ROSALINE RAJAN Vs. S M JOSEPH XAVIER LOURDARAJAN

JUDGEMENT

(1.) This appeal by the wife is directed against the order of annulment of marriage in a suit filed by the respondent (husband) on the ground that the wife is psychologically impotent and that the marriage was not consummated. The respondent husband stated in his petition that he married the appellant on 24-11-1976, but that the marriage has not been consummated on account of the wife's aversion towards sex. The appellant wife denied the same and contended that the marriage was consummated, that she lived with her husband for a very short period at Madras and that they are living apart on account of the fact that she is employed at Thanjavur and the husband at Madras. In particular, she denied the psychological impotency attributed to her.

(2.) The learned Judge has considered the evidence, oral and documentary, and found that, from the circumstantial evidence and the correspondence, the marriage could not have been consummated and that the appellant wife is averse to sexual life with the respondent husband, and consequently, annulled the marriage. Hence this appeal.

(3.) Under S. 19(1) of the Indian Divorce Act, under which the suit was filed by the husband, a decree for nullity can be passed on the ground that the other party was impotent both at the time of marriage and at the time of the institution of the suit. It its legal sense, impotency is an incapacity to consummate marriage and it may be physical or psychological. Therefore, a mental defect which precludes the consummation of marriage is as much a ground for annulment as a physical shortcoming. The mere absence of a physical or anatomical defect is not sufficient to render a marriage binding, and if it can be shown that sexual life is almost impossible to some mental apathy which is likely to be permanent, this court has to annul the marriage. Therefore, in cases like the present one where aversion or mental apathy is pleaded, the court will have to take a practical and a reasonable view of the evidence and free the case from all technical aspects as far as possible. However, it must always be proved that the alleged coldness or repugnance of the spouse existed at the time of the suit. The court has to draw its own inference from the circumstances of each case and on the conduct of parties. Therefore, it is clear that the burden of proof is heavy on the petitioner to prove this condition on the part of the other spouse, and normally, medical evidence is the best evidence in such cases and courts hesitate to pass a decree for nullity on the uncorroborated testimony of the plaintiff. These are the general principles governing S. 19(1) of the Indian Divorce Act and a Full Bench of this court in Jayaraj v. Seeniammal, has also affirmed the view that impotence may be physical or psychological and that the term `impotence' will have to be understood in the proper perspective. The Division Bench also held in the aforesaid case that courts have had no hesitation in declaring a marriage void, for instance, where there was an incurable psychological defect in the wife or for reason of biological immaturity, the marriage could not be consummate, Courts have also accepted the principle that there is such a thing as sexual potency in general, and also impotency with regard to a particular spouse, described in the text books as impotency quod hune.