18-10-1996 for the nullity of the marriage on the ground that the respondent is impotent and he is unable to consummate the marriage. The petitioner issued a notice dated 18-10-1996 for the nullity of the marriage on the ground that the respondent is impotent and he is unable to consummate the marriage. The respondent received the notice on 31-10-98 and till date there has not been any response to the same thereby acquiescing the statements made regarding the relative impotency and non-consummation of the marriage with him. There is no collusion or connivance between the petitioner and the respondent in filing this petition. Hence the petition. 3. The respondent was served through Court on 24-6-1998 and in spite of service the respondent has failed to appear before this Court. After giving some opportunities, finally he was set ex parte on 10-9-1998. 4. The petitioner was examined as P.W. 1 and Exs. P.1 to P.3 were marked through her. Ex. P.1 is the marriage Certificate issued by Parish Priest of Ascension Church, Madras-29. Ex. P.2 is the notice dated 28-1-1988 issued by the petitioner to the respondent through her Advocate. Ex.P.3 is the acknowledgment of the respondent for having received the notice. 5. This petition is filed by the petitioner under Sections 18 and 19 of the Indian Divorce Act, 1989, for declaring the marriage held on 8-10-1986 between the petitioner and the respondent as 'null and void', on the ground of "impotency" of the respondent. The parties are Indian Christians. The main averments found in the petition regarding the impotency of the respondent was that the respondent has physical psychological debilities, that whenever the petitioner was in a mood of having sex, initially the respondent would be willing but at the crucial stage the respondent would avoid having intercourse with the petitioner which seldom pleased the petitioner physically. It was averred further that notwithstanding such impotency on lack of vaginal penetration due to vaginal contact the respondent did have with the petitioner, somehow she became pregnant and gave birth to a female child on 18-10-1987. The petitioner after having patiently waited for 11 years, expecting some remedial measure and finding that there is no solution to the psychological trauma the respondent is suffering from and since there was no hope for petitioner to get the fundamental pleasure from the respondent from out of her marriage with him, has finally compelled her to live away from the respondent for the past two years and thereafter she has filed this petition. Section 18 of the Indian Divorce Act deals with petition for decree of nullity; and Section 19 deals with grounds of decree. Sub-clause (1) of Section 19 says- "that the respondent was impotent at the time of marriage and at the time of the institution of the suit." The petitioner has filed this petition under sub-clause (1) of Section 19 of the Indian Divorce Act, 1869. A Full Bench of this Court in (Kanthy Balavendram v. Harry) 1954 AIR(Mad) 316 held (at page 317)- "Impotency has been understood by Judges in England in matrimonial cases as meaning incapacity to consummate the marriage, that is to say, incapacity to have sexual intercourse, which undeniably is one of the objects of marriage. The question is, what does "sexual intercourse" mean? . . . . . . . . . . . . Dr. Lushington stated : "Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse; it does not mean partial and imperfect inter-course : yet, I cannot go to the length of saying that every degree of imperfection would deprived 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." In - 'G.V.G.', (1871) LR 2 P and D 287 (B), the rule laid down by Dr. Lushington was followed . . . . . . . . . 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." In - 'G.V.G.', (1871) LR 2 P and D 287 (B), the rule laid down by Dr. Lushington was followed . . . . . . . . . Lord Penzance in dealing with the case, after laying down the law that the ground of interference of the Courts in cases of impotence is the practical impossibility of consummation said : "The invalidity of the marriage, it if cannot be consummated, on account of some structural difficulty, is undoubted; but the basis of the interference of the Court is not the structural difficulty but the impracticability of consummation." This Court in T. Rangaswami v. T. Aravin-dammal, 1957 AIR(Mad) 243 held- "A marriage will be avoided or dissolved on the ground of impotence on the petition of either party if it is proved that at the time of the marriage one of the parties is and continues to be incapable of effecting or permitting its consummation either of some structural defect in the organs of generation which is incurable and renders complete sexual intercourse impracticable or of some incurable mental or moral disability resulting in the man inability to consummate the marriage with the particular woman or in the woman to an invincible repugnance to the act of consummation with the particular man." A Division Bench of the Andhra Pradesh High Court in Gudivada Venkateswararao v. Gudivada Nagamani, held (at page 152) :- "Marriage would be avoided or dissolved on the ground of impotence if