KANTHY BALAVENDRAM Vs. S HARRY

JUDGEMENT

(1.) This is a petition under Section 18, Indian Divorce Act for a declaration that the marriage between the petitioner and the respondent is null and void. The petitioner is the wife and the respondent the husband. They were married under the Christian Marriage Act, 1872, at Cuddalore on 29-5-1945. The petition was founded on the allegation that the respondent, the husband, was impotent at the time of the marriage and at the time of the institution of the suit. Under Section 19 (1) of the Act, a decree for nullity of marriage can be made on that ground. The petitioner alleged that the respondent's male organ was so abnormally big as to render sexual intercourse with her impracticable, and it proved to be positively dangerous to the life of the petitioner; that on the several occassions when the respondent attempted to have intercourse with her the petitioner evinced great aversion to the act and also suffered great pain on each occasion, with the result that she had to push the respondent away or jump out of bed. She stated that in the above circumstances the marriage was never consummated and that consummation of marriage was impossible. She submitted that it was a case of incurable impotence on behalf of the respondent towards the petitioner and that the marriage should be declared null and void on the ground of impotency. The respondent in his memorandum of objections denied that his male organ was so abnormally big as alleged by the petitioner. He further stated that he had had sexual intercourse with the petitioner on several occasions and that the application was not bona fide. The learned District Judge before whom the petition came on in the first instance directed the respondent to appear before the District Medical Officer, Cuddalore, to submit himself to medical examination, The respondent would not appear before the officer, even though repeated opportunities were given to him. On 16-2-1951, when the petition came on for hearing, though the respondent's vakil was present, the respondent refused to be examined as a witness, nor did he tender any other evidence on his behalf. The petitioner herself gave evidence and deposed to the material facts above referred to relating to the abnormal size of the respondent's organ and the failure of all attempts on his part to consummate the marriage. In the absence of any evidence to the contrary and having regard to the refusal of the respondent to submit to a medical examination, the learned District Judge held that the petitioner had made out her allegation of impotence of the respondent. The learned District Judge did not think that there was any collusion between the parties. He therefore held that the petitioner was entitled to the relief prayed for by her. The matter comes before us under Section 17 of the Act.

(2.) The petitioner was represented by counsel, but the respondent appeared neither in person nor by advocate. As no direct authority on the question in issue was brought to our attention by the learned counsel for the petitioner, we requested Mr. Pais to act as 'amicus curiae' and to assist us in arriving at a decision. Mr. Pais accordingly appeared today, and we are obliged to him for the assistance he gave us by referring us to some of the relevant authorities on the point.

(3.) The question to be decided in this case is whether the respondent can be held to be impotent at the time of the marriage and at the time of the institution of the suit from the facts which emerge from the uncontradicted evidence of the petitioner. If we hold that the respondent was impotent at the time of the marriage, it is obvious that it must follow that he was likewise impotent at the time of the institution of the suit, having regard to the special ground of impotence which she alleged, namely, abnormal size of the organ. We have also the additional circumstance that the respondent refused to submit to a medical examination to substantiate his denial of the petitioner's allegation.