it is established that at the time of the marriage either of the spouses was incapable of effecting the consummation either due to structural defect in the organs of generation rendering complete sexual intercourse impracticable or due to some other cause. "Potence" in case of males means power of erection of the male organ plus discharge of healthy semen containing living spermatozoa and in the case of females menses. In order to consummate marriage, ordinary and complete sexual intercourse must take place." Their Lordships of the Supreme Court in Yuvraj Digvijay Singh v. Yuvrani Pratab Kumari, at page 138 held- "A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. In order to consummate marriage, ordinary and complete sexual intercourse must take place." Their Lordships of the Supreme Court in Yuvraj Digvijay Singh v. Yuvrani Pratab Kumari, at page 138 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". A Full Bench of the Andhra Pradesh High Court in Kola Emmanuel v. Nallipogu Sunanda, 1998 (2) DMC 233 : 1998 AIHC 2296) held (at page 2297; of AIHC) :- "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 copulation 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". From these decisions it is clear impotency means incapacity to consummate the marriage. "Sexual intercourse" means an ordinary and complete intercourse and it does not mean partial or imperfect intercourse. # The incapacity to consummate the marriage may be mental or physical condition of either spouse and as required under the statute, such condition existed at the time of the marriage and continued to be so until the institution of the proceedings. The petitioner herein was married to the respondent eleven years back and from what is stated in the petition as well as in the evidence of the petitioner, would go to show that the respondent had incapacity in his physical condition to have ordinary or complete intercourse. She has not filed any medical certificate to show the impotency of the husband. Neither she has pleaded that the marriage was not consummated. From the pleadings available in the petition, it can be said that though there was sexual contact between the petitioner and the respondent, the petitioner never felt that he has performed ordinary and complete intercourse. The mental and physical satisfaction of the petitioner may be a reason for making the ground of impotency against the respondent. From the pleadings available in the petition, it can be said that though there was sexual contact between the petitioner and the respondent, the petitioner never felt that he has performed ordinary and complete intercourse. The mental and physical satisfaction of the petitioner may be a reason for making the ground of impotency against the respondent. However, law does not say that it is the wife's mental or physical dissatisfaction which decides the impotency of the husband. As far as the sexual relationship between the wife and the husband is concerned, the wife or the husband can vouch the impotency of the other. In T. Rangaswami v. T. Aravindammal, 1957 AIR(Mad) 243 (stated supra) this Court held- "To prove impotency there is no minimum standard of proof necessary. Even uncorroborated testimony of the petitioner is sufficient if it can be believed. In case of this nature, corroboration can only be obtained from the evidence of the other party to the marriage. Under S. 120, Evidence Act, the other party to the marriage is a competent witness. Also the conduct of the parties subsequent to the marriage would be important. It may be established by medical examination of the parties." Generally, the wife is the best witness to speak about the impotency of the husband. However, the uncorroborated testimony of the wife will be sufficient only if it can be believed. The conduct of the parties subsequent to the marriage would be important to decide the question of impotency. In (Petit v. Petit) (1963) Law Reports 177 English Court of Appeal while dismissing the appeal filed by an impotent husband, held that in a petition for nullity by an impotent spouse, the whole of the circumstances, including the respondent's attitude the reaction to the situation created by the impotence of the petitioner, must be looked at in order to see whether it would be just or unjust that the impotent spouse should not obtain in a decree. In the said case the trial Court dismissed the petition and the appellate Court also dismissed the appeal on the ground that the petitioner/husband and the respondent/wife have cohabited together and the petitioner has enjoyed the services and companionship of the respondent for over 20 years and the petitioner was father of the child; the petitioner, the respondent and the said child of the family have lived together as one family from 1946 to 1959 and the petitioner has enjoyed the income of his wife and in such circumstances the Court held that it would unfair, unequitable and unjust to grant the husband the decree. In the instant case also the petitioner/wife and the respondent/husband lived together for 11 years and the petitioner never made any allegation that there was any circumstance to show ill-feelings or incompatibility to live together as stated in Rangaswami v. T. Aravindammal, 1957 AIR(Mad) 243. # No corroboration is necessary for the testimony of the wife or the husband as far as their evidence is concerned and if the same is sufficient it can be believed. In the instant case there is no evidence sufficient enough to show that the respondent was having any incapacity to have sexual intercourse with his wife. Apart from the petitioner, there is no other evidence to show that the husband was impotent. There is no evidence regarding the conduct of the parties subsequent to the marriage. The petitioner never alleged that due to the impotency of the husband they had misunderstanding, or quarrel between them. The petitioner has deserted the respondent on the ground of sexual dissatisfaction. If really that the husband had any such physical incapacity to have ordinary and complete sexual intercourse with the wife, she would have taken steps to file a petition earlier. There is no limitation to file this petition, however, the delay of long number of years in filing the petition and the absence of any misunderstanding or ill-felling between them during the period they lived together, would go to show that the petitioner's evidence cannot be accepted. When the reasons followed in (Petit v. Petit) are considered, it would be unfair, inequitable and unjust to grant the decree as prayed for by the wife. When the reasons followed in (Petit v. Petit) are considered, it would be unfair, inequitable and unjust to grant the decree as prayed for by the wife. The Punjab and Haryana High Court in Chanchal Kumari v. Kewal Krishnan, 1972 AIR(P&H) 474 at page 476 held- "Having regard to the meaning of expression 'consummation' it would be proper to conclude that property in the case of males would mean the power of erection of the male organ and its full penetration and that the discharge of semen in the wife's body was not necessary for a complete coitus." As already stated the evidence on record is quite insufficient to hold that the marriage between the petitioner and the respondent was not consummated. The evidence of the petitioner in the circumstances of the case cannot be accepted to say that there was no ordinary and complete intercourse. # The requirement of law that the impotency was present on the date of marriage and the same has been subsisted till the date of petition, is also not proved by the petitioner. There is no medical certificate or any proof on medical ground to show that the husband was impotent. In these circumstances, even though no corroboration is necessary to wife's testimony, however, it will be sufficient if it can be believed, the reasons shown herein would make us not to believe the wife's evidence regarding consummation of marriage. In Rita Nijhawan v. Balkishan Nijhawan, 1973 AIR(Delhi) 200, a Division Bench of the Delhi High Court held- "It has to be positively proved that the respondent was impotent at all material times i.e. right from the time of the marriage till the institution of the petition. This requirement is so strict that even if it could be shown that the marriage was consummated just once during this period a decree of nullity cannot be granted. The burden of proving that the respondent was impotent at all material times is on the petitioner." 6. It was argued on the side of the petitioner that a daughter was born to the petitioner on 18-10-1987 during the subsistence of the marriage between her and the respondent. She has explained it stating that notwithstanding such impotency and lack of vaginal penetration, due to vaginal contact, the respondent did have with the petitioner, she somehow became pregnant and gave birth to female child. She has explained it stating that notwithstanding such impotency and lack of vaginal penetration, due to vaginal contact, the respondent did have with the petitioner, she somehow became pregnant and gave birth to female child. The Special Bench of Delhi High Court in Manjula v. Suresh, 1979 AIR(Delhi) 93 at page 96 held- "The evidence shows that the semen might have encountered the vagina of the woman and caused a pregnancy without penetration or ordinary intercourse as it is properly understood. The birth of the child was due to an accidental freak of fecundation ab extra during an abortive attempt to consummate." Even if we leave the birth of child, as a reason to show the potency of the respondent, as already stated and also for the reasons stated by the Delhi High Court in the case of Rita Nijhawan v. Balkishan the fact which are exactly similar to the case on hand and so the allegation of the petitioner that the respondent is impotent, cannot be accepted. 7. The respondent remained ex parte and that will not be a ground to grant divorce to the wife on the ground of 'impotency' of the respondent/husband. What is required under law is that the petitioner who has come forward on a solid ground of "impotency" of the husband should prove the same in order to get a decree as prayed for her. The foregoing reasons would go to show that a decree cannot be granted in favour of the petitioner/wife as prayed for. In the result, O.M.S. No. 21 of 1998 is dismissed. No costs. Petition dismissed.